The feds have charged a Silver Spring car accident lawyer and three other people in a pathetic scheme to induce people in car accidents to fake their injuries to make personal injury claims. If you saw this episode of Law & Order, you have the gist of the allegations.
This news has insurance companies screaming “I told you so” and tort reformers dancing in the aisles. Guilt-free Schadenfreude! It is a win-win for everyone, really.
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A Prince George’s County jury awarded $3.3 million in a mother and daughter pedestrian wrongful death case. The case is beyond tragic. A young woman and her unborn child were killed. The defendant was the state of Maryland and the claim was that the state should have put in a sidewalk, guardrails, or something so pedestrians are difficult targets for cars and trucks going down Pennsylvania Avenue.
Not mentioned: this verdict will not be collectible under the Maryland Tort Claims Act which limits recovery to $200,000. Arguably, this was an important detail that should have been mentioned in this Washington Post article on the case.
Judge Roger W. Titus handed down a new opinion last week on the interplay between Maryland health claims arbitration and medical malpractice cases in federal court. The nutshell: regardless of what you may have thought, there is no interplay. At all.
Willever v. United States is a medical malpractice wrongful death claim, alleging medical negligence at the National Naval 
Medical Center in Bethesda after the death of a U.S. Army captain. Plaintiffs, who lost their husband/father, sought summary judgment because the government did not file a certificate of a qualified expert with an attached report saying the hospital and its employees complied with the standard of care or that any departure was not the cause of death. We all have jobs to do, but you can’t go home feeling good after filing that motion, can you?
Judge Titus denied the motion, finding:
In Mayo-Parks v. United States, 384 F. Supp. 2d 818 (D. Md. 2005), the court came to a very different conclusion, finding that Maryland health claims arbitration rules have some substantive aspects that federal courts must honor. Judge Titus disagrees, taking this opinion head-on: “This Court has carefully reviewed the opinion as well as the original court file in the Mayo-Parks case, and concludes both that the holding in that case was dictum and that the reasoning was unsound.” So there. Continue reading
The Maryland Court of Special Appeals said yesterday that Allstate is entitled to be as prejudiced as it wants to be.
And sorry if you clicked on this because the title baited you, the court did not mean Allstate can discriminate based on race, creed, or religion. Instead, the court said Allstate could discriminate against a slightly less protected class: people in the path of hurricanes along Maryland’s eastern seaboard. The long discriminated against yet unprotected class of rich people who own bay or oceanfront property in Calvert, St. Mary’s, Somerset, Talbot, Wicomico, and Worcester 
Counties, and portions of Anne Arundel, Charles, Dorchester, Prince George’s, and Queen Anne’s Counties. (Perhaps I oversimplify a bit.)
After a rash of hurricanes a few years ago, Allstate panicked and told the Maryland Insurance Commission that it would no longer offer insurance to some property owners on or near the Atlantic Ocean or the Chesapeake Bay. The insurance commissioner Ralph Tyler, who has since moved on to the FDA, agreed it was entitled to withdraw offering coverage to these property owners. Continue reading
The Maryland Court of Special Appeals decided on a new malpractice case in Wantz v. Afzal.
Wantz is a Frederick County fatal medical malpractice case involving a staph infection following spinal fusion surgery after a slip and fall that allegedly caused the death of the plaintiff’s 77-year-old mother.
At issue was the medical treatment for her ankylosing spondylitis and osteopenia. The patient was admitted to the hospital under the care of a doctor who ordered a CT scan that showed a fracture of the T10 vertebra and a possible fracture of the T9 vertebra with associated hematoma and malalignment.
The radiologist who interpreted the results recommended immobilization and an MRI, but neither was ordered by the doctors. The patient’s condition worsened, and she was transferred to another hospital for immediate spinal fusion surgery. The patient developed an infection after the surgery and ultimately died.
The patient’s surviving child filed a wrongful death and survival action against the doctors, the radiologist, and the hospital.
During discovery, Plaintiffs’ malpractice lawyer proffered three medical experts: (1) a neurosurgeon who testified in a 
videotaped trial deposition as to the cause of the woman’s paralysis and her likelihood of recovery, (2) a board-certified doctor in internal and geriatric medicine to testify on causation, and (3) a radiologist who testified that had the woman been properly immobilized her paralysis and subsequent infection would not have happened.
Before trial, the defendants moved to strike or preclude the testimony of three of the plaintiff’s expert witnesses. The trial court granted the defendants’ motions and subsequently granted their motion for judgment, which the plaintiff appealed.
Maryland Rule 5-702 governs the admissibility of expert testimony, and it provides three requirements to determine if such testimony is admissible.
The first requirement is that the witness is qualified as an expert, the second requirement is that the testimony is appropriate on the particular subject, and the third requirement is that a sufficient factual basis exists to support the expert testimony.
The CSA, in an opinion by Judge James R. Eyler, unanimously disagreed on all three experts, finding that on each expert, the trial court abused its discretion.
