Maryland Injury Law Center

January 2, 2008

Is Maryland’s New Bad Faith Law Retroactive?

One question that has remained unanswered is whether Maryland’s new bad faith law is retroactive. On Dec. 17, 2007, U.S. District Court Judge J. Frederick Motz ruled that the Maryland legislature intended Maryland’s new first-party bad faith law to be retroactive. In Schwaber v. Hartford, a case involving insurance coverage for a roof leak, Judge Motz had initially dismissed Plaintiff’s bad faith action prior to the effective date of the first-party bad faith bill (2007 Md. Laws 150). Plaintiff sought to re-file the claim after the bill passed.

Interestingly, Hartford agreed that the Maryland legislature had intended the new bad faith statute to be retroactive, and instead objected on state and federal constitutional grounds. Judge Motz deferred ruling on these objections or certifying the state constitutional questions to the Maryland Court of Appeals, unless or until resolution of these constitutional issues is necessary to the outcome of the litigation. So while it is not a slam dunk that this recent law will pass constitutional muster, the court’s finding that the General Assembly intended the bad faith law to be retroactive is a significant step in the right direction.

I wrote this post in 2008. In 2019, we now fully realize that our bad faith law in Maryland is useless. We have never had a client meaningfully enjoy Maryland’s law in the last 12 years.

December 26, 2007

Videotaping Independent Medical Exams

by Ronald V. Miller, Jr.

In March, I wrote a blog post discussing whether it makes sense for to videotape medical exams by the defendant’s lawyer’s doctor. Last week, the Oklahoma Supreme Court ruled that a plaintiff who is required to submit to an “independent medical examination” (hereinafter the more honest “defense medical exam”) may videotape the exam.

Here, the doctor had refused a plaintiff’s request to videotape the DME because (1) it would invade the privacy of others in the office; (2) it would be “annoying and distracting” to the DME doctor and his staff; and (3) it would interfere with the doctor’s examination.

Actually, these are not the doctor’s objections. These are the defense lawyer’s objections. The doctor was more than happy to allow the recording of the DME as long as the defendant’s lawyer did not object. These objections are silly. First, obviously, the video should only consist of doctor’s examination of the plaintiff. Second, for $500 an hour, or whatever the doctor is charging, he should be able to bear a minor annoyance and distraction. Finally, there is no reason to believe that videotaping at the DME would interfere with the examination.

December 12, 2007

Medical Malpractice Liability to Third Parties

by Ronald V. Miller, Jr.

On Monday, the Supreme Judicial Court of Massachusetts overturned the dismissal of a lawsuit filed by a woman against a physician who had failed to warn his patient of the side effects of a medication. These side effects had caused the patient to lose consciousness at the wheel and kill the woman’s 10 year-old pedestrian son. The driver had recently had treatment for cancer and had been told by his doctor that he could safely resume driving while on his medication. (He had stopped driving for a period of time.) The mother sued, alleging that the doctor failed to warn his patient, the driver, of the possible side effects of drowsiness, dizziness, and altered consciousness.

The lower court had dismissed the lawsuit, claiming that the physician had a duty to his patient only, not to third parties. The Supreme Judicial Court disagreed and found that the doctor’s duty extended to anyone who could be harmed by his failure to warn his patient about the drug’s side effects. This ruling greatly widens the scope of duty of physicians when choosing treatment options for their patients and perhaps necessitates a wider discussion of possible side effects when prescribing medications. The case will now return to the lower court and be tried on the issue of the doctor’s negligence (the dismissal was on the basis of standing to bring the lawsuit in the first place).

This is a very sad case. The driver was 75 years old and suffered from lung cancer, chronic bronchitis, high blood pressure and emphysema. At the time of the crash, he had finished his cancer treatment but was still on many medications. He died of cancer shortly after the accident. A ten-year old boy lost his life when he was in the wrong place at the wrong time. It does not get much more awful than that.

December 4, 2007

Riegel v. Medtronic: The FDA Preemption Super Bowl

by Ronald V. Miller, Jr.

