Maryland Injury Lawyer Blog

In State Farm v. Cavoto, a Pennsylvania appellate court decided a battle between two parties that are always at odds, State Farm and chiropractors. Usually, the skirmishes between these parties are fought by proxy but, in this case they faced off directly.

Essentially, State Farm got fed up with paying chiropractors who were billing for adjunctive procedures performed by support staff who were not licensed. Particularly, and arguably understandably, annoying to State Farm was unlicensed people applying hot and cold packs, turning on and off mechanical devices, using a traction machine and assisting in therapeutic exercises. I'm sure that most infuriating to State Farm is paying for someone without medical training to apply hot and cold packs. If you can't see why State Farm takes exception to that -regardless of how you view the merits of it - you may have had one drink too many from the plaintiffs' attorney Kool-Aid.

The appellate court didn't look at the case quite that way. Instead, the court applied the law that appears to allow unlicensed staff members to provide some treatment. The court reasoned that the real medical care was the decision to give the hot or cold packs and for how long, not who applied them. Similarly, the court reasoned, most elements of applying electrical muscle stimulation, ultrasound, and the like do not require specialized skills, as long as there is a chiropractor making the decisions about the details and how the therapy should be applied. Accordingly, the court remanded the case back to the trial court to "make more specialized findings and determine whether any of the procedures allegedly performed by unlicensed personnel required formal chiropractic education or training, including further inquiry by the court as to the scope of those procedures."

Continue reading "State Farm v. Chiropractors" »

Awful story. Young and handsome 17 year-old boy is killed in a car accident. Inexplicably, the city morgue decides to display the child's brain. Sure enough, the boy's classmates go on a field trip to the morgue and see the boy's brain floating in formaldehyde. How did they know it was his? The boy's name was on it. (The story actually gets even worse.)

Seriously? The story sounds made up, right down to the part about the kids going to a field trip to the morgue. But no one disputes the facts. Incredible. I usually try to avoid "what a bunch of morons" type rhetoric on this blog. I'll set that aside for this one. What a bunch of morons. They jury in this case agreed, awarding the family a million dollar verdict.

Everyone at that morgue should be fired. No doubt. Still, we have to value the loss not of the boy but of the morgue's negligence. Clearly, the real loss here is the boy's death in the car accident, not what happened to some part of his body after the accident. Plaintiffs' lawyer told the jury that the boy's sister dropped out of school at age 14 because of devastating survivor’s guilt and relentless teasing by other students. Beyond tragic. But this is not what was at issue in this trial.

If I were on the jury, I'm sure I would have cried a lot during that trial. I would have awarded $10 million - geez, at least - for the family against a defendant at fault for his death in the car accident. I also would have been contemptuous of the morgue's idiotic mistakes. But would I have awarded the family $1 million against the morgue? No.

News and thoughts from this week:

• Baltimore moves closer to settling a claim brought by a man who was injured while doing sanitation work as his court-mandated community service.
• The Maryland Daily Record has a big Monday law story on a woman was suing her medical malpractice lawyer. I can't speak to the merits of the case - who know if the allegations are true.=? The problem with these "someone filed a lawsuit against Joe Smith" stories is that everyone remembers the story of the lawsuit but no one will remember if he gets a defense verdict. I'm not saying these stories should run. But it is a little mini tragedy if the trial comes out very differently than the allegations alleged in the story.
• What can Rick Perry's "oops" teach trial lawyers?
• Federal regulators have ordered a Maryland-based trucking company to get off the road, owing to multiple safety violations.
• In other trucking news, a Pennsylvania federal jury ordered a trucking firm to pay $4 million to a man seriously injured when an overloaded tractor-trailer driven by a very small person with insufficient training barreled into the victim's truck.
• "A jury has awarded $2.35 million to the estate of a 56-year-old man who died after choking on a meatball at a Detroit-area nursing home."
• Everyone has an angle on this Joe Paterno/Penn State debacle. One of mine on this unbelievably depressing story: I just wonder if the perfunctory "Oh, these boys' lives are ruined" talk is reallly helping the victims. Hopefully for some of these men, while their lives were ruined for a time, they got over it - at least to a significant degree - and now live happy and productive lives. Inadvertently, I think we are telling the victims that well, of course, their lives are destroyed. Do we have to condemn them to a life of misery with our rethoric? When I watch the depressing commentary, I'm always looking at it throught the victims' eyes. If I was doing well, I'd be wondering if I should be doing well with everyone assuming I'm a destroyed basketcase.

In the NBA labor dispute, the NBA owners say they have put their best and last offer on the table. It is one of the oldest stunts in negotiating. Take this offer or we are going to take it off the table.

I think he's bluffing but I'm not 100% certain. Which, is exactly the point, of course. I don't disagree with the settlement tactic in this exact situation. The man making the call is NBA commissioner David Stern who - getting ready for retirement - is almost certainly negotiating the last labor deal of his life. He will never get called out for bluffing and backing down again.

