Maryland Injury Law Center

May 29, 2013

New Maryland Venue Opinion Involving Co-Defendants | Scott v. Hawit

I’ve written a great deal about venue issues on this blog. I’ve cheered and cried over some more recent opinions. Today is a cheer day based on three weeks old a new Maryland Court of Special Appeals’ opinion.

Let’s be honest: plaintiffs’ lawyers would usually rather be in Baltimore City

I talk too much about venue because I’m honest: it matters. A lot. Venue is predominantly one of the deciding factors in tort cases, both on liability and the amount of damages. Plaintiffs and defense lawyers burn many a forest attempting to persuade courts to allow them into a jurisdiction that more strongly favors their case.

In Maryland, and I’ve said it a thousand times, great deference should be given to plaintiffs on their choice of venue. Only when a showing of evidence that strongly weighs the balance for an opposing party should the courts grant a motion to transfer venue. Why? The powers that be have decided that it is important to defer when possible to the victim’s choice of forums. I completely agree.

In Scott v. Hawit, a child suffered irreparable brain damage allegedly because of a misdiagnosis caused by both John Hopkins Hospital and a doctor. Baltimore City was the location of the plaintiff’s injury and is Hopkins primary place of business. Still, Hopkins made a motion to transfer venue to Calvert County, arguing that Calvert was a better fit because it was where both the doctor and the plaintiff were located, and that most of the allegedly negligent treatment was done there. Continue reading

May 17, 2013

Timing of Discovery Obligations

by Ronald V. Miller, Jr.

Lawyers always argue over anything where there is not black and white set rules. (Actually, we argue when there are set rules, too.)

No one exactly knows the rules of the sequences of discovery because the rules are whatever the motions’ judge says there are. So lawyers take positions on these issues with varying degrees of reasonableness.

A new Wisconsin case illustrates this issue. In Dauska v. Green Bay Packaging Inc., the defendant filed a motion for sanctions and to compel the deposition of the Plaintiff who refused to be deposed. Why? Plaintiff’s attorney refused to allow his client’s deposition until he received discovery responses from the Defendant. Plaintiff’s lawyer did not file a motion for a protective order but made it clear his client would not appear for deposition. Continue reading

May 14, 2013

Should We Lower BAC for Drunk Driving in Maryland?

by Ronald V. Miller, Jr.

Today, the National Transportation Safety Board (NTSB) said we should lower the blood-alcohol limit from .08, the current standard, to .05. The NTSB argues that the U.S. is too lenient with drunk driving and wants the U.S. to adopt the same standard as other countries, such as those in Europe.

Even “just a little” drinking and driving leads to deaths in Maryland

Data from the National Highway Traffic Safety Administration tells us what we have known for a zillion years: alcohol plays a role in nearly one-third of traffic deaths in America.

But the NTSB tells us something new, providing data that the risk of a crash is reduced by half when the definition of “drunk driving” encompasses the .05 standard instead of the .08 standard. Depending on body size, the difference between .08 and .05 is one to two drinks over a three-hour time span.

It is hard not to cut to the chase on this. There are 12,000 deaths, give or take, a year in this country from drunk driving. Now imagine in your mind 6,000 people in a room that could have been saved by everyone having fewer drinks. Then imagine everyone who loved those 6,000 people in a room. I have to think the NTSB is on the right side of history on this.

(I just pulled a minor trick there. The NTSB says “car crashes” and I turned that into “car crash fatalities.” But if you reduce that 6,000 to 3,000, does it detract from the point I’m making?)

We had been reducing drunk driving deaths for a while, but we have hit a stopping point. We either need to increase penalties or reduce the BAC. Those, it seems to me, are the two weapons we have in our arsenal to get past the bottleneck.

This idea that a few drinks do not affect driving is crazy. Play a video game and try to get your high score on two beers. You just can’t do it. Alcohol is dose-responsive. Every little bit makes you a little less competent to drive.

May 9, 2013

Uninsured Motorist Claims: We Really Can Name the Insurance Company

by Ronald V. Miller, Jr.

Last week, the Court of Special Appeals of Maryland decided the case of Davis v. Martinez. This was an appeal where the trial court entered an order that permitted the underinsured motorist insurer (State Farm) to participate in the trial anonymously. State Farm was never identified to the jury, the jury was not told about the plaintiffs’ claims against State Farm; the jury was never told who State Farm’s lawyer represented, and the jury was never told that State Farm’s expert medical witness was testifying on behalf of State Farm.

