Ron Miller is a Maryland personal injury lawyer who focuses on serious injury and wrongful death cases involving motor vehicle collisions, medical malpractice, and products and premises liability. This site is designed to provide practical information to both injury victims and plaintiffs' attorneys in the Baltimore-Washington area who want to achieve a fair settlement or verdict. If you are looking for counsel for your case, call him at 410-779-4600

The Maryland Court of Appeals granted cert in five cases yesterday.  One of the cases, Davis v. Frostburg Facility Operations, is of interest to Maryland medical malpractice lawyers because it addresses the question of what constitutes an allegation of medical malpractice that invokes the Maryland Health Claims Act.

Facts

Davis is a nursing home type case.  According to the Complaint, Plaintiff was admitted to Frostburg Village, a nursing rehabilitation center in Allegany County,  following back surgery. Two days later, Plaintiff’s mattress came loose from her bed and “slid off the bed frame, causing Ms. Davis to fall to the floor.”  The facility used a mechanical lift to put the woman back in bed because Frostburg is a no lift facility.  The nurse allegedly used the lift improperly — releasing the net holding the patient too soon — and dropped her on the floor.

Last week, in Henneberry v. Pharoan, the Maryland Court of Special Appeals looked at the question of whether there can be a breach of contract lawsuit that runs concurrently with a medical malpractice claim.  The case clarifies Maryland law on when a breach of contract claim might jive with a medical malpractice claim.

The Facts

The gist of the plaintiff’s complaint is that the doctor failed to completely resect the entire appendix which necessitated another surgery.  While undoubtedly a traumatic event for the plaintiff,  this is not a particularly serious case by medical malpractice standards.  We have been making it a point to follow every malpractice case that gets filed in Maryland. This is the bottom 10% of medical malpractice lawsuit in Maryland with respect to severity of injury (of non-dental malpractice claims).

Our law firm has successfully handled scores of serious knee injury cases. Most recently, we won a $5.2 million verdict in a knee injury case.  We fight for our clients. Call 800-553-8082 or get a free on-line consultation.

According to a recent Jury Verdict Research study on knee injuries:

  • the average verdict in a severe knee injury case is $359,149
  • the median knee injury verdict is $114,299
  • 8% of knee injury verdicts were over $1,000,000.

How do you define severe? JVR defines it as knee dislocation, fractures, replacements, and aggravation of a preexisting knee injury. I certainly understand the first three categories; aggravation of a preexisting knee injury more subjective and a little harder to define — and brings the average verdict lower.

Half of these cases are car accident lawsuits, and the other half include every personal injury case under the sun. In Maryland, I’ll bet it is probably approaching 75% of the cases because we have fewer premises liability cases because of contributory negligence. It is the most frequent injury in premises liability cases, most from slip and falls.   So it is hard to extract much meaning from this average serious knee injury verdict. But there are a lot of numbers in the report that breaks it down a little further.

JVR does not provide the average accident knee injury verdict in motor vehicle collision cases. I wish they did because the average verdict always gets you more pumped up. But the median is probably more illustrative. The median knee injury verdict in a car accident case is $94,406. More interesting is the middle 50% – the 25th to the 75th percentile – ranges from $26,255-$216,726.  Obviously, that is a big range, and I would suggest that bottom quartile is not severe injury cases.

The last knee injury case we took to trial led to a $5.2 million verdict.  That was a severe injury case where the client required a below-the-knee amputation.

Knee injury verdict statistics

Here are some more knee injury verdict statistics of interest, at least, to me:knee3

  • Intersection collision accidents have a median of $70,748. The middle 50% range is $28,250-$237,500
  • Pedestrian accidents have a median of $150,000. The middle 50% range is $80,071-$240,000
  • Turning collision car accidents have a median of $90,203. The middle 50% range is $34,750-$192,038
  • Motorcycle accident knee injuries involve, as you would expect, more serious injuries. The median verdict is $191,884. The middle 50% range is $83,300-$287,500. Keep in mind, this is a survey of plaintiffs’ verdicts. The hard part in motorcycle accident cases is getting the verdict in the first place. It is amazing how many motorcycle accident lawsuits involve contested liability. Motorcycle cases get fought like World War III on liability in cases where the defendant’s lawyer would stipulate to liability under the same facts if the plaintiff were driving a car. It never ceases to amaze me. But I’ll admit there is a method to the madness: juries don’t like motorcyclists. Is this unfair? Of course it is. Can good counsel overcome it? Often, yes.
  • Rear end accident knee injuries have a median verdict of woeful $9,095. The middle 50% range is $1,624-$41,098. These statistics makes sense.  There are just not a lot of knee injuries in rear-end accidents.  So many of the claims are those with preexisting injuries, which are the toughest cases to bring.  There are not a lot of serious “knee injuries only” in rear-end car accidents. If you hurt your knee badly in the accident, chances are you have a more serious injury than just your knee.

