Maryland Injury Lawyer Blog

Every month or so, I report on the Metro Verdicts Monthly graph on the front of their publication which compares verdicts and settlements for a certain type of personal injury claim in Washington D.C., Maryland, and Virginia. Sometimes I am surprised by the difference in the results.

This month I am astounded by the difference between Virginia, Washington, D.C. and Maryland in median nursing home liability verdicts and settlements since 1987. The median recoveries in Maryland and Virginia are $125,000 and $175,000, respectively. This means that the median settlement and verdict in Virginia is 40% higher than Maryland. Virginia juries are generally more conservative than Maryland so this result is somewhat surprising. But here is what I find surprising: the average nursing home case settlement or verdict in Washington, D.C. is $700,000.

I have not done any sort of sophisticated jurisdictional analysis but I believe there is a general correlation between the size of nursing home verdicts and the size of medical malpractice verdicts. Yet these figures do not appear to support this conclusion. Metro Verdicts Monthly reports that the median settlement and verdict in Washington, D.C. for wrongful death medical malpractice cases over the last 20 years is $665,700. This is much less than Maryland’s median recovery of $900,000 or Virginia’s median recovery of $750,000.

These statistics would surprise me less if the study used average instead of median because the average can be influenced by extremely high verdicts or settlements that can create a misleading picture. But the median settlement or verdict number means that the study divided the jury verdicts and settlements into two equal groups, half having settlements or verdicts above the median and half having settlements or verdicts below the median.

On Wednesday, a Baltimore City jury awarded a 78-year-old Owings Mills woman $2 million in a medical malpractice case stemming from a failed surgery that led to three successive leg amputations.

After the verdict, Defendant’s medical malpractice lawyer gave this quote to the Maryland Daily Record: “This reaffirms my long held view that it is extremely difficult for a physician to get a fair trial in Baltimore City, particularly where there is a bad outcome and a sympathetic Plaintiff.”

If I were the reporter, I would have asked a few follow-up questions. Do you think that the people of Baltimore are not as smart and more prone to emotion then, let’s say, a Baltimore County jury? Why do you think this is? Is it just medical malpractice cases we cannot trust them with or all cases? What should we do about this problem with Baltimore City jurors? Should we replace Baltimore City jurors with the right kind of people, like the good folks in, let’s say, Potomac. If Baltimore City jurors can’t be fair on juries, should we continue to trust them to vote?

Congratulations to the malpractice victim and her lawyers Charles J. Piven of Brower Piven in Baltimore and Barry J. Diamond.

A recent Jury Verdict Research analysis of jury verdicts over the last 10 years found that the overall median award for the amputation of one toe is $119,008. The median award for foot nerve damage or tarsal tunnel syndrome accident cases was $143,265. Underscoring the difficulties of the healing process in the complex structures that are our feet, the median award for foot injuries generally is $98,583.

The median for foot injuries generally makes sense to me. I’m stunned that the average verdict for an amputated toe is as low as it is. You have to remember that unless this is a lawnmower case, it is likely that the plaintiff suffered other injuries as well. In any event, I certainly think I value my 10 toes more than American juries.

For information the value of foot injury fracture cases, click here.

Metro Verdicts Monthly recently provided data on legal malpractice settlements and verdicts in Virginia, Maryland and Washington, D.C. The median legal malpractice settlement/verdict in Washington D.C. was a whopping $262,500.00. In Virginia and Maryland, the median legal malpractice settlement/verdict was $212,500.00 and $140,211.00 respectively.

What explains the incredible disparity between Washington, D.C. and Maryland and why is Maryland's median so low? I really have no idea. As always, I find this type of data very interesting yet useless.

A Jury Verdict Research report this month found that over the last ten years, the national median award at trial in personal injury cases for a vertebra fracture is $112,537. Almost two-thirds of the cases in the study were motor vehicle accidents, which is the leading cause of spinal injuries in this country. Not surprisingly, the median award for multiple vertebrae fractures is almost double the single vertebra amount, $207,000.

