Maryland Injury Law Center

February 2, 2012

Increasing the Value of Wrongful Death Cases

Getting every last dollar the victims deserve

Caps on non-economic damages make it impossible to receive true fair value in death claims in Maryland (and in most states). Accordingly, personal injury lawyers need to turn over every stone to maximize the economic damages in wrongful death cases. The future lost wages claim is obvious. But often overlooked, even by the best attorneys – at least until they get the case to an economist – is the decedent’s employer-funded benefits and household services.

Employer Unfunded Benefits

The problem is, in many fatal cases an economist is not used because the plaintiffs’ lawyer thinks he does not need one, or because the case settles long before an economist is engaged. As a result, employee-funded benefits are not always included in the calculus.

Fifteen years ago, if you left out these benefits, the overall value of your case suffered a little. In 2014, with health insurance and other employee benefits skyrocketing, if you don’t include these in your damages in a wrongful death case, you are leaving as much as 25% of the value of the claim on the table. Continue reading

January 30, 2012

Maryland Hospitals Referring Lawyers?

by Ronald V. Miller, Jr.

The Baltimore Sun had an interesting front page article yesterday on Maryland hospitals referring patients with malpractice claims to specific medical malpractice lawyers. I think this is a terrible idea.

First, everyone means well. The hospitals know they have made a mistake and want to (1) get the clients to a competent malpractice lawyer, and (2) get a deal going where the attorneys’ fees are reduced by as much as a fourth of what they would otherwise be. The lawyers who get the referrals are trying to maximize the value of the case and try to get the client as much as possible.

But there are some cases where the appropriate strategy- or the client’s wish – is just to wage war. It is hard to wage war against someone where your relationship is such that they are recommending you to people they just malpracticed. If you repeatedly go scorched earth and decide that early resolution is not the answer, and a lawsuit is, you can expect these referrals to dry up pretty quickly. You can’t fault the hospitals if they stop referring patients to that “wage war” malpractice lawyer. It is just the way of things.

The hospital is not referring to every potential medical malpractice case. I’m sure these are the “Oh, gosh, we totally screwed up, let’s make it right” malpractice cases. The only remaining question issue is damages. But, as Jerry Seinfeld would say, that’s a pretty big matzo ball hanging out there. Ninety percent of the car accident cases we have in suit are admitted liability cases where the only dispute is damages. Establishing liability is only half of the equation. In serious injury cases, very reasonable people see the values of cases differently, which is why we need the adversarial system to operate at its fullest.

The conflict here is not just a problem for the bad guys, but also for good, honest malpractice lawyers. The big picture colors your thinking even when you specifically are trying hard not to let it. History of man reminds us over and over that self-interest colors the calculations of even the good guys.

Remember when Justice Antonin Scalia came under fire for not recusing himself in a case involving Vice President Dick Chaney, after the pair had recently hopped on Air Force Two for a little hunting trip. Who have you ever gotten on a plane with, and went on a trip with that you were not tight with? Seriously. If I’m getting on a plane with you, we are tight. Scalia’s retort: “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the nation is in deeper trouble than I had imagined.” It is a good line (give him credit, Scalia has lots of good lines). But just because Scalia was not aware of how such a bias could influence him on his ultimate thinking and decision from the bench, it does not mean that it does not exist. Continue reading

January 30, 2012

Allstate Wants Me to Link to Them

by Ronald V. Miller, Jr.

This is hysterical:

Hello Mr. Miller:

My name is Mary [deleted], and I’m working with Allstate Insurance to ensure they are being accurately and effectively represented online.

January 30, 2012

New Maryland Medical Malpractice COA Opinion

by Ronald V. Miller, Jr.

The Maryland Court of Appeals issued an opinion Friday in Spangler v. McQuitty, ending this cerebral palsy medical malpractice case that began 17 years ago. I first wrote about this case two years ago when the Maryland Court of Appeals heard this tragic case involving a boy born with severe cerebral palsy.

Facts of McQuitty

Ms. McQuitty was pregnant with her son. She had preexisting hypertension and a prior C-section. Twenty-eight weeks into her pregnancy, Mrs. McQuitty’ had profound vaginal bleeding. She went to Franklin Square Hospital Center, Inc. and came under the care of the defendant OB/GYN. A
Sonogram revealed a partial placental abruption. It is determined she needed a C-section for delivery which is very common with placental abruption. The question is when to perform the C-section.

