Maryland Injury Lawyer Blog

Overlawyered celebrates its 10th birthday today. I disagree with many of Walter' Olson's views but we have a lot of common ground, too. I read his blog almost every day as do a lot of others who, like me, share a different philosophy on many issues.

Really, the one of the nicest complements you can give a writer is that you listen to what the writer has to say even when you disagree with it. I feel the same way about, for example, George Will and Charles Krauthammer. I think that all of us need to keep in mind that on a lot of issues of our day, someone smarter than us disagrees. And, with Walter, you always feel like you are getting his thoughtful views as opposed to a knee jerk "party platform" opinion. One good example: Sonia Sotomayor. I don't know how much Walter agrees with her on issues of our day on which reasonable minds differ that will be before the Supreme Court, but those differences did not change his analysis. Too many of us try to solve the equation after we already know the answer. Walter comes up with his own answer by doing his analysis and forming a conclusion, as opposed to forming a conclusion and then doing the analysis.

Happy 10th Birthday Overlawyered!

CNN reports that an FDA government advisory panel voted yesterday to recommend eliminating prescription drugs that combine acetaminophen with narcotics -- such as Vicodin and Percocet -- because of their risk for overdose and for severe liver injury.

I'm glad to see the FDA is looking at the safety and efficacy of existing drugs. There is no question that Vicodin and Perocet are misused and overprescribed. My only fear with a recall or withdrawal of these drugs for what I'm guessing is the 5% of people on Perocet or Vicodin that really need the drug. They are in great pain, are not finding relief elsewhere, and the benefits of the drugs far exceed the risk of overdose or liver damage for that patient.

If you have any suggestions for links, send me an email, I'm all ears. Maryland specific links are at the bottom:

• The New York Times reports that General Motors will continue to have responsibility for products liability lawsuits filed against it after bankruptcy. Lawsuits filed against General Motors before the bankruptcy will be dealt with in bankruptcy court. In other words, clients whose product liability lawyers that had their act together and filed suit are going to have a slim chance of being paid. Slackers (or products’ liability lawyers who saw this coming) who delayed moving forward in filing their lawsuits will be rewarded. It is what it is and product liability lawyers with lawsuits to be filed have to be pleased that their claims will not be terminated by the bankruptcy proceedings. But still.
• The Washington City Paper (via Overlawyered) has this great quote for a guy starting a website for lawyers seeking clients for the D.C. metro train crash: "What else can you do, a young guy like me? I don't want to do porn [websites]." Dare I suggest this is a false choice? There has to be a third option after porn and train wreck chasing, right?
• This gets a nod just for the title: “Michael Jackson: The Mother of All Malpractice Suits.” I always thought that had Tiger Woods’ surgeon committed malpractice on Tiger Woods during his Lasix surgery, that would have been the mother of all malpractice suits. It would have been a billion dollar medical malpractice claim. Speaking of Michael Jackson, the National Law Journal says that Jackson’s history of lawsuits will not end after his death. Which is pretty much exactly what you would expect.
• Lawyer’s PowerPoint presentation that his speeding ticket should be excused because he could not feel the speed in his BMW fails, defying the Vegas odds.
• Joe Jureviciusiles files a medical malpractice lawsuit against the Cleveland Browns team doctors (and the team). Given the number of infections the Cleveland Browns have had, it is hard to be surprised that someone would bring a lawsuit, particularly a recently cut player.
• Military medical malpractice lawsuits could be on the horizon. Why shouldn't the military compensate soldier victims?
• Roche withdraws Accutane. The Drug and Medical Device Blog says that there is no “scientific evidence” that Accutane causes IBD (inflammatory bowel disease) yet juries keep awarding millions of dollars. How does one logically explain this theory? American juries just keep getting fooled over and over again? Is this just a crazy mathematical fluke or are people just pretty stupid? Do we need smart people to decide complex cases? How about voting for president? That seems like a complex issue too, right? If Sarah Palin wasn’t so reflexively choosing business interests at every turn, I know she would have my back on this one.
• Is being the first to file a lawsuit the smartest approach? John Bratt offers his thoughts.
• The Maryland Court of Special Appeals rules in an uninsured motorist pedestrian accident case.
• Lord & Whip lawsuit to proceed. What a messy breakup.

