Maryland Injury Lawyer Blog

The Washington Post reports that a Maryland personal injury attorney plead guilty yesterday to insurance fraud. The lawyer worked with a chiropractor to submit false car insurance claims. Not content to cheat just for his clients, he brought his own bike accident claim and got a $11,000 settlement from a insurance company.

Wild story. It is very easy to get up on a soap box and condemn but it is too easy of a target. It is like writing a rant that Charlie Sheen is crazy. Everyone gets it.

This lawyer has "admitted full responsibility", according to his lawyer. This is good. But, respectfully, criminal lawyers always talk to much. "[He] is devastated by his terrible judgment," the lawyer added.

Bad judgment? I used bad judgment last night after I put my kids to bed when I took my uncontrollable dog out without a leash. Stealing is not bad judgment. It is stealing. Can you repent? Absolutely. But it is not a question of judgment.

Maryland drivers are ranked just behind Washington, D.C. as the dumbest drivers in the country, ranking 49th in driver knowledge a new GMAC Insurance study. Last year, Maryland ranked 20th.

Statistically, it is a remarkable shift that could not be the result of mere chance. There are two possible explanations for the disparity. The first is that the rest of the nation is working hard on learning about driver safety and Maryland is just not keeping up. This appears to be the view of the "Take Everything at Face Value" Baltimore Sun, which draws with ease meaningful conclusions from this study.

The second is that this GMAC Insurance study uses the same rigorous methodology as my mom's study on the efficacy of Vitamin C (her kids did not get sick much) and the only reason GMAC Insurance puts out this silly study is to attract publicity from idiots like me and, more importantly, the Baltimore Sun, reminding everyone that GMAC Insurance still exists.

Ignoring a little known statute that requires that the Maryland Insurance Commissioner and similar positions must be filled by white men in their 50s, Governor O"Malley has appointed Therese Goldsmith as the new Maryland Insurance Commissioner.

Most Marylanders have no idea what the Maryland Insurance Administration does, picturing that old white guy with his secretary and two minions. But the MIA is a major operation with a $30 million budget. It employs a zillion more people than you think.

Therese M. Goldsmith graduated from University of Maryland Law School in 1998 and went to Venable. She made partner in short order at Hogan & Hartson. Governor Martin O’Malley appointed her to serve as the Maryland Public Service Commission in 1998, which regulates public utilities and some transportation companies in Maryland. Now she is stepping into Ralph Tyler shoes who is now with the FDA. I don't think I agreed with Ralph on everything but he was a good guy who was kind enough to regularly speak to my insurance law class at UB.

I approve this nomination. Based on what information? As usual with this kinda stuff if you are not an insider, very little. Reading attenuated tea leaves, Goldsmith did handle a racial profiling case against the Maryland State Police back when she was at Hogan & Hartson. Being against racial profiling does not exactly establish pro consumer/victim bona fides (who exactly is in favor?) but being willing to do so on behalf of the ACLU (a group even I find over-the-top sometimes) is a hopeful harbinger of an inclination to protect victims of insurance abuse.

(Then again, Gerald Ford probably thought he had a good, safe conservative pick with John Paul Stevens. And people from big law firms scare me because they may have drank the Kool-Aid served there. So who knows?)

Almost two years ago now, Medicaid/Medicare liens became even more difficult to deal with as the law pushed to the lawyers and insurance companies the obligation of confirmation and resolution of Medicare/Medicaid liens. I'm sure betting an insurance company has yet to receive a fine for not verifying a lien before paying a personal injury settlement. But nobody wants to be the first.

Medicare, Medicaid and State Children's Health Insurance Program Extension Act of 2007 created so many headaches people starting fighting back. In Haro v. Sebelius, an Arizona case in U.S. District Court, Medicare beneficiaries (and, interestingly, a personal injury lawyer in his own capacity) challenged - as a class - two things: (1) Can Medicare/Medicaid (hereinafter "Medicare because I'm sick of the slash) “require prepayment of a reimbursement claim before the correct amount is administratively determined where the beneficiary either appeals or seeks a waiver of the MSP reimbursement claim?, and (2) Are personal injury lawyers financially responsible for reimbursement if they do not hold or immediately turn over to Medicare their clients’ personal injury settlement awards.

