Maryland Injury Law Center

October 5, 2018

Marital Privilege and Work Emails (and Texts)

Note: post was originally in 2012. It has been updated in November 2018 to discuss a new martial privilege case, Sewell v. State, now pending before the Maryland Court of Appeals with a decision coming any day now.

I never write about marital privilege. But I have an interest in modern technology and how it will affect pre-trial discovery and admissibility of evidence. Which takes me to the 4th Circuit opinion U.S. v. Hamilton.

This case involves the bribery conviction of a former member of the Virginia House of Delegates who also served part-time as an administrator with the Newport News, Virginia public school system. Basically, the guy pushed for and got a salary from Old Dominion University for getting funding for a million-dollar program called Center for Teacher Quality and Education Leadership. (FACT: 89% of all “education centers” with titles as goofy and ambiguous as this one are hopelessly corrupt.)

Anyway, a key piece of evidence in the takedown of this guy is an email that he writes to his wife about how he is trying to get this salary out of the deal which he writes from his public school computer. So the question is whether the marital privilege applies because he used his work email account.

For what I think are good reasons, communications between spouses have long been thought to implicate important privacy and confidentiality interests. This has led to a recognition of a marital privilege in both Maryland and federal law that makes communications between spouses presumptively confidential.

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October 3, 2018

Fetal Macrosomia and Birth Injuries

by Ronald V. Miller, Jr.

Fetal macrosomia is a medical term that means fetal weight at birth is greater than 4000 grams (8 lbs. 13 oz). Compared to the size of other newborns of the same gestational age, this is considered excessive fetal growth. Your doctor will be concerned with the baby’s probable weight at delivery for a few reasons and should want more testing to be done.

Fetal macrosomia is a serious condition in pregnancy. It is well recognized in the medical literature that a major concern in the delivery of a macrosomic baby is shoulder dystocia and the attendant risks of permanent brachial plexus palsy. It requires close monitoring and frequent visits to the doctor’s office. But the reward is a healthier baby at delivery and sometimes a healthier mother, too.

Why is Fetal Macrosomia Important?

October 2, 2018

Nursing Home Settlements in Maryland, Washington, D.C., and Virginia

by Ronald V. Miller, Jr.

I’m always interested in the Metro Verdicts Monthly graph on the front of their publication which compares verdicts and settlements for a certain type of personal injury claim in Washington D.C., Maryland, and Virginia. Sometimes I am surprised by the difference in the results.

Digging up an older copy, I am astounded by the difference between Virginia, Washington, D.C., and Maryland in median nursing home liability verdicts and settlements since 1987. The median recoveries in Maryland and Virginia are $125,000 and $175,000, respectively. This means that the median settlement and verdict in Virginia is 40% higher than Maryland. Virginia juries are more conservative than Maryland, so this result is somewhat surprising. But here is what I find surprising: the average nursing home case settlement or verdict in Washington, D.C. is $700,000. I realize there is no cap in D.C., but it is still amazing.

Real Value of Maryland Nursing Home Claims

September 24, 2018

Limits on Malpractice Fees Around the Country

by Ronald V. Miller, Jr.

In recent years, we have been picking up more malpractice cases — primarily birth injury cases — in jurisdictions outside of Maryland and D.C. We have handled claims close to home like Pennsylvania and West Virginia and we have also handled (and settled) cases as far away as Oregon.

To do this, we needed to get up to speed on the basics of malpractice calls in that jurisdiction. Not so much to handle the case — we have local counsel for that — but to screen the case to evaluate whether it is a viable claim to bring. It is important, of course, to know if the state has caps on malpractice cases and we have done that research.

But, honestly, you also need to know whether there are significant caps on attorneys’ fees because it has a real impact. Taking a birth injury case in New York, for example, is a very tough play economically because you are only getting 10% of everything over $1 million.

August 27, 2018

Frustrating Settlement Call with an Erie Insurance Adjuster

by Ronald V. Miller, Jr.

I just hung up with an adjuster from Erie after a settlement call. It is difficult to settle a personal injury claim with an adjuster who does not — or pretends not to — understand the law.

One thing I can say about Erie is that the Erie adjusters—particularly in larger cases—are pretty sophisticated. Agree or disagree with them, they are usually very sharp. Their defense lawyers—Erie relies on Rollins Smalkin a lot in the Baltimore area and McCarthy Wilson throughout much of the rest of Maryland—are very competent and easy to deal with on personal injury claims. So when I see an Erie defendant, I expect a worthy but reasonable adversary.

