Maryland Injury Lawyer Blog

Michael Jackson's father has filed a wrongful death lawsuit against his son’s doctor. The lawsuit alleges what you would expect: the doctor's negligence was the cause of Michael Jackson's wrongful death.

This wrongful death case is arguably worth over $1 billion because of the potential future lost wages. The only bigger malpractice case I can imagine: anyone touching Tiger Woods before Bimbogate. Oh, and Oprah. How could I forget Oprah? Actually, you could throw Bill Gates in there or a few others. I'm overstating my point. Still, you get the idea. The potential damages in a wrongful death case involving Michael Jackson would be incredibly high.

But the problem is that most malpractice cases, including this one, are damages limited by the insurance the doctor has which, in this case, is reportedly $1 million. But given the potential criminal conviction and the damages, I would not be surprised to see the malpractice insurer rushing to put up the $1 million policy if it has not already been offered.

I can't stop working to listen to the Elena Kagan confirmation hearing. But there has been so much talk of the questions Elena Kagan will get, it is hard not to check in.

NPR is live blogging through Tom Goldstein's SCOTUSblog. I love the NPR disclaimer on this: "While SCOTUSblog has relationships with the law firms of Akin Gump and Howe & Russell, it covers the work of the Supreme Court as an impartial, journalistic entity." I think I'll start putting this kind of disclaimer on the Maryland Injury Lawyer Blog. To make the Chinese Wall particularly high, I'll change my shoes and my socks to transition from personal injury lawyer to impartial journalist. You won't see the change but you will have to just trust me.

Getting that off my chest, Goldstein's live blog is worth reading. Also worth reading, for a very different reason, is David Lat and Elie Mystal's live blog of the confirmation hearings on Above the Law. I'm not sure who is doing most of the writing but this is quality stuff. I can't imagine Above the Law is a high paying gig. If I'm any judge of talent, both of these writers will leave Above the Law for greener pastures in the next year. (Then again, I would have bet the farm against Brett Favre last season.)

The fee to file a lawsuit in Maryland will rise $30 to $155 on July 1st. Sue now at the low, low price of $125.

Paul Luvera provides a really good outline on cross examining experts on bias.

Our firm has spent a lot of time, effort and energy trying to be able to effectively use this outline by getting the answers to the question defense experts sedulously avoid: how much do you make testifying in accident cases and how much have you made from this law firm/insurance company?

I think we have fought this issue as hard as anyone in Maryland, recently getting a helpful Maryland Court of Appeals opinion that makes more clear what Maryland law is on the scope of the expert's obligation to produce financial records.

I know a lot of insurance defense lawyers in Maryland think we do this to harass their experts. I get why they think this. There is too much gamesmanship in Maryland accident cases between plaintiffs' accident lawyers and the insurance companies. Both sides are guilty of this. But with this expert issue, the reality is that jurors do care more about bias then they do the doctor's pedigree. We care about this issue so much because we think it makes a difference to jurors.

This does not mean that jurors think or even I think that because an expert makes a large amount of money for testifying it means that the expert is lying. I think there are some experts - including some defense experts - who testify regularly and still shoot straight. But let's not kid ourselves either: there are a lot of frequent flyer experts whose opinions are colored by who is paying them.

• Cross examining defense experts: ideas on cross examination (includes an interesting comment by a well respected Maryland doctor on the issue of whether gross income is relevant)
• Response to motion for protective order
• Falik v. Hornage (2010 Maryland Court of Appeals Case)
• LawyersUSA Article on IMEs (with quotes from me)
• Outline for Cross of Defendant's Expert in an Accident Case
• Sample Cross of IME Doctor

Metro Verdicts Monthly graph this month is the median verdict and settlement value of shoulder surgery lawsuits that have gone to trial over the last 23 years. The average settlement/verdict in Washington D.C. is $59,500. Maryland is less than half that: $42,636. The average settlement/verdict in a wrist fracture case in Virginia is $60,000.

You can find here some old data on rotator cuff injury cases.

If you polled personal injury lawyers who handle car accident cases, most would chose Allstate as the "worst of the worst" among insurance companies to deal with on accident claims.

Personally, while I would not put Allstate at the top of my list of insurance companies I want to draw, I certainly would not put them last either. First, I think Allstate claims adjusters respect good lawyers and good law firms and I think their offers reflect the quality of the lawyers involved in the case. Second, if you are patient and willing to go back and forth, I think Allstate will give you less of a low ball final offer than many other insurance companies do. I also think Allstate claims adjusters, to their credit, are less likely to fold just because a lawsuit is filed. Allstate is going to pay more - as any insurance company is - as the case gets closer to trial but Allstate does not have the reflexive "settlement failed, suit has been filed, let's now make a decent offer" response that is becoming the new SOP. This trend seems to be in vogue. A number of insurance companies, most notably GEICO, Progressive, and State Farm (if you are dealing with Team 22 or Team 23 in Maryland), make accident attorneys file a lawsuit in order to receive a reasonable offer. Allstate claims adjusters are more likely to come up with something reasonable to settle the claim before suit is filed. That does not mean our lawyers don't have to file a lot of lawsuits in Allstate cases. But Allstate typically makes it a little tougher call for our clients to make.

