Maryland Injury Law Center

October 18, 2011

Maryland Medical Malpractice: New Opinion on Locality Rule

Malpractice attorneys representing doctors famously prefer to elevate form over substance and tactics over strategy. This is not partisan. It is fact. The doctors’ malpractice attorneys really don’t disagree. They would call it taking advantage of the grab bag of opportunities to fight the details that the law and inexperienced malpractice counsel provides. It is called fighting aggressively for their clients, right?

Fair enough. But the fact remains that at least as a practical matter, doctors’ attorneys try to use technicalities at a ratio of 20-1 to patients’ counsel. Sure, I’m making that up. But it is probably something like that, if not higher.

Consistent with this “tactics over strategy” worldview, forests in Maryland have been lost by defense lawyers’ micro interpretations of Maryland’s Health Claims Arbitration Act (Maryland Courts & Judicial Proceedings, 3-2A-01-3-2A-09), distorting any semblance of what was actually contemplated by the Maryland legislature.

In Willison v. Pandey, an opinion decided last week in the U.S. District Court of Maryland, the doctor’s malpractice lawyers faithlessly upheld this tradition, attempted to exclude Plaintiff’s medical expert under the strict locality rule, arguing that a doctor has to know the local standard of care to offer testimony. The doctors lawyers relying upon language in the health claims statute that a medical malpractice expert must give testimony that the care given by the defendant doctor “is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities” at the time of the alleged medical malpractice. Here, the Plaintiff’s medical expert was from New York testifying about the breach of the standard of care of a Cumberland, Maryland urologist. He knew little about the practice of medicine in western Maryland. Continue reading

October 13, 2011

Amanda Knox: Impact on Personal Injury Lawyers Explaining Risk to Clients

by Ronald V. Miller, Jr.

The Georgia Criminal Appellate Blog writes about the concern that his clients will “over-learn” the lesson of Amanda Knox’s successful appeal:

For the criminal trial lawyer, the Casey Anthony verdict was the result that made it difficult to counsel clients on whether to accept a negotiated plea rather than risk a trial against an overwhelming case. Several colleagues have told me that clients have balked in the face of solid legal advice, reasoning “that girl in Florida got off.” Amanda Knox is, I fear, the appellate lawyer’s Casey Anthony. It does not matter that it’s a different legal system in a foreign country. The comparisons are coming. It is time to prepare with some key points when you face the inevitable comparisons.

How do personal injury victims process Amanda Knox’s win on appeal?

This concern is equally applicable for clients of malpractice and accident lawyers. Amanda Knox, from a distance, represents what everyone wants in the appellate process: you keep appealing and appealing until you win and that appellate win is final. Sometimes, not just in law but anything, getting a little information about how the sausage is made can cause more harm than good because you lack context. There is, as always, a good cliché on point: a little information can be more dangerous than no information (or something like that).

(This is my problem in the stock market. I majored in finance in college so I think I know what I’m doing. But I get myself in trouble for making stupid bets, relying on something I heard in Investment Analysis my junior year in college. (2013 Update: I’m back, baby. I am a genius after all!)

Tort appeals are hard for both sides because most of the rulings from the trial judge to which plaintiffs’ lawyers take exception are evidentiary issue where the standard on appeal is the abuse of discretion. That’s a tough road to travel after a defense verdict. We have done it successfully, but most personal injury trials do not end with a quality appealable issue. Continue reading

October 11, 2011

Baltimore Law Firm Loses Medical Records

by Ronald V. Miller, Jr.

Twitter is giddy about a Baltimore Sun report that a medical malpractice defense law firm lost a portable hard drive containing medical records for 161 stent patients in the lawsuit against cardiologist Dr. Mark G. Midei for alleged malpractice at St. Joseph Medical Center in Towson. Apparently, an employee of the law firm Baxter, Baker, Sidle, Conn & Jones left the hard drive on the Baltimore light rail. It is a good story anyway, but this one is extra juicy because it involves the most prolific malpractice lawsuit in Baltimore. So it is the perfect storm. The lawyers at Baxter, Baker must have muttered a thousand times by now: why this case of all cases?

The irony of all of this bad publicity for Baxter, Baker – which is a very good law firm – is that they did what their malpractice clients rarely do: they owned up to their mistakes. The law firm notified St. Joseph – its hospital client – and the malpractice insurer of the hard drive loss shortly after the loss and acted fairly quickly to let the patients know of the potential invasion of their privacy. Ultimately, while it is unfortunate that patients who have already suffered have to fear this potential invasion of their privacy, the good news is that this is very unlikely to cause anyone harm. There are probably far greater privacy risks for these patients out there. (Where is the defendant’s medical expert keeping these records?) The way Baxter, Baker could really screw up would be in the cover-up which they wisely did not attempt.