August 16, 2018

Inducing Labor a Little Early May Lead to Safer Childbirth

by Ronald V. Miller, Jr.

Women experiencing typical pregnancies are not offered the option of inducing labor at 39 weeks. That might change.

A recent study funded by the National Institutes of Health (“NIH”) suggests that electively inducing labor 1 week before the due date decreases the risk of complications and leads to a safer delivery. New mothers whose labor was induced in week 39 (instead of waiting for labor to begin naturally) were less likely to require a C-section and had lower rates of preeclampsia and other complications. The research also established inducing at 39 weeks did not increase the chances of stillbirth or other severe complications compared to mothers who were not induced. The detailed results of this pivotal NIH study were just published in the New England Journal of Medicine: Labor Induction versus Expectant Management in Low-Risk Nulliparous Women.

It was previously believed that early induction of labor significantly increases the likelihood of an emergency cesarean delivery in response to complications. This made many doctors reluctant to induce before 40 weeks, but no comprehensive study had ever been done before. The Pregnancy and Perinatology Branch at NIH funded the study to fill this data gap.

August 15, 2018

Neonatal Stroke Birth Injury Malpractice Lawsuits

by Ronald V. Miller, Jr.

A neonatal stroke (also called a perinatal stroke) is defined as an interruption of blood flow to an infant’s brain that occurs between 20 weeks gestation and first 28 days after the child is born. Neonatal strokes can be ischemic or hemorrhagic. Ischemic neonatal strokes are caused by some form of blockage in the blood vessels. Hemorrhagic strokes occur when blood vessels rupture and bleed.

What causes a newborn to have a stroke?

Neonatal strokes result from some event within the body that suddenly disrupts the normal flow of blood to the baby’s brain. In adults, the underlying causes leading to a stroke are usually high blood pressure, diabetes, or some other condition.

August 14, 2018

New Study Shows Increase in Forceps Related Birth Injuries

by Ronald V. Miller, Jr.

In June 2018, a study was published in the Canadian Medical Association Journal which shows there has been an alarming increase in the rate of birth injuries resulting from forceps-assisted deliveries. This does not surprise me because our obstetrician experts have been telling us for years that the new generation of obstetricians does not have the skill to use forceps. If too much pressure or force is used, forceps can cause injury to both mother and baby.

What Are Forceps?

Obstetrical forceps are a surgical tool used by OB/GYNs to assist in difficult vaginal deliveries. The forceps look like large plyers with metal spoons at the ends. The spoons grip the baby’s head so that the doctor can then manually maneuver the baby through the birth canal. Sometimes, birth injury lawyers unfairly vilify forceps. But forceps are a very effective weapon with the right obstetrician. The problem is that they require a high level of skill and experience by the doctor.

July 12, 2018

Waiting Until the Last Minute to File a Medical Malpractice Case

by Ronald V. Miller, Jr.

I look at every medical malpractice case that gets filed in Maryland. It is incredible to me how many lawyers wait until the last minute to file a lawsuit. In Dunham v. University of Maryland Medical Center, a bedsore case decided a few weeks ago by the Maryland Court of Special Appeals, underscores the hot water you can get in when you wait until just before the statute of limitations to bring your claim.

Facts of Dunham

Plaintiff originally sued his health care providers for medical malpractice based on failure to prevent and treat pressure sores. The case was initially filed in the Health Care Alternative Dispute Resolution Office (“HCADRO”) then transferred to Circuit Court. All medical malpractice actions in Maryland must be supported by an expert certificate that complies with certain conditions. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04(b) (2013 Repl. Vol.). If the expert certificate does not satisfy the requirements, the case must be dismissed unless the plaintiff obtains one of the statutory time extensions.

July 9, 2018

Do You Need to Give a Recorded Statement to Your Insurance Company?

by Ronald V. Miller, Jr.

I have long said it is an open question under Maryland law whether you are required to give a recorded statement to your own insurance company if you are making an uninsured motorist claim even if the insurance contract obligates you to do so.

The theory is that Maryland has a statutory scheme that preempts any such contractual obligation imposed by the contract. I didn’t make this up, I stole it from Janquitto’s book on Maryland insurance law. (You should own if you are a lawyer handling auto tort cases in Maryland.)

I’m not sure whether this argument was advanced in Dolan v. Kemper, a new Maryland Court of Special Appeals case decided last week. But if it was, the CSA shut the door on it.