Maryland Injury Lawyer Blog

In addition to Kearney v. Berger, there was another interesting opinion that came down from Maryland's appellate courts yesterday. The Maryland Court of Special Appeals ruled on an interesting discovery issue in a landlord-tenant case that has implications for Maryland personal injury lawyers.

The underlying case is a dispute between Checkers - I'm assuming it is the fast food chain Checkers we are talking about - and its landlord. Checkers claimed it exercised an option to extend its lease. The case involved an estoppel certificate and a bunch of other things that I did not fully understand. Checkers sought documents from Gallagher Evelius & Jones (GEJ), a Baltimore law firm that represented the landlord. GEJ claimed a bunch of exceptions to the attorney-client privilege that were quite interesting. But the trial court never got to the merits of the argument because GEJ did not present its opposition to the motion to compel in the proper “set-up format.”

At first, I did a double take when I saw proper "set-up format." There is a proper set-up format? But without knowing it, I think everyone here does file their motions to compel in what the trial court saw as the proper set up format: setting up the controversy in the pleadings with the request, the response to the request, and the argument so the court is not required to flip back and forth between documents. I never thought it was a requirement and I'm still not sure that it is. But it seems like a good idea to avoid further annoying the trial court - usually rightfully so - that you have already annoyed with a discovery dispute in the first place.

Continue reading "New CSA Opinion on Discovery" »

The Maryland Court of Appeals affirmed the dismissal of a medical malpractice lawsuit against a doctor for procedural reasons in a 4-3 opinion issued this morning.

Filed in Anne Arundel County, this wrongful death malpractice claim alleged that a dermatologist failed to perform a timely biopsy of a mole that later proved to be melanoma and caused a man's death.

It is a long opinion. It spends a good bit of time on the "law of the case" doctrine and the unique application of that doctrine in this case where the Court of Appeals grabbed the case before the Court of Special Appeals hears the arguments. Pretty boring. The highlights of the case are, however, of importance to every medical malpractice lawyer in Maryland:

• A certificate of merit must include an expert report. Period. But then I think arguably the court left the door a little ajar as to whether the certificate itself can meet the requirements of the report. The court writes that there is no evidence as to how the doctor breached the standard of care, noting that "the certificate does not otherwise meet this requirement...." If it had, would that have made a difference? I'm not sure. The take home lesson for Maryland malpractice lawyers: never be the lawyer who finds out the answer to this question.
• Malpractice lawyers do not need to specifically allege who it was that breached the standard of care if it is otherwise obvious as it is in the single defendant case. Substance is elevated over form, at least on this sub-issue.
• The certificate of merit's job is to serve as a barrier for claims that lack merit. A certificate of merit in Maryland does not need to state the qualification of the expert or certify that the expert spends less than 20% of their time on forensic activities.
• Certificates of merit do not have to be expressed in terms of "reasonable degree of medical probability." Certainly, an expert's testimony at trial needs to include the magic language but it does not have to be in the certificate of merit.
• Doctors do not waive their rights to challenge a certificate of merit by waiving out of health claims arbitration. The court noted their own silence on whether there could be conditions under which a doctor could waive their rights.
• It was not an abuse of discretion for the trial judge to refuse to extend the deadline to file a certificate of merit that complied with Walzer.

Defendant's lawyer filed a motion to dismiss 18 months after the plaintiffs' filed their malpractice lawsuit. Why wait 18 months? The defendant's lawyer's motion was precipitated by the court's finding in Walzer v. Osborne just a month before. Every plaintiffs' medical malpractice lawyer in Maryland thought Walzer imposed new requirements to file a medical malpractice lawsuit in Maryland. Obviously, defense lawyers did too, waiting to make these procedural arguments until just after Walzer. Even Maryland's high court seems to agree, noting the "not coincidental" timing between the doctor's motion and Walzer. But Walzer was not the first time, nor will it be the last, that an appellate court calls its ruling existing law and practicing lawyers believe it to be new law. The Supreme Court does it all the time too. It is the nature of the beast. It is just like having an answer to a math problem in the back of the book and then creating the answer. The only thing that makes this a little different is the court seems to acknowledge that Walzer took Maryland malpractice lawyers by surprise when it noted the timing of the doctor's motion.