The doctors argued that the neurosurgeon was not qualified to testify because his only 50 years of experience in neurosurgery was not enough to qualify him as an expert.
I’m just kidding, even Med Mutual is not making these kinds of arguments. I’m just making sure you are paying attention. The doctors’ objection was more thin-sliced: the expert’s relative inexperience with performing spinal fusion surgery or following patients after such surgery did not provide the experience to offer testimony in this malpractice case. Continue reading
Good medical malpractice lawyers in Maryland read every high court opinion about medical malpractice. Yet I think everyone can skip the Maryland Court of Appeals opinion released today in Neustadter v. Holy Cross Hospital.
Neustadter is a malpractice/wrongful death case involving the death of a 91-year-old Holocaust survivor. Another interesting factoid: the decedent chose Holy Cross because it is a Catholic hospital which he believed to be compatible with his Orthodox Jewish beliefs for medical treatment. Continue reading
The Legal Intelligencer has a blog with a smart title any trial lawyer would love: “Beware of the Smiling Juror.” In their heads, lawyers agree with the premise of the article which is: trying to read jurors is a complete waste of energy. But at trial, our hearts overrule our heads and we interpret more useless clues than we ever did on the dating circuit.
Regarding the smiling juror, the author writes:
Of course, we also have the ever-mysterious “smiling juror.” Many of us may have encountered that person who looks right at us when we give our presentations with a grin on her face. That person can make us feel good because a smile is typically a friendly gesture by someone who likes us and agrees with us … unless it is not. That beaming smile, as we all know, can also be a sign that this particular juror is happy to have the opportunity to stick it to us the first chance she gets.
Continuing with the heart/head metaphor, a plaintiffs’ personal injury trial lawyer’s head knows that the case is ultimately about whether the jurors believe the client is entitled to compensation? Does it help if the jury likes the client or the lawyer? Sure. Jurors are just like us. But, ultimately, in many more cases than not, the jury comes to a fair resolution based on what they believe the evidence to be.
Driver fatigue is a frequent cause of truck accidents. How frequent is a matter of opinion.
But more facts are on the way to creating informed opinions thanks to the Federal Motor Safety Administration’s new Compliance Safety Accountability Program. Safety reporting is the defining feature of this program. One of my favorite aspects 
is the use of electronic on-board recovery. The new rule requires trucking companies who have violation rates of 10% or higher, regarding discrepancies in time spent on the road and time recorded in their logs, to install recorders in all of their vehicles.
The home run play would be to require electronic trucking logs in every vehicle. The problem of falsifying trucking logs has been well known by truck accident lawyers for years. But the proof is hard to come by. Unfortunately, transportation has not bounced back like the rest of the economy yet and there is little inertia in the Obama administration to take any action to increase transportation costs.
In Muti v. University of Maryland Medical Systems, the Maryland Court of Special Appeals returned to a subject that, until recently, has gotten little attention by our appellate courts: “use plaintiffs” in wrongful death cases.
This is a medical malpractice wrongful death and survival action claim brought by two men who alleged that the University of Maryland Medical Systems (“UMMS”) doctors negligently tore their father’s trachea during an intubation procedure after he had an acute myocardial infarction. The plaintiffs’ malpractice lawsuit alleged the doctors failed to timely treat the torn trachea which led to complications that caused their father’s death.
Tragic anyway you look at it but, so far, nothing out of the ordinary in a medical malpractice case. Until, in deposition testimony that apparently surprised lawyers on both sides, the sons testified that their father had a third adopted son. The hospital and the doctors jumped on this, move to dismiss for failure to join a necessary party. Baltimore City Circuit Court Judge Evelyn Cannon dismissed the plaintiffs’ wrongful death claims without leave to amend, finding that in applying the law the court should not look to see “whether or not this will make it difficult for one party or the other.” This barred the wrongful death claim because the three-year statute of limitations had passed. Continue reading
There is an interesting opinion last week in a medical malpractice case involving federal diversity in U.S. District Court in Baltimore. Most tort lawyers are not litigating in federal court often unless they are doing mass torts. We have never had a malpractice case in federal court. But we have products liability, admiralty law, and truck accident cases in federal court and we always have to take a deep breath when considering all the issues that are uniquely federal. Like diversity.
In Robertson v. Iuliano, Plaintiff sued St. Agnes and another in-state defendant and against a neurologist who lives in Washington, D.C. Diversity shouldn’t have been a problem because there is not complete diversity. But Plaintiff’s 
malpractice lawyer served the out-of-state doctor first, which allowed the doctor’s lawyer to remove the case to federal court. The District Court, in an opinion by Judge Richard D. Bennett, denied Plaintiff’s motion to remand the case back to Baltimore City Circuit Court.
This rule prevents the gamesmanship of plaintiffs’ lawyers who join defendants they never intend to defeat diversity. But the rule creates more gamesmanship by defense lawyers who quickly remove a case that does not belong in federal court just because service is effectuated first on the out-of-state defendant.