The bad rap on Allstate is in part because they are big. Insurance companies are inherently reviled and there is more of Allstate to hate than many other insurance companies: Allstate claims adjusters receive six million - six million! - car accident, property and bodily injury claims a year, paying out $15 billion in claims. Allstate has a strong market share in Maryland in car insurance and other third party personal injury claims insurance. 

As a result of being big, Allstate also get the press. Famously, Allstate claims practices infamously changed in the 90s when Allstate hired the consulting giant McKinsey & Co. to overhaul its claims practices. In a PR screw-up that I bet has cost Allstate millions of dollars, McKinsey used boxing gloves in a slide presentation to Allstate claims representatives to symbolize the Allstate philosophy.  Another piece of advice McKinsey gave, which really resonated with claimants after the advice was implemented, is stalling those claims where the victim did not rollover on settlement. This advice was given 15 years ago but Allstate still uses it in far too many cases today. Allstate claims adjusters commonly continue to stall and delay to hope to wear down third party claims and often uninsured motorist claims made by its' own insureds. But, let's be realistic: every insurance company does this. You just notice Allstate a little more because they are the elephant in the room.  

Continue reading "Allstate Claims" »

Obviously, there are a lot of vexing injuries that occur in car and truck accidents. Foot and ankle injuries rank high on this list of hard to solve accident injuries. There are so many bones in the foot and the bones are so small. Just too many things can go wrong.

According to a Jury Verdict Research study, the overall median jury award for foot injuries is $98,583. More serious foot injuries see a corresponding rise in value. Multiple fractures to a foot increase the median verdict to $144,000. In foot injury cases where both feet are fractured, the median rises to $296,940. For plaintiffs' lawyers repeating the "scope property damage does not matter" credo, it is hard to ignore the conclusion that if you have suffered fractures to both of your feet, you were most likely in an extremely serious accident.

Another Jury Verdict Research study found that 39% of the foot injury cases that went to verdict were suffered in auto, truck or motorcycle accidents. A remarkable 11% of serious foot injury cases were in motorcycle accident cases. This stat underscores how dangerous motorcycles are compared to cars or trucks.

One thing I really suggest in foot injury cases is finding an accomplished doctor with a focus on foot and ankle injuries. Baltimore is uniquely blessed in world renowned foot surgeons. If you have an orthopedic problem with your foot - from a car accident or anything else - take advantage of the abundance of riches we have and get yourself someone extremely well-qualified to chart the best path to recovery for you.

• Value of Your Injury Claim (how do adjusters, lawyers and juries determine value of cases?)
• Value of Foot Injury Cases in Your State (some idea of how value varies by jurisdiction)
• Value of Amputated Toe Cases (verdict data)

Ask any accident lawyer about the use of statistics in valuing personal injury accident cases, and you will get an almost universal answer: they have little or no utility. Yet I've never looked away from average verdict data and I've never known a personal injury lawyer who did. Even if you conclude it is useless, you can't help but be curious.

Jury Verdict Research published a 10 year study on knee injuries. Our law firm has gotten pretty good results in knee injury cases. The study confirms this is for pretty good reason. The average knee injury verdict is $173,552. But with more serious knee injuries, that average jumps higher. The average cartilage and ligament damage jury verdict is $347,831. Conversely, a knee strain verdict averages $70,055.

Statistically, I think accident victims are always better off hiring a lawyer for many reasons not worth fully exploring here. But if there is any type of accident claim where an injured victim can justify proceeding without a lawyer, it is in the classic soft tissue/whiplash injury accident case with clearly no permanency. The benefit an experienced accident lawyer can bring to a case is going to vary inversely with the severity of the injury. While, obviously, I’m not offering legal advice to you if you are not a client of our law firm, this is a generalized list of what you should consider in handling your own soft tissue whiplash injury case in Maryland without a lawyer:

Recorded Statements

You can settle your own case and still not give a recorded statement. The myth is that if you are honest, a recorded statement can’t hurt you. It is not true, for reasons that are discussed more fully here. There is no obligation to give a recorded statement to the at-fault driver’s insurance company in Maryland.

That is the short answer. The longer answer is more complicated. In some cases, our accident lawyers do allow the client to give a statement for reasons that are too complex to address here. In uninsured motorist cases in Maryland, arguably you are required to give a recorded statement as a condition of recovery.