Metro Verdicts Monthly graph this month is the median verdict and settlement value of wrist fracture cases over the last 22 years. The average settlement/verdict in Washington D.C. is $105,000. Maryland is less than half that: $50,000. The average settlement/verdict in a wrist fracture case in Virginia is $52,583.

Maryland jury verdicts in series personal injury cases are generally higher in the District of Columbia. Again, I don't know the methodology of how MVM gets its numbers. If they rely on personal injury lawyers reporting that data - which I do not think they do - then that could possibly skew the data as could a lot of other things that only a statistician could find. Particularly since Metro Verdicts includes settlements in their statistics, it is hard not to suspect that data could be skewed. The only way auto accident settlements (as opposed to malpractice settlements that have to be reported) get on the radar screen is if you call Metro Verdicts and tell them you settled a case. But there are few sources of verdict and settlement statistics in personal injury cases so it is hard not to find data like this interesting. I would love to see a jurisdiction comparison of Baltimore City and all of the counties in Maryland.

Notwithstanding the last two blog posts, I have found reason #394835 why I want my kids to be doctors instead of lawyers: an on-line law school course graduate has been made a new member of the Massachusetts bar.

This new lawyer's picture is in the Boston Herald story. He looks like a great guy and I give him credit for fighting the system, fighting his case to the Massachusetts high court, and becoming a lawyer. That's great and he will probably be a good lawyer. But can you imagine going to a doctor who says, "Oh, yeah, I got my medical degree on-line while I was working as a computer consultant." And what would that make you think about other doctors?

I have not read the opinion. But I cannot imagine why having a rule that only graduates of ABA-accredited laws schools can take the bar exam is a bad idea.

Ron Miller has written an article for Southern Maryland Online titled, "Is There a Doctor in the House?" Mr. Miller argues that Maryland needs medical malpractice reform if we are going to reform our health care system and that we have to make medical malpractice lawsuits in Maryland "less attractive" for Maryland medical malpractice lawyers. Mr. Miller's bright idea is letting the hospitals decide if a mistake has been made. And then they will pay you and apologize. Soon, and this is really what the article says, we might not need medical malpractice insurance in Maryland anymore.

Perhaps I've gone completely mad. Maybe. But hospitals' risk management will decide whether there is malpractice and then appropriately pay the victims? I have not gone that mad. This article is written by bizarro Ron Miller, to coin the Seinfeld phrase, a "conservative blogger and activist, former and future candidate for the Maryland Senate, and communications director for the Calvert County Republican Party." I'm sure he is a nice guy. But politically, and particularly on this issue, he is the anti-me. And I don't think this article even offers the best arguments for those arguing for tort reform in Maryland medical malpractice cases.

From this, a serious question has to be asked: who is the most famous Ron Miller in Maryland? For conclusive, unassailable proof, I turn to Google. So I Googled "Ron Miller Maryland," and "famous Maryland Ron Miller." It would be indiscreet to publish the results of this search. But in an unrelated story, your Ron Miller will be signing autographs at Einstein's Bagels in Severna Park on Saturday between 9:00 a.m. and 10:00 a.m.

According to Harvard University economist Amitabh Chandra, annual jury awards and legal settlements involving doctors amount to $3.6 billion, a drop in the bucket in a country that spends $2.3 trillion annually on health care.

Medical malpractice reform advocates claim that this does not account for defensive medicine. They rely in part on 2005 JAMA study that found that over 90 percent of doctors admit to practicing defensive medicine. President Obama’s speech to the AMA last week certainly led them to believe that he agreed that we need to “scale back the excessive defensive medicine” in this country.

Let us not pretend that there is no defensive medicine in this country. But we have to take out of the medical malpractice equation three kinds of defensive medicine: (1) tests and evaluation that are actually good for the patients, (2) additional treatment that is motivated, not by fear of lawsuits, but by fear of harm to the patient, and (3) patient induced defensive medicine (i.e. patient seeks tests doctor would not necessarily recommend).

Continue reading "Medical Malpractice Lawsuits: How Strong Is the Link to Defensive Medicine?" »

The Courier-Journal in Louisville, Kentucky has an article on an amazing lawsuit in Kentucky in yet another derivative claim of the fen-phen litigation. Plaintiff claims that her lawyers told her that her echocardiogram showed that her heart was "like a tire that might burst” as a result of the use of fen-phen. The claim made by this former paralegal of the law firm is beyond stunning: medical tests were altered to show more heart damage than expected and destroyed test results that were not consistent with plaintiffs’ lawyers’ theory of the case.