Continue reading "New Maryland Medical Malpractice Opinion: Walzer Revisited" »

The average premises liability verdict is $643,099, according to Jury Verdict Research's review of premises lawsuits around the country. The median verdict in premises liability cases is $98,160. Premises liability claims against recreational facilities were higher. The average verdict is $1,007,704 and the median verdict is $125,000. JVR defines these cases, as any premises liability lawyer would suspect, as a lawsuit which is brought against an individual, business, landlord or organization responsible for the maintenance and safety of a property or structure.

When possible, I try to include average and median data. Average verdict data includes large often uncollectable verdicts that tend to distort the reality. While both the silly case that never should have been filed and the $58,000,000 verdict don't really apply to the valuation of your case, the former distorts the result more than the latter. Then again, all verdict data undifferentiated by specifics of the case ultimately should be filed away under "very interesting but ultimately useless."

It is also worth noting that this is a study of successful premise liability verdicts where the plaintiff prevails. Factoring in the losses, the average award is much lower. Most premise liability lawyers who handle premises cases regularly handle only serious injury or death cases. Clearly, the bar in terms of the severity of injury required for a good lawyer to accept the case is higher in premises liability cases than in auto accident cases where, generally speaking, the path to proving liability is more clear and certain.

• What Is the Value of Your Case?
• Overview of Slip and Fall Cases

Last week, I wrote one of my most read Maryland Injury Lawyer Blog posts in the last four years, thanks to a Twitter link from the authors of Freakonomics. I love Freakonomics and Superfreakonomics to the point where I would put the Twitter link on my bio if it would not make me so obviously pathetic.

Anyway, the subject of the post was the ignored risks of pedestrians and alcohol which cause a remarkable number of deaths and injuries (and car accidents) every year in this country. To underscore this point, I read as I do every Monday, Norman Chad's syndicated column in the Washington Post. At the end of his column, he does a little question and answer:

Q: Re: Colts punter Pat McAfee. Have you ever been arrested shirtless, soaking wet and reeking of alcohol? — Brian King, Carmel, Ind.
A: Too much is made of public intoxication; in a simpler America, I believe you should be allowed to walk home drunk. Plus punting’s a part-time job with Peyton Manning’s Colts — I wouldn’t begrudge McAfee a midweek cocktail.

People should be allowed to walk home drunk? Now imagine if he had said the same thing about drinking and driving. I think the blogosphere would probably explode. Norman Chad must apologize to the families of everyone killed in a drunken pedestrian accident. He should be suspended from his job at ESPN and his column should be taken down for three months. He should be made to write 1000 times, "I will not make light of the serious public health issue of drunk pedestrians ever again." Norman Chad should be caned.

No, wait! That is the idiot's reaction, trying to beat an apology out of another public figure, particularly from a humorist who is just uninformed like everyone else on the real risks caused by drunk pedestrians. We need the public to pay more attention to issues that matter and less to the useless apologies beaten out of people who are trying in good faith to be honest or harmlessly funny.

But this is a teachable moment (yes, I'm sending my $2 to Obama for the copyright) about the associated risks of pedestrians and too much alcohol. I'm not saying we need a national movement running television commercials - an important issue does not have to be the most important issue - but it is a serious public health problem we need to take seriously. There may not be the same moral imperative to stop pedestrians as there is to stop drunk drivers but there needs to be enough public awareness so that someone like Norman Chad (and his editors) feels compelled to pass on a laugh to help save lives (and to avoid the risk of a public backlash).

The Maryland Court of Appeals has signed off on some modifications to the Maryland Rules. Of particular interest to both lawyers and clients is new Maryland Rule 16-110. This new rule addresses the crucial issue of our day of whether you can bring a cell phone into court in Maryland. The short answer is yes. The long answer can be found here on page 18.

