Maryland Injury Law Center

June 1, 2006

Voir Dire in Maryland

Voir dire is the selection process in which prospective jurors are questioned and challenged to weed out jurors who may hear the case with an inordinate amount of prejudice and bias that lurks in the thinking of every Maryland juror. In most jurisdictions, the potential jurors are examined either by the prosecutor or, in a civil case, the plaintiff’s attorney for both cause and peremptory challenges.

Unfortunately, in Maryland, voir dire is limited to questions proposed by counsel to be asked by the judge. There have been studies done in the voir dire context that show questioning from a judge inhibits juror candor. What then do Maryland lawyers rely upon in picking a jury? Gut instincts and stereotyping.

Before every trial, I read anything I can get my hands on to get a better idea of what I am looking for in potential jurors who will be receptive to my client. One very early morning, around 1:00 a.m., before a huge trial, I went to my good friend Google and did a search. I found a law review article from Ohio Northern University (have you ever heard of it?) from 1990 that summarized the literature on stereotypes in juror selection.

What Jurors Do You Want?

I disagree with at least a full third of the article, but it is fascinating. Here are some conclusions of the studies/article summarized: Continue reading

May 29, 2006

NEJM New Medical Malpractice Claims Study

by Ronald V. Miller, Jr.

One of the driving forces behind tort reform in malpractice, both in Maryland and around the nation, is that these claims are usually frivolous and result in undeserved compensation for patients and their medical malpractice lawyers.

This month, the New England Journal of Medicine addressed this issue in a study of 1,500 randomly selected malpractice cases. The neat thing about the study is that impartial doctors reviewed the experts’ opinions in the pending cases and then assessed whether each patient was injured and, if so, whether medical malpractice caused the patient’s injury. They allowed the independent experts to act as judge and jury.

(2019 Update: This Johns Hopkins tells us that malpractice is the third leading cause of death in the country.)

May 27, 2006

Personal Injury Verdicts in New Hampshire

by Ronald V. Miller, Jr.

Jury Verdict Research reports that the median compensation award in personal injury trials in New Hampshire is $45,000. This is much higher than the national median of $38,460. Also, New Hampshire personal injury victims are more likely to prevail at trial. New Hampshire plaintiffs get a recovery in 63% of cases that go to a verdict, as opposed to the nationwide recovery probability of 55%.

In Maryland, the median personal injury verdict is only $12,813. Why don’t our personal injury lawyers pack up and leave Maryland for New Hampshire?

Besides the frigid weather, Maryland’s jury verdicts are distorted by the defense lawyers from State Farm and Allstate, the two largest auto insurance providers in Maryland, who routinely “bump up” smaller claims to jury trials.

May 26, 2006

Frequent Flyer Medical Malpractice Doctors

by Ronald V. Miller, Jr.

The Life News in Kentucky reported last week the story of a medical malpractice suit brought by a Louisville couple against an obstetrician, claiming the wrongful death of their one-day-old baby girl. Plaintiffs’ Complaint alleges that Dr. Ronachi Banchongmanie delivered their baby girl using “vacuum extractions.” Although the baby appeared pale and had rapid respirations, she was not sent to ICU but sent to the newborn nursery where further complications developed in the absence of emergency care.

Allegations made in a medical malpractice lawsuit are just one side’s version of the facts. But Dr. Banchongmanie is what medical malpractice lawyers refer to as a frequent flyer. This medical malpractice action was the second filed against him in the last two years, and one of more than a dozen medical malpractice lawsuits filed against this doctor in the last fifteen years.

Frequent Flyer Doctors

May 22, 2006

Recorded Statements: Why You Should Not Give and the Possible Exception

by Ronald V. Miller, Jr.

Most insurance adjusters tell personal injury lawyers that they need a recorded statement from the lawyer’s client to “firm up liability” or to “assess credibility.” But providing a recorded statement is typically a “loose-tie.” It rarely results in a finding on liability in favor of the accident attorney’s client. Not that this is always the case, but absent special circumstances, the downside far outweighs any benefits.

Defense attorneys use recorded statements to parse sound bites out of context, often giving ample fodder for cross-examination against your personal injury client at trial.

Here is one fun trick when the third party insurance carrier asks for your client’s recorded statement

May 7, 2006

Copying Medical Records

by Ronald V. Miller, Jr.

One of the most tedious chores accident attorneys in Maryland must perform is the collection of medical records in personal injury cases. How much can health care providers charge Maryland lawyers for copying the medical records? The brief answer: a lot. The Maryland Health-General Annotated Code §4-304 sets for the maximum charges:

$19.70 as a “preparation fee”
$0.65 for each page

May 3, 2006

Is Failure to Use a Child Seat Contributory Negligence?

by Ronald V. Miller, Jr.

A lawyer in Virginia emailed to ask me if failure to wear a child seat is contributory negligence in Maryland?

Setting aside for a moment the abject irresponsibility of this mother who failed to ensure the safety of her child, the answer is no.

