Maryland Injury Law Center

May 3, 2013

New Opinion: Wrongful Death Malpractice Verdict Reversed

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

April 15, 2013

$90 Million Wrongful Death Verdict in Prince George’s County = $100,000

by Ronald V. Miller, Jr.

When I read a newspaper article, I assume it is true. Why I do this defies logic and reason.

Prince George’s County Circuit Courthouse

A little paper near my home with a limited budget wrote an article on a pedestrian accident wrongful death case in Prince George’s County. You probably never heard of the paper. It is called the Washington Post. Owned by up and comer Jeff Bezos. (I think this whippersnapper owns another company, too.)

April 15, 2013

New Maryland Opinion on Violation of a Statute and Causation

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals issued its opinion a few weeks ago in a negligence per se case, Paul v. Blackburn Limited Partnership. If you are a personal injury lawyer in Maryland, this is not optional reading. Because I’m betting money someone will win a legal malpractice case in Maryland one day because they did not heed the implicit lesson that just might be in this case. So ignore it at your own risk.

The defendant, in this case, owned an apartment that had an outdoor pool. Unfortunately, you know where this is going. Just about every pool case is the worst case ever. A three-year-old boy wandered into the closed pool area. When the pool manager and lifeguard unlocked the gates, they found the plaintiff’s son unresponsive and submerged in the water.

(The question you have to be asking – the one far more important than the legal issues in this case – is how on earth did this happen? The boy’s 10-year-old half-brother was watching the child. The boy threw a toy, the 10-year-old ran down a hill to get it, leaving the child alone, and when he got back he did not find the boy. I will have a 10-year-old at the same time I have a three-year-old. I also have a swimming pool.)

As a result of the incident, the plaintiff’s son suffered a severe anoxic brain injury leaving him nonverbal, visually impaired, dependent on a gastric feeding tube, and requiring constant care from others. Again, the worst thing. The detective investigating the incident concluded that the plaintiff’s son had squeezed inside through the front gate because the lower half of the gate was loose. In addition, some parts of the fence could be pulled open because of missing metal crossbars.

The plaintiff sued, alleging negligence per se and negligence. Quick question: When you think you may have negligence per se, do you plead it in the complaint? You do? Okay, you’re a big liar. Our law firm has never done it and I have yet to find anyone who says they plead negligence per se as an ordinary practice. Heads up: I still can’t imagine a court kicking the case if you don’t, but as you will see below, you really don’t want to take the chance because the court here seems to assume that it has to be pled in the complaint. It is like I just told my law partner, I can’t imagine in a million years a court would require you to plead this in the complaint. But when the appellate decision on my case when I failed to mind the ruling, in this case, was coming down, I would be on the edge of my seat (You may not like this sentence, but I don’t know how else to say it). One rule of personal injury practice: do everything you can easily do with no risk of harm if you would sit on the edge of your seat when you were called out for your failure to do it.

Anyway, incredibly, the plaintiff’s lawyer pleaded negligence per se, claiming in the complaint that the defendant was negligent per se by failing to comply with Maryland’s COMAR regulations, the Montgomery County Code “MCC”, and the Code of Montgomery County Regulations (“COMCOR”). Second, the plaintiff contended that the defendant was negligent in breaching its duty of care to maintain the pool in a reasonably safe condition for all residents of the apartment. Continue reading

April 10, 2013

Maryland Toughens Handheld Phone Ban

by Ronald V. Miller, Jr.

The Maryland General Assembly passed a bill this week which would make talking on a handheld cellphone while driving a vehicle a primary offense. If the bill is signed by Governor O’Malley, as expected, a police officer could pull a driver over under this bill for talking on a handheld while their vehicle is in motion. The bill would allow you that quick phone call at a stoplight and you can still use your GPS on your phone.

A first handheld offense would be punishable by a fine up to $75 fine. A second offense could be $125, and a third could be $175. A fourth offense? Geez, do we need to even figure that out? I think if you drive through the city screaming “Hey, look, no seat belt” you still are probably not going to get charged with this three times.

This is the progression of things. It is easier to pass the bill as a secondary offense and then bump it up in a few years. We are sheep and accept change a little better that way.

April 4, 2013

Big Asbestos Case Heading to Maryland High Court

by Ronald V. Miller, Jr.

Last summer, the Maryland Court of Special Appeals decided Dixon v. Ford Motor Co. (discussed by me here) in which the court reversed a $15 million verdict (reduced to $6 million by the cap on noneconomic damages, and down to $3 million because of a joint tortfeasor settlement), finding that although expert testimony about the particular estimates of asbestos exposure was impermissible, the expert can testify as to the ranges of exposure and their approximate hazards… but saying there is “more risk” without an estimate will not get you there. Basically, the path the court suggested was having the expert testify using the plaintiff’s contentions as hypothetical facts and estimate the likelihood that the plaintiff suffered various exposures to asbestos, and the likely risks consistent with those exposures based on epidemiological data.

The case has been appealed to the Maryland Court of Appeals and has now been briefed. I read the plaintiff’s brief. They are arguing largely about what I did in my blog post (yet they didn’t cite me!): the jury was in a perfect position to make the call and they made it.

The Coalition for Litigation Justice and Product Liability Advisory Council, two shameless corporate hacks that have never seen a viable lawsuit in their lives – actually they are cool with lawsuits from anyone who is not injured (their worldview: a civil justice system only for big company battles and collecting debts from people) – filed amicus briefs arguing essentially that it does not matter if everyone using common sense knows where the exposure comes from – plaintiff can’t prove it on a hyper-technical level and therefore Ford should get a pass on the harm they caused. (I think that was what they argued… I couldn’t bear to read them all.) Does the court really read this garbage from cover to cover? Has a single appellate opinion in human history ever been swayed by one of these briefs?