Personal injury lawyers are completely in a pickle on these liens. Our clients want their money; we want to get them the money they are entitled to get. The question is whether personal injury attorneys are precluded from giving the clients their settlement money until after Medicare’s claim has been satisfied, and, let's be honest, whether Medicare can recover the reimbursement claim directly from the attorney if the client fails to pay the reimbursement claim after the settlement money has been turned over to the client.

Continue reading "Medicare Liens: New and Better Law?" »

On this website soliciting drunk drivers, a nice heads up is provided as for drunks as to how to avoid specific sobriety checkpoints. This is just one post but most of the blog/website seems focused on giving a heads up as to which checkpoints to avoid.

I'm not sure why the police announce checkpoints. There is probably a statute or other logical reason that escapes me. But what does a website for DWI lawyers trying to accomplish in publishing this? A public service?

I am a big fan of sobriety checkpoints. I'm not a big fan of everyone chipping in to tip off the drunks. Lawyers who are paying for leads from these people really need to speak up. I'm going to pose as a drunk driver and then lecture the lawyer who contacts with me. (Actually, I'm not really going to do that.)

Judge Harrell opens the Maryland Court of Appeals' unanimous opinion today like this:

[Jeremy] Bentham (my note: a name familiar to my ultraeducated readers and Lost fans) stated the case against retroactivity most succinctly when he likened it to ‘dog law.’ He was referring to the age-old method of training dogs by waiting until they do what they are to be forbidden to do, and then kicking them.” NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 41.02 (5th ed. 1992) [hereinafter SUTHERLAND]; see JEREMY BENTHAM, Truth versus Ashhurst, in 5 THE WORKS OF JEREMY BENTHAM 235 (1863) (“They won’t tell a man beforehand what it is he should not do—they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it. What way, then, has any man of coming at this dog-law?”).

Sadly, Judge Harrell did not bother to read "Eight Leaflets on Aspects of Bentham's Thought and Life" which explains that Bentham completely changed his views on retroactive dog law in later writings. What? You think I just made that up? Fair enough. I've never actually read Bentham. In fact, I may not have heard of him until Lost and my knowledge may or may not be limited to a Wikipedia page. Seriously, I wish I had a more classical education. (Besides, I would never call out a Maryland judge with a "sadly," because I'm not quite that brave.)

Continue reading "Maryland Statute of Limitations and Child Molesters" »

Big win for lead paint plaintiffs today in Maryland Court of Appeals as the court ordered a new trial after a jury verdict for the landlord.

In Janay v. Wlikowsky, the landlords' attorney questioned the Plaintiff's grandmother as to whether she had ever notified the landlord about flaking and peeling paint in Barksdale’s home. In spite of the fact that they do not point to the grandmother or any "contributory negligence" on the part of the family (not that there can be contrib but you get the idea), the landlords' attorney sought and got a jury instruction indicating that a person’s failure to report flaking paint to the landlord is evidence of negligence. Of course, the grandmother’s negligence would not be attributable to the child anyway because she could be a substantial contributing cause to the harm and the child could still recover against the landlord.

After a defense verdict, the Maryland Court of Special Appeals agreed that this is a flawed jury instruction. But the CSA affirmed the trial court's verdict because the error was found to be harmless.

The Maryland Court of Appeals rejected Plaintiff's lead paint attorneys' theories that a presumption of prejudice should be afforded to lead poisoned children and their contention that a defective jury instruction by definition implicates due process. (Both parties presented novel rejected theories. The defense argued that it somehow mattered that the landlord's lawyer did not argue the grandmother's negligence in closing.) The court dismissed with my thought these arguments but did find that under these facts, the error is not harmless.

