Maryland Injury Law Center

January 28, 2016

Was Ronald Reagan for Tort Reform?

Clearly, the new Republican tradition is to pay homage to Ronald Reagan whenever you have a segue to do so – and even when there’s not. Everyone has forgotten Iran-Contra and those Marines in Lebanon. Instead, we have focused on the fact that he presided over 8 years of relative peace and prosperity. Most people also agree he made a real contribution to our victory in the Cold War.

At a debate back for the RNC Chairmanship, Grover Norquist asked the candidates, “Who is your favorite Republican president?” Every one of the six candidates picked Reagan.

Poor Lincoln. Even Democrats look back on Reagan and point out – maybe correctly, I don’t know – that Reagan is not conservative enough to win the Republican nomination in 2016. (Of course, in 2018, the cult of Donald Trump has led to a devaluation of Reagan and his legacy. But this is likely a very temporary revision.)

The Evidence

You have heard of Stella Liebeck and the McDonald’s coffee case. Yep, over 30 years later, that is still a thing. But before Stella, there was “the phone booth case” that Reagan raised in a 1986 speech:

A man was using a public telephone booth to place a call. An alleged drunk driver careened down the street, lost control of her car, and crashed into the phone booth. Now, it’s no surprise that the injured man sued. But you might be startled to hear whom he sued: the telephone company and associated firms.

All of this is true. People love to make a big deal about someone suing someone as a harbinger for chaos because the lawsuit is so unjust. But all you need to file a lawsuit is 115 bucks (at least in Maryland). People file utterly ridiculous lawsuits all the time. In this case, the guy was paralyzed, and he brought suit and the phone company settled (for like $25,000 in a catastrophic injury case.)

I don’t know why insanity is imputed because some company does not have the guts to take a case to trial. But everyone jumped on to the idea that there is great meaning to the court’s failure to rule for the defendant on its motion for summary judgment (edit: the trial judge granted the MSJ but the California Supreme Court flipped the order). But I guess Reagan was pretty fired up about it in his speech, so that is why the legend lives on to this day that Reagan was pro-tort reform.

A Closer Look at Reagan and Tort Reform

I found on my Google +1 a post (update — Google +1 is dead) from someone who worked for Reagan, which looks at what he actually said about tort reform. Apparently, all of his years of public life, Reagan gave only one tort reform speech in his political career in which he specifically said the issue is one for individual states. He never followed up on this speech.

January 14, 2016

New Federal Opinion on Johns Hopkins Malpractice Lawsuit

by Ronald V. Miller, Jr.

Johns Hopkins is quite possibly the greatest hospital in the history of the world. People come from all over the world to get the best medical care that Hopkins can provide.

Delayed removal response means the claim against Hopkins will be in federal court

The U.S District Court in Baltimore decided this week a case involving a woman who traveled from Kuwait to get treatment at Hopkins to get cancer treatment only to lose her leg. She believes she lost her leg because the doctors at Hopkins committed malpractice. The question in the case is whether this medical malpractice lawsuit against Johns Hopkins should be heard in federal court on in state court.

I don’t know if negligence caused this woman to lose her leg. But I do know that as great of a hospital as Johns Hopkins is, mistakes do happen there that cause severe injuries and death. Like any hospital, Hopkins has bad doctors and good doctors that sometimes make poor decisions.

This case is not about what happened to the patient. Instead, the question is whether this medical malpractice lawsuit against Johns Hopkins will be heard in federal court on in state court. In a blow to the Plaintiff, the court ruled that this case will be heard by a federal judge and jury.

Video discussing medical malpractice lawsuits against Johns Hopkins

January 6, 2016

Medical Malpractice or Mere Negligence?

by Ronald V. Miller, Jr.

Would you rather sue a healthcare provider for negligence in Health Claims as a medical malpractice case or would you rather file a simple negligence case in Circuit Court?

If your answer was Health Claims, you need to get your head examined. Filing in Health Claims in Maryland just creates more hoops that you need to jump through. Are they manageable? Absolutely. But when it comes to Byzantine rules and conditions precedent, sign me up for the path of least resistance wherever possible.

Is it Negligence or Medical Malpractice?

The determination of whether a claim against a health care provider belongs in Health Claim is based on whether the claim involves a “medical injury” as defined by MD. CODE ANN., CTS. & Jud. PROC. § 3-2A-01(g) The statute states a “medical injury” is an “injury arising or resulting from the rendering or failure to render health care.” Not every tortious injury inflicted on a patient by a healthcare provider is medical malpractice. The distinction between ordinary negligence and malpractice hinges on whether the mistake involves a matter of medical science or act requiring special skills not possessed by laypersons. So if the negligence or lack thereof can be assessed based on the common everyday experience of the jury, it is not a medical malpractice case.

What constitutes a “medical injury” in Maryland? This has been the subject of a few Maryland appellate cases. It is clear that intentional torts like assault and battery are not subject to Health Claims. So if a doctor intentionally hits a child while removing stitches, that claim will not be subject to health claims. But we are talking about classic assault and battery. You can’t just call it assault and battery if it is actually a medical injury.

