Maryland Injury Lawyer Blog

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.

Metro Verdicts Monthly reports that the median settlement and verdict in Maryland for wrongful death medical malpractice cases over the last 20 years is $900,000. This is far more than the verdicts in Maryland’s sister jurisdictions, Virginia and Washington D.C, which have medians of $750,000 and $665,700.

Looking at malpractice cases more generally, the median medical malpractice jury award in Maryland, according to Jury Verdict Research, is $500,000 in 2003, the last year for which I could find data. Verdicts that year ranged from $54,521 to $7,708,064.

Jury Verdict Research also gives interesting data on the median verdicts in other jurisdictions: Florida - $1,257,386; New York - $1,100,000; Pennsylvania - $1,000,000; Ohio - $850,000; Indiana - $750,000; Missouri - $694,000; North Carolina - $500,000. Not all of this data is comparing exactly apples to apples, because the range changed with the publication date, but I still think this provides an interesting means of comparison for medical malpractice lawyers.

Of course, these figures are misleading, as any medical malpractice lawyer will tell you, because not all verdicts are collectable or at least not fully collectable, particularly today when so many states have caps on non-economic damages. The National Practitioner Databank (NPD), a government reporting system for doctors and hospitals, reveals what is really collected in medical malpractice cases. Every payout (not the verdict amount, but the actual amount paid) in a malpractice case has to be reported to this data bank. NPD’s most recent annual report found that, nationwide, the median award was $170,000.

Going back to wrongful death medical malpractice cases in Maryland, the new cap on non-economic damages in wrongful death malpractice cases is going to have an impact on these figures as time goes on and more malpractice cases are tried and settled with dates of death which are after the effective date of the new statute.

According to Metro Verdicts Monthly, the median motor vehicle accident wrongful death case in Maryland is worth $505,000.

This is interesting information. What does this data tell an auto accident or truck accident lawyer practicing in Maryland? Not much. Why? The motor vehicle accident data has little probative value, because it does not include the amount of the insurance policy at issue. We have settled wrongful death claims for $20,000 in cases where that is all the available insurance, and the defendant had no meaningful assets. Uninsured motorist cases also bring down the median and average values of auto accident wrongful death cases, because plaintiffs' attorneys are overly reasonable in requesting damages in a wrongful death uninsured motorist case, due to the fact that the lawyer knows that he/she will be limited in the damages that can be recovered.

This data becomes more interesting when you consider that the median settlement/verdicts in Washington DC and Virginia are much greater than in Maryland, $941,500 and $800,000, respectively. Because verdicts in Maryland tend to be higher than those in Virginia, mostly because of verdicts in Baltimore City and Prince George's County, I think it is safe to assume that the Virginia median is higher because of settlements that are due to the cap on non economic damages.

Tomorrow, the Maryland Personal Injury Lawyer Blog will look at median settlements and verdicts in wrongful death Maryland medical malpractice cases.

I gave an interview for the Roanoke (Virginia) Times last week on the question of whether the families of the Virginia Tech survivors can bring wrongful death claims. You can access the article here.

There has been so much said and written about the Virginia Tech tragedy I really do not have anything more to add. But when something happens that is unimaginably awful, I think it is comforting to find some silver linings. Lawrence O’Donnell spoke on the McLaughlin Group about seeing people in California with no personal connection to the tragedy in tears, underscoring how interconnected we all feel. There is something heartwarming about this. In the same way we all became New Yorkers six years ago, we are all Virgina Tech students/alumni now.

A study released by two advocacy groups showed that U.S. fatalities from truck accidents have remained consistent at 100 per week from 1999 to 2005. This week, families of truck accident victims are lobbying Congress and the Bush administration to establish stricter rules such as reducing the number of hours truck drivers are allowed to drive without rest and increase the number of safety inspections.

As I mentioned in a recent blog post, the Federal Motor Carrier Safety Administration four years ago under President Bush in spite of evidence that we had not decreased the number of truck accidents in this country, increased the maximum driving hours to 77 from 60 over 7 consecutive days and to 88 hours from 70 over 8 consecutive days. These safety groups are trying to nudge the President in the opposite direction. Sneak preview of what it to come: it won't work.

Yesterday my partner, Laura G. Zois, tried a wrongful death auto accident case in Prince George's County against Allstate. The jury awarded our client $8 million. Allstate made no offer to resolve the case.

Of course, we cannot collect the entire amount not only because of Maryland's cap on pain and suffering damages, but also because there is no first party bad faith on uninsured motorist claims in Maryland. I understand that a bill has been introduced in the Maryland General Assembly to bring first party bad faith to Maryland.

I try very hard to keep the "insurance companies are pure evil" sentiment out of the Maryland Personal Injury Lawyer Blog because I think simplistic generalizations defeat real discussion of the issues. I teach Insurance Law at the University of Baltimore Law School and try even harder there to remain balanced in my approach to the class.

But I have a difficult time presenting a balanced view of the need for first party bad faith in Maryland, and the abuses personal injury lawyers and their clients must endure from insurance companies in the absence of first party bad faith. Approximately thirty-five other jurisdictions appear to recognize a first party bad faith cause of action. See Bad Faith Actions, Liability and Damages, § 2.22, at 65.

Maryland needs first party bad faith not only for auto and truck accidents but also other kinds of first party insurance, particularly those types of insurances where the insured is dependent on prompt receipt of the insurance proceeds. If you have just lost a high income producing loved one or your house burns down, the absence of bad faith allows the insurance company to drive a hard bargain in settlement negotiations, regardless of whether there is a good faith reason to deny the claim. Who is stopping an insurance company in Maryland from offering 50% of the insurance proceeds to a needy widow even if the loss is clearly covered by the policy?

Of course, not every insurance claim denial supports a cause of action for bad faith. But Maryland should adopt the majority rule that in addition to the situation where an insurance company knows it had no legitimate basis for denying the claim, an insurer is also liable when it recklessly disregards the rights of its insured.

There is a bill before the Maryland legislature this year to bring first party bad faith to Maryland. The bill lacks the teeth of punitive damages but it is certainly a step in the right direction.

Metro Verdicts Monthly's graph this month is wrongful death median settlements and verdicts in Maryland, the District of Columbia, and Virginia. The average wrongful death settlement in Virginia and the District of Columbia is $800,000 and $575,000, respectively. Maryland lags behind at $500,000.

Maryland verdicts usually compare favorably with Virginia. Why the disparity? Virginia's cap on non-economic damages is limited to medical malpractice. Maryland's cap applies to all personal injury cases.