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Maryland Personal Injury News and Updates
Loss of Chance in Medical Malpractice Cases in Massachusetts
24 Jul 2008 at 12:46pm
The Massachusetts Supreme Judicial Court - Massachusetts' highest court - ruled yesterday that medical doctors can be held liable for medical malpractice that reduces a patient's chance of survival, even if the patient's chances of recovery was already less than 50 percent.
Maryland also has a loss of chance case currently pending before the Maryland Court of Appeals although few Maryland medical malpractice lawyers expect Maryland will go as far as Massachusetts has in this case.
I'm on vacation this week but I'll read and report on this important opinion next week.
Montana Supreme Court Reverses Itself in Car-Pedestrian Accident Case
16 Jul 2008 at 1:01pm
The Supreme Court of Montana rendered an interesting decision last week on the issue of the claim for emotional injury in Allstate Ins. Co. v. Wagner-Ellsworth.
The case involves a car-pedestrian collision. Two brothers were crossing the street in front of their elementary school and one was seriously injured. Allstate settled this claim for the per-person policy limit of $50,000.
The injured victim?s mother and brother retained a car accident injury lawyer and filed suit claiming emotional and physical injuries, contending that they were ?injured? as a result of the brother seeing the accident and the mother by the trauma she suffered arriving on the scene after the accident.
In response to the lawsuit, the negligent driver sought both coverage from liability and a lawyer to defend the claim. Allstate filed a declaratory judgment action arguing that it was not required to provide a lawyer for its insured because its coverage did not extend to claims of emotional or psychological injuries and any resulting physical manifestations of those injuries. (You are in good hands with Allstate as long as you pay your premiums and never make a claim.) The trial court granted Allstate?s motion for summary judgment relying on Jacobsen v. Farmers Union Mutual Insurance, a 2004 opinion from the Montana Supreme Court.
The Montana Supreme Court reversed, relying on the following policy language: ?Allstate will pay damages which an insured person is legally obligated to pay because of bodily injury sustained by any person ..." The Montana high court noted that the policy did not state that "damages must result from 'bodily injury' sustained by the 'insured.'" In so doing, the Montana Supreme Court specifically overruled the court?s prior holding just four years before in Jacobsen v. Farmers Union Mutual Insurance.
I?m a fan of stare decisis but I?m a bigger fan of the Montana Supreme Court?s unanimous willingness to quickly change what it perceived to be a mistake. I also think they made the right call because the law is well settled that you can recover for physical manifestations of emotional trauma in these types of case. That said, if I were on a jury, would I be skeptical of these kinds of injures? Yes, I would. The Plaintiff?s lawyer, Roland B. Durocher, a personal injury lawyer in Great Falls with Hartelius, Ferguson, Kazda, Baker & Durocher, certainly has an uphill climb in this case. Unless the clients are compelling, I think this case will have little chance of success.
Medical Justice
11 Jul 2008 at 12:27pm
Medical Justice is what appears to be a new organization whose aim is to ??prevent, deter and respond? to frivolous malpractice lawsuits.?
This seems like a goal we ? including good plaintiffs? medical malpractice lawyers - can agree on, right? Frivolous lawsuits hurt everyone. For a cost of $625 to $1990 a year Medical Justice will give you:
?Pursuit of counterclaims against expert witnesses in their professional societies and state licensing boards
?Published database of members on the Internet to notify plaintiffs and their representatives that the physician is backed by an organization with the expertise, will, and funds to fight back
?Establishment of pre-emptive critical practice infrastructure to deter plaintiffs without interfering with the patient-doctor relationship
?Proactive early intervention strategy that can be executed in the event you are sued
?Access to PEER team of volunteer defense experts
?License to use Patient-Physician contract template language
?License to use contract template language to prevent being forced into small-claims court
?License to use contract template language to prevent physician being defamed on the Internet
?Access to program to address unwarranted requests for refunds or write-offs
?Allocation of up to $100,000 as assignee to pursue viable counterclaims, when requested and appropriate
Except for the first and the last, these are pretty much fluff benefits. The most absurd is the use of ?license[d]? contract language to file a complaint. Please. I?ll put these on the Maryland personal injury lawyer website to save everyone the trouble.
