Maryland Injury Lawyer Blog

The Michigan Supreme Court issued an order requiring defendants in medical malpractice lawsuits to challenge deficiencies in Plaintiff's attorneys’ notice of intention to sue and certificate of merit within 63 days of service. This rule also applies to challenges of the qualifications or eligibility of the signer. (The court did allow an "except for good cause" which may lead to a lot of litigation over just how much discretion judges will have with respect to what constitutes good cause.) Perhaps more importantly, an amendment to a certificate of merit now relates back to the original date of the filing of the affidavit.

One problem this rule is intended to rectify is when defendants’ malpractice lawyers intentionally sandbag potentially legitimate objections until after limitations passes and then try to get the case kicked for some procedural deficiency. Now, malpractice plaintiffs with procedural deficiencies can amend so that the statute of limitations does not pass. In other words, substance triumphs over silly procedural nonsense. In my world, this is a good thing.

Depressingly, the short AP story on this ruling characterizes the case in partisan terms that would hit an odd cord with any Maryland lawyer unaccustomed to the injection of party affiliation in reports on appellate court rulings:

Republican Elizabeth Weaver joined Democrats Marilyn Kelly, Michael Cavanagh and Diane Hathaway in supporting the change in the order issued Wednesday. Republicans Maura Corrigan, Robert Young and Stephen Markman opposed the change.

I think I could accurately predict how each Maryland Court of Appeals judge voted in the 2008 presidential election. Still, we are blessed in Maryland to be able to largely keep judges’ voter affiliation and raw politics out of appellate decisions. The difference is that Michigan elects their judges which pushes politics to the forefront. The lesson, as always: judicial elections are foolish. (Parenthetically, retired Baltimore County Judge Dana Levitz made a great argument against judicial elections in the last issue of the University of Baltimore Law Forum. I wrote about the insanity of judicial elections four years ago here and last year here.)

One of the dissenting opinions gets incredibly personal in its attack, arguing that two of the judges contradicted their own positions taken in administrative conferences, encouraging interested parties to go back and watch the online video of the conferences. You would never see this in a Maryland appellate court or a Supreme Court opinion. I had no idea of how civil we are in Maryland until I read this opinion.

You have to read the entire opinion. You can find it here.

In the Tennesseean, an emergency room doctor admits to performing unnecessary tests to avoid malpractice lawsuits:

In my personal practice, if I knew that I couldn't be sued except for things that I truly believe I should get sued over, I could eliminate half of my lab tests, two-thirds of my X-rays and 90 percent of my CT scans because all of those tests are done for my protection, not the patient's.

In other words, this doctor admits to ordering tests that can harm and cause risk to a patient - as CT scans and x-rays certainly do - for his own protection to avoid a malpractice lawsuit for which he has insurance.

I'm not sure what is more depressing, the fact that the doctor blithely admits this to a reporter thinking it is an acceptable medical practice to put his own interest ahead of the patient or the fact that there will be no ramifications for this doctor. If a lawyer or an accountant made the same admission - that he/she put their interests first ahead of their clients - the Internet would explode.

Thankfully, the vast majority of doctors put their patients first.

Let's say Barack Obama decides to take a strong position on medical malpractice caps and puts his weight behind a bill to eliminate malpractice and other damage caps in all 50 states.

This would be a huge windfall for our practice. But I would oppose this legislation. Why? Because such a law would be a ridiculous intrusion into the affairs of the States by the federal government. The federal government has no business telling the states they cannot have caps on damages. (I think caps violate state constitutions because they are a legislative intrusion on the separation of powers every state has in its constitution. But that is a different blog post.)

How, then, can tort reform advocates - who are almost to a person far more 'States rights, get government out of our lives" than I will ever be - support this unprecedented intrusion of caps on damages in medical malpractice cases via a health reform bill? It is because most tort reformers have a world view: lawsuits are bad, caps are good. They will push for this goal by all means necessary, including shedding inconvenient authentic core values.

I get at least a call a day from some service or another that generates leads for personal injury claims, mostly accident or pharmaceutical drug product liability claims. They all leave the same message, pretending like they are either referring lawyers or victims themselves without actually saying as much, keeping it as vague as possible while trying to generate enough interest for a callback. The giveaway that they are marketers: they always overuse the phrase "personal injury," wielding it like a sword without realizing that neither victims nor referring lawyers use that phrase in the context in which they are using it. "This is Mike, I'm calling you from Atlanta about personal injury cases." Personal injury lawyers just don't talk that way.

Their frequent calling cousin is "I work directly with Google" or the more boldly audacious "I'm with Google." The claim is identical in almost every case: "I'm 'with Google' and I am going to work exclusively with one personal injury lawyer in the Baltimore area. I can get you on the front page of Google in 24 hours." Again, the caller's purpose is to mislead you into thinking you get guaranteed high placement on Google through some magical trick as opposed to what it really is: pay-per-click advertising.

I always respect anyone's job and I remain polite to everyone, including cold callers. Between college and law school, I got my stockbrokers license, Series 7 license, the whole 9 yards. I think I made about three cold calls before my short lived career died. (I did make some decent progress with one guy on Smith Avenue in Baltimore pushing tax free bonds... I still remember that the calls I made were on that street because I probably looked at the list for hours before making my first call.) It was just brutal and I respect anyone strong enough to keep making call after call. Still, I do resent the fact that the messages are almost invariably intended to mislead the gullible.

One of the most difficult decisions an accident lawyer has to make is whether to take a case with fatal or catastrophic injuries where there is a significant dispute in liability - typically he said/she said.

