Maryland Injury Law Center

March 31, 2009

Lawsuit Against Maryland Malpractice Lawyer by Referring Lawyer

They wrote an opinion of interest to attorneys who receive referrals from other Maryland lawyers in malpractice cases.

This case involves a Maryland lawyer who referred a cancer misdiagnosis case involving an allegedly misread mammogram to a lawyer that handles medical malpractice cases, agreeing to a fee split. Before referring the case out, the original lawyer filed the malpractice lawsuit.

The Defendant sought summary judgment, claiming the statute of limitations had tolled because the alleged failure to diagnose cancer occurred over three years after limitations had passed. Plaintiff prevailed on summary judgment. The opinion does not say, but I assume it was a discovery rule issue—the patient did not know of the malpractice until after it had occurred.

Then things got interesting. The malpractice case settled the claim for $225,000, far less than the referring lawyer had hoped. Allegedly, the medical malpractice lawyer sold the clients on the settlement by “deliberately misle[ading] the [Plaintiffs] into settling by telling them limitations remained a ‘serious concern’”; “telling them that they had been victims of malpractice by [the referring lawyer]”; and “suggesting to them that they sue [the referring lawyer] for malpractice.” Continue reading

March 24, 2009

Maryland Auto Accident Cases: A New “Amount in Controversy” Law Passes the Maryland Senate

by Ronald V. Miller, Jr.

Maryland Senate Bill 468 passed today in the Maryland Senate. It increases – from $10,000 to $20,000 – the maximum amount in controversy in a civil action in which a party may not demand a jury trial. Defendants would only be able to “bump up” cases between $20,000 and $30,000 from District Court to Circuit Court.

Any case pled in District Court for more than $10,000 can be bumped up to a jury trial. This practice, which is mostly done by insurance companies in personal injury car accident cases, leads to massive numbers of car accident cases before Maryland juries in cases that should be streamlined into District Court trials.

In fact, auto insurance companies are the problem in getting this bill passed; small businesses, for example, did not oppose this bill. Why are auto insurance companies opposed to this bill? It saves them legal costs to be sure. Is it because insurance companies get better results in front of juries than judges? No. The motive is much more nefarious: they want personal injury lawyers to spend time and resources in accident cases if the lawyers and their clients refuse the insurance companies’ below market settlement offers in smaller cases.

March 19, 2009

Nursing Home Abuse in Maryland | Getting Worse, Not Better

by Ronald V. Miller, Jr.

Maryland’s nursing homes had an “off year” according to Jay Handcock’s blog for the Baltimore Sun.

The Government Accountability Office reports that citations in Maryland for inflicting residents with “actual harm” or putting them in “immediate jeopardy” were given to 17% of Maryland’s 234 nursing homes last year. This is more than a 100% increase from last year.

There is a bill in the Maryland House of Delegates that would require Maryland nursing homes to give people the choice of installing cameras to monitor their loved ones. What would that cost these assisted care facilities? Nothing. The patients or their families would pay for the camera themselves.

March 11, 2009

Defendants’ Truck Accident Lawyer’s Tricks to Avoid Paying Claims

by Ronald V. Miller, Jr.

Bob Franklin, a well respected Maryland lawyer who defends trucking companies for Franklin & Prokopik, wrote an article on defendant truck accident cases advising defense lawyers on handling plaintiffs’ truck accident lawyers’ vicarious liability arguments entitled. “But I Didn’t Do It!” Expanding Theories of Vicarious Liability, 58 Fed’n Def. & Corp. Couns. Q.347 (2008). You can’t deny it is a catchy title.

Trucking companies will clearly do anything to avoid compensating victims.

It is a well-written article advising defense lawyers how to combat different theories of vicarious liability conjured up by plaintiffs’ truck accident lawyers. But, obviously, it is also a suitable read for lawyers bringing truck accident cases looking for coverage in the event of serious injuries.

