Maryland Injury Lawyer Blog

Henry Thoreau wrote: "There are a thousand hacking at the branches of evil to one who is striking at the root." So it goes with efforts to decrease health care costs by attacking the frivolous malpractice lawsuit straw man.

Attacking frivolous malpractice lawsuits is a brilliant way to frame the argument. If you poll the American people, they are universally opposed to frivolous malpractice lawsuits. So am I.

The other avenue is to attack trial lawyers and, in particular, medical malpractice lawyers. The effort to do this is obvious and pathetic.

Dr. Stuart Weinstein, clearly a doctor with outstanding credentials as a physician, and otherwise pretty cool sounding guy, said this in his prepared statement on behalf of a "Doctors Want to Make More Money" group to the House subcommittee looking at malpractice:

In 2009, the Institute for Legal Reform released a report showing that television ads for medical liability lawsuits increased by 1,400 percent in four years as spending on these ads reached an all-time high of $62 million -- up from just $3.8 million in 2004

Really? You are speaking to Congress. This is a big deal and making every word counts. Yet you take the time to pass this along to Congress? How much money is spent on legal advertising is important to this conversation? A question of at least equal importance is: how much has Dr. Weinstein made over the last 5 years? I'll bet you the answer is in the millions.

Continue reading "Frivolous Malpractice Lawsuits" »

Health and Human Services Secretary Kathleen Sebelius said this morning that she would submit President Obama's "parameters" for medical malpractice reform.

I think this is all probably much ado about nothing. I overreacted to all of this in 2009 and I'm not going to do it again. But if you think the health care plan gets constitutional scrutiny now, wait until they add even a speck of federal legislation that conflicts with state law. It is the kind of thing that would have the Tea Party states' rights crowd screaming from rooftops if it was anything other than medical malpractice. It is like saying, murder is wrong. Unless you kill someone that I really don't like. In that case, I will just turn a blind eye.

Conservative commentator Pat Buchanan drives me nuts. But he is intellectually honest. I would like to hear some conservatives like George Will stand up and say all of this federal intrusion on state law is a bad thing. And I would like to know how the Attorney General of Virginia, who is making all this noise about the constitutionality of health care reform, feels about this kind of effort to intrude on states' rights.

Ultimately, I think Obama is under pressure to put forth a proposal that has some teeth because he has been getting hammered for his lack of specifics. But I don't think any proposal that he comes up with is going to be more burdensome than the restraints we already have in Maryland. But not every state has the draconian malpractice tort reform that we have and those states that don't are going to raise very strong constitutional objections to the slightest federal interference. Boy, I would love to see how the Justice Scalias of the world are going to deal with this issue.

• Judge Joseph F. Murphy, Jr. to join Silverman’s firm (The Maryland Daily Record). This is a huge coup for Silverman | Thompson | Slutkin | White. Judge Murphy also gets to work with his daughter there which is pretty cool. If my three kids weren't going to be doctors in 20 years, I would love to work with them.
• Louisville Slugger maker appeals Montana aluminum bat case (Billings, Montana). Louisville Slugger's argument is that they should win as a matter of law because any warning on bat would not extend to the pitcher. Plaintiff says pitcher is in the zone of danger.
• Reynolds Should Pay $10 Billion to Smoker, Gary Argues at Trial (Bloomberg). Does anyone ever collect on these verdicts? Honestly, I'm not even paying attention.
• Jury Awards $250,000 for Erroneous Cutting of Hepatic Duct (DC Injury Lawyers). We got a verdict in lap chole case in Baltimore City last year.

Continue reading "Personal Injury News This Week" »

