Maryland Injury Lawyer Blog

The Baltimore Sun had an interesting front page article yesterday on Maryland hospitals referring patients with malpractice claims to specific medical malpractice lawyers. I think this is a bad idea.

First, it is worth noting that everyone means well. The hospitals know they have made a mistake and want to (1) get the clients to a competent malpractice lawyer, and (2) get a deal going where the attorneys' fees are reduced by as much as a fourth of what they would otherwise be. The lawyers who get the referrals are trying to maximize the value of the case and try to get the client as much as possible.

But there are some cases where the appropriate strategy- or the client's wish - is just to wage war. It is hard to wage war against someone where your relationship is such that they are recommending you to people they just malpracticed. If you repeatly go scorched earth and decide that early resolution is not the answer and a lawsuit is, you can expect these referrals to dry up pretty quickly. You can't fault the hospitals if they stop referring patients to that "wage war" malpractice lawyer. It is just the way of things.

The hospital is not referring over every potential medical malpractice case. I'm sure these are the "Oh, gosh, we totally screwed up, let's make it right" malpractice cases. The only remaining question issue is damages. But, as Jerry Seinfeld would say, that's a pretty big matzo ball hanging out there. Ninety percent of the car accident cases we have in suit are admitted liability cases where the only dispute is damages. Establishing liability is only half of the equation. In serious injury cases, very reasonable people see the values of cases differently, which is why we need the adversarial system to operate at its fullest.

The conflict here is not just a problem for the bad guys, but also for good, honest malpractice lawyers. The big picture colors your thinking even when you specifically are trying hard not to let it. History of man reminds us over and over that self-interest colors the calculations of even the good guys.

Remember when Justice Antonin Scalia came under fire for not recusing himself in a case involving Vice President Dick Chaney, after the pair had recently hopped on Air Force Two for a little hunting trip. Who have you ever gotten on a plane with, and went on a trip with that you were not incredibly tight with? Seriously. If I'm getting on a plane with you, we are tight. Scalia's retort: “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the nation is in deeper trouble than I had imagined.” It is a good line (give him credit, Scalia has lots of good lines). But just because Scalia was not aware of how such a bias could influence him on his ultimate thinking and decision from the bench, it does not mean that it does not exist.

Continue reading "Maryland Hospitals Referring Lawyers?" »

This is hysterical:

Hello Mr. Miller:

My name is Mary [deleted], and I'm working with Allstate Insurance to ensure they are being accurately and effectively represented online.

I was reading your article "I Support Allstate" at http://www.marylandinjurylawyerblog.com/2012/01/i_support_allstate_1.html and noticed that while you discuss Allstate (thank you for your interesting thoughts) there is no link to Allstate's website for your readers to click on.

I wanted to provide you with Allstate's site in the hopes that you would include a link within your piece. Allstate's website is located at http://www.allstate.com/. Please let me know if you require more information in order to make this edit possible.

Thanks so much for your consideration.

Mary
[Name Deleted]
Performics
On Behalf of Allstate Insurance
111 E. Wacker, Suite 1500
Chicago, Illinois 60601
e:[deleted]

• Paul Luvera provides a good "cost v. benefits" sample cross examination.
• Accurint may no longer be the only game in town for plaintiffs' lawyers trying to track down defendants.
• Using requests for admission to seal up your uninsured motorist case.
• Johnson & Johnson won round four of the Levaquin mass tort lawsuits. Plaintiffs are now 1-2 in the MDL and 1-3 overall. (The plaintiffs' verdict was for $1.8 million.) The jury agreed that Johnson & Johnson failed to properly place a warning on its product but did not think the plaintiffs' injuries were caused by Levaquin.
• Johnson & Johnson can't win them all. A federal judge ruled J&J will have to defend allegations that Motrin can cause Stevens-Johnson Syndrome and Toxic Epidermal Necrolysis. The judge refused to dismiss two lawsuits brought by parents who claim their children were harmed.
• The Maryland Court of Appeals says Allstate can stop providing homeowners insurance coverage to areas at high risk for hurricane damage.
• Overlawyered reports on some people who are pretending that they on the Costa Concordia cruise ship. This was not an MTA bus, I would think there is some record of who was on the ship, so I think the jig is going to be up one way or the other.
• Can a court say that the trial judge erred as the finder of fact in finding that the plaintiff was without fault and then conclude that the plaintiff was 10% at fault? They are cutting it a little thin on the abuse of discretion standard, aren't they?

