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

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 spinal injury 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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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.

shutterstock_23521183The 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.

emptycourtIn 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

Donald Trump has the support of a broad swatch of people.   Many of his supporters have the viewpoint that the problem in this country is too many lawsuits.Trump

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.

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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 Rule 1-311protection 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 injured client, executed your fee agreement, gathered your facts and put your file together. Your client is asking whether it is time to settle her personal injury case. Is it time to consider a settlement?  If you settle a case too soon, you are leaving money on the table.  If you wait too long, you are wasting time…. or worse.

Be Clear on Notice and Filing Deadlines

when can i settle personal injury case

When can I settle my client’s personal injury case?

When deciding whether it is time to settle your case, first and foremost, check the statute of limitations.  If you have a statute problem, all bets are off. If you have less than six months, file suit.  You can worry about settlement later.  You do not want to lose your right to bring a claim. There are exceedingly few to exceptions to a statute of limitations.

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.

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