• Eric Turkewitz has a good guest post from a judge with advice for trial lawyers.
• John Bratt writes on the Baltimore Injury Lawyer Blog about representing the hearing impaired.
• Brooks Schuelke writes about the law of unintended consequences: how Texas' budget crisis might lead to less car wrecks (Austin Personal Injury Lawyer Blog).
• Texas lawyer Bob Kraft writes about how Wisconsin is heading in the opposite direction of Maryland by decreasing its minimum insurance coverage limits. The plan would be to roll back minimum coverage from $100,000 to $25,000. Maryland just increased its limits for the first time since the Model T came out, going from $20,000 to $30,000. My bet, if you are betting this Vegas: cooler heads prevail and Wisconsin stays at $100,000. Honestly, I'm not even sure how you can argue the minimum coverage in Maryland should not be higher. Why have mandatory insurance at all? We protect everyone with a whiplash injury with minimum coverage but fail to protect those people who are seriously hurt.
• Limit on damages sparks legal filings (JS online.) Let me take back my confidence in the Wisconsin legislature. The bill limits noneconomic damages for medical malpractice in nursing homes to $750,000. Caps have failed to meet constitutional scrutiny in the past in Wisconsin and I doubt this bill will be any different.
• Malpractice leads off rewrite effort (Congress). I wrote about this yesterday.
• Tufts settles suit against doctor in girl’s death for $2.5M (The Boston Globe)

Continue reading "Personal Injury News Roundup" »

There is a new law for traffic/speeding tickets in Maryland that no longer gives accused offenders a chance to wait until the day of trial to decide whether to pay the ticket. Under the old law, motorists were assigned a trial date automatically and were expected to appear at trial if they did not pay the fine. Practically, if you did not show up for trial, you could just pay the fine and be okay. (This was, uh, the experience of some of my friends in college.)

Now, you have to request a trial or you are found guilty. The Maryland General Assembly passed this law, which arguably takes away a little due process, without debate. The reason: money. The Washington Post says that about $3.5 million and 75,000 officer-hours were spent on overtime for District Court appearances in Montgomery County alone. Multiply that across the state and you can see why the state of Maryland is willing to look the other way on due process. Officers are going to still spend a lot of time at trial. But this will free them up substantially so that less overtime needs to be paid and police can spend more time on the street instead of in a courthouse waiting for a 17 year-old to no-show his 62 in a 45. Moreover, you have to think this will free up the docket for a lot of District Court judges in Maryland.

Continue reading "New Maryland Speeding Ticket Law" »

• Study Finds Trend Toward Jury Trials Yielding Larger Patent Verdicts. I read this title with interest until I realized it said "patent" not "patient". Little different.
• The Drug and Device Law Blog suggests that campaign contributions might sway a Pennsylvania intermediate appeals court. Thankfully, the authors' law firm, Dechert, does not practice in Pennsylvania. Wait! What?
• Overlawyered puts up links every day. At this time, I would like to formally accuse Walter Olson of having an intern or something.
• There is a judge in Kansas who was appointed by JFK who is 103 years-old. That is just plain impressive. Above the Law is reporting older judges as a problem. But I'm too busy being impressed. 103.
• Malpractice statistics from Ohio.
• Plaintiff's lawyers release a salacious videotaped deposition from an alleged whistleblower in a hospital wound care lawsuit. I'd be more impressed with actual evidence of negligence. If I had a quarter for every disgruntled employee who claims to have warned of the impending doom...I'd rather focus on evidence of the impending doom, not the person who said I saw it coming for years. Florida found flaws in the hospital's wound-care program so there may well be evidence. But this ex-employee's testimony is not it (at least based on this story).
• Bruce Bereano gives his thoughts on contributory negligence in Maryland. Finally, someone with an impartial opinion not beholden to special interests. I give my thoughts here.

Continue reading "Today's Stories" »

Todd Lamb, executive director of Maryland Citizens Against Lawsuit Abuse, and Ellen Valentino write an editorial in the Maryland Daily Record on the apocalypse that would occur if Maryland joined 90% of states in this country and adopted a comparative negligence standard. Essentially, the authors' argument makes two points: (1) comparative negligence should not be adopted by anyone other than the Maryland legislature and (2) comparative negligence would cause great economic hardship for Maryland.

I understand the authors' point that any change in the standard should come from the legislature. I think the majority of the Maryland Court of Appeals will agree with the authors on this. On the other hand, as Judge Bell pointed out in commissioning a study on contributory/comparative negligence, Maryland's contributory negligence rule is a common law rule. Arguably, the legislature's failure to act is not approbation of contributory negligence. Can the court never change a rule because the legislature has not changed it for them? But I'm getting too far afield... I can see arguments on both sides of this issue.