Today, the Supreme Court will hear arguments in Riegel v. Medtronic. The issue is whether the Food, Drug, and Cosmetic Act forecloses state law personal injury lawsuits for injuries from the design, manufacture, and labeling of a Medtronic medical device that the Food and Drug Administration initially granted a pre-market approval. This case is a product defect case involving a Medtronic balloon catheter that killed the patient but, this case could have ramifications for the Medtronic lead recall lawsuits that are being filed all over the country. [Update: “Could” is the understatement of the decade.] While technically this case focuses on a specific statutory provision, it would surprise no one if the Supreme Court’s holding provides a comprehensive framework for preemption that would apply to all drug and medical device cases.

Naturally, the Bush administration has lined up squarely behind the pharmaceutical companies. This is ironic because there is a strong presumption against preemption, particularly where the issue involves the individual states’ power to protect public safety and health.

The Supreme Court has consistently found that preemption of state law does not apply unless “the nature of the regulated subject matter permits no other conclusion” or “the Congress has unmistakably so ordained.” Chicago & N.W.Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317(1981) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963)).

December 3, 2007

Can a Medical Malpractice Case that Settles for $750,000 Be Frivolous?

by Ronald V. Miller, Jr.

I read this weekend a crazy story about a Tennessee medical malpractice case. The plaintiff sued a Tennessee lawyer for legal malpractice for botching a case which he supposedly should have won. The legal negligence case settled for $750,000 which means, if logic and reason were at all involved in the settlement process, it was a meaningful case with actual value. Incredibly, he was also successfully sued for bringing a groundless lawsuit–the same case he should have won. There can be only one cogent response to these facts: huh?

Here is what happened. The plaintiff has back surgery which left him blind in one eye and without peripheral vision in the other, rendering him legally blind and unable to work. Obviously, this was an awful outcome. Plaintiff brings a med mal claim against the doctor, claiming that they used incompatible blood control products together during the surgery which caused the Plaintiff’s injuries.

Plaintiff’s lawyer apparently starts screwing things up from there. The lawyer failed to find a medical expert that supported the claim before suing, although there is a requirement in Tennessee that he do so. Ultimately, he never obtained an expert. In the legal malpractice suit, Plaintiff contended that incompatible medications did not cause his injuries. Instead, he and his experts claimed that the actual cause of his injuries was the misplacement of his head during his seven-hour surgery. They settled the legal malpractice claim again for a substantial amount of money.

In the legal negligence case, the lawyer being sued steps into the shoes of the doctor being sued in the l malpractice case as a defendant for the “case within the case.” So someone will write a big check under the assumption that the doctor had committed medical malpractice, but the doctor’s insurance rates do not go up and he gets off scot-free. Continue reading

November 28, 2007

The Impact of Race and Poverty on American Tort Awards

by Ronald V. Miller, Jr.

I stumbled on a 2003 study titled “Race Poverty, and American Tort Awards,” written by economists Alex Tabarrok of George Mason University in Virginia and Eric Helland of Claremont-McKenna College in California published in the Journal of Legal Studies that offer some interesting observations on how race and poverty levels impact tort awards. According to the study’s findings, which used data from successful personal injury cases from 1988-1997, as the poverty rates of minority plaintiffs increase so does their average tort award. It is not a one size fits all trend, however, and there are different levels of change seen among the different minority groups. For example, an increase of just one percentage point in poverty for African-American plaintiffs results in a 3 percent increase in jury awards whereas the same increase in poverty percentage yields a 7 percent award increase for a Hispanic plaintiff. Interestingly enough, the exact opposite trend occurs when examining the poverty level of white plaintiffs, whose mean awards decrease with an increase in the poverty rate percentage.

Just as the results of the study vary on the race of the plaintiff, the amount awarded fluctuates depending on the case in question. An increase in plaintiff poverty rates from 15 to 20% to over 25% results in an award jumping from $2.5 million to $4 million for product liability cases and from $1.8 million to $4 million for medical malpractice torts. It appears, however, that plaintiffs in auto cases do not reap the same benefits. Not only are their awards consistently lower than those of product liability and medical malpractice cases (which is hardly a surprise), but the awards seem unchanged by fluctuations in the poverty level.

There is one final but important caveat to this study. While race and poverty level are important factors in the amount awarded in a successful tort case, they seem to have no bearing on whether the plaintiff prevails on liability?

