Should you accept the insurance company’s first offer even if you want to settle your personal injury claim? Continue reading
“It Wasn’t Me” Defense | New Maryland Case | Hall v. WMATA
But she caught me on the counter (It wasn’t me)
Saw me banging on the sofa (It wasn’t me)
I even had her in the shower (It wasn’t me)
She even caught me on camera (It wasn’t me)
She saw the marks on my shoulder (It wasn’t me)
Heard the words that I told her (It wasn’t me)
Heard the scream get louder (It wasn’t me) – Shaggy (2000)
U.S. District Court Judge Paul Grimm granted summary judgment for Washington Metropolitan Area Transit Authority last week in a slip and fall, no impact bus accident case in Hall v. WMATA. A slip and fall no collision “the door shut on me” bus accident case in federal court? I know it sounds bad, sure. But it gets worse.
Why Can’t I Find a Malpractice Lawyer for My Case?
Medical malpractice kills 400,000 people a year in this country and injures 4 million more. The media is now starting to focus on this story, as we just talked about on Monday after the Baltimore Sun’s story on negligence in Maryland hospital. Stories like this help plaintiffs in medical malpractice cases. Why? Because many of us still view doctors as infallible and that wall of invincibility is being to fall.
So, why is it so hard to find a medical malpractice lawyer in Maryland who will take your case?
Joanna Shepherd, a law professor at Emory University, conducted a national survey of medical malpractice attorneys that explored why malpractice attorneys reject cases.
| Reason for Rejection Case | Percent of Respondents |
| Unclear causation | 19.25% |
| Unclear evidence of malpractice | 29.11% |
| Case is unlikely to settle | 0.94% |
| Insufficient damages expected from trial or settlement | 38.73% |
| Complexity and expense of bringing the claim | 11.74 |
| Hospital not involved in medical malpractice | 0.23% |
Maryland Hospital Errors | How Many?
The Baltimore Sun published an important front-page article yesterday on hospital errors in Maryland.
The premise of the article is a simple yet different approach to medical mistakes in Maryland hospitals. It goes like this. We have about 400,000 patients who are killed every year by medical malpractice.
How are Maryland hospitals faring? We don’t know. There is a major epidemic that kills enough people in this county to fill Camden Yards 10 times a year. Malpractice that causes serious injury could fill Camden Yards over 100 times (4,000,000) a year. Yet we have no quality way of estimating how Maryland is faring. Why is this? The hospitals, doctors, and insurance companies do not provide this data to us.
Said differently, we are all particularly those of us that are young or old – vulnerable to this grave risk. We face other risks, of course. Heart disease, cancer, motor vehicle accidents, diabetes, all pose substantial risks of death. With these risks, we can sift through the data, understand the risks, and do what we can. We quit smoking, eat better, wear seat belts, and so forth.
Tort Reformers Were Right, Doctors Do Flee States Without Caps
One of the great selling points of caps in medical malpractice cases is that it encourages doctors to come to your state to practice. Every state, particularly in jurisdictions with rural areas where access and availability to doctors is a prominent concern, want to attract a healthy supply of doctors to their state. The thinking it is that doctors will flee to states where the litigation climate is more favorable to doctors. A new study suggests this oft cited canard support tort reform is 100% true. But not in a good way for patients.
A Notre Dame economist published a study titled “Medical Malpractice Reform, the Supply of Physicians, and Adverse Selection,” Journal of Law and Economics” that found that “when a county’s neighboring state passes a cap on noneconomic damages, the supply of physicians falls by 4 percent” in that county.” Tort reform advocates are nodding their heads vigorously.
Presumption of Negligence in Maryland Car Accidents | New Opinion
The Maryland Court of Special Appeals decided a chain reaction automobile tort case last week in Cooper v. Singleton that leaves me confused about the current state of Maryland law as to how we communicate our presumption of negligence rule to juries in rear-end collisions… and hoping the Maryland high court steps in to clear up the confusion.
This case involved a five car chain reaction car crash in Montgomery County.Four cars had stopped at a red light when a fifth car, driven by the defendant, crashed into the fourth car. The cars hit each other moving forward as you would expect that they would all the way up to the first car. It must have been a pretty hard hit, obviously.
The plaintiff in this case is car #2; the defendant is car #4. The case goes to trial before Judge Terrance McGann in Montgomery County. After a three day trial, the defendant wins.