When I first read this report I assumed the numbers were low because they excluded cases where there was a spinal cord or head injury. But apparently, 7.5% of the verdicts were in excess of $2,500,000, which means they have to include vertebrae fractures where the spinal cord was implicated or there was an accompanying head injury. Because of the proximity of the vertebrae to the spinal column, and because of the weight bearing implications of a vertebra injury, I assumed this number would be much higher, but there must be more minor fractures to vertebrae without significant injury than I realized.

The Maryland Daily Record reports that a Baltimore jury awarded $82,000 to an 8-year-old boy who only briefly exhibited elevated levels of lead in his blood.

In May 2000, the boy’s level was four micrograms of lead per deciliter of blood. In December, his level rose to 29 micrograms. I am a parent of three small children and, as a defense attorney, have defended lead paint cases in Maryland. If my child had a lead level of 29, I would absolutely freak out. In this case, thank God, as quickly as the level rose, it fell. By December 28 the young boy’s level was 19. It fell to 12.6 in February and then down to 8.6 in March.

The Plaintiff’s lead paint lawyer conceded that the boy was doing well. Apparently, he was doing great in school and he tested in the 97th percentile for reading, but there is no question that lead harms children. Should the fact that the child is doing well be a defense? We know lead paint harms children and we know this child, while doing great now, had cognitive delays. Would he be in the 99th percentile but for the lead? So I think the jury’s verdict was probably very reasonable (although you would have to be on the jury to really render an opinion).

The lawyer who defended this lead paint case, John H. Doud, III, a solo practitioner representing the uninsured landlord in the case, made what I think was an awful comment after the verdict. Mr. Doud said the verdict sends the wrong message to landlords. He said the message is that "when your first tenant sues you, I would get into another business.”

This is not the take-home message from this case. There is not strict liability in lead paint cases. This little boy could only recover if his lawyer proved that the landlord had actual or constructive knowledge of the problem and did nothing to solve it. In other words, the landlord has to know that his property could cause brain damage to children and still not bother to fix the problem. This burden in lead paint cases is more stringent than general negligence claims. So, that is not the lesson to landlords about lead paint that should come from this case. Instead, the lesson is if you are going to be cavalier about exposing children to lead paint that is known to cause brain injury, you do so at your own peril. The landlord should pay the verdict and thank his lucky stars that Maryland makes obtaining punitive damages so unreasonably difficult.

Metro Verdicts Monthly has a graph in this month’s issue that reflects the median verdicts and settlements when the injury victim loses vision in one eye in Washington, D.C., Maryland, and Virginia. The median for the loss of vision in one eye in Maryland is $231,000. You could drive a truck through the gap between Washington, D.C. and Virginia’s median settlements in verdicts with loss of vision in one eye cases: Washington, D.C.’s median is $162,500; Virginia’s is $320,000. If you read graphs regularly, you would expect Washington, D.C. and Virginia to be reversed because Virginia as a whole typically has more conservative verdicts.

These numbers are a bit misleading I think because most loss of vision cases are products liability cases. Many products liability cases have questionable liability which decreases the average and median recoveries. If liability is not an issue, the values of these cases are much higher.

On the Maryland Lawyer Blog today, I discuss one of our products' cases against Home Depot and Chapin International involving one of Chapin's sprayers.

Many plaintiffs’ personal injury lawyers are complaining that State Farm’s profit surged to $5.6 billion in 2006 — up 75% from $3.2 billion in 2005. State Farm’s CEO, Ed Rust, Jr., received a $5.26 million dollar pay raise last year and is now earning $11.66 million. Implicit in this complaint is the idea that State Farm’s lowball offers and hardball tactics are the reason why their profits are so high and their CEO is overpaid. I think these complaints are misplaced for a lot of reasons.

First, General Motors took a $39 million loss last quarter. While this statement is misleading as well, it underscores the obvious: big companies can have large profits and large losses. A number like $5.6 billion in a vacuum means nothing, particularly for a huge company like State Farm. If you think the insurance companies make too much in profit, put your savings in a company like Allstate, which is publicly traded. But be careful: Allstate, for example, has underperformed the market in the last ten years. Insurance companies are hardly the Google of the stock market and I really don't think there is any evidence that their profits are historically excessive. (Please, correct me if I'm wrong.)

