Maryland Injury Law Center

October 6, 2009

Maryland Pedestrian Accident Appellate Opinion

Note: This is an older post that was updated in October 2019

The Maryland Court of Appeals decided Abrishamian v. Barbely, a pedestrian accident appeal from Montgomery County after a jury awarded only half of the client’s special damages (medical bills and lost wages) and gave $0.00 for pain and suffering. The Plaintiff loses this appeal and it is not a close call. The court, however, discusses some interesting law is of interest to the Maryland accident lawyer.

The first issue is no issue at all. The plaintiff’s lawyer asked the judge to recuse himself because the judge’s brother represented the defendant 17 years ago and someone else with the same last name as the Defendant ten years ago. I’d love to know how the Plaintiff’s lawyer learned this, and I’d also be curious why he would seek recusal for such an attenuated connection. Had the court gone the other way, it would have really brought havoc to the justice system in Mayberry. Would they have to transfer every case to Mount Pilot? Anyway, we have a legitimate sample motion to recuse on our website if you are interested.

(Brief intermission: One of the great unsolved mysteries of my childhood was the distance from Mayberry to Mount Pilot. Someone once said a four-hour drive, but Barney Fife said it was 12 miles. Barney was not the most credible person, but 12 miles is specific, and he had no reason to exaggerate, given the context. I just don’t know. In an unrelated story, I may have watched too much television as a child. Let’s just get back to this case.)

The second issue is far more interesting. Defendant’s doctor was asked on cross whether he had a copy of the Plaintiff’s medical insurance card. Plaintiff’s lawyer objected before an answer could be given, and the judge sustained the objection. Plaintiff’s lawyer argued the trial judge should have granted a mistrial because the question violated the collateral source rule. This is a long-shot argument—a mistrial is not out of the question if the question was inappropriate, but it is a Dr. Sam Beckett quantum leap from that to a mistrial as a matter of law. (The court also noted that a question may not be “evidence” subject to the collateral source rule.) Continue reading

October 2, 2009

Medical Malpractice Lawsuits and Malpractice Premiums

by Ronald V. Miller, Jr.

In response to a call from one doctor for medical malpractice reform in Montana, Thomas C. Bulma, a Missoula lawyer, points out the following facts:

Only one Montana dentist has been the subject of a lawsuit in Montana in the past 10 years. The dentist prevailed.
Only one podiatrist was sued. The podiatrist prevailed.

September 16, 2009

“I’m Sorry” May Have No Impact on Medical Malpractice Lawsuits

by Ronald V. Miller, Jr.

The new popular wisdom that gained currency last year is that doctors who apologize for their mistakes are less likely to face a medical malpractice lawsuit than doctors who refuse to come clean. This supports what medical malpractice lawyers have long claimed: patients are often most angered by concealment of the malpractice and the concern that it will happen again to another patient.

KevinMD reports today an even more updated conventional wisdom, citing a study presented in the Journal of General Internal Medicine that says there is likely no correlation between a patient’s intent to bring a medical malpractice lawsuit and whether the doctor apologized.

I question the study’s methodology, which relied on videos of actors pretending to be doctors with people trying to put themselves in the shoes of malpractice victims. A controlled study like this really takes the emotion out of a case and ignores the powerful dynamics of a relationship between a doctor and a patient (and the abject suffering experienced by most medical malpractice plaintiffs). You can’t believe the manufacturer in a “make-believe” study and expect meaningful data that translates to the actual world.

September 11, 2009

Dr. George Hossfeld Comes After Medical Malpractice Lawyers… and My Family

by Ronald V. Miller, Jr.

I had a great morning. I arrived excited and ready to attack the day. This was the email in my in-box:

name: George Hossfeld
email: EmrgncyMD@[withheld] phone: ___________________
Interested In: You obviously do not have a clue re the mind of a doctor. We are ethical, moral and exist to help patients. You are immoral, unethical, and whores to the dollar. I hope your family needs a doctor and one is not there because vermin like you have driven them away.

Let’s start with the petty. We have a guy whose email address is his job as an emergency room doctor. Proves nothing. But it makes you wonder if Dr. Hossfeld is just a little too excited about being Mr. Doctor. People like that scare me. I’m not a fan of summarizing my life in an email address or a bumper sticker. If I did, it would have the names of my family and friends on it and that would be too long to type.