I find the first one interesting ? the pursuit of counterclaims against expert witnesses. It is an interesting strategy of trying to attack experts who are willing to stand up for patients. The last one is also interesting: up to $100,000 in legal fees to pursue counterclaims when ?requested and appropriate.? Gee, I wonder who gets to decide what is appropriate? I?m guessing Medical Justice.
What troubles me about Medical Justice is the kind of doctors this is likely to attract: good doctors. This program appeals to good doctors who are unlikely to ever have a medical malpractice claim brought against them, but they fear frivolous lawsuits. As awful as they are for society, there is never going to be a jury verdict in a frivolous case. So why should doctors fear frivolous lawsuits? The doctor?s malpractice carrier will hire an excellent medical malpractice defense lawyer to get the case dismissed long before a settlement or verdict.
Wait you say, jurors award damages in frivolous medical malpractice lawsuits all of the time and frivolous malpractice cases settle all of the time. Okay, let?s ignore the studies that prove this is false and just pretend this is an accurate statement. If a case is settled or a jury finds against you, that is going to be an absolute defense to any claim that a medical malpractice lawsuit is frivolous. So there is no way this ?insurance policy? (which I doubt is actually an insurance policy, anyway, because I suspect the term frivolous will be defined by Medical Justice) is going to have any real meaning for end users. It is like selling terrorism insurance in some farm town in Kansas. It is an illusory security blanket. (This was probably shot down as the Medical Justice motto.)
Medical Justice is ?run by physicians for physicians.? They don?t exactly note this is a non-profit. So it is doctors trying to make a buck off other doctors by capitalizing on their fear of medical malpractice.
On the Medical Justice website, they offer a slew of testimonials, the majority of which are just puff, vague, ?hey, you are great? testimonials. Of the few ?results? testimonials Medical Justice offers, all could be attributed to the work of the doctors? medical malpractice lawyer whose job it is to defend these cases in the first place.
If I?m wrong about this, Medical Justice let me know. And here is my challenge to you. Tell us exactly what your ?results? have been. How many lawyers have you successfully brought claims against for filing frivolous lawsuits? How many actual claims have you brought? How many experts have you sued for standing up for patients? How many experts have you sued successfully? How many volunteer experts have acually provided testimony? If I?m wrong, I?m wrong. But I doubt it. If you are a doctor reading this, please make sure you ask these questions before you give them a single penny.
There Was an Accident Last Night at I-70 and the Baltimore Beltway in Marylan...
8 Jul 2008 at 1:19pm
There was an auto accident last night at I-70 and the Baltimore Beltway in Maryland last night at 3:54 a.m.
Are you a lawyer who has started a blog this way? If so, stop it because you are driving me crazy. No, seriously, stop it. The Baltimore Sun can and will report these stories just fine without your repeating them, thank you very much.
The Internet is such an amazing resources for personal injury lawyers to gather information about the handling of their cases. But to use this resource, you have to wade though so much junk. If you are just rewriting stories from newspapers without any thought or commentary, you are useless to the rest of us.
Malpractice on Video in New York
1 Jul 2008 at 5:19pm
Medical malpractice lawyers in New York today released incredible surveillance camera video from Kings County Hospital in Brooklyn, New York, showing a 49 year-old woman dying on the floor of a psychiatric emergency room while being completely ignored by the hospital staff.
The video shows the woman keeling over and falling out of a chair on June 19, 2008, and lying facedown on the floor, then thrashing wildly before going limp. A full hour passes before anyone bothered to try to help.
Absolutely incredible video that reminds me of the Rodney King incident. If it was not on video, no one would ever believe that it happened as the plaintiffs? lawyers will argue.
I have no problem with these malpractice lawyers releasing the video of this incident in principle. It may - with the caveat below - enhance the value of this malpractice case from a settlement perspective. Still, I find it disconcerting that a lawsuit gets a lawsuit filed in a malpractice case within two weeks....
Lost of Dimished Chance Doctrine Yanked Back from Kentucky Malpractice Victims
1 Jul 2008 at 8:51am
Medical malpractice victims suffered a setback in Kentucky last week when the Supreme Court of Kentucky reversed the Kentucky Court of Appeals ruling adopting the ?lost or diminished chance of recovery? in medical malpractice cases in Kemper v. Gordon. (This defense verdict was, however, reversed on other grounds because the trial court erred in excluding evidence that an expert has reached the opposite conclusion in another case.)