Second, with respect State Farm’s CEO’s salary, State Farm is a Fortune 100 company. If high CEO salaries are a problem (and I don’t think they are for reasons that are not worth getting into here), it is not specific to the insurance companies. Big company CEOs are making a ton of money in every business.

Finally, and I think most importantly, I think it is misplaced to expend energy complaining about low ball offers. Setting aside first party obligations where the paradigm is a little more complex, insurance companies should be trying to do whatever they ethically can to decrease payouts. It is our job as personal injury lawyers to do the opposite. We are not shooting for fair offers, we are trying to get as much as we possibly can for our clients. They call us greedy personal injury lawyers and we call the insurance companies, like State Farm, cheapskates. But maybe this is not the worst thing in the world. We have an adversarial system that has been in place for a few hundred years and I think it works. To the extent that it does not, it is clearly not a perfect system. It is just the best system.

State Farm and their brethren are going to play tough. That’s okay. If personal injury lawyers hold up their end of the bargain and fight back, the system will work just fine.

I stumbled on a 2003 study titled “ Race Poverty, and American Tort Awards," written by economists Alex Tabarrok of George Mason University in Virginia and Eric Helland of Claremont-McKenna College in California published in the Journal of Legal Studies offering some interesting observations on how race and poverty levels impact tort awards. According to the study’s findings, which used data from successful personal injury cases from 1988-1997, as the poverty rates of minority plaintiffs increase so does their average tort award. It is not a one size fits all trend, however, and there are different levels of change seen among the different minority groups. For example, an increase of just one percentage point in poverty for African-American plaintiff results in a 3 percent increase in jury awards whereas the same increase in poverty percentage yields a 7 percent award increase for a Hispanic plaintiff. Interestingly enough, the exact opposite trend occurs when examining the poverty level of white plaintiffs, whose mean awards decrease with an increase in poverty rate percentage.

Just as the results of the study vary on the race of the plaintiff, the amount awarded fluctuates depending on the type of case in question. An increase in plaintiff poverty rates from 15-20% to over 25% results in an award jumping from $2.5 million to $4 million for product liability cases and from $1.8 million to $4 million for medical malpractice torts. It appears, however, that plaintiffs in auto cases do not reap the same benefits. Not only are their awards consistently lower than those of product liability and medical malpractice cases (which is hardly a surprise), but the awards seem unchanged by fluctuations in poverty level.

There is one final but important caveat to this study. While race and poverty level are important factors in the amount awarded in a successful tort case, they seem to have no bearing on whether plaintiff prevails on liability?

This is the part of the blog post where I analyze what this all means. But I have no idea. Still, it is interesting data.

The West Virginia Supreme Court, applying West Virginia’s medical malpractice cap, affirmed the trial court’s decision to cut a $10 million medical malpractice verdict against a West Virginia hospital and one of its doctors down to $1 million.

Plaintiff’s lawyers contended that the non-economic damages cap in medical malpractice cases in West Virginia did not apply to the jury’s verdict because their claim against the hospital did not arise out of the care and treatment of the Plaintiff but instead because of the hospital’s failure to control an environmental serratia outbreak which the jury found caused Plaintiff to contract a nearly fatal infection during an otherwise routine anterior cruciate ligament (“ACL”) surgical reconstruction in 1995.

Relying on judicial estoppel, the West Virginia Supreme Court disagreed in a tight 3-2 decision. The court found that Plaintiff pursued the case as a medical malpractice case in the pleadings, in their requested jury instructions, the agreed upon verdict sheet, and in Plaintiff’s closing argument.

Of those four, I think the verdict sheet is the most compelling. The verdict sheet read: “Do you find by a preponderance of the evidence that West Virginia University Hospitals, Inc., was negligent in its care and treatment of the Plaintiff by failing to maintain a safe and proper hospital environment with respect to infection control?”

