Maryland Injury Law Center

November 30, 2011

State Farm v. Chiropractors | The War on Litigation Related Treatment

Update: this case was still going on in 2018 which is insane. I don’t like State Farm as much as the next plaintiffs’ lawyer. But I understand State Farm’s larger point on this issue, which I explain below.

In State Farm v. Cavoto, a Pennsylvania appellate court decided a battle between two parties who are always at odds, State Farm and chiropractors. Usually, the skirmishes between these parties are fought by proxy but, in this case, they faced off directly.

Who Can Provide Treatment?

Essentially, State Farm got fed up with paying chiropractors who were billing for adjunctive procedures performed by support staff who were not licensed. Particularly, and arguably understandably, annoying to State Farm was unlicensed people applying hot and cold packs, turning on and off mechanical devices, using a traction machine, and assisting in therapeutic exercises. I’m sure that most infuriating to State Farm is paying for someone without medical training to apply hot and cold packs. If you can’t see why the insurer takes exception to that -regardless of how you view the merits of it – you may have had one drink too many from the plaintiffs’ attorney Kool-Aid.

The appellate court didn’t look at the case quite that way. Instead, the court applied the law that appears to allow unlicensed staff members to provide some treatment. The court reasoned that the real medical care was the decision to give the hot or cold packs and for how long, not who applied them. Similarly, the court reasoned, most elements of applying electrical muscle stimulation, ultrasound, and the like do not require specialized skills, as long as there is a chiropractor deciding the details and how the therapy should be applied. The court remanded the case back to the trial court to “make more specialized findings and determine whether any of the procedures allegedly performed by unlicensed personnel required formal chiropractic education or training, including a further inquiry by the court as to the scope of those procedures.”

Continue reading

November 28, 2011

$1 Million Verdict in “Brain in a Jar” Lawsuit

by Ronald V. Miller, Jr.

Awful story. Young and handsome 17-year-old boy is killed in a car accident. Inexplicably, the city morgue displays the child’s brain. Sure enough, the boy’s classmates go on a field trip to the morgue and see the boy’s brain floating in formaldehyde. How did they know it was his? The boy’s name was on it. (The story gets even worse.)

Seriously? The story sounds made up, right down to the part about the kids going on a field trip to the morgue. But no one disputes the facts. Incredible. I usually try to avoid “what a bunch of morons” type rhetoric on this blog. I’ll set that aside for this one. What a bunch of morons. The jury in this case agreed, awarding the family a million-dollar verdict.

Everyone at that morgue should be fired. No doubt. Still, we have to value the loss not of the boy but of the morgue’s negligence. The actual loss here is the boy’s death in the car accident, not what happened to some part of his body after the accident. The plaintiffs’ lawyer told the jury that the boy’s sister dropped out of school at age 14 because of devastating survivor’s guilt and relentless teasing by other students. Beyond tragic. But this is not what was at issue in this trial.

November 18, 2011

November Injury Law News

by Ronald V. Miller, Jr.

News and thoughts from this week:

Baltimore moves closer to settling a claim brought by a man who was injured while doing sanitation work as his court-mandated community service.
The Maryland Daily Record has a big Monday law story on a woman was suing her medical malpractice lawyer. I can’t speak to the merits of the case – who know if the allegations are true.=? The problem with these “someone filed a lawsuit against Joe Smith” stories is that everyone remembers the story of the lawsuit but no one will remember if he gets a defense verdict. I’m not saying these stories should run. But it is a minor tragedy if the trial comes out differently than the allegations alleged in the story.

November 16, 2011

David Stern’s Bluff and Negotiating with Insurance Companies

by Ronald V. Miller, Jr.

In the NBA labor dispute, the NBA owners say they have put their best and last offer on the table. It is one of the oldest stunts in negotiating. Take this offer or we will take it off the table.

I think he’s bluffing, but I’m not 100% certain. [2017: he was mostly bluffing.] Which is exactly the point, of course. I don’t disagree with the settlement tactic in this exact situation. The man making the call is NBA commissioner David Stern, who – getting ready for retirement – is negotiating the last labor deal of his life. He will never get called out for bluffing and backing down again.

