Maryland Injury Lawyer Blog

Gauging the next “move” based solely upon how much the other side has budged- “tit for tat” negotiations with no bearing on one’s own case evaluation is another common mediation mistake. It is understandable that negotiators and mediation participants desire proportionality and reciprocity in adjusting demands and counteroffers. The problem is that many adjusters think that plaintiffs have no ceiling on the amount that they can demand, whereas defendants can never offer anything less than zero. For this reason, arguments that, “We’ve come down by $100,000 so you need to come up by $100,000” often fall on deaf (adjuster or defense lawyer) ears.

Defense lawyers often set up mediations better than personal injury lawyers. The defendant's lawyer will call you and ask for a demand. You decide to be reasonable. So when you show up at the mediation, the range is between reasonable and zero. That is the wrong psychology to settle a case.

The best way to address this problem: if defendant puts you in this game, don't be above the game with your reasonableness. Your opening demand under this dynamic should mirror the defendants’ maximum exposure. Most states now have caps on non-economic damages. Add up your economic damages: past and future medical expenses, past and future lost wages, loss of earning capacity, vocational training and/or rehabilitation. Add that number to the amount allowed under the applicable non-economic damages cap. This should be a good approximation of the maximum exposure on the claim. With any luck you will be right around the amount of the reserve the insurance carrier has set for the claim. This should help in estimating the settlement value of the case on the continuum between maximum value and zero. This will let you calibrate your demands to where you want to end up on a case, not necessarily to match the other side amount for amount.

This tactic only works in a case where it is possible a jury would give such an award. Not likely but "best day possible." If you are demanding the cap in a soft tissue injury claim, you are also sending the wrong message. Similarly, when you demand $5 million in a case where your cap is $2 million, you are sending the same "I'm not exactly sure what I'm doing" message.

A hospital did not breach a duty of care as a matter of law to a police office who was injured responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts' highest court has ruled, affirming the trial court below.

The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Plaintiff's police car was hit by another car, causing what were apparently pretty serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff's theory of the case was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.

Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a "special relationship" the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by "impaired" patients.

The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys in support of Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., in support of the hospital.

The Massachusetts high court found that both theories were not distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a nonpatient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.

Whether negligence extends to "an innocent third-party bystander" was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident brought a lawsuit against Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications.

Continue reading "New Massachusetts Opinion on Duty and Foreseeability" »

The New York Daily News reports that the family of a high school student in New York, who was killed in a stolen vehicle hit-and-run drunken driving accident, has filed a wrongful death lawsuit against the driver of the car, the owner, and the family that hosted an underage drinking party. It is a no-brainer case against the adult hit and run drunk driver who also will certainly face criminal liability. The merits of the case against both the owner of the vehicle and the family that hosted an underage drinking party where they gave the victim – not the driver – alcohol, is more problematic, even from a personal injury lawyer with a admittedly pro-plaintiff world view.

About half of the states in this country have enacted Dram Shop statutes which permitted the imposition of civil liability on suppliers of intoxicating beverages in certain circumstances. Only a few states take the position that there was no civil liability for serving alcohol. But Maryland is one of those few states. Moreover, Maryland courts will not distinguish a case where the alcohol was served to minors in the home with the parents’ consent (Maryland Court of Special Appeals opinion in Hebb v. Walker, 73 Md. App. 655 (1988)).

This is another bad and outdated Maryland law. But this New York case is trickier than “the adults give kids alcohol, and then the kids go out and hurt someone in an accident" scenario. Both the pedestrian victim and the driver were drunk. The wrongful death lawsuit names the parents who allowed the pedestrian/victim to drink alcohol at a party.

Honestly, and the New York Daily News has a picture of this handsome boy and his parents that is downright heartbreaking, I have a hard time placing civil liability on the parents that allowed him to drink alcohol in their home. There are cases where someone is morally responsible – which I think is hard to deny in this case - but should not be civilly responsible. I think this is one of them. A sixteen year-old boy is blameless in the big picture in this case in every way that matters. But his own behavior should – I think at least – negate the liability of the parents that allowed him the have alcohol. I realize this opinion is not out of the plaintiffs’ personal injury lawyer manifesto. But I didn’t check my own views at the door when I became a plaintiffs’ lawyer.

Continue reading "The Difference Between Moral and Civil Responsibility" »

Interesting data from Jury Verdict Research on the median and average values of wrongful death cases where the decedent is female. The overall average compensatory award for wrongful death of an adult female over the last eight years in the United States is $2,990,032 ($1,102,976 is the median).

Age is a big variable when looking at median and average female wrongful death values. The average wrongful death verdict for a female between 18 and 24 is 2,990,032 ($1,102,976 median). For females between 30 and 39, women who are far more likely to have left behind children, the median wrongful death verdict escalates to $5,605,127 ($2,500,000 median). For women over 80, the average wrongful death verdict plummets to $1,314,241 (322,920 median).

