Maryland Injury Law Center

March 23, 2010

Baltimore Lead Paint Lawsuit to Continue

The Maryland Court of Appeals found today in a 5-2 opinion in a lead paint case that an individual member of a Maryland limited liability corporation (LLC) can be personally liable for torts committed on behalf of the LLC.

The case, Allen v. Dackman, is a classic Baltimore lead paint case, another saga in the tragedy of children suffering brain injuries as the result of ingesting chipping, flaking, and/or peeling lead-based paint.

The owner defendant sought refuge from personal liability because his acts were on behalf of his creatively named LLC, Hard Assets. The trial judge granted summary judgment. The Maryland Court of Special Appeals, in an opinion by Judge Zarnoch, affirmed:

March 17, 2010

Lawyer v. Lawyer Lawsuit Decided By Maryland Court of Appeals

by Ronald V. Miller, Jr.

In a 6-1 opinion, the Maryland Court of Appeals decided Blondell v. Littlepage, affirming the Court of Special Appeals decision which rejected a tort and breach of contract lawsuit brought by a lawyer against a malpractice lawyer regarding a case he referred to her.

The lawyer referred a cancer misdiagnosis case involving an allegedly misread mammogram to a malpractice lawyer. Both lawyers agreed to a fee split. The original lawyer had already filed the malpractice lawsuit on behalf of the Plaintiff, before referring the case out. I’m not sure what the referring lawyer was thinking when he filed suit. Perhaps he was hoping the case would settle or maybe he later decided it would better serve the client if they were with a lawyer who focuses on malpractice cases. The court does not show the reason for the referral.

Anyway, the case settled for a lot less than the pretrial judge recommended, which upset the referring lawyer, as did the suggestion allegedly made by the malpractice lawyer to the client, that the referring lawyer’s failure to timely file the case with the court decreased the settlement value of the case. The malpractice lawyer gave the client names of legal malpractice lawyers to bring a claim against the referring lawyer. Continue reading

March 16, 2010

Minimum Limits for Maryland Auto Accident Insurance

by Ronald V. Miller, Jr.

Tomorrow, the Maryland House of Representatives will vote on House Bill 825 which would raise the minimum limits of automobile coverage from $20,000.00/$40,000.00 to $30,000.00/$60,000.00.

Is $30,000 enough coverage for a significant accident? Of course not. Maryland has had 20/40 limits since 1972. This is 102,000/204,000 in 2010 dollars. But Rome was not built in a day, and this bill is a good step in the right direction.

As odd as it is for me to be carrying water for insurance companies, the only way to protect yourself from an uninsured or underinsured motorist is to make sure you have adequate uninsured motorist coverage. The relatively modest increase in premium is worth the additional protection.

March 14, 2010

Medical Errors and Admitting Mistakes

by Ronald V. Miller, Jr.

The New York Times has a story about encouraging doctors to admit their own mistakes. The UCLA surgeon who wrote the article does not contend that admitting medical mistakes should take the place of civil accountability. In fact, she suggests – as some recent literature has showed – that being forthcoming about medical errors may decrease the number of medical malpractice lawsuits.

I’ll admit that while I was reading this story I was circling around ready to pounce when the author suggested that we needed to eliminate malpractice lawsuits to get doctors to freely admit mistakes. So let’s just pretend, channeling my inner Glenn Beck, the author made that contention so I can refute it. In my defense, I’m not exactly creating a straw man, something I loathe to do. We have made this argument countless times, that it is safer for patients for health care providers to treat patients in a lovely environment where there is no risk of responsibility for medical errors.

First, let’s admit that we are all loathed to admit mistakes. I don’t think to take away the risk of a malpractice lawsuit – for which the doctor has insurance in most cases – is going to substantially change the frequency of admission of medical errors.

Where is the justice in being exculpated for causing a life-altering injury because you admit you did something wrong? If a driver crosses the center line and kills someone, can we just move on if the driver admits a mistake? (Bonus argument: accidents are a “known risk” of driving a car, right?) How about if personal injury lawyers who blow a statute of limitations can avoid responsibility by making the grandiose admission that it is all their fault? Wouldn’t that help lawyers understand their mistakes? What? Lawyers should buy a calendar? Well, yeah, that would be an excellent idea too.

March 11, 2010

Dram Shop in Maryland

by Ronald V. Miller, Jr.

A wrongful death lawsuit has been filed against a Chattanooga, Tennessee bar after a car accident killed a woman just a few days before Christmas. The case is an interesting twist on the classic dram shop case. The suit alleges that the bar gave its employees free alcohol and allowed one man to leave the bar intoxicated. The employee stayed at the bar and drank “free alcohol” after his shift ended at 3 a.m. Around 7:00 a.m., the defendant struck and killed a pedestrian, an employee on her way to work at Unum Insurance. The defendant, stand-up guy that he apparently is, fled the scene and tried to fake a carjacking. Apparently this is an insurmountable stunt to pull off when you are drunk.

What really adds teeth to the Plaintiff’s wrongful death lawsuit is a city ordinance prohibiting bar workers from drinking where they work, even when off duty. Violating the ordinance was a factor in causing this woman’s death. If the case goes to trial, there will be arguments by defense lawyers about the purpose and intent of the statute and whether this was the harm that the ordinance was trying to avoid. But I would suspect it was at least a purpose, if not the purpose, of the statute.

Maryland has rejected dram shop and social host liability in DWI accident claims. Going against the grain as a parent and lawyer who handles accident cases, I have believed and written in the past I oppose dram shop liability claims in Maryland.

