Maryland Injury Law Center

November 16, 2011

David Stern’s Bluff and Negotiating with Insurance Companies

In the NBA labor dispute, the NBA owners say they have put their best and last offer on the table. It is one of the oldest stunts in negotiating. Take this offer or we will take it off the table.

I think he’s bluffing, but I’m not 100% certain. [2017: he was mostly bluffing.] Which is exactly the point, of course. I don’t disagree with the settlement tactic in this exact situation. The man making the call is NBA commissioner David Stern, who – getting ready for retirement – is negotiating the last labor deal of his life. He will never get called out for bluffing and backing down again.

Personal injury lawyers can also run a similar bluff with defense lawyers and insurance companies if they never expect to deal with them again. But if you are dealing with the same insurance companies in car accidents or medical malpractice cases – which applies to every lawyer in Maryland that has some volume of personal injury cases – you have to consider your overall credibility when negotiating claims. There are at least two reasons to temper the lawsuit/trial ultimatums.

First, the client can change their mind. I have had many clients that dislike the settlement offer and are emphatically ready to file suit and then do a 180 when I tell them we are filing suit. I don’t say this derisively. Think about it compared to the NBA player. These players risk losing a full year’s salary, which is worth millions. But they already have millions. In contrast, in the last case I tried, the client turned down an offer that was five times her yearly salary to let a jury decide. Thankfully, it worked out for her, her award was over 25 times her annual salary. But the risk she took makes the NBA players’ dilemma seem trivial. (A bit of hyperbole here because I’m not taking out attorneys’ fees and liens into my “times” calculus. Still.)

Anyway, going back, I really make sure the client is genuinely ready to file suit before negotiating as if I have that arrow in my quiver. Once you got out on the “my way or the highway” limb, you are unlikely to get more money on the case, even if the insurance company has more money to put on it. Your walk of shame back to the negotiating table will not be rewarded. Continue reading

November 10, 2011

Malpractice Statute Applies in Federal Court Says Maryland Court of Special Appeals

by Ronald V. Miller, Jr.

In a new opinion by the Maryland Court of Appeals, the court answers whether Maryland’s Health Claims Arbitration requirements should apply to cases filed in federal court where the malpractice occurred outside of Maryland. Certainly an important issue to address.

Lewis v. Waletzky involves a claim that a psychiatrist in Chevy Chase, Maryland negligently prescribed antipsychotic drugs for the Plaintiff, a Minnesota resident. So there was a diversity of residency. The psychiatrist lived in Washington, D.C. and there was some issue of which substantive law applied but – spoiler alert – it ends up being irrelevant to the opinion. Plaintiff’s lawsuit filed in U.S. District Court alleged that Plaintiff’s psychiatric symptoms were mild and did not warrant subjecting the Plaintiff to the well-known risk of an antipsychotic drug.

Plaintiff’s malpractice lawsuit in federal court alleged that because of these negligent prescriptions, the patient developed tardive dyskinesia, which is caused by the drug Reglan and some antipsychotics (I’m not sure what the drug was in this case.). There is no treatment for tardive dyskinesia, an awful neurological disorder that causes involuntary grimacing, protrusion of the tongue, lip-smacking, rapid eye blinking, and movement of the extremities.

Going back, Plaintiff moved out of state and filed the case in federal court and did not meet the certificate of merit and other requirements imposed by the Maryland Health Care Malpractice Claims Act. The Fourth Circuit was unsure of whether the health claims arbitration act should be applied and asked the Maryland high court:

Does Maryland recognize the public policy exception, or any other exception, to lex loci delicti based on the Maryland Health Care Malpractice Claims Act, see Md. Code Ann., Cts & Jud. Proc., §§ 3-2A-01, et seq., which requires a plaintiff to comply with certain mandatory administrative filings prior to filing a medical malpractice lawsuit in a Maryland court?

Interestingly, the Court of Appeals seems to tell the 4th Circuit and the parties that this is not a lex loci delicti case but focuses on whether the Act is substantive or procedural. The court found that Maryland statutory scheme for medical malpractice cases applies to federal court malpractice cases (Note: I think Judge Titus would disagree.) (Read this opinion.) Continue reading

November 9, 2011

New Maryland Medical Malpractice Opinion on When a Final Judgment Is Entered

by Ronald V. Miller, Jr.