Nothing you read in this blog post is going to make that decision for you. In these cases, most of the ballgame is witness credibility and the intricate details of how the accident happened (which, parenthetically, I think most juries get right). But it does not hurt accident lawyers to inform this case specific decision making process with a little bit of data.

Jury Verdict Research this month published data on the success rates in turning car accident cases, defined as vehicle accidents between parties traveling on the same road in either the same direction or opposite directions. These are the recovery probabilities by type of turning case:

Parties Traveling on Same Road in Opposite Directions: 61%
Defendant Turning Left: 66% (I'm surprised it is this low)
Plaintiff Turning Left: 44% (I'm surprised it is this high)
Defendant Turning Right: 43%
Plaintiff Turning Left: 52%
Plaintiff Turning Right: 34%

The lesson? It helps to represent the party that is not making a turn.

The average jury verdict in turning collusion cases is $156,472 which is inflated by large verdicts, including one for $35,835,684 that was included in the study. The median jury verdict in car accident turn cases is only $14,000. Two percent of the verdicts in these cases exceeded $1 million.

The Baltimore Sun continues to push the idea of medical malpractice cases being placed into some sort of health court. Naturally, as is their practice, the Sun offers no real details and no balance to the editorial besides blaming trial lawyers for everything but the Blizzard of 2010. More problematically, they support a solution without really identifying a problem. What is the evidence of a problem with the judges that are currently handling medical malpractice lawsuits in Maryland? This would seem to be a prerequisite to offering a solution.

The Sun thinks that the governors of this state have nominated judges that cannot understand how to administer medical malpractice lawsuits. Either this is nonsense or we have a gubernatorial malpractice claim against Governors Mandel, Hughes, Schaefer, Glendening, Ehrlich, and O'Malley. I'm going with the nonsense theory myself. It is also silly to suggest that doctors are so vested in this idea. Even if trained malpractice judges are better malpractice judges, I don't think anyone has any idea of whether having malpractice specific judges is going to help plaintiffs or the doctors' lawyers in discovery or at trial.

The Sun goes on to tout the importance of a new "I'm sorry" law so doctors can admit they screwed up. On its face, it sounds okay. There is evidence that patients and their families benefit when doctors disclose medical errors and apologize. But did we do a study as to how these same patients feel when these apologetic doctors admit to their patients what they did but then can make a farce of that admission by denying it publicly later? Will this make a mockery of the victims and the court who sanctions what is going to approach or reach perjury?

The reality is a sympathetic "I'm sorry" when any professional (or even the other driver in a car accident) makes a mistake is going to make it less likely that the victim is going to bring a claim. Doctors should say they are sorry because it helps the patient, themselves and because it is the right thing to do, not because they are given immunity for the apology.

I also don't think the law is going to make much difference. Good, decent doctors (the vast, vast majority) will apologize if they think they make a mistake. Doctors that won't because they fear malpractice probably wouldn't apologize anyway.

The Illinois Supreme Court made big news nationally when it issued its much awaited opinion in Lebron v. Gottlieb Memorial Hospital yesterday, The court overturned in a 4-2 ruling the Illinois five-year-old medical malpractice cap on damages because limiting compensation for injured malpractice victims for pain and suffering violated the Illinois constitution.

Specifically, the court found that the Illinois malpractice cap violated the “separation of powers” clause because imposing a cap imposes on a decision that should be made not by legislatures but by juries.

The underlying lawsuit involves a catastrophic birth injury. Plaintiff’s lawyers alleged the infant Plaintiff’s severe cerebral palsy was caused by the negligence of the hospital, her obstetrician, and a nurse.

The appellate path taken in this case was atypical. Plaintiff sought summary judgment on the issue of whether the cap applied, which the trial court granted before the case was tried. Procedurally, this is odd and the dissenting opinion took exception to the idea of deciding this case without a verdict. I understand the dissent’s thinking on this. But the parties at least are best served taking this path because they both know how the law is going to be applied. This makes the case much easier to settle and settle fairly whichever direction the court takes. After the trial court’s ruling, the Defendants appealed directly to the Illinois Supreme Court.

Essentially, the court found that a cap on damages is a legislative remittitur and the failure to leave the issue of remittitur to the court which decides the issue on a case-by-case basis represents legislative intrusion on the powers vested in the court by the Illinois constitution.

One favorite part of the opinion for me was the way the court responded to the defendant’s argument that other states had damage caps: “That ‘everybody is doing it’ is hardly a litmus test for the constitutionality of the statute.”

Continue reading "Illinois Malpractice Cap Ruled Unconstitutional" »

Guy breaks into your house. Your are terrified that harm will come to you, your spouse or your children. Yet something holds you back from taking decisive action to protect your family.. the threat of a civil lawsuit by the burglar.

To stop this insanity, House Bill 207 has been introduced by House Delegate William J. Frank from Baltimore County, to raise the negligence bar for people who use force against a home or office burglar to make them immune from civil liability unless they acted “with malice or gross negligence.”

Naturally, Maryland courts are clogged with frivolous lawsuits by personal injury lawyers representing criminals who were injured breaking into homes of the innocent. Just ask John H. Josselyn who is with the Associated Gun Clubs of Baltimore:

Far too many attorneys are willing to initiate a civil action on behalf of criminals who allege that the victim, who was acting legally in self-defense, did something that violated the rights of the attacker. Defending a civil action, even when it is a frivolous lawsuit, involves great expense.

Let's take a breath and break this quote down and get our arms around whether there is even a portion of it that is not demonstrably false on its face.

Continue reading "Gross Negligence Standard for Homeowners Defending Their Homes" »