It is easy to infer in a case like this that Plaintiff's attorney did not have the jury. Reading between the lines, I'd be willing to bet this jury would have given a defense verdict even without the error. But it is important to remember this is a matter of speculation. Maryland Rule 5-606 strictly limits a court’s ability to inquire post-verdict into “the sworn juror’s mental processes in connection with the verdict.” So you can't “unbake” the jury verdict by asking them "Hey, would this have made a difference?" There will never be tangible proof of prejudice because we cannot read the minds of the jurors.

Continue reading "New Lead Paint/Harmless Error Opinion" »

The Lawyers Logbook has an article on truck accident claims by John F. Romano that I really liked. I read a lot of articles by lawyers on handling personal injury cases. Honestly, you have to kiss a lot of frogs to find something interesting or useful. Usually, what you get is a lot of trite advice providing information that you already knew. (If this blog is doing that, tell me and I'll stop writing immediately.)

John's article has an "I can feel you have been in the trenches" vibe with real insightful commentary. His favorite from the article was his theory that you have to be on guard of what he calls "the man behind the curtain" strategy.

If you have handled large cases, you know exactly what it is. "Hey, Ron, what are we doing here? Let's get this case settled. Give me a real demand and let's get this thing behind us."

John's angle on this is that it causes you to drop your guard and assume the case is going to settle early. I actually don't think many good personal injury lawyers drop their guard in this situation and, to the extent that they do, they have the make-up speed to get the case back on track. The best plaintiffs' lawyers load before firing - your case should be ready to go when you file the lawsuit, anyway. So, maybe you take a few late deps but it all should work out the way it would have before the bait and switch.

But I think some of the best personal injury lawyers do get tripped up by this tactic in a different way. The lawyer goes back to the client and says, "If we could get X, that would be a great value for this case. Would you be willing to accept X? Client agrees to X. So the lawyer demands X + 50%. The defendant does nothing with the offer and the case proceeds. The lawyer realizes the whole thing was a ruse and gets back to the business of getting the case ready for trial.

Continue reading "Settlement Tactics in Large Personal Injury Cases" »

If you are a practicing lawyer in Maryland, you are going to find this video unbelievably interesting.

Channel 11 goes after two Maryland judges. The piece takes shots at two judges, one who got a DWI and another who, in a very high profile case, married an alleged victim and perpetrator in a domestic violence case.

At first, watching it I got a little worried about these judges being embarrassed over a single incident that shouldn't be career defining (as George Bush famously pointed out to Dan Rather). But then they pile on some more dirt on these judges and play interviews of these judges who just dig deeper holes for themselves.... it is not pretty. You don't walk away from the story glad these guys are on the bench. Sure, you leave open the possibility otherwise because you know these pieces can railroad people. Still.

If you have ever been in front of an abusive judge who speaks to you in a way they would never dare speak to a stranger on the street or at a party, you can't deny a little bit schadenfreude when a judge is exposed. But, in my opinion, Channel 11 goes a little far here. It makes for good television but is probably not the best way to treat judges or people.

Continue reading "Embarrassing Judges" »

Insurance companies have "go to" doctors for "independent" medical exams. These doctors operate by either (1) the sincere conviction that virtually no one is as hurt as they say they are or, (2) by financial motivation.

My money is typically and cynically on the latter. Certainly, there are some true believers but I suspect most of the true believers retrofit their zealotry to match their economic interest. These are doctors insurance companies name as experts before they ever speak to them. It makes sense: they don't have to because they know exactly what the expert is going to say. We rarely need to depose them because I could write their testimony out for them. The insurance company knows what they are going to say, I know what they are going to say, the judge knows what they are going to say. Like Avon Barksdale said, "The game is the game."