Like most personal injury attorneys, I dislike medical malpractice or any other caps on non-economic damages. But I also believe in applying the law and suspect that this was the right decision.

I say "suspect" because two judges did dissent but neither have issued an opinion. There still may be a dissenting opinion; in West Virginia, they put out the majority opinion when it is ready even if the dissenting opinion has not yet been drafted. I will be interested in seeing specifically why those judges dissented.

Politically, you also have to figure that all things being equal, the West Virginia Supreme Court would rather not have a ten million dollar judgment against the state's premier hospital. Moreover, even I will admit that the verdict seems high given that there was no mention of any permanent injury. I'm not mimimizing what appears to be an awful case that almost killed a 15 year-old girl. I'm just not sure if the damages should be eight figures. The Plaintiff's medical malpractice lawyers likely did not expect a $10 million verdict because they were clearly couching the case as a medical malpractice case, fully aware of the cap, when they really did not have to do so.

Of course, the preceding paragraph does exactly what I always complain about when others do it: second guessing a jury's verdict when they sat through the entire trial and were in the best position to make the call as to the appropriate damage award. But on the limited information I have, and assumptions I am making because the Plaintiff's medical malpractice lawyers set up the case as a medical malpractice case (knowing about the cap on non-economic damages and the lack of facts regarding permanency) and my own limited knowledge of serratia bacteria infection secondary to surgery, a $10 million verdict seems awfully high.

You can click on the link for the West Virginia Supreme Court Opinion.

Metro Verdicts Monthly's graph in this month’s issue is median settlements and verdicts in cervical (neck) herniated disc cases in Maryland, Washington, D.C., and Virginia. The median cervical herniated disc case in Maryland is $40,000. The Washington D.C. and Virginia medians are $50,000 and $36,000, respectively.

I always qualify providing this data with a “for what it is worth.” In the case of cervical herniated disc injuries, it is a “for what it is worth” squared. If a person says they are an actor, there are a lot of different degrees of being an actor. She may be Meryl Streep or her signature role may be “Crazed Killer #12” in a 5 second cameo appearance in a B movie. Herniated disc injuries are the same thing. Some people are walking around with cervical herniated discs that they cannot feel; for other, their lives are virtually destroyed by the injury.

The other problem is I do not think plaintiffs’ personal injury lawyers properly value herniated disc injuries and, consistent with my post on Monday, lawyers settle these cases too quickly. This is particularly true with cervical herniated disc cases as opposed to lumbar (back) disc injuries, because some herniated disc injuries are relatively benign. But the fact that there are some smaller herniated disc cases should not alter the value of the serious injury cervical herniated disc injuries.

I had a jury trial in an auto accident case in Anne Arundel County against State Farm last week. It was a soft tissue injury case with over a year of treatment. It was a case we inherited from another lawyer who retired last year.

The biggest weakness of the Plaintiff's case is that he had few doctor visits before complaining of the soft tissue injury upon which the claim was based. The Defendant's biggest weakness was their liability defense never actually made any sense. The Defendant was, however, very old and very sympathetic. Because the jury is never told insurance is going to pay the claim, you have to expect this to be a factor in the amount of the recovery even if they do suspect there is insurance behind the Defendant.

The jury found for the plaintiff, but awarded only a little over $16,000. State Farm was thrilled, and I was depressed for a few days. They won and I lost. That is how we both saw it and marked our scorecards accordingly. But here's the thing: State Farm only offered $5,000 on the case. It underscores how unreasonable State Farm's offers can sometimes be when it views a jury award of over three times their offer to be a success.

I shouldn't single out State Farm. We have "lost" a lot of trials were the verdict was a great deal higher than the last settlement offer, particularly in smaller cases in difficult venues. (If you are not a Maryland personal injury lawyer, Anne Arundel County is a relatively affluent county whose juries are considered conservative, particularly in cases that involve subjective complaints of pain without any positive diagnostic findings.)