I’m not so sure anymore. I would like to see data as to the number of wrongful deaths that occur in Maryland from DWI/DUI accidents where the person became intoxicated at a bar, or even at a bar where they are employed. The more salient question is one on which we will never get a definitive answer: how many deaths have occurred as the result of a server in a bar or restaurant who knows a patron (or employee) is drunk but does nothing to stop them? Continue reading

March 9, 2010

Can Insurance Defendants Lay Low at Trial?

by Ronald V. Miller, Jr.

I disagree with many of the philosophical views presented at Point of Law and Overlawyered. Then why do I read both blogs every day? Because they are informative, well-presented posts that make me occasionally question my own views. I hope to have you as a reader of the Maryland Injury Law Center and I hope my blog does for you what Point of Law and Overlawyered does for me.

Insurance companies hate being named in an uninsured motorist case. Why? Because unlike most car accident trials, if the jury knows an insurance company is paying the damages, jurors become less concerned that the defendant is footing the bill themselves. Jurors intuitively expect there is insurance available to cover the verdict, but they are never sure. Frequently, I have had jurors ask me after the trial if the defendant has to pay the verdict. “That nice Mr. Smith does not have to pay this personally, does he?”

In Maryland, the law is clear that in a straight uninsured motorist case without the tort defendant taking part in the trial, the insurance company may be named. The definitive case on this is King v. State Farm. In that case, a pedestrian Plaintiff appealed an unsatisfactory jury verdict in Baltimore City in an underinsured motorist case where the tort defendant had offered their policy limits (the verdict was less than the underlying policy). The Maryland Court of Special Appeals reversed because the trial judge did not allow the Plaintiff to identify the fact that the defendant was an insurance company.

March 1, 2010

Personal Injury Settlements in Maryland: What Portion Is Marital Property?

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals addressed last week an issue that our personal injury clients in malpractice and accident cases have occasionally expressed: is my settlement or verdict my money or marital money I have to share with my spouse?

In Murray v. Murray, the court was faced with, ironically I guess, a lawyer who had settled after suing her former law firm alleging that the firm engaged in discriminatory and retaliatory practices in firing her. (I would have been interested in learning more about the underlying lawsuit.) You know the rest of the story. The settlement came after she and her husband separated, but before they divorced, and the lawyer spouse wanted all the money for herself.

The Maryland Court of Special Appeals found that the portion of a settlement that compensates a claimant spouse for lost wages or earning capacity during the marriage, medical expenses paid from marital funds, or for joint loss of consortium, is marital property subject to fair distribution. Pain and suffering damages are not marital property.

February 17, 2010

Federal Malpractice Cap

by Ronald V. Miller, Jr.

Let’s say Barack Obama takes a strong position on medical malpractice caps and puts his weight behind a bill to eliminate malpractice and other damage caps in all 50 states.

This would be a huge windfall for our practice. But I would oppose this legislation. Why? Because such a law would be a ridiculous intrusion into the affairs of the States by the federal government. The federal government has no business telling the states they cannot have caps on damages. (I think caps violate state constitutions because they are a legislative intrusion on the separation of powers every state has in its constitution. But that is a different blog post.)

How can tort reform advocates – who are almost to a person far more ‘States rights, get government out of our lives” than I will ever be – support this unprecedented intrusion of caps on damages in medical malpractice cases via a health reform bill? It is because most tort reformers have a world view: lawsuits are bad, caps are good. They will push for this goal by all means necessary, including shedding inconvenient authentic core values.

February 10, 2010

Motor Vehicle Crash Cases Involving Turning Vehicles

by Ronald V. Miller, Jr.

One of the hardest decisions an accident lawyer has to make is whether to take a case with fatal or catastrophic injuries where there is a significant dispute in liability – typically he said/she said.

Nothing you read in this blog post will make that decision for you. In these cases, most of the ballgame is witness credibility and the intricate details of how the accident happened (which, parenthetically, I think most juries get right). But it does not hurt accident lawyers to inform this case-specific decision-making process with a bit of data.

Jury Verdict Research this month published data on the success rates in turning car accident cases, defined as vehicle accidents between parties traveling on the same road in either the same direction or opposite directions. These are the recovery probabilities by type of turning case:

February 5, 2010

Illinois Malpractice Cap Ruled Unconstitutional

by Ronald V. Miller, Jr.

The Illinois Supreme Court made big news nationally when it issued its much-awaited opinion in Lebron v. Gottlieb Memorial Hospital> yesterday, The court overturned in a 4-2 ruling the Illinois five-year-old medical malpractice cap on damages because limiting compensation for injured malpractice victims for pain and suffering violated the Illinois constitution.

Specifically, the court found that the Illinois malpractice cap violated the “separation of powers” clause because imposing a cap imposes on a decision that juries should make rather than legislatures.

The underlying lawsuit involves a catastrophic birth injury. Plaintiff’s lawyers alleged that the negligence of the hospital, her obstetrician, and a nurse caused the infant Plaintiff’s cerebral palsy.

The appellate path taken in this case was atypical. Plaintiff sought summary judgment on whether the cap applied, which the trial court granted before they tried the case. Procedurally, this is odd, and the dissenting opinion took exception to decide this case without a verdict. I understand the dissent’s thinking on this. But the parties at least are best served to take this path because they both know how the law will be applied. This makes the case much easier to settle and settle fairly whichever direction the court takes. After the trial court’s ruling, the Defendants appealed directly to the Illinois Supreme Court.

Essentially, the court found that a cap on damages is a legislative remittitur and the failure to leave the issue of remittitur to the court which decides the issue on a case-by-case basis represents a legislative intrusion on the powers vested in the court by the Illinois constitution.

One favorite part of the opinion for me was the way the court responded to the defendant’s argument that other states had damage caps: “That ‘everybody is doing it’ is hardly a litmus test for the constitutionality of the statute.” Continue reading