The doctor told the parents of the possibility of immediate delivery by cesarean section if Ms. McQuitty’s condition did not promptly stabilize. If that happened, the OB said the likelihood was the child would die. A neonatologist at Franklin Square was more sanguine, telling the parents that the prospects for survival were “encouraging.” I know doctors can have different opinions, but it is so frustrating when you are the patient in that situation.

The parents went with the OB and delayed the C-section. The mother suffered a second abruption. Ultimately, the child suffered intrauterine growth restriction, “IUGR”, which the result of the decrease in the perfusion of nutrients to the baby resulting from the placental abruptions.

The doctor did not update the parents that this led to new choices and a new risk assessment. Plaintiffs’ Maryland malpractice lawyers argued at trial (in Baltimore County) that the doctor breached the duty to obtain the mother’s informed consent when he failed to give her an informed choice of her options to either take the baby early or assume the risks that come with letting the delivery play out. A Sophia’s choice. But it was the mother’s choice. The jury – to the tune of $13 million – agreed, and found that that the risks and benefits of these options should have been communicated to the patient, but were not. Continue reading

January 26, 2012

I Support Allstate

by Ronald V. Miller, Jr.

We have our share of struggles with Allstate in traffic collision, and other personal injury cases. Allstate can be a difficult company to deal with when they are defending either first or third-party injury claims. But this insurer just won a big fight – a critical fight for them – in front of the Maryland Court of Appeals. And I’m glad they won.

Allstate stopped writing home insurance policies in Southern Maryland, the Lower Eastern Shore, and some properties on or near the waterfront in Anne Arundel County. Why? It thinks the spate of hurricanes that have pounded the eastern seaboard in recent years may not be anomalous. Instead, they result from increases of tropical sea surface temperatures (or whatever else it might be). The company does not care why. What it knows is that it no longer wants to bear the risk of catastrophic financial losses if a hurricane hits these at-risk areas.

The Court of Appeals agreed that the insurer had a reasonable basis. Judge Harrell, in his dissent, says that Allstate has decided not to write new homeowner’s insurance policies in these areas because of an unsubstantiated fear of a hypothetical force of nature, a Category 2 or greater hurricane making landfall in Maryland. I agree. But is he sure? Couldn’t reasonable minds differ on this? Does anyone really have a handle on the degree that global warming will impact the future? I think the answer is that no one really has a clue and, it should be given the discretion to decide for itself. I also think the applicable laws – § 19-107 and § 27-501 of the Maryland Insurance Article – give them that ability.

[Let’s all now resume hating this company. Because no one is in good hands with them.] Continue reading

January 25, 2012

Jury Strikes Matter | Trial Strategy

by Ronald V. Miller, Jr.

When picking a jury, peremptory strikes are a big deal. There are almost invariably a few prospective jurors high on the roll call that you just know are anti-plaintiff. I don’t know how I know this – you get just a glimpse of Maryland jurors in voir dire – but I just do. They have this indescribable “I assume the plaintiff’s case is garbage and I can’t believe I’m here” look. Defense lawyers have a similar fear. They are terrified of the “I can feel your pain to where I’m able to set aside logic and reason” look. Both these jurors get rooted out by peremptory strikes. And the “look” is fair game as long as it is not based on race, religion, or gender. In Maryland, you get four peremptory challenges plus one peremptory challenge for each group of three or less alternate jurors to be impaneled. So you get 5 strikes.

Maryland car accident lawyers on both sides of the aisle now assume that Maryland law, after Maurer v. Penn National, is that if an uninsured motorist insurance company waives its subrogation interest in a case when the at-fault driver offers her policy limits, that insurance company cannot contest liability at trial.

Plaintiffs’ attorneys in Maryland disagree whether this is a good rule. The problem with the rule for plaintiffs is that insurance companies are less likely to waive subrogation when the underlying insured offers policy limits. This means you have to deal with two sets of defense attorneys, which means almost twice the hassle. Insurance companies are also doing side deals now, where the underinsured motorist carrier waivers subrogation on the DL (that’s “down low” if you were not cool ten years ago), presumably with a pinky promise.

What does this have to do with jury strikes? Well, defense lawyers try to parlay this double lawyer albatross into double strikes. Can they do this? Maryland Rule 2-512 (h) says that multiple plaintiffs or defendants should be considered a single party unless the court finds that “adverse or hostile interests between plaintiffs or between defendants” justify separate challenges.

