Articles Posted in Maryland Courts

Getting records and bills from medical providers is a lot harder than it should be.   The Maryland Court of Special Appeals has a new opinion that makes the collection of records even harder.   Yes, thankfully, it is an unreported opinion.  But it is still a message that health care providers can kick the can down the road on medical records requests with impunity.

The sad part is I agree with the opinion. It was the right call.  For sure.  But it is not helpful for medical malpractice and personal injury lawyers trying to collect medical records.

The Maryland Record Collection Statute

In Stracke v. Butler the Maryland Court of Appeals ruled that a pair of ambulance paramedics from the Baltimore City Fire Department were immune from liability because their actions in transporting a man to the hospital were not “grossly negligent.”

This case involves the scope of immunity provided by the Maryland Fire & Rescue Company Act, Maryland Code, Courts & Judicial Proceedings § 5-604 and its applicability to employees Baltimore City Fire Department employees who treated the patient that ultimately died.

I don’t like the gross negligence law we have in Maryland. I think § 5-604 is well-intended but ultimately foolish.  But I have a hard time arguing that the court did not follow Maryland law.

Last month, Maryland’s Court of Appeals upheld a $7 million verdict to the plaintiff in an asbestos case even though there was no direct evidence that the defendants had installed the asbestos products at issue. In Wallace & Gale Asbestos Settlement Trust v. Busch, a 6-1 majority held that direct evidence of exposure to a specific defendant’s asbestos products is not necessary. Rather, a defendant’s liability for asbestos exposure can be based on circumstantial evidence and reasonable inferences.

Facts of the Case

The underlying facts are fairly typical of most asbestos cases these days. The plaintiff (70-years-old at the time of trial) worked for 30 years as an HVAC technician. He primarily installed thermostats, sensors, and temperature control systems. The plaintiff himself never directly worked with asbestos, but he was sometimes around other people who were using asbestos.

Breaking up with a client is something all personal injury attorneys do on a fairly regular basis. A lot of cases look promising.  But an investigation and review of the medical records can sometimes paint a very different picture.  This is particularly true in medical malpractice cases where the medical records read very differently from what the patient remembers or believes.

For the most part, lawyers are free, as the client is, to sever the attorney-client relationship.  If you have already filed a lawsuit for the client, things are a bit more complication because you will need to get court permission withdrawing from the case.  Before a case is actually filed, however, breaking up is a lot easier.

Maryland Ethical Rules

I’m also fired up for a new year of appellate opinions.  Something about having a new year on a case that just seems exciting to me.  (In an unrelated note, I have four kids and few hobbies.)  But there have been few tort related appellate opinions this year to get me fired up.

Anyway, the Maryland Court of Appeals recently decided a Sutton-Witherspoon v. S.A.F.E Management, a case that is factually interesting to almost all of us in Baltimore.

Facts of Case: An Out-of-Control Victory Parade

The Maryland Court of Special Appeals took an interesting look at the scope of settlement releases in Harvey v. City Homes, Inc last week.  The case has some important reminders for Maryland plaintiffs’ attorneys that the case is not over after a settlement or verdict because the language of the release may be critical if the victim has future potential claims.  Continue reading

In Duckett-Murray v. Encompass Ins. Co. of Am., Encompass did is best effort to try to refuse coverage when its insured need it after thirty years of receiving premiums from its insured.

This has to be the least shocking development since Kim Kardashian’s last divorce.  Listen, unlike a lot of lawyers, I understand when insurance companies fight like crazy in third party claims where the claimant is not their client. But this is a case where the family had been paying premiums for almost 30 years.  When an insurance company loses an appellate case on coverage involving their own insured, they should be ashamed of themselves.  Sure, you can argue it is a close call.  But don’t you want to err in favor of your own client?

Thankfully, the Court of Special Appeals ruled for the victim.  The key take-home lesson here is if there is any question about an umbrella or uninsured coverage, turn over every last stone. Because there is a real good chance you are going to find a path to move coverage.

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.

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.

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.