Maryland Law

The Maryland Transportation statute that requires the use of child safety seats specifically states that a violation of the statute, while a crime, is “not contributory negligence and may not be admitted as evidence in the trial of any civil action.” Maryland Transportation Code § 22-412.2(i).

Parenthetically, the same logic holds true with failing to wear a seat belt in Maryland. While it may be a crime, a “party, witness, or counsel may not make reference to a seat belt during a trial of a civil action that involves property damage, personal injury, or death if the damage, injury, or death is not related to the design, manufacture, installation, supplying, or repair of a seat belt.” Maryland Transportation Code Annotated. § 22-412.3. In summary, the failure of a personal injury plaintiff to use a seat belt or a child seat is not admissible at trial, although it is a misdemeanor crime (I feel compelled to continue to repeat this).

Concerning the admissibility of the use of seat belts in Maryland, this sword cuts both ways in that personal injury lawyers often want to present evidence that the lawyer’s client was wearing a seat belt to underscore that the injury victim did everything that he or she could to prevent serious injury. But this testimony is also not permissible under § 22-412.3.

Nationally, there is a split of authority whether, under principles of mitigation of damages or as contributory or comparative negligence, an injury victim’s failure to wear a seatbelt can justify a reduction in the number of damages that he or she receives. But even in jurisdictions that allow such evidence, a reduction is usually justified only if the Defendant’s attorney can provide medical evidence to a reasonable medical certainty that Plaintiff’s injuries could have been eliminated or reduced had Plaintiff been wearing a seatbelt when the accident occurred. See DiPirro v. U.S., 181 F.R.D. 221 (W.D.N.Y. 1998). Continue reading

May 2, 2006

Independent Medical Exams: Personal Injury Attorney Cross-Examination of Defendant’s Medical Expert

by Ronald V. Miller, Jr.

A few days ago, I wrote about a judge’s article entitled Alice in Discovery Land (A Practical Guide to Recurrent Discovery Problems) that appeared years ago in Maryland Litigator, quoting Judge Smith’s comment about the oxymoronic phrase independent medical exam.

Counsel on both sides of the aisle have their own unique problems. One of the enormous problems the insurance companies have is getting credible medical experts to testify at trial. They are in a catch-22: they need doctors who regularly testify because of the volume of cases they have, but doctors who will have spent much of their practice testifying for insurance companies have little credibility. As a result, most of their experts are deeply wedded to the insurance companies, a fact rarely lost on jurors.

When the defense lawyer asks for an IME, we send out a list of conditions before agreeing to the exam. We also subpoena the doctor’s records. In most cases, the doctor refused to respond to the subpoena because they do not want to reveal the extent to which they are wedded to litigation related work and, specifically, to the insurance companies. The defendant’s lawyer is forced to withdraw the expert.

April 29, 2006

Alice in Discovery Land

by Ronald V. Miller, Jr.

I had the opportunity last night to read an article written by Maryland Circuit Court Judge Thomas P. Smith entitled “Alice in Discovery Land (A Practical Guide to Recurrent Discovery Problems)” that appeared years ago in Maryland Litigator, a periodical which I believe no longer exists.

Reading his article reminds me that an article like this allows a lawyer to be included in the thoughts of a judge in the same way a focus group provides a lens for a personal injury lawyer to a potential jury. Both are engaged in thought processes that a lawyer thinks he or she can decipher, but it is often more difficult than they realize. Because we cannot hire a focus group of judges each time you file an important motion, the next best thing an attorney can do is read whatever you can find by practicing judges on discovery issues to get a better insight into their thinking.

What I found of particular interest is Judge Smith’s thoughts on Independent Medical Exams, “Of all the oxymorons in the world, an Independent Medical Examination occupies first place by thousands of leagues. There is nothing independent about the process; it is hardly undertaken for any medical purpose and all too often resembles an inquisition rather than an examination.”

April 11, 2006

Medical Malpractice High Low Agreement Vacated

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals this morning issued its opinion in Maslow v. Vanguri. In this case, the court found that Plaintiff’s pursuit of an appeal after an adverse judgment given up the doctor’s insurance company’s obligation to pay her $250,000 that it owed to her as the result of a “high-low” settlement agreement that was reached by the attorneys during a medical malpractice trial.

The Facts of the Case

The genesis for this case was a medical malpractice action in Baltimore County. The plaintiff contended that surgery was performed – a vagotomy and antrectomy. This is a surgical procedure intended to reduce the frequency of stomach ulcers. On the 5th day of what was apparently a hard-fought medical malpractice trial, a “high/low” agreement was reached. The parties and their malpractice attorneys agreed that, regardless of the jury’s verdict, the Plaintiff would receive a minimum $250,000 recovery but a $1,000,000 maximum. The parties put on the record and agreed in writing to the “high-low” agreement, which included a clause that the Plaintiff and the doctor would waive any right of appeal.