Maryland Injury Lawyer Blog

In a 6-1 opinion, the Maryland Court of Appeals decided Blondell v. Littlepage, affirming the Court of Special Appeals decision which rejected a tort and breach of contract lawsuit brought by a lawyer against a malpractice lawyer regarding a case he referred to her.

The lawyer referred a cancer misdiagnosis case involving an allegedly misread mammogram to a malpractice lawyer. Both lawyers agreed to a fee split. The original lawyer had already filed the malpractice lawsuit on behalf of the Plaintiff, before referring the case out. I'm not sure what the referring lawyer was thinking when he filed suit. Perhaps he was hoping the case would settle or maybe he later decided the client would be better served with a lawyer who focuses on malpractice cases. The court does not indicate the reason for the referral.

Anyway, the case settled for a lot less that the pretrial judge recommended, which upset the referring lawyer, as did the suggestion allegedly made by the malpractice lawyer to the client, that the referring lawyer's failure to timely file the case with the court decreased the settlement value of the case. The malpractice lawyer went so far as to give the client names of legal malpractice lawyers to bring a claim against the referring lawyer.

Continue reading "Lawyer v. Lawyer Lawsuit Decided By Maryland Court of Appeals" »

Tomorrow, the Maryland House of Representatives will vote on House Bill 825 which would raise the minimum limits of automobile coverage from $20,000.00/$40,000.00 to $30,000.00/$60,000.00.

Is $30,000 enough coverage for a significant accident? Of course not. Maryland has had 20/40 limits since 1972. This is 102,000/204,000 in 2010 dollars. But Rome was not built in a day and this bill is good step in the right direction.

As odd as it is for me to be carrying water for insurance companies, it is worth noting that the only way to protect yourself from an uninsured or underinsured motorist is to make sure you have adequate uninsured motorist coverage. The relatively modest increase in premium is worth the additional protection.

The New York Times has a story about encouraging doctors to admit their own mistakes. The UCLA surgeon who wrote the article does not contend that admitting medical mistakes should take the place of civil accountability. In fact, she suggests - as some recent literature has indicated - that being forthcoming about medical errors may decrease the number of medical malpractice lawsuits.

I'll admit that while I was reading this story I was circling around ready to pounce when the author suggested that we needed to eliminate malpractice lawsuits in order to get doctors to be able to freely admit mistakes. So let's just pretend, channeling my inner Glenn Beck, the author made that contention so I can refute it. In my defense, I'm not exactly creating a straw man. This argument has been made countless times, that it is somehow safer for patients for health care providers to be able to treat patients in a lovey environment where there is no risk of responsibility for medical errors.

First, let's admit that we are all loathe to admit mistakes. I don't think taking away the risk of a malpractice lawsuit - for which the doctor has insurance in most cases - is going to substantially change the frequency of admission of medical errors.

More importantly, where is the justice in being exculpated for causing a life altering injury because you admit you did something wrong? If a driver crosses the center line and kills someone, can we just move on if the driver admits a mistake? (Bonus argument: accidents are a "known risk" of driving a car, right?) How about if personal injury lawyers who blow a statute of limitations can avoid responsibility by making the grandiose admission that it is all their fault? Wouldn't that help lawyers understand their mistakes? What? Lawyers should buy a calendar? Well, yeah, that would be a good idea too.

Continue reading "Medical Errors and Admitting Mistakes" »

DePuy Orthopaedics, a division of Johnson & Johnson, is removing its DePuy ASR metal-on-metal hip replacement system that reportedly has a high failure rate. Our lawyers are now investigating these claims around the country.

Experts are questioning why DePuy did not recall the DePuy ASR hip replacement system because it had a design defect that made it difficult to implant the hip replacement device properly. Specifically, orthopedic doctors question whether ASR cups were not designed too shallow. Like Zimmer implants, there is a real question as to whether the lure of profits pushed DePuy to offer a "better product" without properly testing whether the device would be safe and effective.