The rule also addresses the question of whether jurors may bring electronic devices into the jury deliberation room. The concern, of course, is whether the jurors use Google to find information to decide the case or give a shout out to friends on Twitter or Facebook about the case during deliberations. The new rule is clear that jurors may not take cell phones or other electronic devices into the room during deliberations.

I also thought it was interesting that the new rule states that there is no liability to security or court personnel who lose or damage someone's phone, presumably after the phone is confiscated. It is a little thing and I doubt that many phones, if any, are going to be lost or damaged under these circumstances. But, as a matter of principle and policy, I wonder if the Maryland Rules should be limiting tort liability. My view is that while the Maryland high court may rule the roost of what goes on in Maryland courtrooms, courthouses are not sovereign and tort immunities should not be granted so casually.

Earlier this month, I wrote a blog post about Vermont Senator Patrick Leahy's proposal to allow retired Supreme Court justices to hear cases to avoid 4-4 splits in conflict situations, an issue that is getting attention because of the conflicts that Justice Kagan has for many pending cases.

The Maryland Court of Appeals has been doing this effectively for years, I wrote in the blog post. But while writing a blog post today on underinsured motorist lawsuits involving State Farm, I took a look at the Maurer v. Penn National opinion from the court in 2007. I noticed something in the opinion: four of the judges were retired when the opinion was issued. We all follow Maurer as the law but only two of the seven judges currently on the court - Judge Greene and Judge Harrell - participated in this opinion that is not yet three years old.

For those of you who are not lawyers, stare decisis is doctrine the Maryland Court of Appeals has applied with vigor: following prior court decisions unless there are very compelling circumstances. It means that a prior ruling being "wrong" is not alone grounds for reversal. I think every court in the country relies on this doctrine, to varying degrees.

So I think it may be a concern that decisions are made by a revolving door of judges when the court relies so heavily on stare decisis. Admittedly, "revolving door" is a little hyperbolic but if judges are restrained by stare decisis - a point this court repeatedly makes, calling a 17 year-old law "embedded in the bedrock of Maryland law " - should there be concern?

I Googled this theory before posting this and I have never found anyone who has ever raised this concern in Maryland or in any other court. I'm not really bold enough to suggest a change in the current process because I don't pretend to be an appellate scholar. I'm just throwing it out there because I have it on good authority that Judge Bell and many other Maryland Court of Appeals judges read this blog on a daily basis. (Okay, not really.)

In Maryland, if an uninsured motorist insurer waives subrogation against the at-fault driver in an underinsured motorist case, it also waives its liability defenses. Depending upon who you ask, this has either always been the law in Maryland (as Maryland high court tells us in Maurer v. Penn National), or is a completely new law (as every Maryland accident lawyer or insurance company seems to think).

State Farm has seemingly responded to this new law by refusing to waive subrogation in just about every case where the at-fault driver tenders the policy limits. It is a fair tactic. But what State Farm is doing is cutting side deals with the at-fault driver's insurance company to waive subrogation to the extent of the UM coverage which allows the defendants to work together in preparing for and trying accident claims.

Two take home messages for the Maryland car and truck accident lawyer. First, add in a discovery question to uncover these side deals so you know the score in advance. Second, make sure you argue at trial that the defendants' interests are aligned and they should not both get jury strikes.

The latter issue is a big deal. Giving both insurance companies strikes - particularly if they are working together - is going to give you a very different jury.

Concurring Opinions has a blog post today on how women are less likely to speak up in class than men in law school. I have been teaching law students at the University of Baltimore School of Law for 13 years, teaching three semesters a year - spring, summer and fall - for the last 8 years. I can honestly say that I have never noticed that men are more likely to speak up than women. Whether I'm perceiving it wrong or whether our school is for some reason immune to this phenomenon, I have no idea.

ESPN is running a story about an NFL player who was arrested last night for public intoxication. I think if public intoxication was a regularly enforced crime, we would need to start building more jails.

