Maryland Injury Law Center

June 26, 2015

Facebook Friend Requests and Attorney Ethics

Social media is great. It’s an excellent way to maintain contact with old friends. It’s an excellent place to get news before any TV station gets it. You can even follow Miller & Zois on Facebook. We are pretty cute, right?

But it is a scary new world. How many times have you heard about someone gets fired or disciplined because of an ill-advised post or comment? How many politicians have resigned because they thought it was a good idea to send a “private” message to an intern? How many people have been arrested from a tip found on social media?

Facebook and other forms of social media can also spell trouble for lawyers, too. In New Jersey, two attorneys were recently sanctioned for sending a Facebook friend request to another party.

June 23, 2015

New Underinsured Motorist Cases From the Maryland Court of Appeals

by Ronald V. Miller, Jr.

Two companion uninsured/underinsured motorist cases out of Cecil County were decided by the Maryland Court of Appeals last month. The take home message for Maryland lawyers handling uninsured motorist cases: if you don’t follow the rules by settling with the underlying carrier, the court will not let you off the mat. It is the ultimate in form over substance. I disagree with the law, but I can’t quibble with the court’s 6-1 decision. Really? Insurance companies should not be trying to eviscerate insurance agreements with their own clients, because their lawyers screwed up.

Both cases, Woznicki v. General Insurance Company and Morse v. Erie Insurance Exchange involved the typical scenario; in which the tortfeasor’s liability insurance tenders the policy and the plaintiff’s attorney accepts, while intending to make an uninsured motorist claim. This is a special set of facts. Here, the insured’s UM policy explicitly stated that they had to bless any settlement with the tortfeasor’s liability insurance carrier — or pony up the policy themselves — to activate the UM coverage after a release was signed.

May 14, 2015

Expert Designations in Maryland

by Ronald V. Miller, Jr.

One of the benefits for plaintiffs’ attorneys is that we are far better able to dictate the pace of the litigation. Some squander this opportunity by failing to fully load the gun before firing it. When we serve the defendant with the Complaint, we will, on our first round of discovery, name our experts from the beginning.

Name Your Experts From the Beginning

Our lawyers have always served a full course of discovery with our Complaint. What we have been doing for the last 15 years is filing our expert designations along with our Complaint. It is one more hoop a lawyer has to jump through when filing a Complaint, but it takes away another deadline you will need to meet down the road. I just did a quick Lexis search, typing in different searches to pull up missed expert deadline cases. In just a few minutes, I found hundreds of cases.

May 11, 2015

New 4th Circuit Opinion | Did Doctor Lie for Disability Policy?

by Ronald V. Miller, Jr.

The Fourth Circuit decided a case that addresses an interesting insurance law question; while also touching on another issue that vexes medical malpractice lawyers in Maryland. The 4th Circuit overruled a great judge, Federal Magistrate Jillyn K. Schulze, who awarded summary judgment against a suspended surgeon for making a disability claim.

While cursed with a boring name, Certain Underwriters at Lloyd’s, London v. Cohen, is a case that has some interesting facts. The Plaintiffs are underwriters at Lloyd’s of London. The defendant was a general surgeon in Bethesda, who was suspended for three months from practicing medicine in Maryland, because he violated the standard of care, kept inadequate medical records and grossly over-utilized health care services. I’m not sure of all the details, but they are strong allegations against a surgeon. Anyway, the insurers wanted to rescind a disability policy, because the doctor made material misrepresentations on a disability policy, which he later sought benefits.

May 5, 2015

The Only Way to Get More Than the Insurance Policy in an Accident Cases

by Ronald V. Miller, Jr.

What boggles people’s minds is the fact that many Maryland car accidents that lead to death and disability settle for $100,000 or less. Some settle for $30,000 in cases where the liability is clear or even if the defendant was drunk out of his mind.

How to get more than the auto insurance policy limits

How does this happen? In many cases, the key to recovery is finding insurance. Know where to look and you have to know how to look. But sometimes there is nothing there even when you look in the right places.

Okay…so how can this happen? Maryland requires that each licensed vehicle be covered by auto insurance of some kind. But the minimum auto liability insurance required is quite low in relation to the potential that a vehicle will inflict harm. Consequently, a driver may be hit by another car that has as little as $30,000 in maximum liability coverage ($15,000 per person/$30,000 per accident). The non-negligent driver may have been severely injured by another driver who has few personal assets, in which case, even prompt payment of the negligent driver’s $30,000 in liability insurance will do little to compensate the severely injured non-negligent driver. As a result, every driver is constantly at risk of being severely injured by an impecunious driver with low policy limits.

April 15, 2015

Emergency Room Malpractice Claim: New Study

by Ronald V. Miller, Jr.

A new study on emergency room malpractice was released today that looks at why ER doctors are so frequently sued in misdiagnosis claims.