The idea that Maryland's economy is going to suffer from comparative negligence is just plain silly. Maryland, Virginia, Washington D.C., Alabama, and North Carolina are the only jurisdictions in the country that have retained contributory negligence. Has any serious economist - which I define for these purposes as someone who has taken an introductory economics course - suggested that these economies are meaningfully stronger and have lower inflation because of contributory negligence? Please.

Continue reading "Maryland Citizens Against Lawsuit Abuse Editorial" »

• Paul Luvera deposes the CEO of Medtronic and gives thoughts on how he approached it.
• Defendants hit with $3 million verdict claim judge allowed 'zombie-like' evidence; Seek new trial (Madison County Record). From Defendants' motion: "This court dismissed the plaintiffs' spoliation claims pre-trial in light of the plaintiffs' request for the application of Missouri law, and then let the plaintiff raise the issue zombie-like as if reincarnated, during trial. The Court went further and decided the issue in plaintiffs' favor, telling the jury Defendants destroyed relevant and material evidence..." Zombie-like as if reincarnated. And you said the law can't be fun.
• Maybe Twombly/Iqbal is not such a big deal (Max Kennerly). The Drug and Device Law Blog disagrees with these 19 posts on the subject. Here is a crazy quote: "Iqbal will have a more significant impact on American jurisprudence than Marbury v. Madison." (Note: I may have made up that quote.)
• Criminal opinion on social media evidence that might be applied in civil cases in Maryland (Byron Warnken)
• A theory on why a police officer would give a ticket to a 13 year-old girl in the hospital (Eric Turkewitz).
• Jury awards $14.4 million in wrongful-death lawsuit (Sign On San Diego). What made this case easier to try? Having settled out with other defendants for over $8 million.
• Jury Awards $500,000 in Slip and Fall Verdict Against CVS in West Palm Beach (Sites Makes). A good, old fashioned "Cleaning the Floor and Didn't Tell Anyone" slip and fall case.

Continue reading "Today's Stories and Links" »

It seems like Lawyer 101 advice: if you are making an agreement with the opposing lawyer, get it in writing.

Few lawyers do it. There are two reasons for this. The first is laziness. If this is your problem, this blog post will not help.

But I think another reason personal injury lawyers sometimes do not send letters memorializing agreements is that they feel like it is almost a breach of the trust between counsel. We all know some defense lawyers who would shoot their own mother in the head for the slightest of advantages. It is easy to send a confirmation letter to that lawyer. (You should not even be talking to that guy on the phone.) But what about when you like and trust the other lawyer? You feel a little like a jerk sending out an "I'm writing to summarize our agreement today" letter, don't you?

Do it anyway. First, people just forget. Defense lawyers are often juggling a lot of different cases. They don't remember half of the agreements they made so the lawyer might honestly not remember. Also, even good people have selective memories sometimes. The selective memory comes out in the heat of competition and the heat of battle, particularly during or before trial when the adjuster and/or in-house lawyer supervising the case begin to take a closer look at the file.

You should practice as if any agreement not in writing will only be enforced if it hurts your case.

• Top 5 Stories of the Week (Maryland Daily Record)
• Editorial: Judges shouldn't be able to toss out verdicts on a whim. The writer is talking about the criminal case involving the death of Anna Nicole Smith... I am sorry... former Playboy model Anna Nicole Smith. Apparently, even after her death, she needs a salacious lead in for her name. Anyway, the problem is one man's whim is another man's deeply help principle )
• "Social media is seriously threatening the impartiality of juries." It is a problem. No doubt. But let's not overstate the case. I think justice will survive Twitter and Facebook.
• Joint tortfeasor releases in Maryland medical malpractice cases. I think 1% of Maryland tort lawyer lawyers understand joint torfeasor releases
• Oh, my, speaking of hyperbole, check out this one: Medical Malpractice Causing Threat For The Civilization. This is a new blog. The smart money: it won't last.
• Overlawyered writes about tow truck scams. The Maryland Accident Lawyer wrote about this last month.
• Albuterol recall last week.
• A Chamber of Commerce files yet another lawsuit. Man, they file a lot of lawsuits.

Continue reading "Today's Stories" »

Los Angeles County has settled a medical malpractice lawsuit with a patient at Harbor-UCLA Medical Center who claimed that one of her blood vessels was punctured by a catheter tip during a medical procedure. The woman suffered further complications from the injury but was released a few days later.