But I was interested in something the player reportedly said to police: "I know I am drunk, but does that mean I cannot walk home?"

I think the first reaction to this report is that we are all glad that he made the choice to walk and not get behind the wheel. But walking while drunk is one of the great unmentioned public health problems in this country. According to the journal Injury Prevention, almost 60 percent of fatally injured pedestrians were legally drunk.

In SuperFreakonomics, the authors argue that walking while drunk may actually be deadlier than driving drunk. On a per-mile basis, a drunk walker is eight times more likely to get killed than a drunk driver, and walking drunk leads to five times as many deaths per mile as driving drunk. (Of course, walkers are covering a few less miles than drivers.)

We care less about drunk walkers than drunk drivers, relatively speaking, for an obvious reason: they put us at less risk than drunk drivers do. But drunk walkers do cause serious auto accidents that often result in chain reaction colissions that lead to injuries and deaths beyond that of the pedestrian. Moreover, people behaving stupidly matter, too.

It is amazing how many plaintiffs' accident lawyers file suit, name experts, and then give a key expert like a treating doctor a call to find out the expert's opinion on the case. It is equally amazing how often insurance company lawyers wait until after the discovery deadline passes before having a substantive conversation with their experts about the case.

Some attorneys just don't want to spend the time to be proactive because, hey, the case might settle. Why spend the time on the front end lining up the treating doctor? In some cases, the economics of the case demand this approach. I would not line up experts in a garden variety soft tissue injury case before trial. Because your proactivity (a word I just made up) might not be in the client's long term interest.

But assuming you have a very serious injury car or truck accident case and you need an expert, get the experts on board early. How do you know you need one? Do you have a problem with speed, with drinking, with highway design, with a “dangerous condition?” Well, you won’t know if you have any of those things if you don’t investigate your claims properly.

But when you discover these issues, here is why you need that expert early. If the issue is speed, you need your accident reconstructionist involved early even if you never intend to call an accident reconstructionist at trial - it is the evidence that is key. Skid marks fade or wash away, and vehicle damage is repaired. Photos are not always enough, if the depth of a dent, the gear a car locked into at impact, or the length of a skid is at issue. Dents get fixed, cars are sold for salvage, and you can’t measure a photograph. The design of the road could be changed, or lights and lane markings can be moved. Once the truck with the improperly secured load is taken away without being photographed, you can’t get that evidence back. After this happens, you can’t undo the damage to your case. But once you lock the important facts in with an early expert investigation, there isn’t anything the other side can do to make that evidence go away.

Continue reading "When to Get Your Experts Lined Up?" »

Allstate has agreed to pay New York $1.2 million as part of a $10 million regulatory settlement involving Colossus, its infamous computer software that values personal injury auto accident claims.

Under attack was Allstate's use of Colossus, a software program Allstate and many other insurance companies use to determine the value of injuries in auto accident claims. The claim against Colossus would not shock a single accident lawyer in Maryland: there are inconsistencies in Allstate’s management and oversight of the Colossus software program. Specifically, Allstate failed to modify or “tune” the software in a uniform and consistent manner in personal injury accident claims.

Under the settlement agreement, Allstate will make substantial changes to how Colossus is used:

• Providing notice to claimants that the Colossus software program may be used in the adjustment of their bodily injury claims
• Enhancing its management oversight of Colossus to ensure that it adheres to established criteria and a uniform methodology in selecting claims to be used to “tune” or modify the software to reflect recently settled claims
• Strengthening its internal auditing of Colossus and bodily injury claims handling to ensure adherence to written guidelines and procedures
• Consolidating its bodily injury claims handling practices into a single claims handling manual
• Not establishing a policy or rule requiring claims adjusters to settle bodily injury claims solely on the value recommended by Colossus and not providing incentives for claims adjusters to settle claims at or near the value recommended by Colossus.