The Maryland Court of Appeals issued an opinion Friday in Spangler v. McQuitty, ending this cerebral palsy medical malpractice case that began 17 years ago. I first wrote about this case two years ago when the Maryland Court of Appeals heard this tragic case involving a boy who was born with severe cerebral palsy. Plaintiffs' Maryland malpractice lawyers argued at trial (in Baltimore County) that the doctor breached the duty to obtain the mother's informed consent, when he failed to give her an informed choice of her options to either take the baby early or assume the risks that come with letting the delivery play out. A Sophia's choice. But it was the mother's choice. The jury - to the tune of $13 million - agreed, and found that that the risks and benefits of these options should have been communicated to the patient, but were not.

Continue reading "New Maryland Medical Malpractice CA Opinion" »

Clearly, the new Republican tradition is to pay homage to Ronald Reagan whenever you have a segue to do so - and even when there's not. Everyone has forgotten Iran-Contra and those Marines in Lebanon and focused on the fact that he presided over 8 years of relative peace and prosperity and his contribution to our victory in the Cold War. At a debate back for the RNC Chairmanship, Grover Norquist asked the candidates, "Who is your favorite Republican president?" Every one of the six candidates picked Reagan. Poor Lincoln. Even Democrats look back on Reagan and point out - maybe correctly, I don't know - that Reagan is not conservative enough to win the Republican nomination in 2012.

I found on my Google +1 (come join me there, and Miller & Zois too) a post from someone who worked for Reagan, that looks at what he actually said about tort reform. Apparently, all of his years of public life, Reagan gave only one tort reform speech in his political career in which he specifically said the issue is one for individual states. He never followed up on this speech.

Continue reading "Was Ronald Reagan for Tort Reform?" »

We have our share of struggles with Allstate in car accident and other personal injury cases. Allstate can be a very difficult company to deal with when they are defending either first or third party injury claims. But Allstate just won a big fight - a critical fight for them - in front of the Maryland Court of Appeals. And I'm glad they won.

Allstate decided to stop writing home insurance policies in Southern Maryland, the Lower Eastern Shore, and some properties on or near the waterfront in Anne Arundel County. Why? Allstate thinks that the spate of of hurricanes that have pounded the eastern seaboard in recent years may not be anomalous but instead are the result of increases of tropical sea surface temperatures (or whatever else it might be). Allstate does not care why. What Allstate does know is that it no long wants to bear the risk of catastrophic financial losses if a hurricane hits these at risk areas.

The Court of Appeals agreed that Allstate had a reasonable basis. Judge Harrell, in his dissent, says that Allstate has decided not to write new homeowner’s insurance policies in these areas because of an unsubstantiated fear of a hypothetical force of nature, a Category 2 or greater hurricane making landfall in Maryland. I agree. But is he sure? Couldn't reasonable minds differ on this? Does anyone really have an handle on the degree that global warming is going to impact the future? I think the answer is that no one really has a clue and, accordingly, Allstate should be given the discretion to decide for itself. I also think the applicable laws - § 19-107 and § 27-501 of the Maryland Insurance Article - give them that ability.

Continue reading "I Support Allstate" »

An MDL Panel ruled this week that any Actos lawsuits filed in federal court in Maryland will be consolidated in Louisiana.