Continue reading ""Go To" IME Doctors " »

• The Volokh Conspiracy asks about a question that was left out of the Squawk Box coverage I saw this morning: does IMF head Dominique Strauss-Kahn have diplomatic immunity in the United States. In spite of the fact that I enjoyed diplomatic immunity as a teenager - man it felt cool - I think the whole idea of it is infuriating. If some French hotshot in a $3,000 a night hotel raped an American, we need to make sure we can hold him accountable (or at least make sure the French do).
• There are more reports of arrests in a personal injury settlement scam, this time in Florida. On Thursday, deputies issued warrants for 53 people involved in a fake injury, fake treatment, settlement ring. As this St. Petersburg Times article points out, this is a tax against the honest. Florida motorists are believed by one study to pay $83 more in annual personal injury protection premiums because of fraud. Of course, Florida brings much of this on themselves with their silly no-fault system.
• Max Kennerly gives a long dissertation on his philosophy of Google, search engine optimization, and the balance between writing a credible blog that is an important part of the conversation and also making your blog productive for your practice. I breakdown my similar theory here.
• We are starting out slowly announcing it because we are completely redoing the blog format with Justia's help. But the Miller & Zois Kids Foundation has a blog that is eventually going to blow past this one. You can find our new inchoate, but soon to be next big thing, blog, called Miller & Zois Kids Blog, here.
• Brooks Schuelke has to be just wringing his hands over what Texas has done and continues to try to do to destroy legitimate personal injury claims. What? He is doing that right now? Okay, I'll link to it.
• House Bill 5 has made it out of committee in the House. It strikes me as a political speech instead of a piece of legislation. The chance of this bill passing approaches zero.
• Baltimore City looks to score a new courthouse. What is wrong with the old one? It is 1,000 years old and has 5 amazing - really nice - courtrooms and the rest are awful.

Continue reading "Monday Morning PI Roundup" »

The Wall Street Journal reports that on a $322 million verdict in Mississippi.

I give this verdict about a 10-1 chance on appeal. I wouldn't trust the Mississippi Supreme Court as far as I could throw them. Why? My rule: Mississippi's Supreme Court is so political one of their justices sought support from my blog.

This is not a harbinger of an impartial search for justice. And the Mississippi Supreme Court has a history of making life tough on plaintiffs, who lost 90% of personal injury appeals during one streak (although I think things got a little better of late).

Continue reading "$322 Million Asbestos Verdict" »

You can find a quick summary and links to what is going on and what lawyers are writing about medical malpractice issues this week here.

Subrogation allows insurers to recover the costs of reimbursing injured insured parties. Consequently, virtually every health insurance company involved in a car accident or medical malpractice case in Maryland demands repayment - to varying extents - of the money they have spent and have established various byzantine procedures for dealing with repayment of their subrogation interests. Sometimes, it is the toughest part of resolving any personal injury case.

Understandably, clients are astounded that their health insurance company demands to be paid back for the expenses they have incurred in an accident or medical malpractice claim. They never had to pay back any money their health care provider has paid in the past, including [fill in the blank bad thing that happened] to their family. So why now? The question has an answer but no one ever likes it. "So the insurance company gets paid back and keeps my premiums?" Logically, it is a hard sell.

Continue reading "Maryland Insurance Liens in Accident and Malpractice Cases" »

Max Kennerly touches on a topic this week that I think is interesting and important. To what extent are plaintiffs' nursing home lawyers making nursing homes safer?

People hunker down in one of two camps: (1) nursing home lawyers are saving our elderly from being unmercifully abused; or (2) nursing home lawsuits drain so much money from nursing homes that they can't provide quality service at a meaningful price. As the poets say, the answer probably lies somewhere in the middle and these binary choices don't do justice to the complexities of the issue.

Anyway, the blog post was precipitated by an article in The New England Journal of Medicine on the impact of nursing home lawsuits on nursing homes. The NEJM recently took a lot of heat from doctors for arguing that medical malpractice tort reform is not helping to reduce costs or improve patient care. On nursing home lawsuits, however, the journal goes in a somewhat different direction, concluding that lawsuits are not making nursing homes safer and that being a "good" nursing home does not provide much insulation from litigation. I'm oversimplifying a complex study but that is the gist of it.