Continue reading "Allstate Colossus Settlement" »

Lester Brickman writes a guest blog for the TortsLawProf on the stealth litigation explosion in this country. Even though tort cases only make up 5% to 10% of the filed lawsuits in this country, Professor Brickman argues this number is artificially low because of class actions and cases filed with more than one Plaintiff.

Many things are left unexplained. Haven't cases always been counted like this? How is this evidence of an explosion? Aren't there zillions of consumer class actions that also mask the number of non-tort plaintiffs?

Moreover, the whole idea that "it is more than you think" tells us nothing. So how many claims are there if claims are not properly estimated. And, again, why is this evidence of an explosion?

The only meaningful data provided to show a national litigation explosion is the number of claims that have been filed against New York City (not in, just against) between 1984 and 2004. Sure, payout rose in claims against the city. But quoting data from six years ago covering a 20 year period showing a rise in payouts (that, parenthetically, approximates the rising cost of health care during a 20 year period where that city came back from the abyss, ergo more activity in the city) against one municipality just does not tell us anything. At all.

I don't have feelings set in concrete on whether there has been a "litigation explosion" in this country. I could be swayed with the right evidence. But the lack of substance of this blog does not strengthen the case for a litigation explosion. In fact, it does the exact opposite.

You really should read Colin Son's guest blog on KevinMD yesterday. Dr. Son uses two quotes to make a point I really don't know that he needed to make: doctors are more important than lawyers. The first quote is by a lawyer suggesting a lawyer is America's most important job. The second quote is by a journalist who suggests that being a reporter is harder than being a brain surgeon.

Dr. Son disagrees. Okay, fair enough. But Dr. Son feels compelled to take it a step further. Lawyers and journalists, he announces, are inferior professions to medical doctors.

We can all agree that President Obama's life to more important to society than, say, Brett Favre. It is an obvious fact. But if President Obama were to announce this tonight at a press conference, we would all conclude that he had lost his mind.

Similarly, I'm inclined to agree with Dr. Son that doctors are generally more important than lawyers. I might change my view if I was wrongfully accused of a crime. But if someone asked me if I could have the best doctor in the world or the best lawyer, I would take the best doctor in a heartbeat. But the fact that a doctor feels compelled to make this point is, at best, unnecessary and self-aggrandizing, and, at worst, creepy.

Medicare liens are the bane of personal injury lawyers trying to reach a settlement. Settlements don't and can't parse out pain and suffering damages for medical bills. What goes to the wrongful death claim? What goes to the survival action? If you get a verdict at trial, this all gets resolved. But with undifferentiated settlements it is hard to determine what money would have gone where.

Usually, the bigger problem is not that Medicare won't reasonably reduce its lien. It is the cart before the horse logistics - it is virtually impossible to settle the lien before the case resolves, leaving clients up in the air and at Medicare's mercy as to what their actual recovery will be. It would help settle personal injury cases with Medicare liens if clients could have a more clearly ceiling as to what the lien amount might be. The 11th Circuit Court of Appeals provided a little help on this with a recent opinion.

The case was a Florida nursing home bed sore wrongful death case that settled for $52,500. (This was apparently the nursing home's policy limit, which makes no sense to me.) Medicare had paid the medical bills so the plaintiff's nursing home attorneys invited Medicare to participate in the settlement. Medicare did what I would not expect it to do in Maryland, claimed the entire amount. It also declined to participate in the probate hearing to divide up the settlement. So the trial judge moved along, valued the case over $2.5 million and cut Medicare's lien to $787.50.

The 11th Circuit ruled that Medicare does not have the right to claim full reimbursement from an undifferentiated settlement. The court found that Medicare must participate in any state-authorized process to prorate its lien claim or accept the result when it refuses to participate.

Continue reading "Medicare Liens Ruling" »

Above the Law provides an interesting link from a South Carolina family law firm that I can bet you is experiencing a real spike in web traffic. The firm lays down the law to its clients on its website, warning them to wait patiently for return calls (they are busy), not to call on weekends, stop by unannounced, or even to expect that they won't make mistakes.