I always find it maddening when insurance companies discount the value of human life in wrongful death cases because of the age of the decedent. If you are eighty years-old and you are killed, those last 10 years of seeing your kids as adults, your grandchildren coming of age and everything else that comes with it are incredibly valuable years. But these numbers, regrettably, demonstrate that there is some logic to their thinking when it comes to how juries value wrongful death cases.

Approximately 62% of the non motor vehicle wrongful death claims in this study are medical malpractice and wrongful death claims – particularly with older patients - so it is reasonable to assume that many of these wrongful death verdicts were compromise verdicts.

Related Posts:

How Lawyers and Insurance Companies Value Personal Injury Cases (summary and report on settlements and verdicts by injury type)

Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)

Valuing Cases in Virginia (average settlements and verdicts in Virginia)

Personal Injury Verdicts Across the Country (personal injury verdicts in your state)

Wrongful Death Settlements and Verdicts in Maryland (wrongful death values)

Value of Wrongful Death Motor Vehicle Accident Cases in Maryland (average settlements and verdicts)

These are some personal injury related links from around the country this week:

The Burlington Times News has an article about North Carolina’s decision to require North Carolina doctors to report all medical malpractice payments greater than $25,000.00. These results will be released to the public. The article notes that only 4% of the doctors in North Carolina in the last seven years have made malpractice payments.

Legal Newsline.com has an article on how medical malpractice damage caps in Texas have decreased malpractice premiums. As I have written before, in spite of what a lot of medical malpractice lawyers have argued, this cause-and-effect relationship is textbook economics. I think it is also true that the quality of patient care in Texas is falling dramatically because there are no repercussions when a doctor seriously harms a patient.

The Baltimore Injury Lawyer Blog has a post on John Bratt’s recent auto accident trial in Montgomery County.

Pharalot reports that the FDA will now be compile quarterly a list of drugs that have been identified as having potential safety concerns. Can anyone argue this is a bad idea?

The new Maryland Accident Lawyer Blog has a post on the Maryland Court of Special Appeals’ recent ruling in a wrongful death car accident case that took the lives of a man and his three children.

The Illinois Trial Practice Weblog has a post about the top 10 rules of evidence every lawyer must know. (Top 10 lists are irresistible.) The same blog also has a good post on videotaping your opponent’s deposition.

Does Sarah Palin support the idea of jury nullification?

The Baltimore Sun reports that the FDA may not be properly screening drugs for the potentiality of the medications inducing suicide. Plaintiffs’ product liability lawyers who have been looking at these issues for the last 20 years are Captain Renault-like stunned to learn that the FDA (and the drug companies) has not properly focused on the risk of drugs – particularly antidepressants – and suicidal thoughts and ideations.

Finally, the Torts Prof Blog continues to put together a comprehensive list of personal injury links from around the country.

Insurance Settlements, a two volume treatise for which I am the lead author, is now available from James Publishing. This treatise is for personal injury lawyers handling auto accident, truck accident, medical malpractice and product liability cases with a lens toward getting the best possible outcome at all stages of these cases (though trial). The better title for the book - with the benefit of hindsight - would have been "Maximizing the Value of Personal Injury Cases." Maybe I can convince James Publishing to change it down the road.

I’m excited about the book. If you are interested getting a copy, click on this James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Questions or Comments."

The Baltimore Injury Lawyer Blog has a interesting post about Baltimore City juries from the perspective of a Maryland accident lawyer.

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 verdict - as opposed to settlement - 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 in medical malpractice cases. 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 average money damages recovered - by settlement or verdict - 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.

If you have been injured in a medical malpractice case in Maryland or you have lost a member of your family due to medical malpractice and are interested in pursuing a settlment or filing a lawsuit, call today to speak with a personal injury lawyer who handles Maryland wrongful death medical malpractice claims and other malpractice lawsuits. You can reach a Maryland malpractice lawyer at 800-553-8082 or by clicking here for a free no obligation consultation on the Internet.

Related Posts:

How Lawyers and Insurance Companies Value Personal Injury Cases (summary and report on settlements and verdicts by injury type)

Wrongful Death Settlements and Verdicts in Maryland (wrongful death values)

Wrongful Death Verdict Values for Female Decedents (average and median wrongful death values for women)

Value of Wrongful Death Auto and Truck Accident Cases in Maryland (average settlements and verdicts)

Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)

Valuing Cases in Virginia (settlements and verdicts in Virginia)

Personal Injury Verdicts Across the Country (personal injury verdicts in your state)

Products Liability Verdicts (national averages by type of products liability case)

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.

Related Posts:

How Are Lawyers and Insurance Companies Valuing Your Personal Injury Case (summary on settlements and verdicts by injury type and overview of how your case is evaluated by the insurance companies and their lawyers before and after a lawuit)

Wrongful Death Settlements and Verdicts in Maryland (wrongful death values in personal injury cases in Maryland)

Wrongful Death Verdict Values for Female Decedents (average and median wrongful death values for women based on age of the victim)

Value of Wrongful Death Auto and Truck Accident Cases in Maryland (average settlements and verdicts in Maryland accident cases)

Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)

Valuing Cases in Virginia (settlements and verdicts in Virginia)

Personal Injury Verdicts Across the Country (personal injury verdicts in your state)

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.