According to the New York Times, the F.D.A. has received about 300 complaints on the ASR involving patients in the United States who received it since 2008. The vast majority of patients who received ASR hip implants had to have the device replaced, requiring another difficult operation for patients.

If you believe you may have a potential DePuy hip implant lawsuit, our lawyers are now investigating these claims. Call 800-553-8082 or get a free online consultation.

A Houston personal injury lawyer has threatened the city of Houston, a concession company and Continental Airlines, claiming it is their fault he left his Polo coat behind at an airport food court.

Normally, when a lawyer is under attack for doing something stupid, foolish, insane or [fill in your own adjective here], he is identified as a personal injury lawyer when he is really not. But, alas, I Googled the guy and he certainly a personal injury lawyer.

Well, maybe this is like the McDonald's case where the facts are taken completely out of context. But, alas, his demand letter is on line and it is exactly what it appears to be: he's mad because no one grabbed the coat that he left.

In that case, I have another defense. If a congressman tickles his staffer, no one assumes that everyone in Congress is a tickler. Why is everyone so quick to judge one personal injury lawyer on what another personal injury lawyer does? Why is the whole profession implicated?

The answer to my question is simple: that is the way it is. And while no one hates Congress because of their propensity to tickle staffers, people do hate personal injury attorneys because of the perception they are trying to bully their way into money to which they are not entitled (which is rarely, but sometimes, true). So sometimes you have to take your lumps and move on.

A wrongful death lawsuit has been filed against a Chattanooga, Tennessee bar after a car accident killed a woman just a few days before Christmas. The case is an interesting twist on the classic dram shop case. The suit alleges that the bar gave its employees free alcohol and allowed one man to leave the bar obviously intoxicated. The employee stayed at the bar and drank "free alcohol" after his shift ended at 3 a.m. Around 7:00 a.m., the defendant struck and killed a pedestrian, an employee on her way to work at Unum Insurance. The defendant, stand up guy that he apparently is, fled the scene and tried to fake a carjacking. Apparently this is an insurmountable stunt to pull off when you are drunk.

What really adds teeth to the Plaintiff's wrongful death lawsuit is a city ordinance prohibiting bar workers from drinking where they work, even when off duty. Clearly, the violation of the ordinance was a factor in causing this woman’s death. If the case goes to trial, there are going to be arguments by defense lawyers about the purpose and intent of the statute and whether this was the harm that the ordinance was trying to avoid. But I would suspect it was at least a purpose, if not the purpose, of the statute.

Maryland has rejected dram shop and social host liability in DWI accident claims. Going against the grain as a parent and lawyer who handles accident cases, I have believed and written in the past that I oppose dram shop liability claims in Maryland.

I’m not so sure anymore. I would really like to see data as to the number of wrongful deaths that occur in Maryland from DWI/DUI accidents where the person became intoxicated at a bar, or even at a bar where they are employed. Of course, the more salient question is one on which we will never get a definitive answer: how many deaths have occurred as the result of a server in a bar or restaurant who knows a patron (or employee) is drunk but does nothing to stop them?

Continue reading "Dram Shop in Maryland" »

Insurance companies hate being named in an uninsured motorist case. Why? Because unlike most car accident trials, if the jury knows an insurance company is paying the damages, jurors become less concerned that the defendant is footing the bill themselves. Jurors intuitively expect there is insurance available to cover the verdict but they are never quite sure. On several occasions, I have had jurors ask me after trial if the defendant has to pay the verdict. “That nice Mr. Smith does not have to pay this personally, does he?”

In Maryland, the law is clear that in a straight uninsured motorist case without the tort defendant participating in the trial, the insurance company may be named. The definitive case on this is King v. State Farm. In that case, a pedestrian Plaintiff appealed an unsatisfactory jury verdict in Baltimore City in an underinsured motorist case where the tort defendant had offered their policy limits (the verdict was less than the underlying policy). The Maryland Court of Special Appeals reversed because the trial judge did not allow the Plaintiff to identify the fact that the defendant was an insurance company.

