Baltimore City settled a wrongful death and survival action by Freddie Gray’s family for $6.4 million. The criminally unfair Maryland Local Government Tort Claim Act would have capped these claims at $400,000. So Baltimore City settled for a whopping $6 million more than the maximum value of the case. Said another way, the settlement […]
Would you rather file a lawsuit against a healthcare provider for negligence in Health Claims as a medical malpractice case or would you rather file a simple negligence case in Circuit Court?
If you answer was Health Claims, you need to get your head examined. Filing in Health Claims in Maryland just creates more hoops that you need to jump through. Are they manageable? Absolutely. But when it comes to byzantine rules and conditions precedent, sign me up for the path of least resistance wherever possible.
Is it Negligence or Medical Malpractice?
The determination of whether a claim against a health care provider belongs in Health Claim is based on whether the claim involves a “medical injury” as defined by MD. CODE ANN., CTS. & Jud. PROC. § 3-2A-01(g) which states a “medical injury” is an “injury arising or resulting from the rendering or failure to render health care.” Not every tortious injury inflicted on a patient by a healthcare provider is medical malpractice. The distinction between ordinary negligence and malpractice hinges on whether the mistake involves a matter of medical science or act requiring special skills not possessed by laypersons. So if the negligence or lack thereof can be assessed on the basis of common everyday experience of the jury, it is not a medical malpractice case.
What constitutes a “medical injury” in Maryland has been the subject a few Maryland appellate cases. It is clear that intentional torts like assault and battery are not subject to Health Claims. So if a doctor intentionally hits a child while removing stitches, that claim will not be subject to health claims. But we are are talking about classic assault and battery. You can’t just call it assault and battery if is is actually a medical injury.
In this case, the Plaintiff filed a lawsuit in Howard County alleging both tort and contract claims. When you file a lawsuit in Maryland, you fill out a Case Information Report (“CIR”) to serve on the Defendant. A CIR is a three-page administrative form that helps the court process cases. The court is looking to find out things like the nature of the claim and the amount of damages that are sought and, most germane to this case, whether the Plaintiff is seeking a jury trial.
Maryland Rule 16-202(b) makes it abundantly clearly that the purpose of the CIR is only case management by the court. But it is also undisputedly a clear intention by the Plaintiff to seek a jury trial.
The Plaintiff’s attorney asked for a jury trial in the CIR but neglected to file a separate document as required by the rules requesting jury trial. So the question in the case is whether a CIR is an acceptable vehicle for demanding a jury trial under Maryland law.
I can’t say I’m a fan of any car insurance companies in Maryland. Some are worst than others. Here are my top 5 worst auto insurance companies to deal with in personal injury cases.
GEICO has the largest market share in Maryland. We see GEICO constantly. So that familiarity breeds contempt.
GEICO makes the worst pre-suit offers of any of the big six insurance companies (State Farm, Allstate, Nationwide, USAA, Erie). So there’s that.
GEICO’s new generation of adjusters are increasingly condescending, laughing at demands and other histrionics that are very grating. You would never see the old school GEICO adjusters who are almost invariably professional and likable, even when I disagree with them (I’m Facebook friends with GEICO adjusters who I used to fight with in the old days.)
GEICO almost always put more money on a case when suit has been filed. By then, the claim is switched over to a litigation adjuster who is more likely to be a seasoned adjuster who can really value the case. So the original adjuster never has to put his or her tail between his legs and increase the offer they once thought was hysterical. Instead, these pre-suit adjusters are already on the phone telling another attorney or victim how silly their claim is. These neophyte adjusters are firmly ensconced in their bubble and are never forced to face reality. Continue reading
This post is for lawyers who are getting stroke misdiagnosis cases but do not know whether the claim is viable.
There are common threads that run through most successful stroke misdiagnosis/failure to treat cases. Cases that result in a settlement or a jury verdict for the plaintiff are usually are one of these two breeds: Failing to prevent a stroke and failing to treat a stroke once it has occurred.
This is never a problem in medical malpractice cases, because it is well understood that medical malpractice claims are predicated on expert testimony, to even bring forth a claim in the first place. But lawyers — both Plaintiffs’ lawyers and defense attorneys — typically wait too long.
How do you know whether or not you need an expert? Investigate. Early. Do you have a problem with speed, with drinking, with highway design, or with a “dangerous condition?” You will not know if you have any of these problems, without investigating your claims properly.
Insurance companies in Maryland are now required to disclose upon request from the victim or their personal injury attorney the amount of insurance coverage their client may have. So you can find out from day one, how much coverage might be available to satisfy your client’s injury claim. This law went into effect on October 1, 2015. If you are a Maryland personal injury lawyer, you’re probably in the top 1% of your colleagues in knowing of the existence of this law. I think it is such a well kept secret, because I don’t believe any lobbying went into this effort. No one is climbing over themselves to claim credit for it. Just the Maryland General Assembly doing their job. Who knew?
A new wrongful death lawsuit alleges Fast and Furious star, Paul Walker, survived the impact of the high speed car crash that cost him his life. It alleges that he could have gotten out of the car but for a defective design of his Porsche Carrera GT. The suit claims that Walker could have avoided the fire except his seat belt “snapped Walker’s torso back with thousands of pounds of force, thereby breaking his ribs and pelvis,” which made an escape impossible.
That is one allegation. The lawsuit also alleges the car should have had a stability system that prevents swerving. Also, the side door was too close to the fuel line, and that the car had a history of control problems. The claim concludes that the Porsche Carrera GT is a dangerous car that does not belong on the road. It seems like a real reach.
I tried to keep abreast of verdicts and settlements in personal injury cases in Maryland by reading the Maryland Daily Record, keeping up on the Maryland Association for Justice listserv, and getting the reports from Jury Verdict Research, Metro Verdicts, and just what I hear on the street from other lawyers.
The result of one case tells you nothing. But if you keep following jury verdicts and settlements, you see patterns emerge. Here are ten things I have learned from this process:
The Maryland Court of Appeals is considering amendments to Rule 7.4 of the Lawyers’ Rules of Professional Conduct that would permit a Maryland personal injury attorney — or any lawyer for that matter — who has been certified as a specialist in a particular area of law to hold themselves out to the public as a specialist.
What would the attorney’s qualifications be for specialization? I think this may be the challenge that led the court to defer ruling on this issue, which they did last week.
There are an unbelievable number of variables involved in arriving at a settlement value for a personal injury case. Compensation offers vary wildly because there are so many different factors that have different weights attached to them.
But assuming there is no issue about the amount of money available* to pay on the claim, the single most reliable predict of settlement value is the type of injury. There are two key factors to consider when looking at the type of injury.