Actos is another drug for type 2 diabetes that has helped treat the diabetes, but can get the patient into problems that they did not anticipate (Avandia has also had its share of problems). With Actos, studies have shown that people who take Actos for more than a year are 40 percent more likely to develop bladder cancer than those never exposed to Actos.

Actos does an effective job of treating diabetes. Actos improves blood sugar levels by increasing the body’s sensitivity to insulin in patients who have been diagnosed with type 2 Diabetes. Clearly, diabetes is a serious disease and the medications to treat diabetes come with - as most medications do - risk. Certainly, if you have life threatening diabetes and Actos is the only drug that works for you, maybe you take on otherwise unacceptable risks. I get that. But Actos users did not sign up for this risk of bladder cancer. There are too many patients over the years that would not have used Actos if they knew it caused bladder cancer.

Continue reading "Maryland Actos Lawsuits" »

Republican presidential hopeful candidate Rick Santorum is a big advocate of medical malpractice tort reform. In 1996, his wife Karen brought a medical malpractice case alleging a negligent chiropractic manipulation that caused a herniated disc in her back. She got a jury verdict of $350,000 which was reduced to $175,000 by the trial judge, presumably after a remittur motion. Her medical bills that allegedly resulted from the malpractice were $18,000.

You knew this already? Yeah, I guess I have been living under a rock. I can't believe I missed this.

Where is Santorum on this issue? The answer comes in Mitt Romney flavor. In the House of Representatives in 1994, Santorum introduced a bill to cap non-economic damages awarded by juries in medical malpractice cases at $250,000.

His wife's lawsuit, I guess, opened up his heart. In 2003, Had Not Yet Lost By 20 Points Senator Santorum said the $250,000 cap set in Congressman Jim Greenwood’s bill was “too low.” The next day, he told The Associated Press that he’d “been hesitant to sign on to any bill that has a cap.” Alas, he is not solidly back in the tort reformers corner. Enough time has passed since his wife's medical malpractice lawsuit, I guess.

There is no way on earth I would vote for Rick Santorum. But he struck me - and I think voters -as a guy who practiced what he preached. Then, he went into the whole, as Jon Stewart put it, "Class warfare against the rich -- excuse me, job creators -- is wrong, unless we're talking about Mitt Romney" hypocrisy. Now, Santorum is exposed for his "everyone should be capped on malpractice awards except my family" position on tort reform (I won't even get into his, "I voted for every spending bill that raised the deficit, but now I'm a hawk on spending" problem).

Continue reading "Rick Santorum and Medical Malpractice" »

When picking a jury, peremptory strikes are a big deal. There are almost invariably a few prospective jurors that are high up on the roll call that you just know are anti-plaintiff. I don't know how I actually know this - you get just a glimpse of Maryland jurors in voir dire - but I just do. They have this indescribable "I assume the plaintiff's case is garbage and I can't believe I'm here" look. Defense lawyers have a similar fear, of course, terrified of the "I can feel your pain to the point where I'm able to set aside logic and reason" look. Both of these jurors get rooted out by peremptory strikes. And the "look" is fair game as long as it is not based on race, religion, or gender. In Maryland, you get four peremptory challenges plus one peremptory challenge for each group of three or less alternate jurors to be impaneled. So, generally, you get 5 strikes.

Maryland car accident lawyers on both sides of the aisle now assume that Maryland law, after Maurer v. Penn National, is that if an uninsured motorist insurance company waives its subrogation interest in a case when the at fault driver offers her policy limits, that insurance company cannot contest liability at trial.

Plaintiffs' attorneys in Maryland disagree as to whether this is a good rule. Clearly, the problem with the rule for plaintiffs is that insurance companies are less likely to waive subrogation when the underlying insured offers policy limits. This means you have to deal with two sets of defense attorneys which means almost twice the hassle. Insurance companies are also doing side deals now, where the underinsured motorist carrier waivers subrogation on the DL (that's "down low" if you were not cool ten years ago), presumably with a pinky promise.

