Maryland Injury Law Center

January 10, 2013

Supreme Court Looks at Medicaid Liens

Trying to successfully resolve clients’ medical liens has to be one of the toughest challenges facing personal injury lawyers in large cases. I have had many cases where the case’s hardest part was not getting the settlement or verdict’ but getting the medical liens resolved. It also can be most frustrating because while defense lawyers take a lot of crazy positions in our cases, the threat of an eventual trial usually allows logic and reason to surface. In dealing with medical lien holders, logic and reason and even their own economic interest are rarely prominent players in the mix.

We share most of these frustrations only among plaintiffs’ lawyers and their clients while the rest of the world worries about their own problems. This is why I have enjoyed watching the U.S. Supreme Court wrestle with these issues in Delia v. E.M.A.

At the center of this tragedy sits an oblivious twelve-year-old girl who lives – peacefully, I pray – in Taylorsville, North Carolina. Because of medical malpractice during delivery by a doctor who had a history of drug abuse, and surrendered his North Carolina medical license, she has severe mental retardation and suffers from a seizure disorder. She is deaf, blind, unable to sit, walk, crawl, or talk.

[Brief intermission: You know, I’m writing about this case because these lien issues impact many people. This matters to people who are suffering and really deserve justice, which is money damages in our judicial system. And I can’t tell you how often I drive by the most horrific facts in a case, digging for some teachable point on the collateral source rule, without giving it much thought. I like myself 15% less than I otherwise would because of this, but what choice do we have? Become immersed in every case that we read and put ourselves in the shoes of everyone suffering? But, this one today just gets me and I’m finding myself imagining being in the shoes of every single person in this tragedy.]

The case settled for $2.8 million. The settlement agreement did not – because it really can’t – allocate separate amounts for past medical expenses and pain and suffering and other damages. North Carolina’s Medicaid claimed its one-third lien. The law allows the state to take the lesser of either the total lien or one-third of the court-ordered malpractice payment.

The one-third rule has a real upside: it is easy. Bright-line rules are always that way. But as the Supreme Court told us in Arkansas Dept of Health & Human Serus. v. Ahlborn, pure bright-line justice is not always acceptable and the sum allocable to medical expenses must be determined by some reasonable process before the state can recover on its claim. The 4th Circuit agreed, overturning the North Carolina law because North Carolina statute’s one-third cap on the state’s recovery against a Medicaid recipient’s settlement proceeds did not satisfy Ahlborn because there was no showing that the settlement proceeds should compensate the plaintiff for that amount of the medical claims. The case was remanded to the trial court for an “evidentiary hearing” at which the district court would figure out how much DHHS should get. Continue reading

January 7, 2013

Physician Risk Management: Is a Doctor’s Purpose Just to Avoid Malpractice Lawsuits?

by Ronald V. Miller, Jr.

Every now and again I read a publication called “Physician Risk Management.” Billed as a publication to help doctors minimize liability and protect them from lawsuits, it is a well-written publication written by people who do seem to know what they are talking about.

Here is why I don’t like it. It is just not self-conscious enough about its own motives. An example comes from this month’s article “Defend non-compliance with guidelines in the chart.” The article begins by repeating the title. The next sentence is, “The plaintiff’s attorney will use it against you.”

This is all fine and good. Doctors sometimes should deviate from clinical guidelines, and they should explain why they did not conform to them. And, yes, plaintiffs’ medical malpractice attorneys will shove it down their throat if they do not document their deviation and the basis for it.

Fair enough. But could they at least mention in a footnote that what they are faking the doctor to do is also 100% consistent with what you are supposed to do to, you know, properly care for a patient? Isn’t one of the key purposes of medical records in the first place to determine upon the course of care and provide a rationale for that care to both document the treatment and explain the care to future doctors treating the patient?

The article quotes a neonatologist, Dr. Jonathan M. Fanaroff, who is both a physician and a lawyer, to make the point. “It is important to show both your clinical reasoning and also that there was an adequate reason to deviate from the guideline.” (Note to my four children: if you can get a gig as a neonatologist, don’t dampen my joy by becoming a lawyer, too. Please.)

No kidding, really. In fact, as I started reading the article, I thought maybe the doctor was being quoted out of context talking about excellent patient care. But then the doctor describes a Mississippi case from 2006, Vede v. Delta Regional Medical Center 933 So.2d 310 (Miss. Ct. App. 2006), that ostensibly proves this point.