Personal injury lawyers can also run a similar bluff with defense lawyers and insurance companies if they don't ever expect to deal with them again. But if you are dealing with the same insurance companies in car accidents or medical malpractice cases - which applies to every lawyer in Maryland that has some volume of personal injury cases - you have to consider your overall credibility when negotiating claims. There are at least two reasons to temper the lawsuit/trial ultimatums.

First, the client can change their mind. I have had many clients that dislike the settlement offer and are emphatically ready to file suit and then do a 180 when I tell them we are filing suit. I don't say this derisively. Think about it in comparison to the NBA player. These players risk losing a full year's salary which is worth millions. But, they already have millions. In contrast, in the last case I tried, the client turned down an offer that was five times her yearly salary to let a jury decide. Thankfully, it worked out for her, her award was more than 25 times her annual salary. But the risk she took makes the NBA players' dilemma seem trivial. (A bit of hyperbole here because I'm not taking out attorneys' fees and liens into my "times" calculus. Still.)

Anyway, going back, I really try to make sure the client is genuinely ready to file suit before negotiating as if I have that arrow in my quiver. Once you got out on the "my way or the highway" limb, you are unlikely to get more money on the case, even if the insurance company has more money to put on it. Your walk of shame back to the negotiating table will not be rewarded.

Continue reading "David Stern's Bluff and Negotiating with Insurance Companies" »

These are the number of jury trials in Maryland in 2010, sorted by county:

I'm not exactly sure why but Baltimore County is not listed. The surprises to me:

• The gap between Prince George's County and the pack.
• That Montgomery County is ahead of Baltimore City
• There were only 20 jury trials in Cecil County in 2010
• That four Maryland counties combine for 10 trials

Psychiatric medical malpractice case ends badly for Plaintiff

In a new opinion by the Maryland Court of Appeals, the court answers the question of whether Maryland's Health Claims Arbitration requirements should apply to cases filed in federal court where the malpractice occurred outside of Maryland.

Lewis v. Waletzky involves a claim that a psychiatrist in Chevy Chase, Maryland negligently prescribed antipsychotic drugs for the Plaintiff. The psychiatrist lived in Washington, D.C. and there was some issue of which substantive law applied but - spoiler alert - it ends up being irrelevant to the opinion. Plaintiff's lawsuit filed in U.S. District Court alleged that Plaintiff's psychiatric symptoms were mild and did not warrant subjecting the Plaintiff to the well known risk of an antipsychotic drug.

Plaintiff's malpractice lawsuit alleged that as a result of these negligent prescriptions, the patient developed tardive dyskinesia, which is caused by the drug Reglan and some antipsychotics (I'm not sure what the drug was in this case.). There is no treatment for tardive dyskinesia, an awful neurological disorder that causes involuntary grimacing, protrusion of the tongue, lip smacking, rapid eye blinking, and movement of the extremities.

Going back, Plaintiff moved out of state and filed the case in federal court and did not meet the certificate of merit and other requirements imposed by the Maryland Health Care Malpractice Claims Act. The Fourth Circuit was unsure of whether the health claims arbitration act should be applied and asked the Maryland high court:

Does Maryland recognize the public policy exception, or any other exception, to lex loci delicti based on the Maryland Health Care Malpractice Claims Act, see Md. Code Ann., Cts & Jud. Proc., §§ 3-2A-01, et seq., which requires a plaintiff to comply with certain mandatory administrative filings prior to filing a medical malpractice lawsuit in a Maryland court?

Interestingly, the Court of Appeals seems to tell the the 4th Circuit and the parties that this is not a lex loci delicti case but instead focuses on whether the Act is substantive or procedural. Accordingly, the court found that Maryland statutory scheme for medical malpractice cases applies to federal court malpractice cases (Note: I think Judge Titus would disagree.) (Read this opinion.)

Continue reading "Malpractice Statute Applies in Federal Court Says Maryland Court of Special Appeals" »

This blog post summarizes Mattison v. Gelber, a new Maryland Court of Appeals opinion in a medical malpractice case with a unique issue with respect to whether there was an entry of final judgment without an award of costs. You can go to the jump at the bottom of the post. I take the dog for a short walk in the introduction.

When I started practicing law, one of the first cases that I was given was a plaintiff's legal malpractice case. Except for a subrogation case - which really does not count as a plaintiff's case - it was the only plaintiff's case that I had in my first four years as a lawyer. Now, it has been ten years since I was on the other side of the v.

Anyway, in the malpractice case, the lawyer blew the time for filing a post-verdict appeal. He blew in the most bizarre way possible: he filed his Notice of Appeal too early before final judgment had been entered.

The idea of committing legal malpractice for doing something too early stuck with me. I have been paranoid to this day about deadlines in general but, in particular, post-judgment motions. In Mattison v. Gelber, the court dealt with facts that validate my paranoia.