What does this have to do with jury strikes? Well, defense lawyers try to parlay this double lawyer albatross into double strikes. Can they do this? Maryland Rule 2-512 (h) says that multiple plaintiffs or defendants should be considered a single party unless the court finds that "adverse or hostile interests between plaintiffs or between defendants" justify separate challenges.

In uninsured and underinsured motorist cases, it is hard to claim that the interests of these parties are anything other than the same. But I got broadsided with this argument a few years ago during a trial in Baltimore County. It was a tough case anyway, I was in Baltimore County and, over strenuous objection, both the at-fault driver and the underinsured motorist carrier (MAIF and GEICO) were given strikes. I don't have to tell you how it turned out: awful. (Yet, still, it was more than the settlement offer which pretty much summarizes dealing with MAIF and GEICO).

Continue reading "Jury Strikes Matter" »

USAA's release for minors includes this language:

I/We do hereby state that said minor is completely recovered from any and all injuries sustained as a result of said accident and promise to bind myself/ourselves jointly and severally, my/our heirs, administrators and executors repay to the said ________________________ his/her heirs, successors and assigns any sum of money, except the sum above mentioned that he/she/they may hereafter be compelled to pay because of the said accident.

USAA is trying to put itself in the best position that it can to prevent minor plaintiffs from later disavowing the settlement. But it is silly to suggest that having the child's parents affirm that the child has completely recovered is of any help. You could even argue it makes the problem worse: the parent(s) did not even know the child was so severely injured.

Continue reading "USAA Release for Minors" »

Yaz cases may be settling. This is big news for the thousands of women who took Yaz, Yasmin or Ocella and suffered from heart attacks, strokes or pulmonary embolism. The judge in the Illinois litigation abruptly canceled the Yaz bellwether trial (pulmonary embolism case), originally set for January 9. Judge Herdon, using the heavy hand of the law, is encouraging Plaintiffs and Defendants to sit down and talk with a mediator. The mediator assigned to the case by the judge is Professor Stephen Saltzburg of the George Washington School of Law. He’s got some good credentials, and I’m sure he’d love to add the “Yaz Settlement facilitator” feather to his overflowing cap of achievements.

Judges in MDLs have a lot of pressure to get things done. The MDL is so useful because it unifies cases that would otherwise be handled individually. Everyone has the same information, which makes it easier to put reasonable settlement or trial values to each lawsuit. One of the purposes of these bellwether trials is to get some preliminary data on how juries react to the cases, so that the parties can make informed decisions on settlement. Most cases settle after a few of these trials. In the Yaz lawsuits, the judge doesn’t think the bellwether cases will be useful at this time.

Yaz cases may be settling

Continue reading "Maryland Yaz Settlements Underway?" »

We get a lot of cases from other lawyers who try and fail to settle personal injury cases. So I've seen everything from just sending in some of the medical records with no cover letter, to demand letters longer than Mr. Holland's Opus (which, admittedly, I never read but it sure sounds long).

Being a personal injury lawyer is hard work. There is no way around it. But the absolutely worst kind of hard work is hard work that is actually counterproductive. I think some demand letters fall into that category.

No doubt, if you have over $500,000 in medical bills, you have a lot to write about. But summarizing the medical records and laying out every single significant and insignificant element of plaintiff's intangible damages is just not worth the trouble. You are just not getting the adjuster's attention with a 15 page letter. I really think some personal injury lawyers write these treatise demand letters to justify what they think is going to be their fee in the case, fearing the "what did you do for me to earn all of this money?" question. Heads up: a long demand letter is not going to solve this for you if that question does arise. (And there are good answers to the question.)