I know what you’re thinking if you are a Maryland accident attorney – “But wait, doesn’t King v. State Farm say that the UIM carrier must be identified to the jury in cases where the insurer is a party?” Well, yes. That is exactly the holding in King. You’d think that would be the end, right? Of course not.

We have still been getting motions to conceal the identity of the UIM carrier, but where (unlike in King) the insurance company is not the only defendant. Instead of the insurance company bringing the motion, the motion is made by the negligent driver, who argues that they will be prejudiced because they may be more susceptible to a large verdict by being associated with an insurance company whom the jury may view as a “deep pocket.” They argue that King can be distinguished because there the insurer was the only defendant, so there was nobody else to be prejudiced. They claim that it is different when there is another party who could be harmed by identifying the insurance carrier.

Now, this is a stupid distinction, because the rationale in King was that it was an error to conceal the identity of a party to a lawsuit because doing so harmed the integrity of the jury system by permitting “charades at trial,” and causing juries to speculate about the identity of the parties and who the lawyers in the case represented. One defense attorney who has brought these motions has said that they are granted about half the time. Continue reading

May 3, 2013

New Opinion: Wrongful Death Malpractice Verdict Reversed

by Ronald V. Miller, Jr.

The first thing they do in a communist Nazi country is destroy the jury system. Why do they want to destroy the jury system? Because you represent the line between tyranny and democracy, right and wrong. You have the power. . . You have more power today than the President of the United States. . . . But the question is, will you have courage today? Do you have the God given courage. . . .

This is a line from a closing statement in a wrongful death medical malpractice case in Mississippi. Setting aside that the Nazis were not communists but bitter enemies of communism, this is just unbelievably over-the-top, right? This line, Plaintiff’s closing statement, a jury instruction stating that an element of the wrongful death claim was the “loss of the value of life,” led the Mississippi Supreme Court to reverse a $1 million jury verdict in a wrongful death case.

This case is a classic “you could have saved her if you had taken the case more seriously in the ER” case. It happens every day in this country. Here, the woman presented at the emergency room with a lot of problems: confusion, decreased appetite, tremors, renal disease, respiratory failure, and pneumonia. They did not take her to intensive care but gave her antibiotics, and the woman went into cardiopulmonary arrest. The opinion does not go into the merits of the case, but you can be sure the doctor’s attorney contested both negligence and causation.

A jury found the doctor negligent and awarded $1 million. The doctor appealed, arguing that the plaintiff’s malpractice attorney made improper comments to the jury, including that the damages should include, “the value of a human life.” Plaintiff’s counsel was echoing the jury instruction that the jury may consider the “value of life” of the deceased when awarding damages.

The complete thing was a mess. It was not a great instruction and maybe a little misleading. Defense counsel also did not properly object to the instruction, which would have given the court a chance to cure the problem or allow the plaintiff’s lawyer to withdraw the request. Continue reading

May 3, 2013

Chief Judge Bell’s Replacement

by Ronald V. Miller, Jr.

Five have applied for the vacancy that will be created when Chief Judge Robert M. Bell retires in July from the Maryland Court of Appeals. Three of the applicants are on the Court of Special Appeals: Judges Stuart Ross Berger, Albert Joseph Matricciani Jr., and Shirley Marie Watts. A Baltimore City Circuit Court Judge, W. Michel Pierson, and Baltimore attorney, Mary Natalie McSherry, have also applied.

Chief Judge Bell’s seat is the Baltimore seat, so these applicants are from Baltimore.

I hope Judge Bell hangs around and continues to hear cases as many judges have when they reach retirement age. Go back and read this blog and find how many times I have used this space to suck up to judges.

May 1, 2013

Selective Insurance In-Person Settlement Negotiations

by Ronald V. Miller, Jr.

An adjuster with Selective Insurance called this week to ask to meet at my office to discuss the settlement of a personal injury car accident case. She said that Selective is looking to meet with counsel as much as possible to discuss these claims.

Selective is a regionally based insurance company that does business in 22 states and is around 46th in market share in Maryland. I’m surprised they would want to dedicate the resources to a face-to-face meeting, but I appreciate the sentiment. I mean, they will probably offer half of what the case is worth, but I bet they are a lot nicer about it in person.

State Farm used to invite us to its yearly Settlement Day where we would traipse down to their offices in Owings Mills for some food and drink for the same awful offers they would have given me on the phone. For reasons that escape me not in the slightest , they have stopped inviting me. Actually, I don’t think they do it anymore, but I prefer the more conspiratorial version.