This is from the article I read:

County officials said they believed they cared for the patient properly but would be hampered in court by the Res Ipsa Loquitur doctrine. The doctrine says an entity is presumed to be negligent if it had “exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened,” according to the website law.com.

Res ipsa loquitur in this medical malpractice case? What on earth are they talking about? I'm not saying res ipsa can never be applied in a malpractice case (read Orkin v. Holy Cross Hosp, Inc., 318 Md. 429 (1990) but that's a pretty big matzah ball to leave hanging out there. You are the Los Angeles Times. Tell us a little more than that.

A punitive damage award for an insurance company's bad faith? It is a foreign concept for Maryland lawyers. But not for much of the rest of the country. A recent Jury Verdict Research study found that over the last twelve years, 32% of bad faith verdicts throughout the country led to a punitive damage award. The average bad faith punitive damage award was $6,951,219; the median award was $1,000,000.

The fact that Maryland does not allow for punitive damages in bad faith claims is sort of like my poor vertical jumping ability. I'm generally not that mad about it because it is all that I have ever known. I have never been able to jump high (I could never even dunk a tennis ball) and I've never practiced where there was a potential for any real punitive damages in the types of cases we handle. But I definitely get "punitive damage envy" reading a study like this. Because it is a great tool in keeping insurance companies honest.

Quick set of links today:

• U.S. District Court Judge Roger W. Titus awarded - I guess on summary judgment - $3.8 million to former University of Maryland linebacker Shawne Merriman. The defendants in this case were former Duke basketball players Christian Laettner and Brian Davis and their company, BD Ventures. This must be the headline: Maryland beat Duke.


• The Drug and Device Law Blog has a title that got my attention: Yet Another Reason to Hate Insurance Companies. Finally, these guys see the light. Tune in tomorrow when they turn on their pharmaceutical drug clients. It will be like when Al Pacino turns on John Forsythe in And Justice for All. Sadly, when I googled John Forsythe to check the spelling, I found out he died in April. I always liked that guy.


• Fortune profiles Chief Justice John Roberts. My first off campus law interview was with Justice Roberts when he was at Hogan & Hartson. True story. Let's just say I didn't get an offer and I doubt there was a lot of inner office debate about it. And I don't want to talk about it anymore.


• The Drug Recall Lawyer Blog has a ton of links for today


• Maryland is ranked 9th in seat belt usage


• Governor O’Malley will not seat Ramona Moore Baker on the Orphans’ Court of Baltimore City — even though she was elected to the bench in November - because she is not a lawyer. I'm sure it is the right call but it is certainly funny that you can be on the Supreme Court of the United States without being a lawyer but you can't be an Orphans' Court judge.

I spend way too much time reading personal injury related blogs and news. My first resolution this year should probably be to do this less. But it's actually productive in that I see new law and new developments and I'm pretty sure it makes me a better lawyer. So instead of resolving in 2011 to read less, I am going to provide more of what I find out there in the way of round-up posts. I'm going to try to provide commentary at least for some of the stories/blogs but sometimes it is going to be just the links. I'm going to look at Google Analytics and see if you are reading these round-up posts. If you are, I'm going to keep doing it. If not, it will disappear into the night.

Continue reading "New Blog Resolution" »

Last week, the Maryland Court of Special Appeals decided Logan v. LSP Marketing, a lead paint case in Baltimore City.

In this case, Plaintiff did not answer discovery. Defense lawyers, who I believe were the Leder Law Group in D.C., filed a motion to compel. In what is regrettably a common practice in Maryland, the motion to compel got Plaintiff to answer the discovery and their response was "hey, this is moot, we answered now." Defendant's counsel, to their credit, wrote a reply saying the answers were insufficient in part because Plaintiff wrote garden variety broad designations of experts. The motion was granted but a more detailed expert designation never came.

So before trial, Defendant sought to strike the experts. Baltimore City Judge Kaye A. Allison struck Plaintiff's experts from testifying at trial. When the case went to trial, Judge John P. Miller denied the motion to reconsider Judge Allison's motion. Which left Plaintiff with no case and Judge Miller granted Defendant's motion for summary judgment.

Continue reading "New Expert Designations Opinion" »