Normally in law and in life, wasted hard work is just that. Wasted hard work. But interminably long demand letters can be paradoxically harmful, particularly if you don't know what you are doing and don't have a history of trying cases against that insurance company. Worse still, if you don't understand the medicine or understand what is an appropriate element of damages, you are making it all the more clear that you don't have the skill or the will to try the case. In big personal injury cases, the insurance company suspects - often correctly - that the lawyer has a lot personally at stake in the cases. (Truth is, lawyers generally should not be handling cases that will make or break their year, but that is a story for another day.) These are clues to the insurance company that no matter how far you stick out your chest, you are never in a million years going to be willing to try the case and you are just trying to get as much as you can to settle the case.

Continue reading "Demand Letters" »

Waivers in Uninsured/Underinsured Car Accidents

I had a prospective client call in a few weeks ago with an interesting uninsured motorist waiver issue that I thought I would share.

To keep the world simple, Maryland law requires that insurance companies match up their insured liability coverage with their uninsured motorist coverage. But it allows for an exception in those cases where the insurance offers uninsured/underinsured motorist coverage in the same amount as their liability coverage and the insured signs a waiver that its liability coverage will exceed its UM coverage. This is an odd bet for the insured who is more worried about getting sued and not having enough coverage then making sure they are protected when they get in a car crash that is caused by someone who had no or little insurance. But, I don't disagree that in the free market economy (I'm talking to you, Mitt), people ought to have the right to make this odd choice as long as it is a knowing and intelligent waiver. I think the law makes sense.

But what about these waivers? In this case, I have a high wage earner who gets into an accident with a driver with a minimum limits policy. He has a $300,000 liability policy that would clearly be offered if his uninsured motorist coverage mirrored the liability policy. Instead, he has the minimum $30,000 UM policy.

Continue reading "Uninsured Motorist Waiver" »

I have not been blogging as much as I would like in 2012. I have been working a good bit on our "new" Maryland car accident lawyer website. The site was actually built in 2002, but it was mostly a shell site that only linked back to the Miller & Zois website. We recently gave the website a new design and are starting to add content. That is a reason why there is not a lot of genuine fresh content: it is hard work. It also provides less immediate satisfaction. People will read this blog post within minutes of publication but some of these long, detailed web pages take a lot more time and the search engines might not notice that it exists for months.

Besides the usual, "We are the best, you should hire us!" dribble, we are looking to eventually build this into a "how to" center specific to personal injury car accident cases for Maryland lawyers, similar to the Maryland Personal Injury Lawyer Help Center. This is beginning of this effort but the goal is to restructure this page so that it takes a lawyer handling a car accident case from intake through appeal. This is the beginning but there should be a lot more to come.

John Bratt has put together a four part series on the nuts and bolts of getting organized for trial. Next time you try a case, look at your opponent (or maybe yourself). I think more than 80% of personal injury lawyers on both side of the aisle are unable to find the five key documents in the case within a two minute span. Too many lawyers put so much effort into getting ready for trial, yet do not do the little things to be able to bear the fruit of that hard work because they are such an organizational train wreck with their disheveled documents and 45 Post-it notes.

So, consistent with your 2012 resolution to not let this be you anymore, here are some thoughts on trying organized personal injury cases in Maryland:

• Part 1: Keeping Organized at Trial
• Part II: The Trial Box
• Part III: Trial Technology: The Equipment
• Part IV: Preparing Yourself to Use Technology at Trial

• A Mississippi judge has overturned a massive asbestos verdict, the largest ever for a single plaintiff (though as the Pop Tort points out--see below--Mississippi's damage caps kicked in). The judge who presided over the original case apparently failed to disclose that his parents were pursuing an asbestos claim against one of the defendants. There will be a retrial later this year


• Uh oh. Personal injury lawyers v. criminal defense lawyers?


• Yes, a woman hit and injured by the flying body of a man hit by a train while crossing the tracks can sue the deceased man's estate. This scenario ought to make it onto the bar exam. HT: Overlawyered.


• Those can-you-believe-how-easy-it-is-to-file-a-ridiculous-lawsuit cases you're always hearing about? Yeah, they're often either entirely made up or twisted beyond recognition.