In uninsured and underinsured motorist cases, it is hard to claim that the interests of these parties are anything other than the same. But I got broadsided with this argument a few years ago during a trial in Baltimore County. It was a tough case anyway; I was in Baltimore County and, over strenuous objection, both the at-fault driver and the underinsured motorist carrier (MAIF and GEICO) were given strikes. I don’t have to tell you how it turned out: awful. (Yet still, it was more than the settlement offer which summarizes dealing with MAIF and GEICO). Continue reading

January 23, 2012

USAA Release for Minors

by Ronald V. Miller, Jr.

USAA offers a release form for minors in certain situations. If a minor is a beneficiary of a life insurance policy or has a custodial account, USAA may require a release form in order to distribute funds to the minor.

The USAA release form for minors typically requires the signature of the minor’s legal guardian or custodian, as well as the minor if they are of a certain age. The form may require information about the account, the minor’s information, and the purpose of the release.

USAA Minor Release Language

January 20, 2012

Settlement Demand Letters | How to Write

by Ronald V. Miller, Jr.

How to Write Demand Letters

We get a lot of cases from other lawyers who try and fail to settle personal injury cases. So I’ve seen everything from just sending in some medical records with no cover letter, to demand letters longer than Mr. Holland’s Opus (which, admittedly, I never read but it sure sounds long). Being a personal injury lawyer is hard work. There is no way around it. But the absolute worst kind of hard work is hard work that is actually counterproductive. I think some demand letters fall into that category.

If you have over $500,000 in medical bills, you have a lot to write about. But summarizing the medical records and laying out every single significant and insignificant element of the plaintiff’s intangible damages is just not worth the trouble. You are just not getting the adjuster’s attention with a 15-page letter. I really think some personal injury lawyers write these treatise demand letters to justify what they think will be their fee in the case, fearing the “what did you do for me to earn all of this money?” question. Heads up: a lengthy demand letter will not solve this for you if that question arises. (And there are good answers to the question.)

January 17, 2012

Uninsured Motorist Waiver

by Ronald V. Miller, Jr.

I had a prospective client call in a few weeks ago with an interesting uninsured motorist waiver issue that I thought I would share.

To keep the world simple, Maryland law requires that insurance companies match up their insured liability coverage to their uninsured motorist coverage. But it allows for an exception in those cases where the insurance offers uninsured/underinsured motorist coverage in the same amount as their liability coverage and the insured signs a waiver that its liability coverage will exceed its UM coverage. This is an odd bet for the insured who is more worried about getting sued and not having enough coverage than making sure they are protected when they get in a car crash caused by someone who had no or little insurance. But, I don’t disagree that in the free market economy (I’m talking to you, Mitt), people ought to have the right to make this odd choice as long as it is a knowing and intelligent waiver. I think the law makes sense.

But what about these waivers? In this case, I have a high wage earner who gets into an accident with a driver with a minimum limits policy. He has a $300,000 liability policy that would clearly be offered if his uninsured motorist coverage mirrored the liability policy. Instead, he has the minimum $30,000 UM policy. Continue reading

January 4, 2012

Gross Negligence Bar Is High Hurdle

by Ronald V. Miller, Jr.

In Maryland, and in most states, there are immunities for police, fire and rescue agencies and personnel from civil liability for negligence. There is an exception for intentional torts and a “grossly negligent act.” Of course, this begs the question of what is a “grossly negligent act”?

In Markevicz v. Garcia, U.S. District Judge Alexander Williams, Jr. issued an opinion reminding car accident lawyers (who did not get the memo provided by the last zillion cases on this topic) that the bar to get to a “grossly negligent act” is high.

In this case, a fire truck operator allegedly did some dumb things in what I think was an effort to get to the car accident scene. The opinion does not spell it out, but I’m assuming the fire truck ended up hitting the vehicle during the rescue. Plaintiffs’ Complaint and the driver defendant both alleged that the fire truck driver contributed to plaintiffs’ injuries when they drove the wrong way on the Beltway, dangerously jockeyed for position to pass through a gap in the median that was too small, and so forth.

Judge Williams said that even if true, these facts fall short of gross negligence, citing Boyer v. State for a proposition that gross negligence is inflicting injury with such indifference to “to the rights of others to the extent of acting like the victim had no rights at all.” I’m paraphrasing and I still don’t know what that means. Continue reading