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Articles Posted in Litigation Strategies

Most personal injury lawyers have had more than a few encounters with consumer bankruptcy proceedings.  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.

In any serious personal injury case in Maryland, you need an expert to testify.  Are there some cases where the injury is so obvious that a medical expert is not required?  There may be.  But anyone willing to take that chance should not be trying tort cases in Maryland.

Why Do We Need an Expert?

An expert has several purposes.  First, with a few exceptions, you want to ask the jury to compensate you for the medical bills that you have incurred, even if they have been paid by medical insurance (because the jury is not told that insurance paid for the medical bills).  Accordingly, you need a medical doctor with experience treating that injury to testify that the medical treatment that the plaintiff received was fair, reasonable, and medically necessary.

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defense attorney tacticsThere are lots of insurance defense lawyers in Maryland that you just cannot figure out why someone would hire them to defend a personal injury case.  They unnecessarily complicate cases, bill hours on things that are completely unrelated to anything that would benefit the defense and, often, juries cannot stand them because there is a positive correlation between someone willing to be this annoying and how annoying they are, according to independent studies that I have conducted.

Why Insurance Companies Hire These Lawyers

The lawyer that fits this profile sometimes gets a lot of work.  Why?  Like any job, insurance adjusters are all kinds of different people.  Democrats and Republicans.  Athletes and bookworms.  Compassionate and mean.  Attractive and not-so-much.  But, disproportionately,  they are tough guys.  They want to wage war in the seas and the valley and talk tough and be tough.  For some of them, the rest of their lives belie this mentality.  But that is a whole different story. Continue reading

soft tissue injury caseThe average verdict in a Maryland auto tort case is around $12,000.

How can this be?  I’ll tell you how it be: attorneys filing cases in Circuit Court that just should not be going in front of a jury.

These are my thoughts after reading about a recent jury verdict in Anne Arundel County.  It was a garden variety auto accident case.  The 21-year-old plaintiff, a college student from Pennsylvania, was driving with his mother in the left lane at a speed of 55 to 60 mph when they got into a collision with another vehicle.   Plaintiff did what a passenger should do in this case where the cause of the crash is in dispute.  He sued both drivers.

workers' compensation personal injury

Do you have both a comp claim and PI case?

Many of our personal injury clients bring both a regular civil claim and a workers’ compensation claim.  Yet we get calls every week from someone who has an otherwise valid tort claim that may not bring that claim because of the workers’ compensation law.

Obviously, two claims are better than one.  This post explains the cases in which you can bring both claims and those you cannot and why. Continue reading

We have rejected several tort cases because Medical Assistance made payments for the victim’s outstanding bills. Why? Because the state refused to significantly reduce (or at all) its lien to account for attorneys’ fees. Sure, DHMH could reduce or waive their lien if it will cause “substantial hardship.” But “substantial hardship” was not defined and I think we had a very different definition than the subrogation folks at Medical Assistance.medical assistance liens

It might sound a little heartless, but it is the exact opposite. The Medical Assistance problem did not affect our attorneys’ fees but had a real impact on how much money the client could recover in the case. If we don’t think we can make the client happy at the end of the case, we will not pursue the claim, regardless of how much money we think we can make on the case.

But things are now a lot better because of new rules that have adopted by the Department of Health and Mental Hygiene and codified as COMAR 10.09.83. Pursuant to these new regulations, the state will now allow for attorneys (I’m not sure about pro se plaintiffs, I need to read it again) to negotiate a reduction in the lien to account for the victims’ legal fees.

Lawyers always argue over anything where there is not black and white set rules. (Actually, we argue when there are set rules, too.)

No one exactly knows the rules of the sequences of discovery because the rules are whatever the motions’ judge says there are. So lawyers take positions on these issues with varying degrees of reasonableness.discovery obligations timing

A new Wisconsin case illustrates this issue. In Dauska v. Green Bay Packaging Inc., the defendant filed a motion for sanctions and to compel the deposition of the Plaintiff who refused to be deposed. Why? Plaintiff’s attorney refused to allow his client’s deposition until he received discovery responses from the Defendant. Plaintiff’s lawyer did not file a motion for a protective order but made it clear his client would not appear for deposition. Continue reading

We should probably have a subsection for cross-examination materials in our Litigation Strategies category. But we have a lot of materials both on the website and on the blog I think are of interest if you are preparing a cross:

  • David Ball on Damages: Cross-Examination of Experts (the “one” thing that – and this is a bold statement – always works when crossing a defense expert)
  • Cross-Examination of Truck Driver (we got $1 million verdict in the case based on this cross)

supreme court medicaid liensTrying to successfully resolve clients’ medical liens has to be one of the toughest challenges facing personal injury lawyers in large cases. I have had many cases where the case’s hardest part was not getting the settlement or verdict’ but getting the medical liens resolved. It also can be most frustrating because while defense lawyers take a lot of crazy positions in our cases, the threat of an eventual trial usually allows logic and reason to surface. In dealing with medical lien holders, logic and reason and even their own economic interest are rarely prominent players in the mix.

We share most of these frustrations only among plaintiffs’ lawyers and their clients while the rest of the world worries about their own problems. This is why I have enjoyed watching the U.S. Supreme Court wrestle with these issues in Delia v. E.M.A.

At the center of this tragedy sits an oblivious twelve-year-old girl who lives – peacefully, I pray – in Taylorsville, North Carolina. Because of medical malpractice during delivery by a doctor who had a history of drug abuse, and surrendered his North Carolina medical license, she has severe mental retardation and suffers from a seizure disorder. She is deaf, blind, unable to sit, walk, crawl, or talk.

[Brief intermission: You know, I’m writing about this case because these lien issues impact many people. This matters to people who are suffering and really deserve justice, which is money damages in our judicial system. And I can’t tell you how often I drive by the most horrific facts in a case, digging for some teachable point on the collateral source rule, without giving it much thought. I like myself 15% less than I otherwise would because of this, but what choice do we have? Become immersed in every case that we read and put ourselves in the shoes of everyone suffering? But, this one today just gets me and I’m finding myself imagining being in the shoes of every single person in this tragedy.]

The case settled for $2.8 million. The settlement agreement did not – because it really can’t – allocate separate amounts for past medical expenses and pain and suffering and other damages. North Carolina’s Medicaid claimed its one-third lien. The law allows the state to take the lesser of either the total lien or one-third of the court-ordered malpractice payment.

The one-third rule has a real upside: it is easy. Bright-line rules are always that way. But as the Supreme Court told us in Arkansas Dept of Health & Human Serus. v. Ahlborn, pure bright-line justice is not always acceptable and the sum allocable to medical expenses must be determined by some reasonable process before the state can recover on its claim. The 4th Circuit agreed, overturning the North Carolina law because North Carolina statute’s one-third cap on the state’s recovery against a Medicaid recipient’s settlement proceeds did not satisfy Ahlborn because there was no showing that the settlement proceeds should compensate the plaintiff for that amount of the medical claims. The case was remanded to the trial court for an “evidentiary hearing” at which the district court would figure out how much DHHS should get. Continue reading

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