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?" »

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' 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" »

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" »

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" »

Is there a locality rule in Maryland malpractice claims?

Medical malpractice lawyers representing doctors famously prefer to elevate form over substance and tactics over strategy. This is not partisan. It is fact. The doctors' malpractice attorneys really don't disagree. They would call it taking advantage of the grab bag of opportunities to fight the details that the law and inexperienced malpractice lawyers provide. It is called fighting aggressively for their clients, right?

Fair enough. But the fact remains that at least as a practical matter, doctors' attorneys try to use technicalities at a ratio of 20-1 to patients' lawyers. Sure, I'm making that up. But it is probably something like that, if not higher.

Consistent with this "tactics over strategy" worldview, forests in Maryland have been lost by defense lawyers' micro interpretations of Maryland's Health Claims Arbitration Act (Maryland Courts & Judicial Proceedings, 3-2A-01-3-2A-09), distorting any semblance of what was actually contemplated by the Maryland legislature.

In Willison v. Pandey, an opinion decided last week in the U.S. District Court of Maryland, the doctor's malpractice lawyers faithlessly upheld this tradition, attempted to exclude Plaintiff's medical expert under the strict locality rule, arguing that a doctor has to know the local standard of care to offer testimony. The doctors lawyers relying upon language in the health claims statute that a medical malpractice expert must give testimony that the care given by the defendant doctor "is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities" at the time of the alleged medical malpractice. In this case, the Plaintiff's medical expert was from New York testifying about the breach of the standard of care of a Cumberland, Maryland urologist. Clearly, he knew little about the practice of medicine in western Maryland.

Continue reading "Maryland Medical Malpractice: New Opinion on Locality Rule" »

We got a good verdict in a malpractice case last week. You know this because I've now told you three times. Sorry.

But we got a comment from one of the jurors that I think is very interesting.

I published on the Maryland Medical Malpractice Attorney Blog today a client testimonial that gives our firm great pride.

I promised in my last post to write more about our $2.5 million medical malpractice verdict on Monday, a post I will enjoy writing. But preparations for trial on Monday - the worst ankle break I have every seen suffered by maybe the sweetest client I have every taken to trial - has trumped this blog this week. But I will be back shortly...

Reading trial transcripts is a great educational tool for both new and experienced trial lawyers. Getting sample trial transcripts is not easy because unless a case gets appealed on the substance of the trial, you never get a transcript. I think 10 years from now we will have an inventory of all of our trial transcripts readily at hand. Now, I can tell you the number of trial transcripts I have seen on one hand (not counting O.J. and Casey Anthony obviously).

I wish we kept all of the trial transcripts we have had. But we have pulled together a number of them - including a $1 million verdict in a truck accident case - which I think are worth a peek. You can find them here.

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?" »

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?" »

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" »

John T. Sly and Christina N. Billiet from Waranch & Brown write an article for the Maryland Defense Counsel newsletter about how to best attack plaintiffs' experts out of the gate. One key tactic they advise is trying to get two depositions of the plaintiffs' medical expert. Interestingly, they name drop the judges they say have approved this tactic and ordered plaintiffs' experts to sit through two depositions: Judges Leo E. Green and Thomas P. Smith, both in Prince George's County.

Continue reading "Attacking Plaintiffs' Malpractice Experts" »

It kills me how so many folks hold up the New England Journal of Medicine as the gold standard for anything and everything until it speaks up about preemption or medical malpractice reform. Then they become hacks for... well, nobody, really. Just hacks.

The NEJM put out a new article that looked at traditional malpractice tort reform:

Our review yielded two main conclusions. First, evaluations of traditional tort reforms have remained heavily focused on metrics related to liability costs, with most care-related measures receiving relatively short shrift. Second, the evidence reveals that, with few exceptions, traditional tort reforms have not proved to provide many improvements in these liability metrics.

So we have decided as a society in many jurisdictions, including Maryland, to limit how its citizen juries can award and deprive malpractice victims in some cases what we would all agree to be the fair value of the injuries or death because the true value of the case exceeds the malpractice cap. Oh, yeah, we also look the other way on the Constitution's due process and equal protection requirements.

Continue reading "Malpractice Reform: New England Journal of Medicine" »

The Tennessee Daily News Journal has an editorial on proposed medical malpractice reform in Tennessee. The paper takes what I think is the right side in opposing a cap on economic damages.