Franklin offers one piece of advice I found interesting:

With rising insurance costs and tight operating ratios for motor carriers and private fleet operators, many have limited excess insurance coverage or none at all. That trend coupled with ever increasing jury verdicts and settlements means there is frequently not enough insurance available to satisfy a potential or actual judgment.Such a scenario may put the fleet operator’s assets at risk if and when there is an excess judgment. Many fleet operators, particularly smaller ones, would do well to take advantage of recent changes in the law, particularly the Graves Amendment, which effectively precludes liability from being imputed simply by virtue of ownership of a vehicle that was involved in an accident. Having a separate corporate entity own the trucks (usually the operator’s most valuable asset) and lease them to the operators may effectively shield the vehicles from potential excess exposure if the proper procedure is followed.

Set up another company to avoid liability. They are telling us how they will get over on us and they are doing it in open view. It is like a shoplifter who looks at the security camera and smiles. Or like this.
Continue reading

March 4, 2009

Wyeth v. Levine!

by Ronald V. Miller, Jr.

Wyeth v. Levine!!!! Plaintiffs’ lawyers have seen drug (and medical device) injury victims take punch after punch. But in a huge win for patient safety, the Supreme Court upheld in a 6-3 ruling today that in a Vermont woman’s verdict against Wyeth for injuries she suffered after taking one of the drug maker’s medicines. Justice John Paul Stevens, writing for the majority, said FDA oversight of drug labeling doesn’t prevent the filing of state tort claims.

It is a little pathetic that this is a huge win. Gee, the law for the last 90 years will not be completely uprooted. Yippy! But the Drug and Device Law Blog predicted victory and those guys have been on the winning side of most everything lately. (A guest Drug and Device Law blogger also broke down the justices individually and predicted victory but I cannot find the post to link to it.) So I’ll admit I was more than a little scared. Now, I’m thrilled that even this conservative Supreme Court found decisively in favor of the Plaintiff.

The one downside: a loss may have mobilized Congress to act. This win in Wyeth v. Levine could ironically slow progress on a bill to overturn Medtronic v. Riegel.

March 2, 2009

The “Plaintiff’s Lawyer Is Insane So I Won’t Bother to Respond” Argument

by Ronald V. Miller, Jr.

The Maryland Daily Record has a blog post that discusses the much talked about Exxon trial in Baltimore County. I have not blogged about it because it is not a personal injury case and I really don’t have any insight into the proceedings.

But this Daily Record blog post from Danny Jacobs got my attention. In his closing statement, Steve Snyder frequently called Exxon on its behavior and challenged Exxon’s lawyer to explain Exxon’s response in his closing. Jacobs writes:

Sanders began his closing by laying down some ground rules — he would not answer every inaccuracy or claim unsupported by evidence raised by Snyder. “All that does is aggravate the confusion he has so skillfully created,” he said.

February 25, 2009

Trial Tactics Tips from George W. Bush

by Ronald V. Miller, Jr.

I was trying an auto accident case recently where the Plaintiff’s lost wages were at issue. The Plaintiff did not have an “off slip” from a doctor. Instead, she took off work when she felt like her pain dictated taking a day off. On cross-examination, my client was grilled—over objection—about whether the medical records sitting at the trial table contained an “off slip” from a doctor. The client admitted – somewhat sheepishly that she got no note.

In his State of the Union address in January 2004, George W. Bush told the American people, “We do not need a permission slip to defend America.” How much energy do you think the administration spent to come up with that line? When a metaphor comes out of the Republican machine—and the Democratic machine, too, to be fair—they gave it some thought. Regarding the Republicans, George Lakoff’s Don’t Think of an Elephant offers great analysis into the GOP’s careful consideration of the use of language and metaphors. Lakoff writes:

What is going on with a permission slip? He could have just said, “We won’t ask permission.” But talking about a permission slip is different. Think about when you last needed a permission slip. Think about who has to ask for a permission slip. Think about who is being asked. Think about the relationship between them.

