Maryland Injury Law Center

July 8, 2014

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.

June 30, 2014

Defense Lawyers Talking to Patient’s Doctors | HIPPA and Maryland Law

by Ronald V. Miller, Jr.

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).

June 17, 2014

Can a Truck Accident Be the Legal Cause of a Suicide? | Young v. Swiney

by Ronald V. Miller, Jr.

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

June 11, 2014

Discovery Failures Kill Malpractice Claim | Valentine-Bowers v. Retina Group

by Ronald V. Miller, Jr.

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).

June 5, 2014

Testifying at Trial by Skype | New Maryland High Court Opinion

by Ronald V. Miller, Jr.

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.

May 28, 2014

New $5.2 Million Miller & Zois Baltimore Medical Malpractice Verdict

by Ronald V. Miller, Jr.

Our Memorial Day weekend got a good kickoff with a $5.2 million verdict in Baltimore in an emergency room misdiagnosis medical malpractice case.

I can’t start out the facts of this case without pointing out how amazing our client and his family were and are. Just a great loyal family. They came in and out of the courtroom during the two-week trial, including six of his seven siblings. His elderly parents were there for the closing too, along with one of his nieces. I have four small kids. When they are older, I want us to all be as close as that family. They are great people that love each other, and they love God. Which means they have 95% of life covered when they wake up in the morning.

Facts of the Case

May 22, 2014

New Maryland Rule That Might Cause a Malpractice Action Against You

by Ronald V. Miller, Jr.

Update: Stop the presses. This rule has already been repealed.

We have a new rule in Maryland: Rule 1-322.2:

Rule 1-322.2 shall take effect and apply to all actions commenced on or after July 1, 2014, and insofar as practicable to all actions then pending.

(a) Certificate Required. Every pleading or paper filed in an action on or after July 1, 2014 shall contain either:

(1) a certificate of compliance with Rule 1-322.1 that is signed by an individual who is (A) the party filing it or an attorney for the party, or (B) if the paper is filed by a nonparty, the person filing it or the person’s attorney, employee, or agent; or

(2) in an affected action under Title 20 of these Rules, a certificate that complies with Rule 20-201 (f)(1)(B).

Cross reference: For the definition of “affected action,” see Rule 20-101.

(b) Action by Clerk. The clerk shall not accept for filing any pleading or other paper requiring a certificate under section (a) of this Rule unless the pleading or paper contains the certificate.

Source: This Rule is new.

May 10, 2014

Drafting Interrogatories | Thoughts for the Plaintiffs’ Attorney

by Ronald V. Miller, Jr.

Drafting Interrogatories

In Maryland, each party is allowed 30 interrogatories under Maryland Rule 421 without leave of the court. I was looking at a case today that was referred to us by a lawyer who had already filed suit in the case. Our lawyers are normally hesitant to take a case that is already in litigation but the referring lawyer has referred a lot of work to us over the years so we agreed to step in and take over the case. It is a complex case involving serious injuries but the defendant’s attorney has posed serious questions as to causation of the Plaintiff’s injuries (previously nonsymptomatic patient with a herniated disk with an MRI that shows degeneration in the discs). I would love to ask additional interrogatories but the referring attorney, who is a great lawyer, filed 30 interrogatories with the Plaintiff’s Complaint.

The lawyer was probably under the mistaken impression that you cannot file multiple sets of interrogatories. This was the rule until 1994 when Maryland Rule 2-421 was amended to allow parties to serve multiple sets of interrogatories. Of course, the total number of interrogatories still may not exceed thirty. But there is no reason not to break them up into over one set and given this rule, we typically serve a first set of initial interrogatories and file ”clean-up” interrogatories after putting together the initial facts. When using multiple sets of interrogatories, another tactic our we often use is alternative interrogatories, drafted considering the defendant’s attorneys’ answers to requests for admission.

May 9, 2014

Recipe for a Bad Verdict | A Recent Anne Arundel County Accident Case

by Ronald V. Miller, Jr.

The average verdict in a Maryland auto tort case is around $12,000.

How can this be? I’ll tell you how it be: attorneys filing cases in Circuit Court that just should not be going in front of a jury.

These are my thoughts after reading about a recent jury verdict in Anne Arundel County. It was a garden variety auto accident case. The 21-year-old plaintiff, a college student from Pennsylvania, was driving with his mother in the left lane at a speed of 55 to 60 mph when they got into a collision with another vehicle. Plaintiff did what a passenger should do in this case where the cause of the crash is in dispute. He sued both drivers.

April 23, 2014

Can You Scare a Man to Death? New Opinion | Kassem v. Gaddy

by Ronald V. Miller, Jr.

In Kassem v. Gaddy, the Michigan Court of Appeals was faced with a simple question: can you scare a man to death?

Facts of Kassem

This is an odd case. An 85-year-old man crashed into the back of a tractor trailer. It sounds like the man was at fault for the accident. But the police accident reconstructionist placed the blame on the truck driver.

Why? The expert found that the trucker did not place his trailer’s outer bumper in the “down” position. So in the up position, a trailing driver on a wet, chilly night could not see any taillights until it was too late.

It was not a serious accident. There was no evidence of physical injuries. But the elderly man died of a cardiac arrhythmia that the medical examiner concluded, without looking at the body, was from coronary artery disease. Presumably, he based this on the fact that the man was 85.