A part of the reason why insurance companies don't feel compelled to make fair offers is because too many personal injury lawyers do not want to try the case - they take the settlement offer. If more personal injury lawyers held the insurance companies' feet in the fire and made them try cases where the offers are unreasonable, we would have many fewer unreasonable offers. Of course, we settle a lot of cases where the offers are unreasonable, because the client does not want to go to trial. But I think too many lawyers convince their clients to settle personal injury cases that really should be tried.

It is Christmas for the Maryland Personal Injury Lawyer Blog.... Jury Verdict Research just published a new Maryland specific study on the median compensation awards for car, truck and motorcycle accidents. In cases that go to trial, the median recovery was $11,328. Only in 1% of the cases did the jury award more than $500,000. Plaintiffs prevailed and received a recovery in 74% of the motor vehicle accident cases that went to trial in Maryland.

This data is from Maryland verdicts from 2000-2006. The data has remained relatively unchanged. From 1998-2004, the median recovery was $11,277, $51 dollars less than the latest study.

While I'm excited to see a new study on Maryland auto accident verdicts because I love looking at statistics on jury verdicts, I think the data is fairly useless. As I have written before, Maryland's jury verdicts are distorted by the defense lawyers who routinely "bump up" what should be small court claims to Circuit Court. In other words, if an auto accident lawyer in Maryland files on small claim for more than $10,000 but less than $30,000 (which is the new District Court maximum as of today), the insurance company's lawyers may remove the case to Circuit Court, which generally requires a jury trial and almost invariably leads to greater expenses from both parties. This practice distorts the jury awards. I read Metro Jury Verdicts every month and half of the reported personal injury cases in Baltimore are nickel and dime cases that never should go in front of a jury. So I think this data is interesting and useless all at the same time.

The Maryland Daily Record yesterday reported on a $4 million verdict an Anne Arundel County jury awarded to the parents of a 5 year-old boy who drowned in the Crofton Country Club pool in 2006. The parents of Connor Freed filed suit against D.R.D. Pool Service, Inc, who managed the pool for the country club. The boy was at the pool with some family friends and was found floating in the pool after a trip to use the bathroom. The suit alleged that the pool was an adequately supervised by only one, 16 year old lifeguard with 3 weeks' experience. It further alleged that CPR was performed incorrectly and that a defibrillator should have been used. (D.R.D. filed a cross-claim against the family friend but the jury found him not liable.)

Interestingly, the parents' claim for the child's conscious pain and suffering was dismissed in a pretrial ruling. I do not know all of the facts but unless he was unconscious when he hit the water, I cannot imagine how there could not be a survival action for conscious pain and suffering.

The jury award was 2,000,706 for each of the child's parents. The 706 represents the child's birthday of July 6th. That gives me goose bumps. Regrettably, the real recovery will only be about $1,020,000 (plus an economic damages) because that is the cap for non-economic damages in a wrongful death case with two or more beneficiaries.

If you read Maryland Personal Injury Lawyer blog regularly, you are tired of hearing me say this over and over again. But this jury picked an incredibly specific number as compensation for these parents. Does anyone think this is an unfair award? If the award is not unfair, why does Maryland law cap damages in these cases? It is just wrong and this is one of those cases that underscores the injustice of Maryland's cap on non-economic damages in wrongful death cases.

Connor's parents have started the Connor Cares Foundation whose mission is to get legislation passed for pool safety standards and get a standardizes pool rating safety system in place nationwide. It is nice that these these parents are trying to achieve some good from such a tragedy.

I have three small kids and a swiming pool. My wife and I are pretty obsessed with pool safety. We have a lot of systems to ensure safety and I am still terrifed by the pool. Every time we start to let our guard down even a little bit, I am reminded of a chilling stat: it is safer to have a gun in the home than a pool in the backyard.

Jury Verdict Research reports this week that the median jury award over the past 10 years, in personal injury cases involving arthritis injuries, is $38,867.00.

