Ron Miller is an attorney who focuses on serious injury and wrongful death cases involving motor vehicle collisions, medical malpractice, and products and premises liability. If you are looking for a Maryland personal injury attorney for your case, call him today at 800-553-8082.

Headaches

What is the value of head injury cases?

I’m fortunate in that I don’t get many headaches, a blessing I attribute to good hydration and genetic good fortune. On the rare occasion that I do get them, they are debilitating. It is hard to enjoy much of anything in life when you have anything north of a mild headache.

Juries struggle with figuring out how to value personal injury cases when the primary injury is a head injury that caused —  and may be continuing to cause — headaches.

Why? Because headaches are mostly subjective. So the credibility of the plaintiff – which is usually 90% of the game at trial – becomes the entire game because you can’t know the pain level inside someone’s head. Instead, you have to decide if you believe that their report of pain is what they say it is.  Certainly, objective injuries surrounding the claim — like a diagnosis of post-concussion syndrome — bolster the settlement value of injury claims.  But, ultimately, it boils down to the credibility of the victim.

Settlement Value of Headaches

According to Jury Verdict Research, the average verdict for headache injuries is $33,423. The median verdict is $11,092. Putting this in context, the average award in a personal injury case nationally is approximately $791,756. So verdicts in headache cases are 5% of the national average? Wow.

Juries are more inclined to believe older people… or they think young people should just deal with it. The median award for those under 18 was a $7,463. For plaintiffs between 19 and 39, the median award was $8,858. Once you get over 60, the awards rise to $13,454.

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Most personal injury lawyers have had more than a few encounters with consumer bankruptcy proceeding.  Personal injury clients frequently file personal bankruptcies.

It is therefore important to know how personal injury claims, settlements, or awards are treated in bankruptcy.  The question everyone wants to know is will the client get to keep some or all of their settlement or judgment?

The short answer is yes – as long the settlement proceeds are compensation for pain and suffering or future lost wages.

Knee dislocations are relatively rare in automobile accidents.  But we have seen a number of these recently so I’m writing today about these injuries and to give you some idea of the potential settlement value of these claims.

Knee Discloations in Car Accidents

knee-200x300Knee dislocations occur from athletics,  high energy impacts, such as a car crash, or low impact falls in people that are extremely overweight.  A dislocated knee is non-functional, often painful, and induces large abnormal strains on the collateral ligaments.   Because of the potential for neurovascular damage associated with the injury, knee dislocations are considered to be one of the most serious knee injuries.

Note: post was originally in 2012.  It has been updated in November, 2018  to discuss a new martial privilege case, Sewell v. State, now pending before the Maryland Court of Appeals with a decision coming any day now.

I never find myself writing about marital privilege. But I do have an interest in modern technology and how it will impact pre-trial discovery and admissibility of evidence. Which takes me to the  4th Circuit opinion U.S. v. Hamilton.

This case involves the bribery conviction of a former member of the Virginia House of Delegates who also served part-time as an administrator with the Newport News, Virginia public schools system. Basically, the guy pushed for and got a salary from Old Dominion University in exchange for getting funding for a million dollar program called Center for Teacher Quality and Education Leadership. (FACT: 89% of all “education centers” with titles as goofy and ambiguous as this one are hopelessly corrupt.)email1

Anyway, a key piece of evidence in the takedown of this guy is an email that he writes to his wife about how he is trying to get this salary out of the deal, which he writes from his public school computer. So the question is whether the marital privilege applies because he used his work email account.

For what I think are good reasons, communications between spouses have long been thought to implicate important privacy and confidentiality interests. This has led to a recognition of a marital privilege in both Maryland and federal law that makes communications between spouses presumptively confidential.

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Fetal macrosomia is a medical term that means fetal weight at birth is greater than 4000 grams (8 lbs. 13 oz). Compared to the size of other newborns of the same gestational age, this is considered excessive fetal growth. Your doctor will be concerned with the baby’s probable weight at delivery for a few reasons and should want more testing to be done.

Fetal macrosomia is a serious condition in pregnancy. It is well recognized in the medical literature that a major concern in the delivery of a macrosomic baby is shoulder dystocia and the attendant risks of permanent brachial plexus palsy.  It requires close monitoring and frequent visits to the doctor’s office. But the reward is a healthier baby at delivery and sometimes a healthier mother, too.

Why is Fetal Macrosomia Important?

caps on malpractice lawyers' feesIn recent years, we have been picking up more malpractice cases — primarily birth injury cases — in jurisdictions outside of Maryland and D.C.  We have handled claims close to home like Pennsylvania and West Virginia and we have also handled (and settled) cases as far away as Oregon.

To do this, we needed to get up to speed on the basics of malpractice calls in that jurisdiction.  Not so much to handle the case — we have local counsel for that — but to screen the case to evaluate whether it is a viable claim to bring.   It is important, of course, to know if the state has caps on malpractice cases and we have done that research.

But, honestly, you also need to know whether there are significant caps on attorneys’ fees because it has a real impact.  Taking a birth injury case in New York, for example, is a very tough play economically because you are only getting 10% of everything past $1 million.

We did the research not for a blog post but for our internal use.  But I thought it would be helpful to give you a head start in your research.  You should verify all of these, of course, and I tried to link to the statute to help you out.