The study was conducted by The Doctors Company, which is a big insurer of doctors, hospitals, and physician groups. It is easy to roll your eyes because you know these folks come with an agenda. And of course, their conclusions are euphemistic distortions or maybe downright fictions, but I take most of the data at face value because I can’t see the point of cooking the relative malpractice incidence rates.

The study looked at 332 closed emergency room malpractice claims. Four types of cases made up the lion’s share of the cases:

Misdiagnosis: 57%
Improper Management: 13%
Improper Treatment: 5%
Failure to Order Medications: 3%

Misdiagnosis is the biggest culprit. The study says 57%; I would have put this number at 75 percent. Misdiagnosis includes failing to make a differential diagnosis and failing to consider all the symptoms of the patient’s condition. I would love to see data on “just didn’t know” versus “just didn’t take the time” because my very unscientific guess is that they are probably equally balanced. But the study takes a roundabout shot at trying to answer this question, breaking up misdiagnosis cases like this:

March 31, 2015

New Maryland Malpractice Appellate Opinion | Habit Testimony

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals recently handed down its opinion in Rosebrock v. Eastern Shore Emergency Physicians. The opinion makes defense attorney’s jobs a little easier when it comes to admitting testimony in medical malpractice cases, of what the doctor usually does when the doctor has no recollection of the care provided to the patient. This post addresses this case and whether this ruling is significant to Maryland medical malpractice law. I’ll also talk a little about an off the beaten path issue related to agency and personal representation.

Habit testimony in Maryland malpractice cases

This is a medical malpractice case where a nurse’s aide slipped and fell, while on duty, at Ruxton Nursing Home located in Denton, Maryland. After the fall, she complained of hip, knee, and back pain. EMTs arrived and immobilized the woman, then place her on a backboard. She went to the emergency room at Shore System’s Memorial Hospital in Easton, Maryland. The ER doctor orders an x-ray of the patients’ knees and hips, but there is no record of her examining the patient’s back; even though she complained about her back to the triage nurse. The x-rays come back negative, prompting the doctor to discharge the patient with minor knee and hip contusions.

Later on, the patient is still experiencing significant pain, resulting in another doctor ordering an MRI. The MRI showed a degenerative disk in the patient’s back, which is later revealed to be a burst/fractured vertebrae. Obviously, this is a bit more serious than a minor contusion, and the patient has to get spinal fusion surgery. Unfortunately, the surgery results in an infection, causing the patient to suffer a brain injury and enter a vegetative state.

February 23, 2015

How Sure Does an Expert Need to Be in a Maryland Personal Injury Cases?

by Ronald V. Miller, Jr.

In any serious personal injury case in Maryland, you need an expert to testify. Are there some cases where the injury is so obvious that a medical expert is not required? There may be. But anyone willing to take that chance should not be trying tort cases in Maryland.

Why Do We Need an Expert?

An expert has several purposes. First, with a few exceptions, you want to ask the jury to compensate you for the medical bills that you have incurred, even if they have been paid by medical insurance (because the jury is not told that insurance paid for the medical bills). Accordingly, you need a medical doctor with experience treating that injury to testify that the medical treatment that the plaintiff received was fair, reasonable, and medically necessary.

February 12, 2015

Nerve Damage Causing Foot Drop After Total Hip Replacement

by Ronald V. Miller, Jr.

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Nearly a quarter of a million Americans undergo total hip replacement surgery. All of them do so reluctantly. This invasive orthopedic surgery is a major operation. Everyone agrees that there are unavoidable risks involved in the procedure. These risks include a foot drop (also called peroneal nerve palsy or drop foot), sciatic nerve injuries, and, many believe, RSD even when the surgery is performed properly. There is no doubt that the fact that it is a known complication of hip replacement surgery does not make for a straightforward malpractice case no matter how egregious the facts are. I’m telling you that the surgeon could do the operation with a machete while wearing a Groucho Marx mask and any Maryland insurance company would still mount a defense. But that does not answer the question posed, which is whether it can be medical malpractice when a patient has a foot drop after a total hip replacement. Continue reading

February 6, 2015

Why Do Baltimore Drivers Pay More for Insurance?

by Ronald V. Miller, Jr.

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Our main office is now in downtown Baltimore. I love it here. I really do. But driving in Baltimore can be a pain. The daily commute usually involves at least one narrowly escaped crash, jaywalkers deciding to cross right as your light turns green, and the Circulator cutting you off a few times. It’s the price of doing business downtown.

Baltimore’s drivers aren’t the best, but they’re definitely not the worst. That’s because they’re only the second-worst. Allstate rated Baltimore’s drivers 193^rd out of 194 different cities in the US. D.C. was the only city that fared worse. There is a reason Baltimore car accident lawyers keep busy and why Maryland ranks 9th in the cost of car insurance premiums. While this reality makes our drives more perilous every day, it affects city residents’ wallets in a huge way.