Maryland Injury Lawyer Blog

Runaway juries are the big problem in medical malpractice cases. Juries see a sympathic plaintiff and, unchecked by reason, they start writing oversized checks. Liberal judges aid and abet the crime.

This belief has taken deep root in Maryland - and in most states - that has led to the enactment of scores of laws to impede medical malpractice lawsuits. Most notable of these restrictions has been medical malpractice caps. Maryland had a onerous cap that became even more draconian. Why? Because the Maryland State Medical Society’s (MedChi) very skillfully orchestrated what almost everyone now agrees was a a faux crisis.

Trial lawyers have been pretty much outsmarted at every turn by doctors and other tort reform proponents. These advocacy groups have smartly turned the focus away from hard facts and have, ironically, effectively used the quintessential trial lawyer weapons, antidotes, and imagery. Pictures of doctors on highways walking out of the state because of high malpractice premiums. A story about a cute little Doc Hollywood like country doctor who had to close his practice because of frivilous malpractice suits. They have, repeatedly, won. Their lobbyists and PR people have done a great job.

Continue reading "Malpractice Statistics: New Study" »

Max Kennerly writes a really good post telling the story of how a defendant's medical malpractice lawyer tried to bully the plaintiffs' expert by writing the expert's hospital to express the concern that the expert's testimony might expose the hospital to significant liability.

Malpractice defense lawyers learned this trick at the feet of the master: pharmaceutical companies make a concerted effort to use its influence at major universities to blackball anyone who testifies against them.

At least this story has a happy ending. The trial judge sanctioned the defense lawyer.

UPDATE: I fixed the broken link. Sorry about that.

The Connecticut Supreme Court ordered a new trial this week in a medical malpractice case for an interesting reason: the defense expert testified at trial that malpractice lawsuits drive up health care costs by forcing doctors to practice defensive medicine.

The big issue in the case was whether appropriate standard of care required the defendant doctor to order additional radiological tests, such as X rays, a CT scan, or an MRI, prior to performing the surgery on a young boy to determine whether his tumor had grown since it was first detected. At trial, the defendants’ medical expert testified, of course, that ‘‘the standard of care did not require additional radiology tests." So, this is hardly a case where the doctor is being accused of practicing defensive medicine. But, for some reason, the doctor felt compelled to point out on direct that he would have ordered them himself, if he was treating the plaintiff. Gee, doc, why?

Well, a few reasons. One, I am with residents, fellows, and medical students all the time. So, we are ordering a lot of tests on everything so they have the opportunity to read them. And you could say, oh, that’s wasteful, but that is part of being at a teaching institution. One. It is for teaching purposes as much as anything, for they have one more chance to look at just one more—they have another dot in their exposure.

Wait, how many times have I heard about how you should not subject patients - not for nothing, a young boy in this case - to unnecessary radiological testing because it exposes the patient to risk (and the annoyance and hassle of the testing itself)? Yet that risk is of no consequence if, you know, we can show those young whippersnappers and extra MRI.

Continue reading "Defense Expert Preaches About Defensive Medicine: Appellate Court Orders New Trial" »

The year is still young but Maryland appellate courts have already provided three important medical malpractice opinions. I have summarized the three cases:

• University of Maryland Medical Systems v. Gholston: affirms birth injury verdict in Baltimore City
• Spangler v. McQuitty: Maryland high court affirmed informed consent birth injury verdict, 17 years after the child was injured
• Muti v. University of Maryland Medical Systems: Maryland high court opinion that really flushes out the maze of rules dealing with "use plaintiffs" in wrongful death/survival action cases in Maryland

You can find more 2012 personal injury related opinions here.

This week, in University of Maryland v. Multi, Medical Systems, the Maryland Court of Appeals reversed the Court of Special Appeals on a topic that has gone relatively untouched until recently: "use plaintiffs" in wrongful death cases.

This appeal involved a medical malpractice wrongful death and survival action claim brought by two men who alleged that University of Maryland Medical Systems ("UMMS") doctors negligently tore their father's trachea during an intubation procedure after he had an acute myocardial infarction. Plaintiffs' malpractice attorneys' alleged the doctors failed to timely treat the torn trachea which led to complications that caused their father's death.

Baltimore City Circuit Court Judge Evelyn Cannon dismissed this plaintiffs' wrongful death claim with prejudice after the hospital filed a motion seeking dismissal because a long lost adopted son of the decedent was not named as a use plaintiff on the Complaint. When I wrote about the Maryland Court of Special Appeals opinion last year, I was under the impression that the plaintiffs' lawyers learned of the adopted son in deposition. But this was flushed out in oral arguments. Plaintiffs' malpractice lawyers told the court that counsel knew of the adopted son but could not find him (or even knew if he was alive). The Maryland Court of Special Appeals reversed the trial court, finding an abuse of discretion in now allowing the plaintiffs leave to amend the complaint to add the use plaintiff.

Continue reading "New Maryland Wrongful Death Use Plaintiff Opinion" »

The Maryland Court of Special Appeals affirmed this week a $4.1 million verdict (reduced to $3.6 million by the cap) in a medical malpractice, birth injury case against the University of Maryland Hospital in Baltimore City.

No one would disagree that the facts of the case are tragic. The plaintiff, now a second grader, was born at 26 weeks of pregnancy. While the child has made unbelievable strides in recent years - and will continue to with God's Grace - he still cannot run. His IQ is currently in the 80s. Doctors at the trial testified that he will more likely than not be be a "disabled worker" when he reaches 18, making his job prospects poor. It is an awful thing. Hopefully, his recovery continues to push him forward and he proves these predictions wrong (I realize I said this already).

Continue reading "Baltimore City Birth Injury Verdict Affirmed" »

LawyersUSA has an article out today on the struggles that personal injury attorneys have had in getting fair compensation for their clients in accident and malpractice cases. The article contains a few quotes from me.

There are a couple of leitmotifs lawyers deal with when representing injured people who are either illegal immigrants or appear to be. First, if they are legally here in this country, you have to get that out on direct. There are some jurors who - let's face it - are going to view anyone with an accent as an illegal immigrant. In the real world, there is a prejudice against illegal immigrants. If you can kill that perception, do it.

Conversely, you need to move in limine to bar any evidence, suggestion, or argument regarding the immigration status of plaintiff (or any witness, for that matter) simplly because it is prejudicial. Put in front of a jury that the plaintiff is legally working in this country, yet suppress any mention of immigration status if the plaintiff is undocumented? Is firing off these two seemly contradictory statements in the span of seconds lawyer double talk or even duplicitous. Actually, it is not. Juries don't say "Gee, we have a documented immigrant, let's open up the checkbook" but they might discriminate against a plaintiff because they don't think he/she belongs in this country. Doors don't always swing both ways.

Continue reading "Illegal Immigrants in Personal Injury Cases" »

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' 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" »

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?" »