I have never handled a domestic case in my life. I couldn't. I would never be able to bear the bitter pettiness that comes with domestic battles. I deal well with people who are suffering from an injury - including emotional injuries that stem from a physical injury or a death. Pain, physical limitation, loss of someone you love? I can get my mind around that. Your bitterness because your husband cheated on you? Day in and day out, that has to be a tough road to hoe. But there was a sign-up sheet out for family law lawyers and these folks signed-up. The job description would seemingly include dealing with a lot of stressed out clients who are going to be upset when you make a mistake and may want to talk to you at odd times.

This blog post is not intended to criticize this firm. Any law firm can set any policies for client expectations that they want. I am more interested in the answer to this question: would you ever hire this firm? I have no problem with their policy of not working on the weekends or with some of the other boundaries they set (except for their mistakes policy, which I will get to in a minute). But the brazen tone and tenor with which they announce these policies does strike me as odd.

You are going through a tough divorce. You think you need someone who is really in your corner. What are the chances this firm is going to go the extra mile for you compared to Firm B? Maybe they would. They might be spectacular lawyers who fight to the end for their clients. But given the limited amount of evidence you have when looking for a lawyer on the Internet, what are the chances this firm, given this introduction, is going to be your choice?

There is a really nice state-of-the-art car wash near my house that I would love to use. But when you pull up, the first thing you see is a huge laundry list - in all caps - of my obligations to them, followed by a clear statement that they have no responsibilities towards me, even if one if its employees comes up and socks me in the face. I'm fine with the terms actually. And it might be a great car wash and the car wash owners may be very reasonable people who just feel compelled to lay out the rules clearly and unambiguously. But I just can't stand that they are shouting at me before my car touches an ounce of soap. Sadly, my car stays dirty.

Continue reading "Listen Up Clients: One Law Firm's Approach" »

A Mississippi lawyer was jailed for five hours for refusing to recite the Pledge of Allegiance. This is not the first time this lawyer has had a problem over his refusal to say the Pledge of Allegiance. In June, he was asked to leave another courtroom for refusing to recite the Pledge. This is the contempt order.

Although this story has no real personal injury connection, I thought it was interesting enough to pass on to my readers. I instinctively started typing out a commentary in the space that houses this paragraph because that is what I do here. But who cares what I think about this? You can read the story and draw your own conclusions.

According to one study, driving distracted kills 5,500 people in car and truck accidents every year in this country. Don't let the title of this blog fool you. It is beyond dispute that texting while driving is a growing part of this problem. The Baltimore Sun reports that 25% of teenaged drivers admit to texting while driving a car, and almost half say they've been in cars with someone who sent text messages. But kids are not the only problem. Adults that rolled their eyes at texting just a few years ago are now textaholics who read and write text messages while driving. The phenomenon is causing serious injuries and deaths on our nation's highway. And the perpetrators are not degenerate criminals but people just like you.

This all makes sense. The anti-texting advocates have me. But this is where they lose me: "Texting and driving is worse than drinking and driving."

First, the statement is ridiculously misleading. Maybe, if some studies are true, you can better avoid an accident with a .08 blood level than you can in the middle of a text message. But you are drunk the whole time you are driving, not for an instant of receiving or sending a text message. So I'd rather be on the other side of a double yellow line of someone who sent a few texts than someone who is drunk any day.

But my larger criticism is the message the "worse than drunk driving" slogan sends. It is like we can't say Heidi Klum is pretty without saying she is more attractive than Gisele Bundchen or complementing LeBron James without pointing out what he can do that Michael Jordan couldn't.

Continue reading "Overstating the Texting While Driving Case" »

Personal injury lawyers' blogs are proliferating the web like Lindsay Lohan's legal problems. It is hard to find a malpractice or accident lawyer now without a blog.

I think a lot of personal injury lawyers see this and think that the door is closed and that it is too late to build up a readership base and develop a quality presence online. But I think there is lots of room for quality blogging on personal injury related issues. In fact, I think the quality personal injury lawyer blogs of 2011 are going to include bloggers who have not yet written a single post. Why? Because most of what is out there is complete junk. There is a real demand for good, quality personal injury related blogs. If you are writing one, tell me about it because I'm always looking for new blogs to read.