Get Pictures of Accident and Injuries

Get photos of your car, any visible injuries that you have, and the scene of the accident. This is critical to establishing liability and the scope of your injuries. There are lots of studies that say there is no correlation between the severity of the property damage and the victim’s injuries. But, intuitively, these studies don’t make sense to any of us. We all figure that the more serious the accident, the more likely there are to be serious injuries. Insurance companies definitely feel that way and offer more in “good impact” cases.

Collect All of the Medical Records and Bills

The guts of a soft tissue injury claim are contained in the medical records and medical bills. Collect them all. The insurance company is obligated to compensate you for all medical bills that you incurred from the accident, regardless of whether these bills have already been paid by PIP or health insurance. Insurance companies have made billions pretending this rule – called the collateral source rule – does not exist when settling accident claims with victims without lawyers (or with clueless lawyers).

Medical Treatment

How much medical treatment should you get? If you treat too little, the insurance company says you are not really hurt. If you treat too much, the insurance company says you are milking the bills to try to get a better settlement offer. In the end, the best way to maximize the value of your soft tissue injury case is to listen to your body and your health care providers and do what you and they think you should. Serendipitously, this also happens to be the best thing for your case. (Parenthetically, if you are thinking of getting additional medical treatment or tests because you want to increase the value of your case, please stop reading this. I don’t want to help you.)

Figure Out the Statute of Limitations

Again, going forward without a lawyer – actually, going without a good, experienced accident lawyer – comes with risks. One of those is getting the statute of limitations wrong. It seems easy enough. But there are so many ways to get it wrong. Without having a lawyer review your case, you are taking a risk because there are general statutes of limitations and sometimes more specific statutes in some jurisdictions. In most cases, you will be fine without a full analysis of the details of the statute of limitations issues, but obviously, you are running a real risk. If you think this is a risk worth taking, at least do some research. In many states, including Maryland, the time allowed for bringing a claim against a governmental agency or its agents or employees has a statute of limitations that is a small fraction of the general statute of limitations (and it is hard to always know in what capacity the defendant driver was acting at the time of the accident).

Talking to Your Health Care Providers

Tell your doctors and your health care providers everything that they need to know about your current condition and past medical history. But also keep in mind that everything you tell a health care provider may well show up in your medical records. So if you knocked over a convenience store 10 years ago, you might want to keep that under your hat.

Don’t Lie to Your Doctors… Or the Insurance Company

The big mistake we see people make time and time again is that they shade the truth or flat out lie, thinking that no one will ever know. Who could possibly know that I hurt my back 8 years ago in a skiing accident in Colorado? The insurance company - that is who. It is counterintuitive for some but the best way to maximize the value of your case is to be completely truthful to everyone at all times. You don’t have to offer up every skeleton in your closet. But it does mean that you should not tell anyone anything or put it in writing unless it is 100% accurate. Do liars sometimes get over on the insurance companies? Absolutely. But, I’m telling you, statistically, the liars and exaggerators do not do as well as clients who play it straight.

Continue reading "Settling Soft Tissue Car Accident Injury Cases Without a Lawyer" »

A lot of meritorious lawsuits were filed last week. Yet this morning my Google Reader quickly pointed me to two that seem to embody the definition of a frivolous lawsuit:

• Walter Olson on Overlawyered reports on a lawsuit in Canada where the Plaintiff is suing after she jumped out of a car while she was intoxicated. As I wrote a comment on the Overlawyered post, I cannot imagine a scenario where this is a legitimate claim. I'm all in favor of lawsuits when the victims are innocent. But there has to be personal responsibility, too. The best way to avoid harm is to avoid exposing yourself to great risk. Drinking so much that you are willing to jump out of a moving car is a choice. Look, this woman suffered a severe brain injury. She's as worthy of our sympathy as anyone. But she does not have a claim against the driver. Period.
• The TortProf reports that a woman brought a lawsuit because United Airlines did not wake her, leaving her sleeping on an empty plane for three hours. "Waking up to an empty airplane and not being able to get out — it was very horrifying," the plaintiff told reporters at a press conference to announce her lawsuit.

Both of these are frivolous lawsuits. But the drunk driving lawsuit at least offers a sympathetic plaintiff. This sleeping on the airplane lawsuit is worthless on every level. The plaintiff is not injured and there are not large numbers of people who are suffering the same insignificant loss. We don't need to protect a class of people who fall asleep on airplanes and don't get out with everyone else. This lawsuit was filed only because it makes news. It makes news only because it is ridiculous. It is a vicious circle of insanity that only hurts real personal injury victims who must start out with already skeptical jurors.