This was a case where the plaintiff developed a decubitus ulcer – a bedsore – allegedly as the result of a hospital’s negligent failure to turn the plaintiff at regular intervals, which the standard of care requires in preventing a bedsore. But the doctors at the hospital had a good reason for failing to turn the patient: they found that he was struggling with airway clearance and were afraid of a fluid volume deficit and an infection from the turning based on the patient’s specific case.

This is such a straw man. We all agree these could all be excellent reasons in a particular case to turn the patient less frequently (although, geez, I wonder about informed consent on a call like that). We can all also agree that writing it down makes it seem less like you are making excuses in hindsight for negligent care if you spell out what you are doing. But couldn’t the article – albeit short – point out that this weapon to fight off medical malpractice lawsuits is not the endgame, but just a fortunate byproduct of properly caring for and treating patients. Continue reading

January 6, 2013

The Limits of Texting Accident Lawsuits

by Ronald V. Miller, Jr.

Click to enlarge

The 4th U.S. Circuit Court of Appeals on Thursday affirmed a summary judgment ruling dismissing a trucking dispatching system manufacturer from a personal injury accident lawsuit. The court ruled that the company could not be responsible for a crash allegedly caused by a texting driver.

Interesting facts are presented in this case. Plaintiffs’ lawsuit arose from a truck crash on Route 40 in North Carolina. The defendant driver in his loaded tractor-trailer rear-ended several cars in front of him. Rear-end truck accidents are probably the least likely to cause a death. Tragically, this was a relatively rare exception. One of the plaintiffs’ infant children was killed.

January 2, 2013

Where the Million Dollar Verdicts Are

by Ronald V. Miller, Jr.

Jury Verdict Research has some interesting data on which injures comprised the largest proportion of cases in which juries or courts awarded the victim over $1 million. Here is the category followed by its relative percentage of million-dollar verdicts:

Death – 28%
Brain Damage – 14%
Leg Injuries – 6%
Spinal Nerve Injuries – 6%
Disc Damage – 5%
Emotional Distress – 5%
Paralysis – 4%
Arm Injuries – 2%
Cancer – 2%
Foot Injuries – 2%
Sexual Assault – 2%
Vertebra Injuries – 2%
Other Injuries – 22%

Did you see any major surprises here? I didn’t except for seeing leg injuries with 50% more million-dollar verdicts than paralysis injuries. Thankfully, I think this might be most because of the fact that paralysis is, relatively, a rare injury in a car accident.

Where are the million-dollar verdicts geographically? The Southwest – composed of Arizona, California (which I suspect did a lot of the heavy lifting to push these numbers), Colorado, Hawaii, New Mexico, Nevada, and Utah – has the highest percentage of million-dollar verdicts with 19%. The Northwest – with Alaska (which has high awards actually), Idaho, Montana, Oregon, Washington, and Wyoming has the lowest percentage of million-dollar verdicts at 7%. No shock there, either.

December 26, 2012

Plaintiffs Forum Shop and Lose Entire Case: New Maryland Court of Special Appeals Opinion

by Ronald V. Miller, Jr.

On Christmas Eve, the Maryland Court of Special Appeals issued a treatise of an opinion written by retired Judge Charles E. Moylan in Antar v. Eagan. I will not give you a complete analysis because it is Christmas, but this case is worth talking about for Maryland personal injury attorneys. It highlights the perils of filing suit where there are two possible jurisdictions. The plaintiffs got a raw deal in this case, although I think they probably could have avoided the problem with more careful treading. Whether Maryland law truly reflects the court’s holding here is something for the Maryland Court of Appeals to decide.

Plaintiff sued Defendant in Pennsylvania, although they had jurisdiction in Baltimore City. Why leave Baltimore City, a jurisdiction that the anti-lawsuit folks tell us is “Easy Street” for Maryland plaintiffs? Well, this was a fire insurance case where the plaintiff alleged first-party bad faith. Maryland’s first-party bad faith law is of a joke, so they went to Philadelphia (which is considered more favorable than Baltimore for plaintiffs anyway).

The Philadelphia County court dismissed the case for forum non-conveniens with leave to refile their lawsuit in Maryland. The plaintiffs instead appealed and lost. Then they came back to Maryland and sued. Defendant won (again), this time on the statute of limitations.

December 20, 2012

Finally, I’m on Board: Allstate is Awful

by Ronald V. Miller, Jr.