The facts of Kemper are tragic. A 38 year-old mother in otherwise good health presented at the emergency room with chest pain, shortness of breath, severe nausea and dizziness. For a year, these and related symptoms appeared. All were dismissed as anxiety or panic attacks. Finally, the woman was diagnosed with metastasized gastric (stomach) cancer. After her death, her family brought a medical malpractice lawsuit. At various points along the way to the jury, she settled with five of the six doctors that treated her. The jury returned a defense ve...
Riegel v. Medtronic: Congress to the Rescue?
30 Jun 2008 at 7:32am
Since the Supreme Court?s disaster in Riegel v. Medtronic, I have been hoping and expecting Congress would step in to fix the Supreme Court?s ruling, because it was clear from the amicus briefs submitted in Riegel, from history and from common sense, that Congress did not intend to preclude medical device tort claims. Yesterday, California Congressmen Henry Waxman and New Jersey Congressman Frank Pallone, along with 62 bipartisan supporters, introduced HR 6381, the Medical Device Safety Act. This bill would effectively undo the wrong the Riegel does to medical device victims. The Senate is expected to offer a similar bill next month.
As the Wolf said in Pulp Fiction, we can?t start congratulating ourselves yet (I?m paraphrasing). This bill has not even made it out of a committee yet. But at least something is happening.
Picking a Jury in Maryland
24 Jun 2008 at 4:36pm
Voir Dire in Maryland is often a difficult experience for injury lawyers on both sides of the aisle because Maryland arguably has the most truncated voir dire process in the country. I?ve tried a lot of cases where both lawyers were able to glean just a few relevant things from the jurors, we make the obvious strikes and both parties end up not really knowing anything about who is on their jury. I?ve written a little bit about this problem in a previous Maryland Injury Lawyer Blog post.
The Maryland Bar Journal has an article this month by Carolyn Koch of Jury Solutions, LLC offering some tidbits on ways to get a bit more information under Maryland?s limited voir dire process. Two of her suggestions I found to be particularly interesting.
Ms. Koch suggests the following question: If you or someone close to you was injured due to someone else?s negligence, do you think you would bring a lawsuit?
I would add something to the effect of ?if the claim was not resolved to you...
Medical Malpractice Damage Caps: What Impact Do They Have?
23 Jun 2008 at 3:22pm
The University of Chicago Journal of Legal Studies published an interesting article on medical malpractice tort reform. Current Research on Medical Malpractice Liability: Medical Malpractice Reform and Physicians in High-Risk Specialties, 36 J. Legal Stud. 121 (2007). The article supports the plaintiff?s view of medical malpractice tort reform? with a very notable exception.
The article concludes that introduction of medical malpractice reform in response to the fear of losing doctors may be misguided because the ?relationship between medical malpractice reform and physician labor supply suggest that the effects are modest.? The article suggests that many doctors are likely to be indifferent to medical malpractice reform ?because their likelihood of being sued is low.?
Interestingly, the article references one study by Eric Helland and Mark Showalter titled, ?The Impact of Liability on the Physician Labor Market,? which indicated that medical malpractice damage caps induce p...
Challenge to Maryland's Cap on Non-Economic Damages
19 Jun 2008 at 2:23pm
The Maryland Daily Record reports today that The Law Offices of Peter G. Angelos intends to file an appeal in a Baltimore City medical malpractice case in which the Plaintiff?s $10.2 million jury verdict against University of Maryland Medical Center was capped at $632,500.00 because that is the limit on non-economic damages.
The Daily Record reports that the Plaintiff's medical malpractice lawyers intend to argue that: (1) the limitation on damages has not accomplished its purported legislative objective of reducing medical malpractice insurance rates for doctors; (2) the Maryland cap on non-economic damages is pre-empted by the ADA; (3) that it violates equal protection and due process; and (4) that it deprives the jury of the information necessary to make an informed decision.
Not surprisingly, Baltimore City Circuit Judge Carol E. Smith denied Plaintiff?s motion to overturn the cap and reduced the Plaintiff?s verdict to his medical expenses and $620,000.00 in non-economic...
Attention Lawyers. I Am Your Maryland Injury Lawyer: How to Build a Lawyer R...