April 30, 2013

Malpractice Lawsuits Against Foreign Born Doctors

by Ronald V. Miller, Jr.

We have been compiling jury verdict information on our website recently so I have been looking through several jury verdicts.

Someone needs to do a study of the statistical differences in outcomes in medical malpractice lawsuits against foreign doctors and those born in the United States. I’m telling you, I might look at this in an unscientific way, but the difference just seems to jump off the pages at you. One in four doctors in the country are foreign born. From the search I just did, it seems like more than half of the million verdicts in medical malpractice cases were against foreign-born doctors. I have never noticed this or thought about it until about an hour ago.

Okay, so why is this? The first theory is that American colleges and medical schools are just better and they are putting out better doctors than those schooled abroad. I’m sure this is true to a point. But I’ll bet you if you thin sliced it further, you would find that the same non-American doctors who went to college and medical school here still perform worse at trial than American-born physicians.

April 29, 2013

Good Maryland Samaritan Act Malpractice Opinion

by Ronald V. Miller, Jr.

The Maryland Court of Appeals issued an opinion in TransCare v. Murray last week. It is an opinion you should read if you are handling tort cases – or litigating anything – in Maryland.

New Maryland Good Sam Opinion

This medical malpractice involves the transportation of the minor Plaintiff by helicopter from the Emergency Department at Easton Memorial Hospital in Talbot County, Maryland to the Pediatric Intensive Care Unit at the University of Maryland Medical System in Baltimore City.

The Venue Battle

The first battle in Transcare v. Murray was venue. Plaintiff sued in Baltimore. Plaintiff argued that TransCare Maryland has its resident agent in Baltimore City, (2) the patient’s medical records show that the doctors at Easton called the University of Maryland ExpressCare, which is located in UMMS in Baltimore City to effectuate a transfer from Easton to Baltimore City, and (3) air transport went to the University of Maryland to pick up a team of health care providers and then transported those people to Easton.

Plaintiff’s lawyers also make another argument that we have tried to make as well (and also failed). If you need air transport during a serious medical emergency, this affects everyone in Maryland, including Baltimore City residents, equally. This never seems to work.

Judge Cox’s Venue Ruling

Judge Sylvester S. Cox, sitting as Motions Judge in the Circuit Court for Baltimore City, found that while venue was proper in Baltimore City, Talbot County was the more appropriate venue. Tough blow. Almost any personal injury case has a greater value in Baltimore City than it does in Talbot County.

What Were the Facts of TransCare v. Murray?

Let’s get to the facts. Plaintiff had trouble breathing because of congestion and was rushed to Eastern Memorial where he was fitted with an endotracheal breathing tube. However, because the hospital was not equipped to handle intubated children, the hospital arranged for a helicopter to transport the plaintiff to a pediatric intensive care unit at another medical center. Onboard the chopper was an employee of the defendant, a commercial ambulance company under contract to provide ground ambulance services between the medical center and area hospitals. Shortly after take-off, the plaintiff’s endotracheal tube became dislodged, which blocked his airway and led to a drop in his heart rate and oxygen blood level. Members of the flight team scrambled to find an air mask, but could not locate it. The helicopter then made an emergency landing, where the crew located the mask and re-intubated the plaintiff. The plaintiff’s cardiac activity returned to normal, and the helicopter completed its trip to the medical center.

Trial Court Dismisses Case

The plaintiff sued alleging medical malpractice. According to the plaintiff, the employee of the defendant failed to provide the requisite standard of care, and that the defendant was liable under respondeat superior. The plaintiff also claimed that he was left blind, deaf, and mentally disabled because of hypoxic brain injury from the incident. The defendant moved for summary judgment, arguing immunity arising from the Good Samaritan Act and the Fire and Rescue Act. Judge Sidney S. Campen denied the motion but then reversed himself and granted the defendant’s Motion for Reconsideration of their Motion for Summary Judgment. How often does that happen? Plaintiff appealed and the Maryland Court of Special Appeals reversed, ignoring the venue issue – a dead loser on appeal anyway – but finding that defendants could not use the Good Samaritan Act as a shield. Defendants then appealed to the Maryland high court. Continue reading

April 26, 2013

Does Size Really Matter?

by Ronald V. Miller, Jr.

A Nate Silver wannabe breaks down the question of whether jury size matters in these jurisdictions, where a jury’s verdict does not have to be unanimous. The greater concern is in criminal cases where it seems odd to convict someone to life in prison, as you can in Louisiana, on a 9-3 vote. Continue reading