I just hung up with an Allstate adjuster. At-fault carrier (Safeco) put up 50,000 so we turn to the UM carrier for the additional $50,000. She offers $2,500 on top of the $50,000. She said something to the effect of, “There is only $50,000 left so what incentive do we have to offer that anyway?” When I reminded her of the fact that she just committed an offense that the Maryland Insurance Commission would fine Allstate for, she quickly backed down.

I’ve defended Allstate in the past, arguing that they are comparatively not as bad as everyone says. I’ve made flowery, loving statements like, “in spite of Allstate’s reputation, our Maryland accident lawyers [geez, that’s a painful use of keywords to pander to Google, I have to fix that] do not see Allstate as the most difficult car insurance company to deal with in Maryland.” I even said once that I thought GEICO was worse.

I take all of that back.

Realizing I was getting nowhere, I said, “Look, there is not a lot of money at stake, why don’t we just agree to arbitration.” She categorically dismissed the idea. Why? The Oliver Stone in me thinks it is because they want the client to spend money on experts and preparing the case, in part to induce settlement, but in part out of spite. Keep in mind, this is their own policyholder.

December 19, 2012

Source: Miller & Zois Thinks Baltimore Is a Hellhole

by Ronald V. Miller, Jr.

The much-anticipated list of judicial hellholes is out. Baltimore made the list once again.

The write up on Baltimore begins with the notion that for evidence that Baltimore is a judicial hellhole, well just ask Miller & Zois.

Baltimore has been described as an up-and-coming Judicial Hellhole for years, but don’t just take our word for it. Plaintiffs’ firms, such as Miller & Zois, advertise Baltimore as “a favorable jurisdiction for plaintiffs’ injury lawyers.”

Is Miller & Zois calling the city a jurisdiction “favorable” for plaintiffs’ attorneys tantamount to prove that Baltimore is a “judicial hellhole” for defendants? If so, I really need to adjust my expectations.

But that is just the start. This report prefers rhetoric to exactitude at every turn and reads like a college term paper that was turned in at that last minute. It complains “Judge Glenn” – retired Judge Glynn – is rigging the asbestos docket. How? The report does not exactly say. It implies it is by consolidating the cases. Yes, the asbestos cases in Baltimore are consolidated. Baltimore joins a zillion other jurisdictions that have done the same thing. Why? The cases are consolidated on causation, not product identification or damages. This is not a class-action lawsuit. The cases are consolidated on damages because it is simple to prove. If you got mesothelioma you either got it from asbestos or you were a vermiculite miner. Call me crazy, I’m willing to let the court figure this out for scheduling purposes.

This is how this report reads from top to bottom. The entire premise of this beat down of Baltimore is just filled with unsupported innuendo. The impression left is that asbestos cases being filed in the city are because of forum shopping, Plaintiffs’ attorneys looking to get to these juries. But the auto plants, shipyards and steel mills, and many other defendants (Locke Insulators, for example) are located in Baltimore. That’s not forum shopping, it is suing where the harm occurred.

The downright fictions and convenient distortions continue. Baltimore juries are not “notoriously biased against business defendants.” They cite no evidence. The report really focuses on asbestos cases. Yeah, Baltimore juries are mad at asbestos defendants. So is pretty much every jury under the sun that has evaluated the evidence. Continue reading

December 18, 2012

New Rules for Filing Wrongful Death Lawsuits

by Ronald V. Miller, Jr.

I’ve written a good bit about use plaintiffs’ in Maryland wrongful death cases and the hornets’ nest that lawyers can find themselves in when they do not have all the potential wrongful death beneficiaries reading off the same sheet of music before filing suit.

The Maryland Court of Appeals has rewritten the rules when filing wrongful death claims involving notice to use plaintiffs that give attorneys a clearer path. It also addresses adult children’s claims for solatium damages.

December 17, 2012

New Bad Faith Opinion from Louisiana

by Ronald V. Miller, Jr.

Louisiana’s Court of Appeals last month issued an unpublished opinion in Rando v. Furr, a case that dealt with the ins-and-outs of uninsured motorist coverage and bad faith claims. Here’s what happened:

A man was driving his motorcycle and was involved in an awful collision with a pickup truck driven by the defendant. He briefly survived, before tragically succumbing to his injuries. The man and his motorcycle were insured through his wife’s insurance—when she originally got the >insurance through Progressive about seven years earlier, she waived uninsured/underinsured motorist coverage. Progressive paid Louisiana’s equivalent of PIP to the tune of $2,500, then said that they had no more exposure.