• A New York man's family has been awarded $7.6 million in a wrongful death suit over a hospital's failure to take out the man's gallbladder promptly.


• The Pennsylvania Superior Court has held that Pfizer has to pay more than $45 million to two women who sued, claiming that the hormone replacement drug Prempro gave them cancer.

In Maryland, and in most states, there are immunities for police, fire and rescue agencies and personnel from civil liability for negligence. There is an exception for intentional torts and a "grossly negligent act.” Of course, this begs the question of what is a "grossly negligent act"?

In Markevicz v. Garcia, U.S. District Judge Alexander Williams, Jr. issued an opinion reminding car accident lawyers (who did not get the memo provided by the last zillion cases on this topic) that the bar to get to a "grossly negligent act" is pretty high.

In this case, a fire truck operator allegedly did some pretty dumb things in what I think was an effort to get to the car accident scene. The opinion does not spell it out but I'm assuming the fire truck ended up hitting the vehicle during the rescue. Plaintiffs' Complaint and the driver defendant both alleged that the fire truck driver contributed to plaintiffs' injuries when they drove the wrong way on the Beltway, dangerously jockeyed for position in an attempt to pass through a gap in the median that was too small, and so forth.

Judge Williams said that even if true, these facts fall short of gross negligence, citing Boyer v. State for proposition that gross negligence is inflicting injury with such indifference to "to the rights of others to the extent of acting like the victim had no rights at all." I'm paraphrasing and I still don't know what that means.

Continue reading "Gross Negligence Bar Is High Hurdle" »

The first Yaz birth control lawsuit, set to go on Monday, has been stayed. Judge David R. Herndon ordered the trial indefinitely delayed, appointing a mediation special master. The judge ordered Bayer and the plaintiff to engage in good faith settlement discussions.

Plaintiff's Yaz lawyers have been eagerly anticipating this first bellwether Yaz trial. In these pseudo class action cases, the first few trials inform both plaintiffs' lawyers and defendants about the real settlement value of these cases.

I can't think that Bayer was racing to the courthouse steps to try their first case. If the first Yaz trial goes badly for them, and I think it will, the price of tea is going to go up dramatically. Bayer is between a rock and a hard place: Yaz is making them a fortune (although less so recently) and Bayer has kept Yaz on the market. If Bayer starts getting hit with verdicts, they are going to be forced to pull Yaz and start paying out big verdicts and, eventually, settlements.

My partner, Laura Zois, was selected by SuperLawyers as one of their Top 50 women attorneys in Maryland for 2012.

It is a pretty unbelievable honor. There are thousands of female lawyers in Maryland lawyers. I only recognize one other female personal injury lawyer, the well respected Alison Kohler, on the list.

Congratulations Laura!

Dear USAA:

You have some of the best, most sophisticated adjusters of any car insurance company out there. Generally speaking, you make more reasonable settlement offers than the other companies with big car insurance market share in Maryland (better than GEICO, State Farm or Allstate). Sure, you force us to try some cases against you to pay our clients a fair settlement value. And, yes, you would probably shoot your own parents in the head to save a buck. But, really, in the insurance company world of relativity, you are not that bad.

Now that I have finished the flattery, could you do me one small favor? Teach your insurance adjusters in personal injury cases that there is something called the collateral source rule in Maryland. You simply cannot deny a lost wage claim because you "suspect the client was being paid anyway."

At first, I thought it was just one bodily injury adjuster at USAA who did not understand Maryland law. But I'm now convinced that less than half of USAA adjusters understand this rule.

Even more maddening, when the adjuster is called out on this obvious point of law that Maryland has had for - count them - 112 years, that the claimant is paid for time missed from work regardless of whether they used vacation time or their employer paid them out of the goodness of their heart, USAA adjusters simply refuse to admit or deny the existence of the collateral source rule.

Thank you in advance for your anticipated cooperation.

Sincerely,


Ron Miller

Continue reading "Dear USAA: An Open Letter" »