October 10, 2011

Four Personal Injury Opinions From Last Week You Should Read

by Ronald V. Miller, Jr.

I read four personal injury-related appellate opinions published last week that I think are worth reading:

Thibodeaux v. Trahan: Like most personal injury lawyers, I have been hit with post-trial remitter motions from defense attorneys claiming that the jury’s verdict was unreasonably high. But no plaintiff’s lawyer is silly enough to file a post-trial motion for additur to raise the verdict because it will never work. I think federal law prohibits additur in federal court jury awards. Someone forgot to tell the Plaintiff’s lawyer in this rear-end accident bus case in Louisiana who appealed the trial court’s failure to award future pain and suffering. The appellate court changed not only the comparative negligence allocation but also increased the plaintiff’s damages, finding that the trial court failed to award enough damages.

Crazy, right? The facts were unique. This was a bench trial where the trial judge specifically found that the Plaintiff will need future surgery for her knee but did not award damages. Juries, I guess, get a pass on inconsistencies in their verdicts because it could result from compromise. But a trial judge deciding damages cannot form a compromise in her own mind and has to make an award consistent with the court’s findings. (Actually, I read this malpractice opinion that was decided last Thursday that makes a similar point.)

Louisiana law allows the appellate court to increase the award to the lowest amount reasonably within the trier of fact’s discretion. I don’t think Maryland law prohibits additur but there is no recorded case in Maryland where the trial court increased a damage award. I don’t know why, if we have remitter we should have additur under Goose v. Gander.

Osorio v. One World Technologies: The First Circuit affirmed a $ 1.5 million award in a product liability case in Massachusetts involving a defectively designed power saw that Plaintiff’s employer bought at Home Depot.

Plaintiff’s hand injury occurred on a construction site while operating a $179 Ryobi Model BTS15 benchtop table saw bought at Home Depot. While cutting a piece of wood, the Plaintiff’s left hand slipped and went into the saw’s blade.

Plaintiff’s attorney put up a witness at trial who invented a device that allows a table saw to sense when the blade comes into contact with the user’s body and stops the blade from spinning. This is very cool. But none of the major table saw manufacturers bought the invention.

Plaintiff’s theory why? Basically, an Oliver Stone-ian conspiracy theory that the manufacturers’ failure to incorporate this invention is because of a collective understanding that if any of them adopts the technology, then the others will face heightened liability exposure for not following suit.

Honestly, I’m not sure that entirely even makes sense and I really doubt that happened. The messenger is suspect, too: the guy who failed to sell table saw manufacturers on his technology. Continue reading

October 3, 2011

Truck Accident Claim Tactics: How Much Does the Truck Weigh?

by Ronald V. Miller, Jr.

A defense lawyer who regularly defends truck accident cases was telling me recently how many plaintiffs’ lawyers rarely ask the questions that really scare him in deposition or in discovery. Car accident lawyers figure, “Hey, it is a truck accident. A truck accident is just a big car, right? It is really not. There are too many nuances to truck accident cases.

Heavy trucks can be simply lethal

One typical miss: inquiry on how much the truck weighed. Some estimate that 30 percent of tractor-trailers and dump trucks are overweight. I’m guessing that is high. Sometimes, advocates for plaintiffs get a little carried away, and the result is hyperbole.

But truck accident cases disproportionately involve overweight trucks not only because heavy trucks cause more accidents because they are less safe, but also because truck drivers and companies willing to go overweight are similarly willing to take other chances with fatigued drivers and improperly maintained trucks.

September 28, 2011

New Maryland Accident Law: Useful Change for Personal Injury Lawyers

by Ronald V. Miller, Jr.

Every plaintiffs’ attorney in Maryland has at some point become frustrated with an insurance company over the gameplay regarding their client’s insurance policy. Under current Maryland law, an insurance company is not required to disclose its policy limits although such information is readily available in discovery after a lawsuit is filed. Some adjusters would give you enough information with a wink and a nod to figure it out. But most insurance adjusters just stand the party line like robots and say “Our policy is not to give out that information.”

Injured clients understandably find this maddening: we tell them they are better off waiting until there is clarity on permanency before filing a lawsuit. But sometimes, this means lying around in pain, not knowing if you will ever be adequately compensated for your loss. It is maddening.