I read these editorials all around the country. No one is saying anything new anymore. There are no new studies of note, there are no new angles to approach the arguments. I can't remember the last time I have read something innovative on the topic of malpractice tort reform. (I don't have anything, either.) Everyone just repeats what has been said time and time again elsewhere.

I read somewhere recently that making Top Ten lists really attracts readers. Regrettably, I don't know ten things about fighting medical liens that I think you don't know. But I know a few.

I've been working harder and harder trying to better understand the ins and outs of subrogation liens that arise in personal injury cases. Certainly, it some larger cases we farm out lien work to firms that focus exclusively on resolving lien issues. But there are so many basic things I think personal injury lawyers need to appreciate about lien issues. Anyway, here is my Top Five list:

1. The mere fact that it is an ERISA lien does not automatically mean that the lien cannot be reduced for attorneys' fees. Subrogation and reimbursement rights for ERISA insurance plans only exist if the language of the plan says they do. You have to actually read the plan to know.

2. Social Security does not have a right to subrogation of survivor benefits.

3. In Maryland, at least, a workers' comp lien in a wrongful death/survival action applies only to the economic loss the client receives (figuring out this number for settlement purposes can be a challenge) and the medical bills if any were incurred.

4. There is no such thing as a Medicare lien. Medicare has a right of subrogation but not a lien. The difference is mostly semantic but Medicare can bring its own independent action for payment regardless of what the personal injury victim does. There is also a crazier example I can imagine that I doubt has ever happened. Wife is the at-fault driver in car accident in which her husband was a passenger. Husband refuses to sue the wife for his injuries but Medicare does.

5. Medicaid may only recover liens for medical costs. There is no lien for money recovered that is not for medical costs, although, again, in cases that settle, trying to apportion this is rarely a smooth process.

Those are my five. If you have any more than you want to add, leave a comment below.

Judge Roger W. Titus handed down a new opinion last week on the interplay between Maryland health claims arbitration and medical malpractice cases in federal court. The nutshell: regardless of what you may have thought, there is no interplay. At all.

Willever v. United States is a medical malpractice wrongful death claim, alleging medical negligence at the National Naval Medical Center in Bethesda after the death of a U.S. Army captain. Plaintiffs, who lost their husband/father, sought summary judgment on the grounds that the government did not file a certificate of a qualified expert with attached report saying the hospital and its employees complied with the standard of care or that any departure was not the cause of death.

Judge Titus denied the motion, finding:

• Maryland's health claims arbitration rules conflict with the Federal Rules of Procedure and cannot be applied in Federal Court
• Maryland's health claims arbitration system rules are procedural, rather than substantive, which means they don't apply in federal court in Maryland.
• Sovereign immunity prevents the U.S. government from being subject to the certificate and other statutory requirements for malpractice cases in Maryland.
• Even if none of these three rules listed above were not the law, Maryland's health claims arbitration statute merely allows summary judgment for Plaintiffs at the court's discretion and the court would not exercise such discretion in this case. (This makes the opinion bulletproof on appeal.)

In Mayo-Parks v. United States, 384 F. Supp. 2d 818 (D. Md. 2005), the court came to a very different conclusion, finding that Maryland health claims arbitration rules have some substantive aspects that must be honored by federal courts. Judge Titus disagrees, taking this opinion head on: "This Court has carefully reviewed the opinion as well as the original court file in the Mayo-Parks case, and concludes both that the holding in that case was dictum and that the reasoning was unsound." So there.

Continue reading "Maryland Health Claims Arbitration in Federal Court: New Decision" »

Jury Verdict Research published data on verdicts in severe leg injury cases over the 10 years prior to October 2010. By severe, I mean severe: crush injuries and amputations. The average verdict in these cases is approximately $4,000,000 and the median verdict is $2,400,000 for injuries to one or both legs, as well as leg injuries resulting in varying degrees of leg amputations. The leg amputation categories include both traumatic and surgical amputations.

I was surprised by the relatively insignificant difference between above the knee and below the knee amputations: $3,958,003 average/$2,588,649 median above the knee versus $4,930,186 average/$3,727,500 median below the knee. The average value for bilateral amputations jumps to $13,392,589 average. But the median is $5,012,500 which is a statistically insignificant difference from a single above the knee amputation.

This is interesting data and useful to use in negotiating your case. But asking the numbers to make sense is asking too much.

• Valuing cases: how lawyers, claims adjusters, and ultimately, juries determine money damages in personal injury cases
• Value of fractured and broken legs in car accidents.