State Attorneys’ Fees
California Sliding scale fees may not exceed 40% of the $50,000, 1/3 of the next $50,000, 25% of the next $500,000, and 15% of damages exceeding $600,000. (Bus. & Prof. §6146)  California, of all states, makes it difficult for plaintiffs both with caps and attorneys’ fees.  It is a no surprise that malpractice is rampant there.
Connecticut Sliding scale fees may not exceed: one third of first $300,000; 25% of next $300,000; 20% of the next $300,000; 15% of the next $300,000; and 10% of damages exceeding $1.2 million. (CGS §52.251c)
Delaware Sliding scale fees may not exceed: 35% of first $100,000; 25% of next $100,000; and 10% of damages exceeding $200,000. (Del. Code Ann Tit. 18 §. 6865)
Florida Separate sliding scales for cases settling before filing an answer or appointing an arbitrator, cases settling before or after going to trial, and cases in which liability is admitted and only damages contested; Florida kicks in 5% extra for cases appealed. (Atty. Conduct Reg. 4-1.5(f)(40(b))
Illinois Sliding scale fees may not exceed one-third of all sums recovered. (Ill. Comp. Stat. Ann. § 110.2.1114) The attorney may apply to the court for additional compensation under certain circumstances. (§ 735.5/2.11 4)
Indiana If before July 1, 2017, plaintiffs’ attorney fees may not exceed 15% of any award that is made from Patient’s Compensation Fund (covers portion of an award that exceeds $100,000). If after June 30, 2017, 32%. (Ind Code Ann. §16.9(5).51)
Maine Sliding scale fees may not be higher than one-third of the first $100,000; 25% of the next $100,000, and 20% of damages that exceed $200,000; for purpose of the rule, future damages are to be reduced to lump sum value. (Me.Rev.Stat.Ann§24.2961)
Massachusetts Sliding scale fees may not exceed 40% of first $150,000, 33.33% of next $150,000, 30% of next $200,000 and 25% of damages that exceed $500,000; further limits if claimants recovery insufficient to pay medical expenses. (Mass. Ann. Laws Chap.231. § 60I)
Michigan Maximum contingency fee for a personal injury action is one-third of the amount recovered. (Mich. Court Rules 8.121(b))
New Jersey Sliding scale fees may not exceed one third of first $750,000, 30% of second $750,000, 25% of third $750,000 and 20% of forth $750,000; and amounts the court approves for damages that exceed $2,000,000; 25% cap for a minor or an incompetent plaintiff for a pretrial statement. (Court Rules §1:21-7)
New York Sliding scale fees may not exceed 30% of first $250,000, 25% of second $250,000, 20% of next $500,000, 15% of next $250,000, and 10% over $1.25 million. (N.Y. Jud. §474-a) The court may allow higher fees upon application of the claimant or his attorney. But lawyers can’t rely on this expectation.
Oklahoma Fee may not exceed 50% of the net judgment. (§5.7)
Tennessee Attorneys’ fees may not exceed one-third of recovery. (Tenn. Code Ann. § 29-26-120)
Utah Contingency fee may not exceed a third of award. (§78B.3.7.411)
Wisconsin Malpractice fees are on a sliding scale may not exceed one-third of first million or 25% of first $1 million recovered if liability is stipulated within 180 days, and not later than 60 days before the first day of trial, and 20% of any amount exceeding $1 million. In special cases, the court may approve a higher fee. (§655.013)
Wyoming If recovery is $1 million or less; one-third if claim settled within 60 days after filing, or 40% if settled after 60 days or if a judgment is entered; if over $1 million, 30%. However, parties may agree to pay more. (Ct. Rules, Contingent Fees R. 5)

 

Medically induced cooling of the brain can help treat damage. This relatively new procedure — the FDA approved it a little over 10 years ago —  provides the opportunity to treat babies who are suffering from hypoxic brain damage as a result of perinatal asphyxia.

We don’t totally understand exactly why brain cooling works although there are many theories that make perfect sense that are floating around out there.  But, ultimately, who cares why it works.  It appears to work on not only the brain but other vital organs that have been harmed from oxygen deprivation.

At this point, I don’t know why any hospital with a NICU would not have the ability to use cooling to protect an infant from brain damage.

Saying you suffered a head injury in an accident is sort of like saying your nephew is an actor. He might be Will Smith, but he also might be an understudy in a local dinner theater production.

Head injuries to automobile occupants have been shown to be a major cause of death and permanent brain injury within the U.S. and internationally. Head injuries vary from headaches that resolve quickly to brain damage that destroys a life. The data on head injury verdicts does not leave a good impression of the settlement value of head injury cases:

  • Head Lacerations and Contusions: $10,016

Years ago, we were involved in gadolinium MRI lawsuits involving nephrogenic systemic fibrosis (NSF), which is a fibrosing disorder of the skin and joints that occurs with victims with advanced renal insufficiency.

Th cases settled for millions of dollars because NSF is just an absolutely awful disease.  Now there are a new set of gadolinium MRI lawsuits alleging that the gadolinium is toxic and harming patients.

What is Gadolinium?

Women experiencing typical pregnancies are not offered the option of inducing labor at 39 weeks.  That might change.

A recent study funded by the National Institutes of Health (“NIH”) suggests that electively inducing labor 1 week before the due date decreases the risk of complications and lead to a safer delivery.  New mothers whose labor was induced in week 39 (instead of waiting for labor to begin naturally) were less likely to require a C-section and had lower rates of preeclampsia and other complications.  The research also established inducing at 39 weeks did not increase the chances of stillbirth or other severe complications compared to mothers who were not induced.  The detailed results of this pivotal NIH study were just published in the New England Journal of Medicine: Labor Induction versus Expectant Management in Low-Risk Nulliparous Women.

malpractice-7It was previously believed that early induction of labor significantly increases the likelihood of an emergency cesarean delivery in response to complications.  This made many doctors reluctant to induce any time before 40 weeks, but no comprehensive study had ever been done before.  The Pregnancy and Perinatology Branch at NIH funded the study in an effort to fill this data gap.

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