The unknown issue in Maryland is whether the underinsurance carrier can be named if the defendant driver who caused the accident remains as a defendant in an an uninsured or underinsured motorist case. I think the answer to the question is pretty obvious because the exact same logic and rationale largely applies.

One of our accident lawyers, however, recently lost this argument on a case that went to verdict. The judge bought the argument that mentioning the underinsurance carrier might lead the jury to think that there must be a lot of insurance which might lead them to award more than they should. Is this possible? Sure. But it seems equally possible the jury would feel sorry for the defendant with so little insurance. Besides, what separates an insurance company from any other large defendant who the jury also knows has a lot of money?

My opinion: when you balance this uncertainty against the insanity of having lawyers representing unidentified parties, it seems like a pretty easy call. It seems to me that the legal system artificially keeps enough from jurors as it is.

I summarized two new Court of Appeals of Maryland opinions elsewhere last week: Benway v. Maryland Port Authority and Darby v. Marley Cooling . Benway deals with a procedural issue with respect to when a party can file a summary judgment motion. Darby deals with an interesting Maryland workers' compensation issue (that I did not fully understand because I have never handled a workers' comp claim).

I think this is the first time on this blog I ever used "Court of Appeals of Maryland" instead of "Maryland Court of Appeals." The former is technically correct but it just sounds strange to me. I'm heading back to Maryland Court of Appeals.

The Maryland Court of Special Appeals addressed last week an issue that our personal injury clients in malpractice and accident cases have occasionally expressed: is my settlement or verdict my money or marital money I have to share with my spouse?

In Murray v. Murray, the court was faced with, ironically I guess, a lawyer who had reached a settlement after filing a lawsuit against her former law firm alleging that the firm engaged in discriminatory and retaliatory practices in firing her. (I would have been interested in learning more about the underlying lawsuit.) You know the rest of the story. The settlement came after she and her husband were separated but before they were divorced and the lawyer spouse wanted all of the money for herself.

The Maryland Court of Special Appeals found that the portion of a settlement that compensates a claimant spouse for lost wages or earning capacity during the marriage, medical expenses paid from marital funds, or for joint loss of consortium, is marital property subject to equitable distribution. Pain and suffering damages are not marital property.

This is an easy enough rule to formulate but there is a problem in its application. Personal injury settlements do not allocate between economic and non-economic damages. This issue is one that personal injury lawyers frequently tackle in a variety of contexts, most notably, in dealing with medical liens. How much of the settlement was for medical bills? The insurance company does not (and cannot) delineate.

The Maryland rule the court underscored in Murray is that it is for the finder of fact to determine how the settlement should be apportioned. Interestingly, the trial court rebuked the Montgomery County trial judge who found that the husband in this case did not prove any of the property at issue should be classified as martial property:

In its Opinion and Order, the court found that the settlement agreement did not “delineate what the $550,000 represents, other than a settlement.” Ironically, it blamed [Defendant] for failing to carry his “burden to identify and value the [proceeds] he seeks to classify as marital,” concluding “there simply is no credible evidence from which the court can conclude that this sum is marital.” [Defendant] complains that his cross-examination into the status of the settlement funds was unduly restricted. We agree.

The take home message for Maryland personal injury lawyers advising clients is that you cannot give them a definitive answer as to how much their spouse will get out of their settlement. But you can tell them that the spouse gets half of any part of a settlement that is determined to be for (1) present or future lost wages that were incurred during the marriage, (2) medical bills, and (3) joint loss of consortium. The plaintiff spouse does get to keep their own pain and suffering damages, which should be the largest portion of most personal injury settlements. How to apportion what part of a settlement falls into what category is a subject of argument until it gets to a finder of fact who is required to engage in the difficult task of apportioning the settlement.

You can find the full case here.