This blog post summarizes Mattison v. Gelber, a new Maryland Court of Appeals opinion in a medical malpractice case with a unique issue regarding whether there was an entry of final judgment without an award of costs. You can go to the jump at the bottom of the post. I take the dog for a short walk in the introduction.

When I started practicing law, one of the first cases that I was given was a plaintiff’s legal malpractice case. Except for a subrogation case – which really does not count as a plaintiff’s case – it was the only plaintiff’s case that I had in my first four years as a lawyer. Now, it has been ten years since I was on the other side of the v.

Anyway, in the malpractice case, the lawyer blew the time for filing a post-verdict appeal. He blew in the most bizarre way possible: he filed his Notice of Appeal too early before final judgment had been entered.

Committing legal malpractice for doing something too early stuck with me. I have been paranoid to this day about deadlines but, in particular, post-judgment motions. In Mattison v. Gelber, the court dealt with facts that validate my paranoia.

This case started, as many malpractice claims do, with a battle over venue. Plaintiff filed in Prince George’s County against two doctors. There is not a medical malpractice attorney in Maryland who would not prefer Prince George’s County to anywhere else (a possible exception: Baltimore City). But the malpractice happened in Howard County, one of the toughest places in Maryland to try a malpractice case. The Prince George’s County Circuit Court transferred the case, it did what it likes to do if there is a venue of issue: kick it out of their court.

November 4, 2011

The Media and Personal Injury Verdicts

by Ronald V. Miller, Jr.

I love when someone does a study confirming one of my pet theories. My theory: juror skepticism towards plaintiffs is fueled by unwarranted perceptions in the media as to whether jurors are reaching fair verdicts.

The Center for Justice & Democracy has published a study showing that the media distorts the public’s perception of how much juries award in personal injury and other civil cases. The study tracked the news over an 80-day period and found that jury verdicts reported on in the media are 192 times higher than the national average of damages awarded. The plaintiffs’ verdicts reported by the media in the study had a median jury award was $4.6 million, instead of the real national median jury award of $24,000 awarded to victorious plaintiffs.

The problem is easy to see. The public sees that every celebrity death ends in a wrongful death lawsuit. Every silly celebrity and pseudo-celebrity dispute also ends up as a lawsuit. Look at this crazy battle published on Deadspin today, involving Erin Andrews. You can find one every single day if you look. So, the public weighs the merits of these lawsuits, finding that more often than not they are unsustainable and, at worst, ridiculous. The take-home message? These suits indicate all lawsuits.

These same people then read, almost daily, media reports of some $25 million verdict here and some $50 million verdict there. These stories might mention in the last paragraph that there is a cap on noneconomic damages that cuts 90% of the award, or that the defendant did not even have a lawyer and there is no expectation the victim will ever see a dime of the verdict. Putting these things together, should we really be surprised that jurors come in with the rebuttable presumption that our clients are just looking for money and not justice? Continue reading

November 2, 2011

Social Media Discovery

by Ronald V. Miller, Jr.

Social media is all the rage for defendants’ personal injury lawyers. In the olden days, the only really fun Perry Mason moments from discovery for defense lawyers was surveillance video. Out of the 10,000 times the insurance company would do surveillance, someone would hit a “guy who claims he is in a wheelchair runs a 6 minute mile” jackpot.

These days, your selfie stick might adversely affect your claim as a plaintiff.

When I started as an associate, the partner I worked for told repeatedly, one “got ya” surveillance story he had when he was a young associate. Every time he told the story, he exaggerated the facts a little more. Most people listening, I’m sure, suspected as much. But no one cared, because it was a fun story. These conflated stories have kept a lot of private investigators in business. Every lawyer wants to tell an “I tricked them” story of their own. It is the defense lawyer equivalent of a high stepping 109-yard interception return.

October 31, 2011

Poole v. Coakley Williams Construction | Maryland Law

by Ronald V. Miller, Jr.

Three years ago, after the Maryland Court of Appeals denied certiorari in Allen v. Marriott Worldwide, our law firm stopped taking snow and ice slip and falls. Maryland appellate courts had been battering bad weather slip and fall plaintiffs over the head with the assumption of the risk doctrine. We distilled this law to be that if you are not running out of a burning building; you knew there was a possibility that you might slip and fall if there was a sign the weather was bad and you had a choice. Assumption of the risk became metaphysical “you had a choice, didn’t you?” that killed every case.