This study involved personal injury verdicts where the victim’s primary injury was inflamed, painful, and/or weak joints or muscles. The study underscored what personal injury lawyers around the country have long known about fibromyalgia cases: juries struggle with them. This is borne out by the numbers - the median jury award of what we would call “pure” arthritis cases is $121,538.00; the median fibromyalgia jury award is approximately $23,000.00.

Insurance adjusters love to ignore Maryland law that provides a recovery for exacerbations of preexisting injuries. To the extent that they acknowledge the law, they bundle all of the injury victim’s problems and drop them on the doorstep of the original injury.

Many personal injury lawyers in Maryland run from taking preexisting injury cases - particularly when the prior injury is serious - because they fear they will be unable to apportion the harm. If there are two or more causes of an injury, and indivisibility is not apparent, a Maryland plaintiff has to show either (1) the harm is not divisible, or (2) the harm was produced by both the preexisting cause and the new cause. Clearly, in some cases this is an impossible hurdle but, in most accident or medical malpractice cases this task is very doable when lawyers take the time and money to get the appropriate medical opinions before accepting or rejecting the case.

I was reading an article in the Washington Post today titled "Juries Showing Change in Large Award Cases." The author, quoting a Washington DC personal injury lawyer, states that "juries have changed in recent years and no longer award the extremely high 'sympathy' verdicts for which they were once known. Juries [the quoted personal injury lawyer said] have become influenced by other factors, including the idea that big judgments came from insurance premiums, which all of us pay."

If you are a personal injury lawyer reading this, you are not surprised because everywhere we go we are hearing about changing juror attitudes. But there is one thing I neglected to mention about the article: it was written on Christmas Day in 1978, over 28 years ago.

I realize that, on some level at least, personal injury lawyers are losing the struggle for the hearts and minds of jurors who are increasingly predisposed to be skeptical of personal injury victims. On the other hand, this kind of talk has always reminded me of the good ole days in the 50s when life was simpler and people were kinder and gentler - the "Happy Days" era. While I'm sure there is a modicum of truth to that notion, there is a lot of fiction to it as well, as anyone black or openly gay can attest. And you can be assured that people in the 50s were talking about how simple and idyllic things were back in the good ole days.

The point is that some of this talk of changing juries is similar to the good ole days talk. This is a good thing for personal injury lawyers to keep in mind before walking in front of a jury because all of this doom and gloom about juror attitudes can be a self-fufilling prophecy.

The District of Columbia Court of Appeals recently upheld a $3.5 million medical malpractice verdict after a 12 day jury trial against a Bethesda, Maryland obstetrician/gynecologist and Sibley Memorial Hospital in Washington, DC. After the verdict against both the doctor and the hospital, Sibley settled with the Plaintiff but the doctor appealed.

The case stemmed from a dilation and curettage (D&C as it is commonly called) during which the OB/GYN inadvertently perforated the Plaintiff's uterus, causing more than three quarts of toxic bowel content to leak into her peritoneal cavity. The leakage caused her internal organs to be "continually bathed," as the court called it, in infectious material, which lead to multiple permanent complications.

On appeal, the doctor contended that the verdict sheet was flawed, that there was improper admission of the hospital's expert testimony, that there was unfair surprise, and that Defendant was entitled to judgment notwithstanding the verdict.

Interestingly, the District of Columbia Court of Appeals found that the verdict sheet was flawed because it did not show which breaches of the standard of care that the jury had found proximately caused Plaintiff's injuries. The trial judgem somewhat understandably, was trying to make what was already a complicated verdict form less complicated by not adding even more questions for proximate cause. However, the court found this was essentially harmless error, because it did not really matter that the jury did not specify which negligent act was a proximate cause because any of the negligent acts could have been the proximate cause (proximate cause and injury was nailed down in other questions to the jury).

This District of Columbia's Court of Appeals' 31 page opinion can be found under Townsend v. Donaldson on the court's website. If you read the case, one of the things you will find interesting is that the hospital and doctor depart from the usual "malpractice defendants stick together at all costs" game plan to the point there the hospital's expert expressly opines that the doctor negligently failed to notify the subsequent treating doctor about issues relevant to the care of the patient.