Personal injury lawyers can also run a similar bluff with defense lawyers and insurance companies if they never expect to deal with them again. But if you are dealing with the same insurance companies in car accidents or medical malpractice cases – which applies to every lawyer in Maryland that has some volume of personal injury cases – you have to consider your overall credibility when negotiating claims. There are at least two reasons to temper the lawsuit/trial ultimatums.

First, the client can change their mind. I have had many clients that dislike the settlement offer and are emphatically ready to file suit and then do a 180 when I tell them we are filing suit. I don’t say this derisively. Think about it compared to the NBA player. These players risk losing a full year’s salary, which is worth millions. But they already have millions. In contrast, in the last case I tried, the client turned down an offer that was five times her yearly salary to let a jury decide. Thankfully, it worked out for her, her award was over 25 times her annual salary. But the risk she took makes the NBA players’ dilemma seem trivial. (A bit of hyperbole here because I’m not taking out attorneys’ fees and liens into my “times” calculus. Still.)

Anyway, going back, I really make sure the client is genuinely ready to file suit before negotiating as if I have that arrow in my quiver. Once you got out on the “my way or the highway” limb, you are unlikely to get more money on the case, even if the insurance company has more money to put on it. Your walk of shame back to the negotiating table will not be rewarded. Continue reading

November 10, 2011

Malpractice Statute Applies in Federal Court Says Maryland Court of Special Appeals

by Ronald V. Miller, Jr.

In a new opinion by the Maryland Court of Appeals, the court answers whether Maryland’s Health Claims Arbitration requirements should apply to cases filed in federal court where the malpractice occurred outside of Maryland. Certainly an important issue to address.

Lewis v. Waletzky involves a claim that a psychiatrist in Chevy Chase, Maryland negligently prescribed antipsychotic drugs for the Plaintiff, a Minnesota resident. So there was a diversity of residency. The psychiatrist lived in Washington, D.C. and there was some issue of which substantive law applied but – spoiler alert – it ends up being irrelevant to the opinion. Plaintiff’s lawsuit filed in U.S. District Court alleged that Plaintiff’s psychiatric symptoms were mild and did not warrant subjecting the Plaintiff to the well-known risk of an antipsychotic drug.

Plaintiff’s malpractice lawsuit in federal court alleged that because of these negligent prescriptions, the patient developed tardive dyskinesia, which is caused by the drug Reglan and some antipsychotics (I’m not sure what the drug was in this case.). There is no treatment for tardive dyskinesia, an awful neurological disorder that causes involuntary grimacing, protrusion of the tongue, lip-smacking, rapid eye blinking, and movement of the extremities.

Going back, Plaintiff moved out of state and filed the case in federal court and did not meet the certificate of merit and other requirements imposed by the Maryland Health Care Malpractice Claims Act. The Fourth Circuit was unsure of whether the health claims arbitration act should be applied and asked the Maryland high court:

Does Maryland recognize the public policy exception, or any other exception, to lex loci delicti based on the Maryland Health Care Malpractice Claims Act, see Md. Code Ann., Cts & Jud. Proc., §§ 3-2A-01, et seq., which requires a plaintiff to comply with certain mandatory administrative filings prior to filing a medical malpractice lawsuit in a Maryland court?

Interestingly, the Court of Appeals seems to tell the 4th Circuit and the parties that this is not a lex loci delicti case but focuses on whether the Act is substantive or procedural. The court found that Maryland statutory scheme for medical malpractice cases applies to federal court malpractice cases (Note: I think Judge Titus would disagree.) (Read this opinion.) Continue reading

November 9, 2011

New Maryland Medical Malpractice Opinion on When a Final Judgment Is Entered

by Ronald V. Miller, Jr.

