Maryland Injury Law Center

July 24, 2008

Loss of Chance in Medical Malpractice Cases in Massachusetts

The Massachusetts Supreme Judicial Court – Massachusetts’ highest court – ruled yesterday that courts can hold medical doctors liable for medical malpractice that reduces a patient’s survival chances even if the patient’s chances of recovery was already less than 50 percent.

Maryland also has a loss of chance case pending before the Maryland Court of Appeals, although few Maryland medical malpractice lawyers expect Maryland will go as far as Massachusetts has in this case.

I’m on vacation this week, but I’ll read and report on this important opinion next week.

July 16, 2008

Montana Supreme Court Reverses Itself in Car-Pedestrian Accident Case

by Ronald V. Miller, Jr.

Click to enlarge

The Supreme Court of Montana rendered an interesting decision last week for an emotional injury claim in Allstate Ins. Co. v. Wagner-Ellsworth.

The case involves a car-pedestrian collision. Two brothers were crossing the street in front of their elementary school and one was seriously injured. Allstate settled this claim for the per-person policy limit of $50,000.

July 11, 2008

Medical Justice

by Ronald V. Miller, Jr.

Medical Justice is what appears to be a new organization whose aims are to “‘prevent, deter and respond’ to frivolous malpractice lawsuits.”

This seems like a goal we—including good plaintiffs’ medical malpractice lawyers—can agree on, right? Frivolous lawsuits hurt everyone. For a cost of $625 to $1990 a year, Medical Justice will give you:

•Pursuit of counterclaims against expert witnesses in their professional societies and state licensing boards

July 8, 2008

There Was an Accident Last Night at I-70 and the Baltimore Beltway in Maryland…

by Ronald V. Miller, Jr.

There was an auto accident last night at I-70 and the Baltimore Beltway in Maryland last night at 3:54 a.m.

Are you a lawyer who has started a blog this way? If so, stop it because you are driving me crazy. No, seriously, stop it. The Baltimore Sun can and will report these stories just fine without your repeating them, thank you very much.

The Internet is such an amazing resource for personal injury lawyers to gather information about the handling of their cases. But to use this resource, you will wade through so much junk. If you are just rewriting stories from newspapers with no thought or commentary, you are useless to the rest of us.

July 1, 2008

Malpractice on Video in New York

by Ronald V. Miller, Jr.

Medical malpractice lawyers in New York today released incredible surveillance camera video from Kings County Hospital in Brooklyn, New York, showing a 49-year-old woman dying on the floor of a psychiatric emergency room while being completely ignored by the hospital staff.

The video shows the woman keeling over and falling out of a chair on June 19, 2008, and lying facedown on the floor, then thrashing wildly before going limp. A full hour passes before anyone bothered to help.

An incredible video that reminds me of the Rodney King incident. If it was not on video, no one would ever believe that it happened as the plaintiffs’ lawyers will argue.

July 1, 2008

Lost of Diminished Chance Doctrine Yanked Back from Kentucky Malpractice Victims

by Ronald V. Miller, Jr.

Medical malpractice victims suffered a setback in Kentucky last week when the Supreme Court of Kentucky reversed the Kentucky Court of Appeals ruling adopting the “lost or diminished chance of recovery” in medical malpractice cases in Kemper v. Gordon. (This defense verdict was, however, reversed on other grounds because the trial court erred in excluding evidence that an expert has reached the opposite conclusion in another case.)

Sad Facts of Kemper

The facts of Kemper are tragic. A 38-year-old mother in otherwise good health presented at the emergency room with chest pain, shortness of breath, severe nausea, and dizziness. For a year, these and related symptoms appeared. The court dismissed all as anxiety or panic attacks. Finally, the woman was diagnosed with metastasized gastric (stomach) cancer. After her death, her family brought a medical malpractice lawsuit. At various points along the way to the jury, she settled with five of the six doctors that treated her. The jury returned a defense verdict.

June 30, 2008

Riegel v. Medtronic: Congress to the Rescue?

by Ronald V. Miller, Jr.

Since the Supreme Court’s disaster in Riegel v. Medtronic, I have been hoping and expecting Congress would step in to fix the Supreme Court’s ruling, because it was clear from the amicus briefs submitted in Riegel, from history, and from common sense, that Congress did not intend to prevent medical device tort claims. Yesterday, California Congressmen Henry Waxman and New Jersey Congressman Frank Pallone, along with 62 bipartisan supporters, introduced HR 6381, the Medical Device Safety Act. This bill would undo the wrong the Riegel does to medical device victims. We expect the Senate to offer a similar bill next month.

As the Wolf said in Pulp Fiction, we can’t start congratulating ourselves yet (I’m paraphrasing). This bill has not even made it out of a committee yet. But at least something is happening.

June 24, 2008

Picking a Jury in Maryland

by Ronald V. Miller, Jr.

Voir Dire in Maryland is often a hard experience for injury lawyers on both sides of the aisle because Maryland arguably has the most truncated voir dire process in the country. I’ve tried a lot of cases where both lawyers could glean just a few relevant things from the jurors, we make the obvious strikes and both parties end up not knowing anything about who is on their jury. I’ve written a bit about this problem in a previous Maryland Injury Law Center post.

The Maryland Bar Journal has an article this month by Carolyn Koch of Jury Solutions, LLC offering some tidbits on ways to get more information under Maryland’s limited voir dire process. Two of her suggestions I found to be particularly interesting.

Ms. Koch suggests the following question: If you or someone close to you was injured because of someone else’s negligence, do you think you would sue?

June 23, 2008

Medical Malpractice Damage Caps: What Impact Do They Have?

by Ronald V. Miller, Jr.

The University of Chicago Journal of Legal Studies published an interesting article on medical malpractice tort reform. Current Research on Medical Malpractice Liability: Medical Malpractice Reform and Physicians in High-Risk Specialties, 36 J. Legal Stud. 121 (2007). The article supports the plaintiff’s view of medical malpractice tort reform… with a very notable exception.

The article concludes that introducing medical malpractice reform in response to the fear of losing doctors may be misguided because the “relationship between medical malpractice reform and physician labor supply suggest that the effects are modest.” The article suggests that many doctors are likely to be indifferent to medical malpractice reform “because their likelihood of being sued is low.”

Interestingly, the article references one study by Eric Helland and Mark Showalter titled, “The Impact of Liability on the Physician Labor Market,” which showed that medical malpractice damage caps induce physicians to work more hours in a year.

June 19, 2008

Challenge to Maryland’s Cap on Non-Economic Damages

by Ronald V. Miller, Jr.

The Maryland Daily Record reports today that The Law Offices of Peter G. Angelos intends to file an appeal in a Baltimore City medical malpractice case in which the Plaintiff’s $10.2 million jury verdict against University of Maryland Medical Center was capped at $632,500.00 because that is the limit on non-economic damages.

The Daily Record reports that the Plaintiff’s counsel intends to argue that: (1) the limitation on damages has not accomplished its purported legislative aim of reducing medical malpractice insurance rates for doctors; (2) the Maryland cap on non-economic damages is pre-empted by the ADA; (3) that it violates equal protection and due process; and (4) that it deprives the jury of the information necessary to make an informed decision.

Baltimore City Circuit Judge Carol E. Smith denied Plaintiff’s motion to overturn the cap and reduced the Plaintiff’s verdict to his medical expenses and $620,000.00 in non-economic damages (the malpractice must have occurred between October 2002 and September 2003).