Continue reading "Nursing Home Lawsuits: Are Patients Safer?" »

A lawyer at DeCaro, Doran, Siciliano, Gallagher & DeBlasis, a good Bowie law firm that we have a good deal of respect for that does a lot of insurance defense work, got a speeding camera speeding ticket in Montgomery County. He decided to fight it. The basis? He found a typo, a "(b)" instead of a "(d)" in the Montgomery County law dealing with speed cameras. He won.

Continue reading "Lawyer Beats Speeding Ticket on Typo" »

Last month, I wrote about GEICO's efforts to get me to indemnify them from any liens or medical bills after settlement of a car accident case. GEICO's request just rubs me the wrong way. But I never saw until today any authority for the question of whether a personal injury lawyer is even permitted to do what GEICO was demanding.

Now I do. This Florida Bar Staff opinion analyzes the issue and says lawyers cannot ethically guarantee anything because it is tantamount to guaranteeing payment of medical bills (which lawyers cannot do). The opinion cites a host of jurisdictions that are in accord: Florida, Ohio, Indiana, Missouri, South Carolina, Wisconsin, New York City, and Illinois.

I don't know how Bar Counsel in Maryland would rule on this but Maryland has the same law with respect to the scope of financial assistance lawyers can provide to clients so I would expect Maryland to come out similarly.

Joanne Doroshow from the Center for Justice and Democracy writes a blog post for AOL the Huffington Post arguing that medical malpractice tort reform will actually increase the national debt.

A few weeks ago, I observed that no one was saying anything new on the subject of tort reform. There is an editorial a week on tort reform but nothing new. The AMA is particularly relentless in what has to be a systematic effort to push new malpractice award limits and other curbs on malpractice lawsuits.

Ms. Doroshow has something new to say. Fundamentally, Ms. Doroshow contends that limitation on malpractice lawsuits will increase our national deficit because hospitals and doctors will lose the incentive to provide the safeguards necessary to protect patients. From this, it follows that the increase in injuries and deaths from medical malpractice will increase the societal burden of supporting patients who are brain damaged, mutilated or rendered paraplegic. She explains her thinking further:

CBO notes that one study finds such tort restrictions would lead to a .2 percent increase in the nation's overall death rate. If true, that would be more than 4,000 additional Americans killed every year by medical malpractice, and that's on top of the hundreds of thousands of additional patients who survive their injuries. How could this possibly be an acceptable trade-off?

It can't be. Like I said last week, we get no bang for our buck on malpractice reform. In exchange for our end run around the 7th Amendment and for trampling on the rights of people that need justice, we get nothing tangible back economically.

Continue reading "Malpractice Reform and the Federal Deficit" »

• Nevada's draconian medical malpractice cap has not prevented all malpractice lawsuits in Nevada. Malpractice cases for rich people are still in good shape. Why? Because they have so much lost wage upside. Here's an example: the family of a 35 year-old neurosurgeon who tragically died of sepsis is bringing a wrongful death malpractice lawsuit against emergency room doctors and nurses claiming $60 million in future lost wages. The young neurosurgeon was about to join a practice where doctors earn an average of $2 million a year. Plaintiffs' lawyers have a Harvard doc on board to testify that the breach of care caused the doctor's death. The irony is rich doctors can still bring malpractice cases against other doctors because they make so much money.
• Law firms are demoting a lot of equity partners to non-equity status. Big law firms are harsh. "Sarah, you are welcome to stay, I guess. But you are not an owner anymore."
• Judges think sitting through Daubert hearing designed for the purpose of "educating the judge" is a bad idea. Really?
• Barney Frank tries in vain to reach out to people who are still going to hate him (from Overlawyered and Turkewitz). Frank also claims that the government is pushing dying people to receive treatment to prolong their lives. I think even Frank's strongest allies admit he is prone to becoming unhinged. He's Charles Barkley if he were in Congress. You can't even get mad at him.
• Florida reduces the penalty for sexting. A nation can finally breathe.

Continue reading "Personal Injury News/Musings" »