This blog post summarizes Mattison v. Gelber, a new Maryland Court of Appeals opinion in a medical malpractice case with a unique issue regarding whether there was an entry of final judgment without an award of costs. You can go to the jump at the bottom of the post. I take the dog for a short walk in the introduction.

When I started practicing law, one of the first cases that I was given was a plaintiff’s legal malpractice case. Except for a subrogation case – which really does not count as a plaintiff’s case – it was the only plaintiff’s case that I had in my first four years as a lawyer. Now, it has been ten years since I was on the other side of the v.

Anyway, in the malpractice case, the lawyer blew the time for filing a post-verdict appeal. He blew in the most bizarre way possible: he filed his Notice of Appeal too early before final judgment had been entered.

Committing legal malpractice for doing something too early stuck with me. I have been paranoid to this day about deadlines but, in particular, post-judgment motions. In Mattison v. Gelber, the court dealt with facts that validate my paranoia.

This case started, as many malpractice claims do, with a battle over venue. Plaintiff filed in Prince George’s County against two doctors. There is not a medical malpractice attorney in Maryland who would not prefer Prince George’s County to anywhere else (a possible exception: Baltimore City). But the malpractice happened in Howard County, one of the toughest places in Maryland to try a malpractice case. The Prince George’s County Circuit Court transferred the case, it did what it likes to do if there is a venue of issue: kick it out of their court.

November 4, 2011

The Media and Personal Injury Verdicts

by Ronald V. Miller, Jr.

I love when someone does a study confirming one of my pet theories. My theory: juror skepticism towards plaintiffs is fueled by unwarranted perceptions in the media as to whether jurors are reaching fair verdicts.

The Center for Justice & Democracy has published a study showing that the media distorts the public’s perception of how much juries award in personal injury and other civil cases. The study tracked the news over an 80-day period and found that jury verdicts reported on in the media are 192 times higher than the national average of damages awarded. The plaintiffs’ verdicts reported by the media in the study had a median jury award was $4.6 million, instead of the real national median jury award of $24,000 awarded to victorious plaintiffs.

The problem is easy to see. The public sees that every celebrity death ends in a wrongful death lawsuit. Every silly celebrity and pseudo-celebrity dispute also ends up as a lawsuit. Look at this crazy battle published on Deadspin today, involving Erin Andrews. You can find one every single day if you look. So, the public weighs the merits of these lawsuits, finding that more often than not they are unsustainable and, at worst, ridiculous. The take-home message? These suits indicate all lawsuits.

These same people then read, almost daily, media reports of some $25 million verdict here and some $50 million verdict there. These stories might mention in the last paragraph that there is a cap on noneconomic damages that cuts 90% of the award, or that the defendant did not even have a lawyer and there is no expectation the victim will ever see a dime of the verdict. Putting these things together, should we really be surprised that jurors come in with the rebuttable presumption that our clients are just looking for money and not justice? Continue reading

November 2, 2011

Social Media Discovery

by Ronald V. Miller, Jr.

Social media is all the rage for defendants’ personal injury lawyers. In the olden days, the only really fun Perry Mason moments from discovery for defense lawyers was surveillance video. Out of the 10,000 times the insurance company would do surveillance, someone would hit a “guy who claims he is in a wheelchair runs a 6 minute mile” jackpot.

These days, your selfie stick might adversely affect your claim as a plaintiff.

When I started as an associate, the partner I worked for told repeatedly, one “got ya” surveillance story he had when he was a young associate. Every time he told the story, he exaggerated the facts a little more. Most people listening, I’m sure, suspected as much. But no one cared, because it was a fun story. These conflated stories have kept a lot of private investigators in business. Every lawyer wants to tell an “I tricked them” story of their own. It is the defense lawyer equivalent of a high stepping 109-yard interception return.

October 31, 2011

Poole v. Coakley Williams Construction | Maryland Law

by Ronald V. Miller, Jr.