January 5, 2016

Another Jury Prayer Maryland Appellate Opinion

by Ronald V. Miller, Jr.

Late last year, the Maryland Court of Appeals decided yet another “Should we shoot for justice or dwell on the hypertechnical?” case in Lisy Corp v. McCormick and Co. The court went the wrong way.

Here, the Plaintiff filed a lawsuit in Howard County alleging both tort and contract claims. When you file a lawsuit in Maryland, you fill out a Case Information Report (“CIR”) to serve on the Defendant. A CIR is a three-page administrative form that helps the court process cases. The court is looking to find out things like the nature of the claim and the amount of damages that are sought and, most germane to this case, whether the Plaintiff is seeking a jury trial.

Maryland Rule 16-202(b) makes it abundantly clear that the purpose of the CIR is only case management by the court. But it is also undisputedly a clear intention by the Plaintiff to seek a jury trial.

The Plaintiff’s attorney asked for a jury trial in the CIR but neglected to file a separate document as required by the rules requesting a jury trial. So the question in the case is whether a CIR is an acceptable vehicle for demanding a jury trial under Maryland law.

October 7, 2015

When Should You Hire an Expert in Accident Cases?

by Ronald V. Miller, Jr.

When should you retain an expert in a personal injury accident case? The short answer is early, usually earlier than you think.

This is never a problem in medical malpractice cases, because it is well understood that medical malpractice claims are predicated on expert testimony, to even bring forth a claim in the first place. But lawyers — both Plaintiffs’ lawyers and defense attorneys — typically wait too long.

How do you know whether you need an expert? Investigate. Early. Do you have a problem with speed, with drinking, with highway design, or with a “dangerous condition?” You will not know if you have any of these problems, without investigating your claims properly.

October 5, 2015

New Law, New Weapon for Maryland Plaintiffs’ Lawyers

by Ronald V. Miller, Jr.

Insurance companies in Maryland are now required to disclose upon request from the victim or their personal injury attorney the amount of insurance coverage their client may have. So you can find out from day one, how much coverage might be available to satisfy your client’s injury claim. This law went into effect on October 1, 2015. If you are a Maryland personal injury lawyer, you’re probably in the top 1% of your colleagues in knowing of the existence of this law. I think it is a well-kept secret because I don’t believe any lobbying went into this effort. No one is climbing over themselves to claim credit for it. Just the Maryland General Assembly doing their job. Who knew?

September 29, 2015

Why Jurors Are Skeptical of Plaintiffs

by Ronald V. Miller, Jr.

A new wrongful death lawsuit alleges that Fast and Furious star, Paul Walker, survived the impact of the high-speed car crash that cost him his life. It alleges that he could have gotten out of the car but for a defective design of his Porsche Carrera GT. The suit claims that Walker could have avoided the fire except that his seat belt “snapped Walker’s torso back with thousands of pounds of force, thereby breaking his ribs and pelvis,” which made an escape impossible.

That is one allegation. The lawsuit also alleges the car should have had a stability system that prevents swerving. Also, the side door was too close to the fuel line, and that the car had a history of control problems. The claim concludes that the Porsche Carrera GT is a dangerous car that does not belong on the road. It seems like a real reach.

September 29, 2015

10 Things I Learn Reading Jury Verdicts and Settlements

by Ronald V. Miller, Jr.

I tried to keep abreast of verdicts and settlements in personal injury cases in Maryland by reading the Maryland Daily Record, keeping up on the Maryland Association for Justice listserv, and getting the reports from Jury Verdict Research, Metro Verdicts, and just what I hear on the street from other lawyers.

The result of one case tells you nothing. But if you keep following jury verdicts and settlements, you see patterns emerge. Here are ten things I have learned from this process:

September 24, 2015

Do I Specialize in Maryland Personal Injury Law?

by Ronald V. Miller, Jr.

Maryland personal injury lawyers are not permitted to say that they specialize in personal injury law. This may soon change.

The Maryland Court of Appeals is considering amendments to Rule 7.4 of the Lawyers’ Rules of Professional Conduct that would permit a Maryland personal injury attorney — or any lawyer for that matter — who has been certified as a specialist in a particular area of law to hold themselves out to the public as a specialist.

What would the attorney’s qualifications be for specialization? I think this may be the challenge that led the court to defer ruling on this issue, which they did last week.

[2018 Update: I DO specialize in personal injury law! We are now allowed to make this claim.]

September 23, 2015

For Settlement, Type of Injury Drives Compensation

by Ronald V. Miller, Jr.

There are an unbelievable number of variables involved in arriving at a settlement value for a personal injury case. Compensation offers vary wildly because there are so many different factors with different weights attached to them.

But assuming there is no issue about the amount of money available* to pay on the claim, the single most reliable way to predict settlement value is the type of injury. There are two key factors to consider when looking at the type of injury.