New Maryland Snow/Ice Slip and Fall Case

To my surprise, Maryland law took a clear, deliberate, and unanimous step back from this insane abyss last week in Poole v. Coakley Williams Construction.

What Happened in Poole

The Plaintiff, in this case, claims alleged that he slipped and fell on black ice in a parking lot in Montgomery County behind his place of employment. Plaintiff blamed the defendant who was at the site performing construction work for causing the black ice to form, and that there had been a stream of water that way for some time. In fact, Plaintiff thought it was safe because he had walked through that same stream a week before without incident. So it is as good as an ice slip and fall case as you can get because it is more than “you should have put salt down or shoveled the parking lot” case. Still, regardless of the injuries, we would not have taken this case post-Allen because it is still – on the bizarro world level the court used in Allen – the technical assumption of the risk. The summary judgment is easy, just ask the ole’ “you knew there was water, and you knew water can get cold, right?” setup.

October 24, 2011

Maryland Lead Paint Law: A Game Changer

by Ronald V. Miller, Jr.

The Maryland Court of Appeals issued a game-changing lead paint decision today, declaring unconstitutional an awful Maryland law that immunizes most Maryland landlords who rent properties that cause children brain injuries from lead paint.

A Brief History of Lead Paint Lawsuit in Baltimore

Before I get to that, a little background. In the late ’90s, before I saw the light and became a Plaintiffs’ lawyer, I defended several lead paint cases in Baltimore City. These were the halcyon days for lead paint personal injury lawyers in Baltimore.

Many lead paint lawyers in Baltimore had such a good thing going that they didn’t bother to focus on the details, you just filed your lawsuit, then settled using one or two experts that said virtually the same thing in every case. Printing money in your basement would be less profitable. Plaintiffs’ lawyers rarely bothered to make a claim for economic damages, for future loss of income from their brain injuries. (Now, every lawyer with a lead paint case does this.)

Lawyers who had a big inventory of lead paint cases had plenty of time to decide which cases to file. There was tons of time because the plaintiffs were children that rarely had imminent statute of limitations issues. So, they filed the ones with the highest lead levels first. (The lead level in this recent case was less than 25. There were very few cases in the ’90s that had a level that low.) As a result, you had these great plaintiffs’ lead paint cases going to trial in Baltimore City. Plaintiffs’ lawyers had two other things going for them: (1) insurance companies had yet to put in lead paint exclusions, and (2) most cases in suit were not yet impacted by the 1994 Reduction of Lead Paint in Housing Act.

The Act slowed down, as was intended, the furious pace of lead paint lawsuits. The stated purpose of the Act was to “reduce the incidence of childhood lead poisoning while maintaining the stock of available affordable rental housing.” Strangely not mentioned purpose: protecting landlords who were needlessly exposing children to brain injuries from lead paint, which is exactly what it did.

This Act was a stunning victory of landlord lobbyists. The law completely immunized from a lead paid lawsuit negligent defendants if they registered their property with the state and offered payments of $17,000 to children injured by lead poisoning. “Sorry your child has lost 12 IQ points from lead paint that would could have easily remedied. Here’s is $17,000 when she turns 18. We are square, right?”
But, today, an incredible two-and-a-half years later, and almost 10 years after the lawsuit in the case was filed, a unanimous Maryland Court of Appeals struck down on constitutional grounds the 1994 Lead Paint Act if it immunized landlords from liability if they allow chipping or peeling lead paint from causing brain injuries to children. “For a child who is found to be permanently brain damaged from ingesting lead paint, proximately caused by the landlord’s negligence, the maximum amount of compensation under a qualified offer is minuscule,” retired Judge John C. Eldridge wrote in the court’s opinion. Agreed.

Continue reading

October 18, 2011

Maryland Medical Malpractice: New Opinion on Locality Rule

by Ronald V. Miller, Jr.

Malpractice attorneys representing doctors famously prefer to elevate form over substance and tactics over strategy. This is not partisan. It is fact. The doctors’ malpractice attorneys really don’t disagree. They would call it taking advantage of the grab bag of opportunities to fight the details that the law and inexperienced malpractice counsel provides. It is called fighting aggressively for their clients, right?