Hiring a lawyer to fight for you

If you have a knee injury claim in Maryland or Washington, D.C., call us today at 800-553-8082 so we can discuss your options.  You can also fill out this free claim evaluation form, and we can talk about your case on-line.  We have recovered millions for our client in knee injury cases, and we may be able to help you.

Sepsis is a silent killer that should be diagnosed and treated with the same urgency as a heart attack.  But it is not treated with urgency and it is the one reason so many medical malpractice lawsuits inmalpractice-300x200 Maryland involve either missed sepsis diagnosis or a failure to adequate treat this infection.

Sepsis is a catastrophic health problem that is responsible for over 250,000 deaths per year in this country.  There are over 20,000 cases of sepsis in Maryland hospitals every year. Do you think Donald Trump’s wall is too expensive?  We spend more $20 billion dollars on the diagnosis and treatment of sepsis.  It is the most expensive condition treated in hospitals and a lot of that cost is care rendered after a doctor makes a mistake.

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If you are a lawyer with a nursing home bed sore client in Maryland, I want you to refer your case to Miller & Zois (with an attorneys’ fee sharing relationship).  This post is directed to lawyers who Bedsore-300x200do not regularly handle bed sore care to better understand the pros and cons of bed sore nursing home claims in Maryland and what types of claims are the most viable.

Why Bed Sore Cases Are Good Cases

Nursing home cases are medical malpractice cases in Maryland. You have to file in Maryland Health Claims Arbitration and follow the malpractice statute.  But bed sore cases are the exact opposite of medical malpractice cases.  In a malpractice case against a doctor, the presumption the patient or the patient’s family must overcome is that the doctor is competent and did her very best.  You start behind the eight-ball and need to present overwhelming facts to win. It is hard to win jump ball medical malpractice cases even in victim-friendly jurisdictions.

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Herniated disc injury

Settlement value of disc injuries

The first case I tried for Miller & Zois 14 years ago was a herniated disc injury case.  I remember it like it was yesterday.  We got a $300,000 verdict in a case with a $15,000 offer that the defense lawyer seemed to think was a nuisance case.

Since then, we have handled hundreds of disc injury accident claims. If another law firm has handled more herniated disc injury cases in Maryland, I’d like to know who that is. Our lawyers have spent a lot of time fine-tuning the science and the arguments to make at trial in these cases.

I have always been particularly interested in verdict statistics in disc injury claims. Yesterday, I found some interesting data that looks at the median value of herniated disc injury claims based on the type of vehicle crash. The data provides two things: median verdict and a probability range of verdict.

Of the two, I think the most interesting is probability range. In this Jury Verdict Research Study, probability range is defined as the middle 50 percent of all awards arranged in ascending order in a sampling, 25% above and 25% below the median. In other words, it provides the 25th percentile and the 75th percentile of verdicts. I believe that for plaintiffs with a good law firm, who know how to prepare and try a disc injury case, I think the 75th percentile is probably the median.

Anyway, these are the numbers:

Accident Median Probability Range % of MVA Herniated Disc Cases
Truck Accidents $208,341 $66,975 – $605,101 10%
Overall $54,538 $17,575 – $180,017 80%
Intersection Collisions $50,000 $17,500 – $136,745 19%
Turning Collisions $47,781 $20,000 – $160,000 9%
Rear-End Collisions $47,500 $12,500 – $140,000 35%
Chain Reaction Collisions $40,000 $10,478 – $150,000 6%

The first thing that really stands out is the gap in the range, which is particularly pronounced as you might expect in truck accident crashes. I’m also surprised at how relatively low the statistics are for intersection accidents.

They are all motor vehicle accidents. What surprises me is how much more the value of herniated disc injuries explodes when taken outside of the motor tort context.  Look at these payouts by type of tort claim:

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Our primary focus at Miller & Zois is to further the interest of our clients by maximizing the value of their injury or wrongful death claims.  But it is also an absolute joy when we can be a part of Nursing Home Consent Formchanging Maryland law that helps all injury victims get a fair shake in their claim.  We did this last week when the Maryland Court of Special Appeals gave a victory for our client and justice in Peeler v. FutureCare Northpoint, a wrongful death nursing home case.

Nursing Home Arbitration Agreements

At stake in Peeler v. FutureCare Northpoint was the breath of an agreement to arbitrate any claims that arise between a resident and a nursing home. I’m Our client’s mother in Peeler entered a nursing home after she had femoral-femoral bypass graft at Johns Hopkins Bayview Medical Center.  She was asked upon arrival to sign an arbitration agreement. Clearly, this was not a moment of great clarity, right?  This is not uncommon.  Most decisions you make when entering a nursing home are made in crisis mode resulting from a precipitous decline in health.  So in the midst of this emotional powder keg, the incoming resident or their family must sign a million documents.  There is no time to plan or weigh options. I’m a lawyer. There is no way I’m reading all of those documents in that situation. I’m certainly not feeling free to negotiate with the nursing home.  I’m in the most unequal bargaining position imaginable. I just want — or I wanted my loved one to get — the needed care to get through the days ahead.