Let’s move on from the petty to the substantive because I could read too much into an email address. We have four sentences, so let’s break them down and over analyze them to get ready for the NFL pre-game shows on Sunday. We will leave out the “hysterical laughter at every attempt at a joke from everyone in the studio” part: Continue reading

September 1, 2009

Maryland Motorcycle Accident Verdict Overturned

by Ronald V. Miller, Jr.

On Friday, the Maryland Court of Special Appeals reversed a $3 million jury verdict in Cecil County v. Dorman. That statement over-magnifies the ruling. The jury verdict of $3 million is misleading because Maryland’s Local Government Tort Claim Act limited the actual verdict to $200,000. But the legal issues presented in the case interest Maryland accident attorneys who are looking for creative solutions to limited insurance coverage in catastrophic accident cases. This case closed down one potential defendant: the utility pole that has been there forever should not have been there when my client hit it.

The case involved a motorcycle accident that occurred near the intersection of Nottingham Road and Pulaski Highway (Route 40). Plaintiff suffered severe injuries that required the amputation of his right leg. The defendant driver’s negligence was not in serious question, but claims were maintained against Verizon and Delmarva Power and Light Company regarding the location of the utility pole that Plaintiff had hit, which had exacerbated Plaintiff’s injuries. Plaintiff’s lawyer argued that the location of the pole was unsafe. Plaintiff’s accident lawyer further argued that is Cecil County’s duty to maintain its roadways in good repair and free from hazards or defects was ongoing so the fact that the pole had been put in 40 years ago was no defense. There is a duty imposed on Cecil County when a utility pole is in such proximity to the road that it was an “accident waiting to happen.” Continue reading

August 28, 2009

When to Serve Interrogatories? Timing Is Key.

by Ronald V. Miller, Jr.

There is a split of opinion among personal injury lawyers whether plaintiffs should propound interrogatories before or after taking depositions, particularly in a case where there is a significant dispute as to liability.

When looking at this question, it is important to acknowledge that defense lawyers in personal injury cases are like actors: there are many Jack Nicholsons and Meryl Streeps and there are also a lot of folks who call themselves actors but their acting skills do not rise to even Skinamax quality.

So some lawyers are going to learn the case when they get the file and get their client-ready, regardless of the stage of the case. Others are going to not know the file at all and introduce themselves to the client and the case 10 minutes before the depositions. The theory behind waiting to serve interrogatories is that if you get the latter type of defense attorney, the defendant will take positions that don’t comport with the facts, logic or good strategy because they have not looked at the nuances of the case. Arguably, this logic would even hold up against a top-notch lawyer because every lawyer, even well-prepared lawyers, sees a case with a clearer lens on the courthouse steps than they do when preparing for a deposition.

August 6, 2009

Ameriprise: Battling for “Most Difficult Car Insurance Defendant” Title

by Ronald V. Miller, Jr.

Five years ago, I had never heard of Ameriprise Auto & Home Insurance. Now, I’m seeing more and more Ameriprise claims that involve an Ameriprise insured defendant. Ameriprise does not have a lot of market share in Maryland. But the Ameriprise website claims it is one of the fastest-growing insurance companies in the country. Based on the rise in Ameriprise claims in Maryland, I believe it.

Anyway, the point of this post: the settlement offers that have been coming in from Ameriprise have been worse than awful. Ameriprise has a hardball pre-suit business model. This may or may not work for them.

But the take-home message for Maryland accident lawyers is clear: you will need to sue and try some accident cases against this insurance company to get their attention.

July 27, 2009

Medical Malpractice and Informed Consent in Maryland: New Maryland Court of Appeals Opinion

by Ronald V. Miller, Jr.

Big summer for the Maryland Court of Appeals in personal injury/medical malpractice appellate opinions. The latest in a recent spate of Maryland high court opinions, McQuitty v. Spangler, involves a tragic case of a boy who was born with severe cerebral palsy.

Facts of this Birth Injury Case

The plaintiff’s lawyer argued at trial in Baltimore County that the doctor breached the duty to obtain her informed consent. The allegation is that when he failed to inform the mother, who was hospitalized for a partial-placental-abruption, of risks and available alternative treatments related to material changes in her pregnancy: a second partial-placental-abruption, oligohydramnios, and intrauterine growth restriction. A partial placental abruption is the premature separation of a portion of a woman’s placenta from the interior wall of her uterus. Partial placental abruptions vary in degree but the larger the separation, the greater the risk to the unborn child.