Starting on October 1, 2011, insurance companies will be required to disclose their policy limits if the following information is provided to them: Continue reading

September 26, 2011

Is Voir Dire in Maryland About to Radically Change?

by Ronald V. Miller, Jr.

As I have written many times, I’m a big fan of David Ball’s book “Damages 3.” I’ve read the entire book more than once. I’m ready to take a quiz on the contents.

But I would fail the portions of that quiz on voir dire. It is hard for Maryland attorneys to get excited about voir dire because we know so little about the jurors we pick. At my last trial, I picked out during the juror roll call who I thought should be on the jury. After voir dire, not a single thing changed. (Maybe a little expectation bias? Sure. Still.)

Were my initial judgments based on useless stereotypes and facial expressions? Sure. But deciding because a prospective juror served on a criminal jury in 1993 or that his mother once had a fractured femur is similarly without foundation. It is like the woman (or man) who marries solely based on how attractive their spouse is criticizing someone who marries for money. Maryland trial lawyers just don’t use actual information to evaluate potential jurors. So we are left with stereotypes and Malcolm Gladwell “blinks” to make our decisions.

The Maryland State Bar Association has a trial lawyer, Henry Dugan, who is in charge for a one-year stint, and is now seeking uniformity in voir dire and is exploring the development of model voir dire instructions. Continue reading

September 22, 2011

Truck Accidents: Finding Coverage and Bad Conduct

by Ronald V. Miller, Jr.

It is easier to file a lawsuit against a trucking company than a truck driver. This is true because human beings are likely to feel more comfortable placing blame on a big business than pinning it on one, possibly sympathetic, truck driver. We humans are folksy like that.

Juries are not told of the existence of insurance in traffic collision cases, leaving the juries wondering who is footing the bill. Most juries get it, but they are not entirely sure because it seems so unbelievably odd that no one mentions insurance. The collateral source rule is not understood by the public.

I had a trial once in a truck accident case where we did clearly point to the commercial defendant. He was a great guy. We tried to leave him out of it as much as possible. But after the verdict, one juror was extremely concerned that the defendant driver – who left an “I don’t have two nickels to rub together” impression – would have to pay out of his pocket after the verdict. “That nice Mr. So and So is not going to have to pay for this, is he?” The take-home message for me: you have to make crystal clear the corporate entity is the one on the hook, not the likable driver.

September 20, 2011

Sequence of Witnesses

by Ronald V. Miller, Jr.

Who Should You Call as Your First Witness?

You give your opening statement. The defendant gives her opening. Who do you call as your first witness?

Too many plaintiffs’ lawyers – particularly in car accident cases – spend too little time on this question, because scheduling conveniences dictate the order or because they think the most important witness should be the first or last witness.

In his book “Damages 3”, David Ball provides a list of four things you want from your first witness:

Provide an Overview of the Case: Ball says the first witness should be someone who can tell a significant part of the overall story. Probably the ideal witness is someone who can establish what the defendant did and give some preview of the harm that was caused. In a truck accident case, for example, it would be the witness who saw both the truck accident and the immediate harm that was caused.
Introduce the Harm: The first witness should be someone who saw the initial harm, assuming it is a case where the initial harm is substantial. Again, a witness on the scene usually meets this criterion.
No Stake in the Outcome: Clearly, this does not include the spouse or even a close family member of the client. Realistically, you can’t get this in every personal injury case. But the closer you can get to “no dog in the fight” the better.
Cross-Proof: I think this is the most important of all: a witness that cannot be effectively crossed. I think this is the most important factor on this list. It is also the most difficult.

September 13, 2011

Weehoo Bike Trailers Recall

by Ronald V. Miller, Jr.

Weehoo will recall approximately 2011 Weehoo iGo bicycle trailers the company made between April 2011 and July 2011. The problem is a parents worse nightmare with these things: that their child becomes unhitched and goes into traffic or somewhere else that is unsafe.

Apparently, the receiver on the trailer’s seat post hitch can crack. If it cracks, it might cause the trailer to detach, posing fall and crash hazards to the child being pulled along.

I have a bike trailer but I have no idea what the name of it is as I type this post. The particular trailer has a steel frame with an adjustable seat for passengers 38 to 52 inches tall, two pedals with straps, an enclosed sprocket and chain, a 20-inch wheel, two pannier pockets, a flagpole and a flag. The seat, pannier pockets, and flag are made of red, heavy-duty nylon.