Articles Posted in Discovery

One of the most tedious chores accident attorneys in Maryland must perform is the collection of medical records in personal injury cases. How much can health care providers charge Maryland lawyers for copying the medical records? The brief answer: a lot. The Maryland Health-General Annotated Code §4-304 sets for the maximum charges:

  • $19.70 as a “preparation fee”
  • $0.65 for each page

A few days ago, I wrote about a judge’s article entitled Alice in Discovery Land (A Practical Guide to Recurrent Discovery Problems) that appeared years ago in Maryland Litigator, quoting Judge Smith’s comment about the oxymoronic phrase independent medical exam.

Counsel on both sides of the aisle have their own unique problems. One of the enormous problems the insurance companies have is getting credible medical experts to testify at trial. They are in a catch-22: they need doctors who regularly testify because of the volume of cases they have, but doctors who will have spent much of their practice testifying for insurance companies have little credibility. As a result, most of their experts are deeply wedded to the insurance companies, a fact rarely lost on jurors.

When the defense lawyer asks for an IME, we send out a list of conditions before agreeing to the exam. We also subpoena the doctor’s records. In most cases, the doctor refused to respond to the subpoena because they do not want to reveal the extent to which they are wedded to litigation related work and, specifically, to the insurance companies. The defendant’s lawyer is forced to withdraw the expert.

I had the opportunity last night to read an article written by Maryland Circuit Court Judge Thomas P. Smith entitled “Alice in Discovery Land (A Practical Guide to Recurrent Discovery Problems)” that appeared years ago in Maryland Litigator, a periodical which I believe no longer exists.

Reading his article reminds me that an article like this allows a lawyer to be included in the thoughts of a judge in the same way a focus group provides a lens for a personal injury lawyer to a potential jury. Both are engaged in thought processes that a lawyer thinks he or she can decipher, but it is often more difficult than they realize. Because we cannot hire a focus group of judges each time you file an important motion, the next best thing an attorney can do is read whatever you can find by practicing judges on discovery issues to get a better insight into their thinking.

What I found of particular interest is Judge Smith’s thoughts on Independent Medical Exams, “Of all the oxymorons in the world, an Independent Medical Examination occupies first place by thousands of leagues. There is nothing independent about the process; it is hardly undertaken for any medical purpose and all too often resembles an inquisition rather than an examination.”

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