Baltimore City settled a wrongful death and survival action by Freddie Gray’s family for $6.4 million. The criminally unfair Maryland Local Government Tort Claim Act would have capped these claims at $400,000. So Baltimore City settled for a whopping $6 million more than the maximum value of the case. Said another way, the settlement […]
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 in 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.
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 do 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.
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 changing 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.
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 the first 50 malpractice lawsuits filed in Maryland in 2017 on our website.
- 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.
- 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.
I have always had an interest in spoliation of evidence. Spoliation is the negligent or intentional destruction or alteration of evidence or the failure to preserve evidence for relevant to future, and sometimes even pending, litigation. This is not an issue we see often in car accident cases but we do see it in truck accident and product liability cases and, to a less extent in medical malpractice claims.
The Maryland Court of Appeals took a look at this issue in Cumberland Insurance Group v. Delmarva Power. This case involved the treatment of spoliation of evidence when the physical object destroyed is itself the subject of the case. The context is a little boring. This is a battle between an insurance company and a utility company so, in my world, this is a bad guy on bad guy battle. The destruction here was also negligent which is a lot less sexy than willful destruction.
Anyway, the claim centered on a house fire of a home insured by Cumberland Insurance Group. After the fire, two of Cumberland’s experts inspected the house, as well as the meter and meter box that were removed from the scene by the Fire Marshal. Based on its experts’ inspections, Cumberland believed the meter and meter box were the source of the fire and sought a subrogation claim against Delmarva Power, the electric company for the property. Cumberland received an estimate for demolition of the property and issued a check to the homeowner that appeared to include the cost of demolition. Although Cumberland sent Delmarva notice that Cumberland intended to file a claim against Delmarva for subrogation, the notification did not include information regarding the schedule for demolition. Subsequently, Delmarva did not send any personnel to inspect the property before demolition occurred, less than sixty days after the fire.
I’m passing along the latest information on Maryland transition to e-filing.
In 2014, the Maryland Judiciary launched the Maryland Electronic Courts (MDEC) system – a project that modernizes current case management systems and streamlines court processes to make case filings more convenient for litigants. Here are two updates
APRIL 4: New E-filing interface
Trump would not take this position. He is, by any definition, a celebrity. Many celebrities have a history of using lawsuit first recourse in settling disputes.
Yesterday, Trump threatened a lawsuit if Ted Cruz does not take a campaign ad down that is predominantly made up of Trump’s own words footage in a 1999 interview saying he’s “very pro-choice.” Cruz has, with good reason, mocked the viability of such a claim, giving the sound bite that Trump has been bringing frivolous lawsuits his entire adult life.
Trump certainly has filed a number of unbelievable lawsuits. Here are a few highlights:
- He sued two brothers for using the Trump name, even though their last name was Trump. Reportedly, these guys were worth more than ten times what Trump is worth, but somehow they were using the name to piggyback off of his success. The suit went nowhere.
- He sued his ex-wife for $25 million for talking about their relationship in spite of a confidentiality agreement. He might have technically been on the right side of this. But you get the point.
- Bill Maher joked that he would pay Trump $5 million if he could prove that his father was not an orangutan. Trump produced his birth certificate and sued for $5 million when Maher did not pay. This one has a real elementary school vibe to it, doesn’t it? Trump eventually dropped the case.
- He sued the Chicago Tribune for $500 million after the paper’s architecture critic, wrote he thought the Chicago’s Sears Tower would remain its world’s tallest building title even though Trump has made a plan to build a taller building on the East River in Manhattan. Reportedly, Trump did not even hire an architect for the building. A federal court judge dismissed the case, ruling that you cannot sue someone for their subjective opinions.
An amendment to Rule 1-311 went into effect on January 1st. The amendment requires that for all pleadings filed electronically with an electronic signature must include the attorney’s client protection fund number.
I cannot find the amended version of this new rule online. I highly doubt Judge Barbera is going to drive down to your office to compel compliance. But it would be a smart idea to start complying now. At some point, someone is going to argue that the pleading was not valid without the lawyer’s client security trust fund number. Do you win that battle? Yes. But you lose even when you won; when you are fighting a fight that should not have been fought in the first place. I also don’t want the clerk’s office calling and screaming at me. It never pays to make those people mad.
Rule 1-311 is the rule that requires an attorney signature on every pleading.
You’ve met your client, executed your fee agreement, gathered your facts and put your file together. Is it time to consider a settlement? It depends on the case.
Be Clear on Notice and Filing Deadlines
First and foremost, check the statute of limitations. If you have a statute problem, all bets are offer. If you have less than six months, file suit.
You can always serve the defendant, send a copy to the claims representative with whom you’ve been dealing, and agree to take no further action during a fixed time period, during which it is understood that settlement negotiations will be addressed. Also, be sure early on, when opening your file, whether there are any statutory notice provisions with which you must comply pre-suit. Sometimes they are obvious — clearly county-owned vehicle — and sometimes you are never going to be able to know unless you file suit and get defendant’s discovery responses.
You can always serve the defendant, send a copy to the claims representative, and agree to take no further action during a fixed time period, during which it is understood that settlement negotiations will be addressed. Also, be sure early on, when opening your file, whether there are any statutory notice provisions with which you must comply pre-suit. Claims against state and local governments typically have provisions such as these, which require specific notice to be given to designated officials. If you are an inexperienced lawyer or a pro se plaintiff, read that last sentence carefully. Because “Oh, come on, I’m sure it got to the right person” is not going to fly.