Fair enough. But the fact remains that at least as a practical matter, doctors’ attorneys try to use technicalities at a ratio of 20-1 to patients’ counsel. Sure, I’m making that up. But it is probably something like that, if not higher.

Consistent with this “tactics over strategy” worldview, forests in Maryland have been lost by defense lawyers’ micro interpretations of Maryland’s Health Claims Arbitration Act (Maryland Courts & Judicial Proceedings, 3-2A-01-3-2A-09), distorting any semblance of what was actually contemplated by the Maryland legislature.

In Willison v. Pandey, an opinion decided last week in the U.S. District Court of Maryland, the doctor’s malpractice lawyers faithlessly upheld this tradition, attempted to exclude Plaintiff’s medical expert under the strict locality rule, arguing that a doctor has to know the local standard of care to offer testimony. The doctors lawyers relying upon language in the health claims statute that a medical malpractice expert must give testimony that the care given by the defendant doctor “is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities” at the time of the alleged medical malpractice. Here, the Plaintiff’s medical expert was from New York testifying about the breach of the standard of care of a Cumberland, Maryland urologist. He knew little about the practice of medicine in western Maryland. Continue reading

October 13, 2011

Amanda Knox: Impact on Personal Injury Lawyers Explaining Risk to Clients

by Ronald V. Miller, Jr.

The Georgia Criminal Appellate Blog writes about the concern that his clients will “over-learn” the lesson of Amanda Knox’s successful appeal:

For the criminal trial lawyer, the Casey Anthony verdict was the result that made it difficult to counsel clients on whether to accept a negotiated plea rather than risk a trial against an overwhelming case. Several colleagues have told me that clients have balked in the face of solid legal advice, reasoning “that girl in Florida got off.” Amanda Knox is, I fear, the appellate lawyer’s Casey Anthony. It does not matter that it’s a different legal system in a foreign country. The comparisons are coming. It is time to prepare with some key points when you face the inevitable comparisons.

How do personal injury victims process Amanda Knox’s win on appeal?

This concern is equally applicable for clients of malpractice and accident lawyers. Amanda Knox, from a distance, represents what everyone wants in the appellate process: you keep appealing and appealing until you win and that appellate win is final. Sometimes, not just in law but anything, getting a little information about how the sausage is made can cause more harm than good because you lack context. There is, as always, a good cliché on point: a little information can be more dangerous than no information (or something like that).

(This is my problem in the stock market. I majored in finance in college so I think I know what I’m doing. But I get myself in trouble for making stupid bets, relying on something I heard in Investment Analysis my junior year in college. (2013 Update: I’m back, baby. I am a genius after all!)

Tort appeals are hard for both sides because most of the rulings from the trial judge to which plaintiffs’ lawyers take exception are evidentiary issue where the standard on appeal is the abuse of discretion. That’s a tough road to travel after a defense verdict. We have done it successfully, but most personal injury trials do not end with a quality appealable issue. Continue reading

October 11, 2011

Baltimore Law Firm Loses Medical Records

by Ronald V. Miller, Jr.

Twitter is giddy about a Baltimore Sun report that a medical malpractice defense law firm lost a portable hard drive containing medical records for 161 stent patients in the lawsuit against cardiologist Dr. Mark G. Midei for alleged malpractice at St. Joseph Medical Center in Towson. Apparently, an employee of the law firm Baxter, Baker, Sidle, Conn & Jones left the hard drive on the Baltimore light rail. It is a good story anyway, but this one is extra juicy because it involves the most prolific malpractice lawsuit in Baltimore. So it is the perfect storm. The lawyers at Baxter, Baker must have muttered a thousand times by now: why this case of all cases?

The irony of all of this bad publicity for Baxter, Baker – which is a very good law firm – is that they did what their malpractice clients rarely do: they owned up to their mistakes. The law firm notified St. Joseph – its hospital client – and the malpractice insurer of the hard drive loss shortly after the loss and acted fairly quickly to let the patients know of the potential invasion of their privacy. Ultimately, while it is unfortunate that patients who have already suffered have to fear this potential invasion of their privacy, the good news is that this is very unlikely to cause anyone harm. There are probably far greater privacy risks for these patients out there. (Where is the defendant’s medical expert keeping these records?) The way Baxter, Baker could really screw up would be in the cover-up which they wisely did not attempt.