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I’ve complained to you (all 14 of you) for years about Maryland’s ridiculous refusal to adopt dram shop laws to allow lawsuits against bars and restaurants who knowingly serve drunk people who then go out and hurt of kill someone.  A divided Court of Appeals says the Legislature should take the first step.  The legislature bows to the National Resturant Association lobbyists because there is no dead kids lobbying group that contributes money to Maryland General Assembly elections (except for MADD which does an awesome job with few resources).

The court did take a baby step in the right direction this month when it issued an opinion in two cases involving underage drinking that creates a path for victims and their families to bring civil lawsuits against adults who serve children alcohol.

This is a big step forward.  The Maryland Court of Appeals has previously found that social host liability is a near relative of a Dram Shop liability.  So it is not hard to imagine the court extending the reasoning of these cases as a logical move towards dram shop laws.  It is also noteworthy that Judge Sally D. Adkins wrote the opinion.  Judge Adkins wrote an amazing dissent in the last big dram shop case that came before the court, arguing that the law had to be changed because too many Marylanders were unnecessarily dying because drunk people are being overserved in our bars and our restaurants.   It could just be me but I think this is a sign that Judge Adkins’ thinking will soon carry the day.

Here is an interesting look at the first 20 medical malpractice lawsuits filed in Maryland in 2016 with a brief summary of plaintiff’s allegations in the case.   You can get all malpractice lawsuits filed in Maryland in 2017 up until April on our website.

  1. Hall v. Genesis Healthcare, LLC (filed on January 4, 2016): This is a bed sore case in Prince George’s County. Genesis Healthcare fails to take the proper precautions to prevent bed sores from developing on woman’s body. Woman dies, and her two surviving sons bring a wrongful death lawsuit.
  2. Stanford v. United States – (January 5, 2016): This is a cancer misdiagnosis lawsuit in U.S. District Court in Baltimore. Biopsy performed with an inadequate specimen. A better specimen would have revealed Stage I cancer that is usually curable by surgery. Stage III cancer discovered three years later. Prognosis is death within five years.shutterstock_60007435

I got a page on Thursday night. The caller was a woman alleging medical malpractice.  She had surgery and continued to experience problems after the surgery. The doctor continued to treat her for two years for complications, telling her that they were expected risks of the procedure. After a second opinion earlier this year, she came to believe that the complication was not a known risk of the procedure and was the result of medical negligence.

How long do you have to file a medical malpractice lawsuit in Maryland?

How long do you have to file a medical malpractice injury or wrongful death lawsuit in Maryland?

I do not think this potential medical error client has a case on the merits because I believe that the complication is, in fact, a known risk of the procedure that would not be caused by a medical mistake.   You can’t sue for bad outcomes just because they are awful and tragic.  But her case raises the legal question she could bring a malpractice action in Maryland (or in other states with a similarly worded statute).

What the Law Is in 2017

Under Maryland’s statute of limitations that applies to most tort cases, a lawsuit suit must be filed within three years of the date on which the wrongful act occurs.  It is a harsh rule that is even harsher in medical malpractice cases.  Maryland created two rules to soften that effect.

Continuous Treatment Rule

Like most states, we have a “continuous treatment rule,” under which, “if the treatment by the doctor is a continuing course and the patient’s disease or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute [of limitations] does not commence running until treatment by the medical man for the particular disease or condition involved has terminated, unless during the course of treatment the patient learns or should reasonably have learned of the harm, in which case the statute runs from the time of knowledge, actual or constructive.”

Discovery Rule

Maryland also has a discovery rule which says that the time to file does not begin to run until the harm is known or should have been known.  The purpose of providing three-year limitations is to give people the time to investigate whether they have a claim.  But plaintiffs’ counsel often screws up what this really means.

Victims are charged under the law with the responsibility to perform a diligent investigation.  That investigation is intended to begin when the victim has knowledge of circumstances which ought to put a person of ordinary prudence on notice.  So, as a matter of law, the victim has inquiry notice of an injury the moment she possesses the “knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry” to investigate the cause of an injury.

Too many lawyers and unrepresented victims take liberties with this rule and assume it is when they knew.  It is not.  The rule is when they should have started investigating to figure it out.

The Five Year Leash

But the law puts a leash on how long these exceptions can be applied in Maryland Courts and Judicial Proceedings § 5-109, the Maryland statute that addresses limitations in medical malpractice cases.  The limitations period in health care negligence claims is five years from the time the injury was committed or three years from the date the injury was discovered, whichever is shorter. This law imposes a sort of statute or repose on medical malpractice cases in Maryland. But what sort of claims can be brought that are more than three years old but less than five?

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