Personally, a permission slip reminds me of being a kid, which reminds me of fun. But I get the point. In my case, my client was a well-respected scientist. The notion of this near workaholic scientist needing a permission slip to take time off from work was more than a little ridiculous.

One bizarre transformation that occurs when a citizen becomes a juror is the development of a poker face. Something about that power that turns people into Mike McDermott. (“Listen, here’s the thing. If you can’t spot the sucker in your first half hour at the table, then you are the sucker.”) I would like a psychologist to write an article about this phenomenon. Continue reading

February 23, 2009

Medical Malpractice and the Baltimore Sun

by Ronald V. Miller, Jr.

Last week, I wrote about the Baltimore Sun taking a position opposing medical malpractice caps, choosing the new, innovative path of sidestepping the substance of this issue, and trying to demonize trial lawyers. The Baltimore Sun responded Sunday by printing a letter to the editor offering the opposing view on damage caps, explaining how children who lose a parent by the carelessness of someone else are woefully under-compensated.

Mark Hass Editorial

Oh, wait. Those things didn’t happen. Instead, the Sun printed a “me too” editorial from Timonium doctor Mark Hass:

At a time when the nation’s economy is slumping and the governor is proposing to mandate that Maryland hospitals and physicians provide more free care to lower-income families, it’s ironic that the state House Judiciary Committee, led by trial lawyer Joseph F. Vallario Jr., is proposing legislation to roll back the reforms in the state’s medical malpractice insurance policies enacted in 2004 (“Attack of the trial lawyers,” editorial, Feb. 17).

Such a rollback would ultimately result in higher malpractice insurance rates for doctors and hospitals, higher health care costs for consumers, higher health insurance premiums for businesses, and, of course, higher incomes for well-heeled trial lawyers.

Perhaps the “attack” of these lawyers on physicians and hospitals will only abate when enough doctors have left Maryland and enough hospitals have closed that they no longer have anyone left to sue.

Dr. Mark Haas
Timonium

February 11, 2009

Circuit Court Removal by Insurance Companies in Maryland Car Accident Cases

by Ronald V. Miller, Jr.

There is a battle now in the Maryland state legislature about whether Maryland should increase the minimum jurisdictional amount before a defendant can remove a case from District Court to Circuit Court. Defense lawyers for State Farm and Allstate, the two largest auto insurance providers in Maryland, routinely “bump up” District Court claims to Circuit Court if the amount in controversy is more than $10,000.

So what happens is we have an enormous volume of cases where insurance defense lawyers in Maryland are seeking jury trials in cases that do not belong in Circuit Court. Why? Do they think a jury will give them a more fair trial? Ironically, for the jury-hating insurance companies who continue to argue that juries are out of control, trust in juries is at least one reason insurance companies seek jury trials in Maryland auto accident cases (at least in some Maryland counties where juries are more conservative).

But the primary reason insurance companies seek jury trials in smaller auto accident cases in Maryland is because it tortures Maryland auto accident lawyers. The insurance companies do this, not motivated by spite—well not primarily anyway, but because it is a good global tactic. A significant number of auto accident lawyers in Maryland are reticent to sue. The threat of getting a small case going through the Circuit Court ringer is even more daunting to many Maryland injury lawyers. I’m not saying it should be. But it is for those seeking the path of least resistance.

January 22, 2009

Prince George’s County Jury Awards TV Reporter $5,000

by Ronald V. Miller, Jr.

Click to enlarge

The Washington Post reports that a Prince George’s County jury awarded $5,000 to a WJLA-TV (Channel 7 in Washington, D.C.) Reporter, stemming from an incident where P.G. County police officers detained her briefly at gunpoint, and used excessive force, nearly four years ago. While the jury found that the Prince George’s County police used excessive force, the jury of six men and two women also found that the county officers acted appropriately in conducting a “high-risk” stop of the reporter who was following the Prince George’s County’s chief administrative officer investigating abuse of power allegations.