November 27, 2007

Information Medical Malpractice Lawyers Can Use

by Ronald V. Miller, Jr.

A few weeks ago, I wrote about a new product for malpractice lawyers called MedMal Reports. This company creates a report of the expected medical malpractice payout for a case based on the National Practitioner’s Data Bank. I received an email from MedMal Reports Chief Economist, Dr. David M. Frankel, asking if I might tell Maryland Injury Law Center readers about his new newsletter.

I get a lot of these emails and my first instinct was to press delete. But I took a quick look at the newsletter. If you are into the statistics of personal injury and medical malpractice cases like I am, you will love the newsletter. It answers the questions I have always wondered about: whether gender matters (it does not), and what is the optimal age of a plaintiff regarding settlement/trial value of the case (30-39).

As always, excellent information is power. This kind of information does two powerful things for medical malpractice lawyers. First, it gives you ammunition to use in settlement negotiations. Most good medical malpractice cases settle. The battleground is usually over price and detailed information that shows the value of your client’s case is helpful. The second thing it gives you is information to inform and educate the client in making the call whether they want to take their medical malpractice case to trial or whether to resolve it.

November 26, 2007

West Virginia Supreme Court Applies Medical Malpractice Cap in Interesting Case

by Ronald V. Miller, Jr.

The West Virginia Supreme Court, applying West Virginia’s medical malpractice cap, affirmed the trial court’s decision to cut a $10 million medical malpractice verdict against a West Virginia hospital and one of its doctors down to $1 million. (This is the same thing that happened to us in Maryland 10 years after this post.)

Malpractice?

Plaintiff’s lawyers contended that the non-economic damages cap in medical malpractice cases in West Virginia did not apply to the jury’s verdict because their claim against the hospital did not arise out of the care and treatment of the Plaintiff but because of the hospital’s failure to control an environmental Serratia outbreak which the jury found caused Plaintiff to contract a nearly fatal infection during an otherwise routine anterior cruciate ligament (“ACL”) surgical reconstruction in 1995.

November 20, 2007

Maryland Takes Medical Malpractice Premiums from Medical Mutual (sort of)

by Ronald V. Miller, Jr.

Doctors may have a new opponent in their battle for lower medical malpractice premiums: the state of Maryland. As I wrote last month, Maryland has been paying subsidies to doctors to the tune of $80 million over the past three years as a part of the medical malpractice “reform” bill that the General Assembly passed in 2004. The Baltimore Sun reports today that Maryland Insurance Commissioner Ralph S. Tyler ruled that a $68.6 million malpractice premium surplus, which Medical Mutual owed to the state of Maryland.

Back in 2004, doctors’ fervor for caps in medical malpractice cases reached a new high. To fan the flames, I’m convinced that Medical Mutual (easily the largest medical malpractice insurer in Maryland, covering about 75% of Maryland doctors) engaged in a little creative accounting and timely settlement negotiations that allowed Medical Mutual to pay out more during the time frame being examined by the Maryland legislature. The Maryland legislature was looking to determine how much medical malpractice premiums had risen.

After they got their wish and the Maryland legislature passed a bill to further cap medical malpractice damages, it quickly became apparent that the rise in premiums was artificial, evidenced by this $68.6 million surplus. For most insurance companies, this means they have a $68.6 million profit. But Medical Mutual’s policyholders own it, the doctors Medical Mutual covers. So this profit would have gone back to the doctors had the state of Maryland not intervened.

November 19, 2007

Jury Trial with State Farm

by Ronald V. Miller, Jr.

I had a jury trial in an auto accident case in Anne Arundel County against State Farm last week. It was a soft tissue injury case with over a year of treatment. It was a case we inherited from another lawyer who retired last year.

The biggest weakness of the Plaintiff’s case is that he had few doctor visits before complaining of the soft tissue injury related to the claim. The Defendant’s biggest weakness was their liability defense never made any sense. The Defendant was, however, elderly and very sympathetic. Because the jury is never told insurance will pay the claim, expect this to be a factor in the recovery’s amount even if they suspect there is insurance behind the Defendant.

The jury found for the plaintiff but awarded only a little over $16,000. This thrilled State Farm, and I became depressed for a few days. They won, and I lost. That is how we both saw it and marked our scorecards accordingly.