The deceased man’s wife (and later child) filed a wrongful death claim against the negligent driver and his insurance company (our friend State Farm), and Progressive. For whatever reason, Progressive quickly decided that there was UM/UIM coverage in the amount of $50,000/$100,000. They tendered an offer of the full $50,000.00, plus reasonable interest. The plaintiffs demanded the full $100,000, but Progressive (correctly) noted that only $50,000 applied because the wife and child’s claims were derivative of the decedent’s claim.
The plaintiffs included a bad faith claim against Progressive, alleging that it refused to make a timely and unconditional tender of the UM limits, and that claim went to trial after all the claims against the negligent driver and State Farm had resolved. The trial was apparently a short affair, and there was not much evidence presented. The judge dismissed the bad faith claim, holding that the plaintiffs failed to testify about the cause of the accident, the amount of the State Farm policy, and the amount of damages.

The case is consistent with how Maryland courts would view the same issue. To make an uninsured or underinsured claim, it is important to show that some other person or company was responsible for the accident and that they have either no insurance or insufficient insurance coverage. The whole point of uninsured/underinsured coverage is that a driver’s insurance will pay them if they can’t recover from another source. The plaintiffs proved no such thing to the judge. In fact, they probably received some money from State Farm—that case was settled on the courthouse steps. Continue reading

December 12, 2012

New Maryland Med Mal Opinion | Informed Consent and Apparent Agency

by Ronald V. Miller, Jr.

U.S. District of Judge Richard D. Bennett issued an opinion Monday in Robertson v. Iuliano, an informed consent medical malpractice lawsuit against a neurosurgeon and St. Agnes Hospital.

New Opinion on Apparent Agency and Informed Consent Law in Maryland

The first question you might have is how this malpractice case ended up in federal court instead of Baltimore City Circuit Court, where the claim was filed? Good question, my dear reader. Only a crazy plaintiffs’ med mal lawyer would file in federal court over Baltimore City because Baltimore is just a much better venue.

So what gives? Apparently, after committing an alleged tort in Baltimore City, the doctor moved to Virginia. It seems odd – in fact, crazy – to me that a defendant who commits a tort in Maryland could avail themselves of removal by moving away after the fact. But, in an earlier opinion, the court opined that the plain meaning of the removal statute mandated federal jurisdiction. It is a silly law, but it is the law.

Facts of Robertson v. Iuliano

Anyway, I know little about the underlying facts. But the case sounds weak to me. The plaintiff claims he would not have undergone back surgery to repair a disc at L4-L5. He suffered from moving a dryer for a customer while working at Lowe’s Home Improvement had he known that he might get an infection from the surgery.

St. Agnes and Neurosurgery Services, LLC and St. Agnes Healthcare, Inc. were also sued. Still, the court ruled in their favor and found that they could not be held liable for Dr. Iuliano’s actions because they were not responsible for ensuring their doctors adequately informed their patients of the risk and because there was no actual or apparent agency. The court dismissed the informed consent argument because Maryland law is clear that the duty to obtain informed consent is the doctor’s job. There is no duty to the patient from the hospital unless they “specifically assumed the duty.” I’m not sure why this would be the law. But it is.

Efforts to Amend Complaint Failed

Before the trial, Robertson filed a motion to amend his complaint to clarify that the lack of informed consent included the failure to disclose alternative forms of treatment. He also wanted to increase the amount stated in his complaint. However, the court has denied his motion to amend the complaint.

Why? According to the Federal Rules of Civil Procedure, an amendment to a pleading should only be denied if it would cause prejudice to the opposing party, there was bad faith on the part of the person making the amendment, or if the amendment would be considered futile. The U.S. Court of Appeals for the Fourth Circuit has interpreted this rule to mean that amendments should be freely allowed as long as justice requires it.

The court agrees with this but says there are limits. The judge underscored that the deadline to amend the pleadings had already passed and that to be approved, the amendment must satisfy both the “good cause” standard and the standard set by Rule 15(a)(2) of the Rules of Civil Procedure. The court found that Robertson did not satisfy the “good cause” standard and determined that the amendment would be prejudicial to the doctor. The court concluded that allowing the amendment on the eve of a trial would be unfair to the doctor because discovery has been conducted concerning informing the plaintiff of alternative treatment methods. The amendment would essentially add a new claim to the complaint. So that makes sense.