Continue reading "Personal Injury Lawyers and Blogging" »

The Maryland Court of Special Appeals interpreted a mandatory fee dispute arbitration requirement for attorney fee disputes in the District of Columbia today.

The issue is whether a personal injury law firm was entitled to 40% of Plaintiff's recovery or whether the fee increased to 50% because the "Plaintiff prevailed on appeal" clause in the retainer agreement had been triggered. The underlying claim arose from Plaintiff's injuries which occurred while Plaintiff was being rescued from a broken elevator at the Marriott Wardman Park Hotel in Washington, D.C. I suspect both the Plaintiff and the Plaintiff's lawyer were Maryland residents which triggered Maryland's involvement in the case.

I'm interested in these cases because it is always interesting to see the fee agreements of other lawyers. We have had a nice little run of appellate victories of late and it would have been nice to increase our fee agreement on those cases. Our client fee agreement specifically does not include appeals in our 40% fee. But when we have won appeals, we have stuck to the 40% fee anyway, probably as a Pavlovian reflex that 40% is what is appropriate after a lawsuit has been filed.

Otherwise, this case is not of much use to Maryland personal injury lawyers because it involves mandatory fee arbitration for cases handled in Washington D.C. The court steadfastly applied D.C. law. The only real take home message is one that the Maryland Court of Appeals has already made clear: the court believes there is a strong legislative policy in Maryland favoring enforcement of arbitration agreements.

You can find the opinion here.

Consumer Reports does just this. Here are the rankings for Maryland health insurance providers: (1) Aetna, (2)CareFirst Blue Choice, (3) CIGNA HealthCare Mid-Atlantic, (4) Coventry, (5) Employer Health Programs, (6) Kaiser, (7) MD - Individual Practice Association, (8) Optimum Choice, (9) Uniformed Services Family Health Plan, and (10) UnitedHealthcare.

You can find the list here. If you are a member of Consumer Reports, you are allowed to see... well, just that, this list. You have to add to your membership ConsumerReportsHealth.org which provides the rankings for consumer satisfaction, prevention, and treatment.

Both doctors' groups and medical malpractice lawyers are preening about a new study that shows that the cost of medical malpractice in the United States is 2.4% of annual health care spending.

Medical malpractice lawyers say the study shows that medical malpractice tort reform would have little impact on our health care costs. Doctors' groups point to the fact that 2.4% equals $55.6 billion a year, a daunting number even in the post-TARP era when $500 billion is a mere half of a stimulus package.

But here is how the numbers break out:

• Indemnity payments: $5.72 billion, of which $3.15 billion represents payment for economic damages; $2.4 billion for noneconomic damages; and $170 million for punitive damages. This includes the attorneys' fees of medical malpractice lawyers who represented the plaintiffs.
• Administrative expenses: $4.13 billion, which includes $1.09 billion in fees to defense attorneys; and $3.04 billion in overhead expenses. (Estimated fees to plaintiffs' attorneys were $2 billion, but that amount is included in indemnity payments.)
• Defensive medicine costs: $45.59 billion, of which $38.79 billion was estimated as the cost of hospital services and $6.80 billion as physician services.

There is something incredible in these numbers that no one is talking about. The researchers said their estimate includes $45.59 billion in defensive medicine care where doctors prescribe treatment and tests that may harm or expose the patient to risks simply because they want to avoid medical malpractice lawsuits. So health care providers spend $45 billion in additional costs (from which they often profit) to protect themselves from $6 billion in risk? If I hired a team of lawyers to oversee everything our law firm does to make sure we are not committing legal malpractice and then complained about the cost...this analogy is not working. Let me try another: imagine hand grenade manufacturers swatting flies with hand grenades and then complaining about the rising cost of hand grenades. (That does not entirely work either but at least it is closer. Because somehow you have to add in the fact that flies landing is actually a harm that is fully insured. But you get the point without my metaphors.) Don't these doctors' groups feel a little odd parading this around? And why is no one pointing this out? This is right up there with Stonehenge on my list of great mysteries.