Three years ago, after the Maryland Court of Appeals denied certiorari in Allen v. Marriott Worldwide, our law firm stopped taking snow and ice slip and falls. Maryland appellate courts had been battering bad weather slip and fall plaintiffs over the head with the assumption of the risk doctrine. We distilled this law to be that if you are not running out of a burning building; you knew there was a possibility that you might slip and fall if there was a sign the weather was bad and you had a choice. Assumption of the risk became metaphysical “you had a choice, didn’t you?” that killed every case.

New Maryland Snow/Ice Slip and Fall Case

To my surprise, Maryland law took a clear, deliberate, and unanimous step back from this insane abyss last week in Poole v. Coakley Williams Construction.

What Happened in Poole

The Plaintiff, in this case, claims alleged that he slipped and fell on black ice in a parking lot in Montgomery County behind his place of employment. Plaintiff blamed the defendant who was at the site performing construction work for causing the black ice to form, and that there had been a stream of water that way for some time. In fact, Plaintiff thought it was safe because he had walked through that same stream a week before without incident. So it is as good as an ice slip and fall case as you can get because it is more than “you should have put salt down or shoveled the parking lot” case. Still, regardless of the injuries, we would not have taken this case post-Allen because it is still – on the bizarro world level the court used in Allen – the technical assumption of the risk. The summary judgment is easy, just ask the ole’ “you knew there was water, and you knew water can get cold, right?” setup.

October 24, 2011

Maryland Lead Paint Law: A Game Changer

by Ronald V. Miller, Jr.

The Maryland Court of Appeals issued a game-changing lead paint decision today, declaring unconstitutional an awful Maryland law that immunizes most Maryland landlords who rent properties that cause children brain injuries from lead paint.

A Brief History of Lead Paint Lawsuit in Baltimore

Before I get to that, a little background. In the late ’90s, before I saw the light and became a Plaintiffs’ lawyer, I defended several lead paint cases in Baltimore City. These were the halcyon days for lead paint personal injury lawyers in Baltimore.

Many lead paint lawyers in Baltimore had such a good thing going that they didn’t bother to focus on the details, you just filed your lawsuit, then settled using one or two experts that said virtually the same thing in every case. Printing money in your basement would be less profitable. Plaintiffs’ lawyers rarely bothered to make a claim for economic damages, for future loss of income from their brain injuries. (Now, every lawyer with a lead paint case does this.)

Lawyers who had a big inventory of lead paint cases had plenty of time to decide which cases to file. There was tons of time because the plaintiffs were children that rarely had imminent statute of limitations issues. So, they filed the ones with the highest lead levels first. (The lead level in this recent case was less than 25. There were very few cases in the ’90s that had a level that low.) As a result, you had these great plaintiffs’ lead paint cases going to trial in Baltimore City. Plaintiffs’ lawyers had two other things going for them: (1) insurance companies had yet to put in lead paint exclusions, and (2) most cases in suit were not yet impacted by the 1994 Reduction of Lead Paint in Housing Act.

The Act slowed down, as was intended, the furious pace of lead paint lawsuits. The stated purpose of the Act was to “reduce the incidence of childhood lead poisoning while maintaining the stock of available affordable rental housing.” Strangely not mentioned purpose: protecting landlords who were needlessly exposing children to brain injuries from lead paint, which is exactly what it did.

This Act was a stunning victory of landlord lobbyists. The law completely immunized from a lead paid lawsuit negligent defendants if they registered their property with the state and offered payments of $17,000 to children injured by lead poisoning. “Sorry your child has lost 12 IQ points from lead paint that would could have easily remedied. Here’s is $17,000 when she turns 18. We are square, right?”
But, today, an incredible two-and-a-half years later, and almost 10 years after the lawsuit in the case was filed, a unanimous Maryland Court of Appeals struck down on constitutional grounds the 1994 Lead Paint Act if it immunized landlords from liability if they allow chipping or peeling lead paint from causing brain injuries to children. “For a child who is found to be permanently brain damaged from ingesting lead paint, proximately caused by the landlord’s negligence, the maximum amount of compensation under a qualified offer is minuscule,” retired Judge John C. Eldridge wrote in the court’s opinion. Agreed.