The Michigan Supreme Court issued an order requiring defendants in medical malpractice lawsuits to challenge deficiencies in Plaintiff's attorneys’ notice of intention to sue and certificate of merit within 63 days of service. This rule also applies to challenges of the qualifications or eligibility of the signer. (The court did allow an "except for good cause" which may lead to a lot of litigation over just how much discretion judges will have with respect to what constitutes good cause.) Perhaps more importantly, an amendment to a certificate of merit now relates back to the original date of the filing of the affidavit.

One problem this rule is intended to rectify is when defendants’ malpractice lawyers intentionally sandbag potentially legitimate objections until after limitations passes and then try to get the case kicked for some procedural deficiency. Now, malpractice plaintiffs with procedural deficiencies can amend so that the statute of limitations does not pass. In other words, substance triumphs over silly procedural nonsense. In my world, this is a good thing.

Depressingly, the short AP story on this ruling characterizes the case in partisan terms that would hit an odd cord with any Maryland lawyer unaccustomed to the injection of party affiliation in reports on appellate court rulings:

Republican Elizabeth Weaver joined Democrats Marilyn Kelly, Michael Cavanagh and Diane Hathaway in supporting the change in the order issued Wednesday. Republicans Maura Corrigan, Robert Young and Stephen Markman opposed the change.

I think I could accurately predict how each Maryland Court of Appeals judge voted in the 2008 presidential election. Still, we are blessed in Maryland to be able to largely keep judges’ voter affiliation and raw politics out of appellate decisions. The difference is that Michigan elects their judges which pushes politics to the forefront. The lesson, as always: judicial elections are foolish. (Parenthetically, retired Baltimore County Judge Dana Levitz made a great argument against judicial elections in the last issue of the University of Baltimore Law Forum. I wrote about the insanity of judicial elections four years ago here and last year here.)

One of the dissenting opinions gets incredibly personal in its attack, arguing that two of the judges contradicted their own positions taken in administrative conferences, encouraging interested parties to go back and watch the online video of the conferences. You would never see this in a Maryland appellate court or a Supreme Court opinion. I had no idea of how civil we are in Maryland until I read this opinion.

You have to read the entire opinion. You can find it here.

In the Tennesseean, an emergency room doctor admits to performing unnecessary tests to avoid malpractice lawsuits:

In my personal practice, if I knew that I couldn't be sued except for things that I truly believe I should get sued over, I could eliminate half of my lab tests, two-thirds of my X-rays and 90 percent of my CT scans because all of those tests are done for my protection, not the patient's.

In other words, this doctor admits to ordering tests that can harm and cause risk to a patient - as CT scans and x-rays certainly do - for his own protection to avoid a malpractice lawsuit for which he has insurance.

I'm not sure what is more depressing, the fact that the doctor blithely admits this to a reporter thinking it is an acceptable medical practice to put his own interest ahead of the patient or the fact that there will be no ramifications for this doctor. If a lawyer or an accountant made the same admission - that he/she put their interests first ahead of their clients - the Internet would explode.

Thankfully, the vast majority of doctors put their patients first.

Let's say Barack Obama decides to take a strong position on medical malpractice caps and puts his weight behind a bill to eliminate malpractice and other damage caps in all 50 states.

This would be a huge windfall for our practice. But I would oppose this legislation. Why? Because such a law would be a ridiculous intrusion into the affairs of the States by the federal government. The federal government has no business telling the states they cannot have caps on damages. (I think caps violate state constitutions because they are a legislative intrusion on the separation of powers every state has in its constitution. But that is a different blog post.)

How, then, can tort reform advocates - who are almost to a person far more 'States rights, get government out of our lives" than I will ever be - support this unprecedented intrusion of caps on damages in medical malpractice cases via a health reform bill? It is because most tort reformers have a world view: lawsuits are bad, caps are good. They will push for this goal by all means necessary, including shedding inconvenient authentic core values.