Continue reading "Are Doctors Selfish? The Defensive Medicine Paradox" »

The Court of Special Appeals of Maryland issued an opinion today in Powell v. Breslin, which is analyzed on the Maryland Malpractice Attorney Blog.

Maryland's new no cellphones while driving law has been in effect since Friday. I'd be curious to know how much cellphone use in the car has gone down with the threat of a $40 fine hanging over the head of Maryland motorists. Assuming, of course, that they have committed some other violation for which they have been pulled over because Maryland police have to have a primary reason to make the stop.

You can find answers to all of your questions about Maryland's new cellphone law on the Maryland Accident Lawyer Blog.

The Wall Street Journal has a piece entitled "What the Doctor Missed: Using Malpractice Claims to Help Physicians Avoid Diagnostic Mistakes, Delays." This article underscores a point malpractice lawyers have been making for years: malpractice lawsuits can be a part of the solution to the problem of the sometimes anemic health care we receive in this country in spite of the fact that we have the best doctors in the history of the world.

The article also underscores that diagnostic medical errors are the most common, the most costly, and often lead to the most suffering.

Senator Patrick Leahy proposed a new law that would allow a retired Supreme Court justice to pinch hit if a justice recuses himself or herself from a case. The idea, of course, is that it would lead to less 4-4 rulings in which case the lower court ruling stands.

The Maryland Court of Appeals has been doing this effectively for years. I think it is a bad idea for the Supreme Court. First, the Supreme Court is - to the chagrin of many - a highly political body. This makes sense because the issues that go to the Court are the tough issues of our time and judges tend to go with their philosophical point of view. Most judges agree on the basics. It is the nail biters that go to the Supreme Court. These nail biters split so often along ideological lines, with the four conservatives pitted against the four liberals, leaving Justice Kennedy in control of the critical issues of our day.

That balance - albeit a bizarre balance - is a delicate one. So, naturally, the decision as to who to pull out of retirement is going to be a big one. Does the president make the choice? Does the Chief Justice make the call? (I'm not sure but I think Judge Bell makes the call in Maryland as to who to call up.) It would just make the court more overtly political at a time when it would be nice to be able to downplay what a political body the court really is.

Moreover, I like retired Supreme Court justices being able to write books and speak their minds with impunity after they retire. Calling them back is going to detract from that.

A 4-4 vote is not a good thing but it is not exactly a tragedy either. We have been doing it this way for well over 200 years. My vote: let's leave things as they are.

Recreational activity torts, the stepchild of personal injury cases, appear to be making a minor comeback. The Supreme Judicial Court in Massachusetts reversed a trial court's order of summary judgment in a case involving a woman hit by a ball from twenty feet away during an outdoor party. The issue on appeal is whether the party's hosts had a duty to stop a softball game that a reasonable prudent person would know posed risks to guests.

The softball game itself was not really a softball game, just people goofing around. Random people were just taking turns hitting the ball. In fact, participants were told to bunt or swing down on the ball. It was a party, I'm sure alcohol was probably involved, and some people probably took good swings and hit the ball well. One of those good swings landed close to the Plaintiff and another hit her, causing the injuries that gave rise to the lawsuit.

The court reversed the trial court's entry of summary judgment, finding that §318 of the Restatement (Second) of Torts did not absolve the homeowner as a matter of law:

If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor

(a) knows or has reason to know that he has the ability to control the third person, and

(b) knows or should know of the necessity and opportunity for exercising such control."

I am a personal injury lawyer. Having chosen this profession, particularly after being a defense lawyer, it is not surprising that I lean towards plaintiffs on issues where reasonable minds differ. But I am mindful of imposing liability at parties when people are playing games involving risks that are open and obvious to everyone. The dissenting opinion in this case articulates this concern:

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