The law firm did what a lot of plaintiffs’ law firms do in product liability cases where there is a chance of significant recovery: they offer plaintiff a medical test at no charge which is characterized as an independent medical exam. In this case, the test was an echocardiogram.
As many good stories do in 2009, this one also involves sex and (audio) tape. Plaintiff’s lawyer is accused of telling his client that she needed to “spend some time on [her] back” with him (later in the conversation he said he was kidding), that he wanted to touch her breasts, asking her how many people she had had sex with, and the like. Plaintiff taped the conversations because – get this – her husband did not believe her. The article gives the impression that Plaintiff never really voiced objection to these comments.

Who do you root for in a case like this? Not the lawyer who, on his best day, acted inappropriately in the case. Bar counsel in Kentucky has put on hold its evaluation until after the case, but eventually these claims are going to be heard. But it also hard to root for a Plaintiff who claims the lawyer and his law firm damaged her "mentally and emotionally" and "caused her a great deal of humiliation.” Exactly how much money are allegations like this worth? There is no question that the allegations are very serious. But there is an incredibly important difference between making allegations of serious misconduct and allegations of serious injury.

A hospital did not breach a duty of care as a matter of law to a police office who was injured responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts' highest court has ruled, affirming the trial court below.

The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Plaintiff's police car was hit by another car, causing what were apparently pretty serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff's theory of the case was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.

Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a "special relationship" the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by "impaired" patients.

The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys in support of Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., in support of the hospital.

The Massachusetts high court found that both theories were not distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a nonpatient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.

Whether negligence extends to "an innocent third-party bystander" was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident brought a lawsuit against Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications.

Continue reading "New Massachusetts Opinion on Duty and Foreseeability" »

The Wall Street Journal reports that AIG is playing hardball with Flight 1549 claims from passengers that suffered injury or lost property (cell phone, i-Pods, etc.) when their plane landed in the Hudson River. Their thinking? An AIG spokesman told the Wall Street Journal that bad publicity is better than no publicity, which explains AIG's thinking with those bonuses. Okay, I just made that last part up.

Given the reputation of AIG these days, these might have been smart claims to pay. But AIG really has no obligation to pay them because there is no evidence that I've heard that its insured, US Airways, was responsible for the accident. The geese are not responsible.

US Airways did a good thing paying each victim $5,000 after the accident to cover their immediate needs. That is just smart public relations. AIG would be wise to look at the big picture as US Airways did. But they are not obligated to do so. And my plea to every lawyer in the United States: please don't file a lawsuit in these cases to get your name in the paper.

I'm back from the Maryland State Bar Association convention in Ocean City. What? You did not see me there? Okay, I never actually made it to the convention. But the brochure looked nice.

Anyway, I'm back and these are the links of interest I found this weekend:

• Maryland law firms are hiring. Really. And it was a good week nationally for (the relative absence of) law firm layoffs. Just call it a comeback.
• The “drug made me do it” defense is being used again in a New York case where the defendant alleges Zoloft caused him to assault his girlfriend. My friend Andy Vickery tried this Zoloft defense unsuccessfully in a much publicized criminal case in South Carolina. If Andy can’t pull it off under what on the surface appears to be much better facts, I doubt this guy will.
• Justinian Lake writes about a Texas Supreme Court opinion that goes out of its way to attack a very well respected plaintiff’s lawyer.
• A Tennessee malpractice lawyer tries to rile up jurors into changing their mind after multi-million dollar malpractice verdict.

Continue reading "Personal Injury Links: Post Vacation Update" »

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From President Obama speech today:

Now, I recognize that it will be hard to make some of these changes if doctors feel like they are constantly looking over their shoulder for fear of lawsuits. Some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue. And while I’m not advocating caps on malpractice awards which I believe can be unfair to people who’ve been wrongfully harmed, I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That’s how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care.

A lot of medical malpractice lawyers and their victims breathed a sigh of relief. I'm starting to feel like my post last week was a bit reactionary.