This case started, as many malpractice claims do, with a battle over venue. Plaintiff filed in Prince George's County against two doctors. There is not a medical malpractice attorney in Maryland who would not prefer Prince George's County to anywhere else (possible exception: Baltimore City). But the malpractice happened in Howard County, one of the toughest places in Maryland to try a malpractice case. The Prince George's County Circuit Court transferred the case, it did what it likes to do if there is a venue of issue: kick it out of their court.

Continue reading "New Maryland Medical Malpractice Opinion on When a Final Judgment Is Entered" »

Media coverage of injury cases and jurors

I love when someone does a study confirming one of my pet theories. My theory: juror skepticism towards plaintiffs is fueled by unwarranted perceptions in the media as to whether jurors are reaching fair verdicts.

The Center for Justice & Democracy has published a study showing that the media distorts the public's perception of how much juries award in personal injury and other civil cases. The study tracked the news over an 80-day period and found that jury verdicts reported on in the media are 192 times higher than the national average of damages awarded. Plaintiffs' verdicts reported by the media in the study had a median jury award was $4.6 million, instead of the real national median jury award of $24,000 awarded to victorious plaintiffs.

The problem is easy to see. The public sees that every celebrity death ends in a wrongful death lawsuit. Every silly celebrity and pseudo-celebrity dispute also ends up as a lawsuit. Look at this crazy battle published on Deadspin today, involving Erin Andrews. You can find one every single day if you look. So, the public weighs the merits of these lawsuits, finding that more often than not they are at best unsustainable and, at worst, ridiculous. The take home message? These suits are indicative of all lawsuits.

These same people then read, almost daily, media reports of some $25 million verdict here and some $50 million verdict there. These stories might mention in the last paragraph that there is a cap on noneconomic damages that cuts 90% of the award, or that the defendant did not even have a lawyer and their is no expectation the victim will every see a dime of the verdict. Putting these things together, should we really be surprised that jurors come in with the rebuttable presumption that our clients are just looking for money and not justice?

Continue reading "The Media and Personal Injury Verdicts" »

Defense lawyers are looking for serious personal injury victims to post this picture on Facebook

Social media is all the rage for defendants' personal injury lawyers. In the olden days, the only really fun Perry Mason moments from discovery for defense lawyers was surveillance video. Out of the 10,000 times the insurance company would do surveillance, someone would hit a "guy who claims he is in a wheelchair runs a 6 minute mile" jackpot.

When I started as an associate, the partner I worked for told over and over again, one "got ya" surveillance story he had when he was a young associate. Every time he told the story, he exaggerated the facts a little more. Most people listening, I'm sure, suspected as much. But no one cared, because it was a fun story. These conflated stories have kept a lot of private investigators in business. Every lawyer wants to tell a "I tricked them" story of their own. It is the defense lawyer equivalent of a high stepping 109 yard interception return.

Now, defense lawyers view social media as surveillance video on steroids. It is a lot cheaper too. There is, in their estimation, a treasure trove of social media weapons to be used against personal injury plaintiffs that contradict their claims. I say "social media" but I think 95% of what defense lawyers really think is out there is on Facebook. MySpace barely has a pulse, Google +1 is just getting off the ground, and Twitter's 140 characters is usually not enough space to contradict your own injury claim.

In a malpractice or car accident case, the primary purpose of Facebook discovery is to show that the plaintiff is not as seriously injured as claimed in their lawsuit. It does not take a law degree to know there is a method to the defense attorneys' madness. If you put up a picture of yourself playing full court basketball, there is a real good chance you are not as hurt as you say you are, and are more than able to hold down a job.

So, there is undeniable potential relevance. But for defense lawyers, there is one thing standing between them and this grab bag of goodies: how do you get the stuff? Anyone who has tried to dig into the Facebook of their ex to find out how miserable their lives are without them knows that it is not so easy. Often doable, but hard. So many overworked defense lawyers are dropping the spy stuff and cutting right to the chase with discovery:

Have you ever created a blog post or do you have an account that you created with Facebook, Google +1, LinkedIn, YouTube, Twitter, MySpace or any other social networking or blogging device? If yes, please provide the name of the website and your user name an password.

Not many courts are going to allow this type of insane fishing expedition, and most defense lawyers know this. So, smart personal injury lawyers will just object. In the vast majority of cases, that will be that. But, regardless of whatever warning you gave your client, you should know what they have posted on social media after the accident/malpractice before the client's deposition or answers to interrogatories. Because in serious cases, defense lawyers are going to make Herculean efforts to find out what the plaintiff has posted, with or without the gift of hand delivering their user name and password.

• Who can you friend? (one bar association has an opinion)
• Social media and trial preparation
• The Maryland Court of Special Appeals addresses the social media for (what I think) was the first time
• Defense lawyers are spending a lot of time digging for dirt on plaintiffs on Facebook
• Jury selection and Facebook
• Another juror on Facebook story
• Join us on Facebook