The mother faced an awful choice: either take the baby early or assume the risks that come. No one should have to even have the option of making such an awful decision. The informed consent argument in this malpractice case was that material facts were learned about the degree of separation on which a reasonable person could have made a different decision, and the doctor allegedly did not communicate these facts to the patient.

At trial, which found the doctor did not commit medical malpractice, the jury could not reach a verdict on the question of informed consent. In a second trial held two years later, the jury awarded the family over $13 million. Even in a cerebral palsy case, that is a big verdict in a Baltimore County, a place plaintiffs’ lawyers universally believe is a challenging jurisdiction. Continue reading

July 22, 2009

Washington, D.C. Medical Malpractice Verdicts

by Ronald V. Miller, Jr.

How many medical malpractice trials have there been in Washington D.C. this year? Ummm, let’s see, medical malpractice lawsuits are out of control. I know this because I read the Forbes article repeating the “malpractice lawsuits are running amok and medical malpractice lawyers are the problem” mantra. So how many do you guess? 150? 250? The correct answer, according to a report given by the D.C. Superior Court, is six.

The score is 3-3, three malpractice verdicts for the plaintiff and three defense verdicts. It must be that the juries are handing out whopping malpractice verdicts. We know this because we have heard it so many times before. So, back to the guessing game theme for today, how much did the juries award in these three malpractice jury verdicts? $20 million? $40 million? The answer is $366,775.24. But even that number is misleadingly high. The largest verdict – $131,775.45—was taken away by the trial judge. So the total amount of malpractice jury awards in Washington, D.C. in 2009 is $235,000.

Ladies and gentlemen, I present to you, your medical malpractice crisis.

July 21, 2009

Maryland’s Cap on Damages in Lead Paint Cases

by Ronald V. Miller, Jr.

The Maryland Court of Appeals has two big cases in 2009—a lead paint case and a medical malpractice claim – in which plaintiffs seek a path around Maryland’s non-economic damages cap after big jury verdicts. Plaintiffs lost Round 1 today. [2019 update: And Round 2, Round 3, and so on. This is dead. The nutshell of everything you read below is this: the cap applies across the board to lead paint cases and any other tort case. Exclamation point.]

Green v. NBS

In Green v. NBS, the Plaintiffs’ lead paint lawyers argued that the statutory cap on non-economic damages in Maryland does not apply to personal injury claims allowed by the Consumer Protection Act. Specifically, and creatively, the Plaintiffs claimed that a lawsuit brought under the CPA is not a “personal injury action” and the Maryland legislature did not want a cap on deceptive practice covered by the CPA.

Specifically, the plaintiffs pushed the theory that the Maryland non-economic damage cap applied only to common law tort claims and not a statute like the CPA. The intellectual unpinning of this argument was that the CPA was a statute that was not just about tortious conduct.

I like the argument right? The Maryland high court, however, found that the Plaintiffs’ CPA claim is a personal injury action and that CJ § 11-108 applies to a proceeding in which a consumer asserts a claim for money damages to compensate for injuries sustained because of a Consumer Protection Act violation. The court’s reasoning is, essentially, that if it looks like a personal injury claim and talks like a personal injury claim, then it is a personal injury claim.

The court stated, discussing the general damages cap in C.J. §11-108, that

Both businesses and individuals need insurance for economic protection against suits seeking non-economic damages regardless of whether the lawsuits are based on acts of commission or omission that were torts at common law or are based on conduct that breaches a duty imposed by a statute or by [the Maryland] constitution.

Two More Arguments

The plaintiffs’ lawyers made two other arguments. The first was DOA: the cap violates the Maryland constitution. Again, the Plaintiffs’ lawyers tried to put a CPA spin on the old argument, arguing that a cap on a CPA claim violates the prohibition against the enactment of “special laws” in the Maryland Constitution. But the argument went nowhere with the court.

Finally, the Plaintiffs argued that even if the cap applies; it entitles Plaintiffs to a judgment in the amount of $530,000 rather than $515,000 because the exposure to lead-based paint continued to arise after October 1, 1996. The plaintiffs’ lawsuit and expert testimony were at odds with this contention. Still, I give Plaintiffs’ lawyers an “A” for creative effort in trying to get another $15,000 for their clients.