Wait! What? How do you lose that case?
But I think there was a viable defense to this case. Defendant’s argued sudden incapacity because he suffered a grand mal seizure. The defendant’s treating neurologist testified that he was taking medication to control his seizures and it was reasonably believed that the medication would prevent future seizures. But, unexpectedly, he suffered a seizure that left him incapacitated.
Defense Lawyers Talking to Patient’s Doctors | HIPPA and Maryland Law
One hot button issue in Maryland medical malpractice cases today is the circumstances under which defense lawyers can speak to Plaintiff’s treating doctor. For years, this was not an issue. If a defense lawyer wanted to talk to a treating doctor, she would just pick up the phone and call. This was a powerful tool for malpractice defense lawyers because (1) you always want to know what a treating doctor — or any witness — will say before the doctor testifies, and (2) it gives the defense lawyer a chance to take part in shaping the doctor’s testimony.
HIPAA changed all of this in 1996. HIPAA requires that a doctor “may disclose protected health information in the course of any judicial or administrative proceeding [i]n response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.” 45 C.F.R. § 164.512(e)(1)(i).
So that settles it, right? In most states, yes. If this is current, 38 states prohibit ex parte conduct, and another six permit informal interviews with significant restrictions.
Why This Fight Continues in Maryland
Yet in Maryland, the battle still rages. Defense lawyers argue that under Maryland law once a patient places his or her medical care and treatment at issue in a civil action filed against a health care provider, all health care providers shall disclose all information in medical records and/or health-related information to another health care provider’s legal counsel. Specifically, Md. Code Health Gen. § 4-306(b)(3) provides a statutory right to ex parte communications. Actually, I think the statute provides only for the disclosure of written medical records, as they are defined in Md. Code Health Gen. § 4-301(h).
Can a Truck Accident Be the Legal Cause of a Suicide? | Young v. Swiney
In Young v. Swiney, the U.S. District Court of Maryland was presented with an interesting, albeit depressing question: Can a suicide, two years after a truck crash, be causally related to the accident?
The Facts
There was no dispute as to liability. The defendant trucking company sought summary judgment on plaintiffs’ wrongful death claim, alleging that there was no evidence that a reasonable jury could rely upon to establish this suicide, two years after the accident, could be causally related to the crash. Defendant also sought summary judgment for economic losses after the suicide, claiming that his death was, “a superseding and/or intervening cause” of his death that acts as a bar to future economic losses. As creepy as that argument is, it does logically follow that that if the crash did not cause the suicide than the economic losses should, as a matter of law, be terminated as well. Continue reading
Discovery Failures Kill Malpractice Claim | Valentine-Bowers v. Retina Group
In Valentine-Bowers v. Retina Group of Washington, a new medical malpractice case decided by the Maryland Court of Special Appeals, the plaintiff alleged that her physician failed to monitor a problem with her eye that caused her to lose vision in that eye. It is a serious injury for a young woman. But this case is not about the underlying merits of the claim, it is about the things you have to do to get a medical negligence claim to a jury.
The case starts with the defendant serving discovery on the plaintiff. The plaintiff did not respond in a timely fashion. Judge Douglas R. M. Nazarian, a relative newcomer to the court, acknowledged this failure is commonplace.
Her failure to comply with the deadline is unremarkable—parties routinely miss this deadline and litigators know that absolute compliance is not always possible (although they do, and should, expect at least a request for an extension and a good faith deadline in return).
Testifying at Trial by Skype | New Maryland High Court Opinion
Maryland courtrooms are slow keeping up with the times. This is not an altogether bad thing. What happens in the courtroom matters and we should probably let society work out the kinks of technology and understand all of the potential unintended consequences before our judicial system leaps into the next big thing.
That said, geez. It is 2014. Can we get wi-fi in the courtrooms? I can’t even get my phone on the Internet in some courthouses, like P.G. County Circuit Court not to name any names. We can e-file pleadings in federal court now and will be able to in state court at some point. But we are about 15 years behind the curve. Let’s not let the world get a full generation lead in technology over our courts.
One of the big issues that is increasingly getting attention is witnesses testifying at trial without showing up at trial. Skype is the primary method that gets talked about, probably because its low cost makes it the most desirable.