18 Jun 2008 at 8:44am
Six years ago, we decided that representing corporate defendants and billing by the hour was not for us so we started our own law firm. We had a clear vision as to what would bring us success: yellow page advertising. That was the vehicle, we assumed.
Yet there is a little known secret about yellow page advertising: in the 21st century, it does not work. Minor flaw. Not knowing this, we poured over a million dollars into yellow page advertising.
Every single year of our practice, we earned more in fees from cases referred from other lawyers than any other source. Our current yellow page budget ? except for a small local community book ? is now zero.
The advantages of a referral-based personal injury practice are plentiful. First, obviously, there is no significant advertising budget.
Second, the clients are actually much better and much easier to work with on their injury case. Why? Because being referred by another attorney is a hallmark of success for a personal i...
Average Verdict Value In Head-on Collisions
16 Jun 2008 at 3:23pm
Jury Verdict Research provides median award data and verdict probabilities in head-on auto, truck and motorcycle accident cases nationally. Plaintiffs prevail and recover damages in 64% of these cases. Surprisingly, the median award in these head-on collision personal injury cases is only $31,875.00. This number reflects the fact that 24% of the head-on collision claims in the study were for ?back strains? where the average award is only $9,312.00. These are probably not the injuries we think of when we think of a head-on collision.
But here is a real shocker: the median head injury verdict in head-on collision accidents is only $25,000.00. If you have a head injury, typically you have a serious accident. So this data is ? to say the least ? not what I think most car accident lawyers would have suspected. If I had to guess at the head-on collision national median, I would have predicted the number would be at least six figures. I would suspect that the average - as oppose...
Independent Medical Exams in Accident Cases
10 Jun 2008 at 3:15pm
The National Law Journal has an article on the increasingly contentious battleground over the circumstances of ?independent medical exams.? Personal injury lawyers in Maryland in car and truck accident cases are increasingly battling over the terms and conditions of the plaintiff?s medical exam, from who can attend the exam to more substantive concerns like the production of the IME doctors? financial records. In the last 24 hours we have had two separate disputes with defense lawyers that we like and with whom we regularly cooperate. One involves the defendant?s lawyer wanting a doctor in Washington D.C. that just coincidentally is outside our subpoena power. Interestingly, the doctor lives in Maryland but has an amazing skill of evading service. (Does that show up on his C.V.?)
You can find the entire article here which includes a quote from me.
False Imprisonment Cases: Median Verdicts and Settlements
9 Jun 2008 at 4:35pm
The latest edition of Metro Verdicts Monthly provides numbers on false arrest/imprisonment cases in Virginia, Maryland and Washington, D.C. The median legal false arrest/imprisonment verdict or settlement in Washington D.C. was $25,000.00. Virginia and Maryland have slightly higher median settlement/verdicts of $26,000.00 and $29,000.00, respectively.
Our law firm does not handle these cases. (On the rare occasion we get a false imprisonment/false arrest/police brutality case we refer the case to Larry Greenberg, a Baltimore lawyer, who does a really good job and aggressively works up those cases.) But I?m surprised the median verdict/settlement is this high because I would think the median case would be one with relatively insignificant injuries except for the inconvenience. There are awful exceptions to that rule to be sure but those awful exceptions would be reflected in the average ? as opposed to the median.
While I obviously love these graphs, I wish Metro Verdicts Mon...
Forum Non Conveniens Opinion in Randallstown High School Shootings Case
3 Jun 2008 at 5:29pm
The Maryland Court of Special Appeals ruled yesterday in Peyton-Henderson v. Evans that Baltimore City Circuit Court Judge George L. Russell, III did not err in transferring a lawsuit from Baltimore City to Baltimore County that was filed as a result of the May 2004 shooting at Randallstown High School.
The ruling covers no new ground but (sort of) retired Judge Charles E. Moylan Jr. lays out the history of the Maryland case law on forum non conveniens. The court underscored the more modern Maryland trend to focus on ?the interests of justice? as opposed to concentrating on convenience of the witness. With a standard as amorphous as ?interests of justice? you can be pretty sure that absent some insane finding, the appeals court is going to defer to the trial judge. This is why I?m surprised this case was appealed in the first place.
Judge Moylan jabbed lightly at personal injury lawyers who forum shop, quoting now Court of Special Appeals Judge Krauser, ?while home may be whe...
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