Maryland Injury Law Center

November 12, 2008

Advice for Doctors in Medical Malpractice Lawsuits

Dr. Henry M. Learner, an instructor in Obstetrics and Gynecology at Harvard, writes an article in this month’s OBG Management called “Rebuff Those Malpractice Lawyers’ Traps and Tricks.” Dr. Learner is also the president of Shoulder Dystocia Litigation Consultants, a group that works with defense lawyers, medical malpractice insurance company case managers, and hospital risk managers in shoulder dystocia-related injuries and litigation.

I hate to give up one of my own but I’m sure Dr. Learner is a double agent. Because the advice he gives in this article is obvious (“know the specifics of your case”) or downright counterproductive. One piece of advice is to pull a Sarah Palin: “you don’t necessarily have to play by the rules for answering questions….” That cracks me up. But this one is even better:

Never allow an attorney to bully you in the courtroom or at a deposition. If the attorney begins to use such behavior, call it by its name and demand that it be stopped. Your lawyer will likely have raised the objection before you do; if she does not, protest such inappropriate behavior yourself. Never allow an attorney who is questioning you to raise his voice or speak to you sarcastically or rudely.

November 11, 2008

Wrongful Death Verdicts for Minor Children: A Large Sex Based Difference in Verdicts

by Ronald V. Miller, Jr.

In wrongful death cases, the size of jury verdicts has always tilted in favor of men, which is why many argued that caps on non-economic damages are sexually discriminatory.

In a recent study, Jury Verdict Research offers a different conclusion when comparing compensation in wrongful death claims between minor females and minor males. The median wrongful death of minor females is $1,912,349 but the median award for the wrongful death of minor males is $1,500,000. This gap increases when looking at average wrongful death verdicts. Minor females average $8,648,036 in wrongful death cases compared to an average of $3,173,360 for males.

I can’t explain this data or offer a reason for it.

November 10, 2008

Cancer Misdiagnosis Cases in Maryland: New Malpractice Opinion from Maryland’s High Court

by Ronald V. Miller, Jr.

In January, I wrote about Marcantonio v. Moen, an Anne Arundel County medical malpractice lawsuit that the trial court dismissed on summary judgment. The malpractice lawsuit alleges wrongful death as the result of an OB/GYN’s misinterpreting a sonogram and failing to order sufficient tests to follow up on the woman’s symptoms.

Because of this failure to diagnose, the Plaintiff claims that his wife’s chances of survival went down from 80% to 50%-60%. The Maryland Court of Special Appeals found that there has to be a 51% likelihood that the person would have died but for the negligence. So in this case, she would have to have a 29% chance of living because of the negligence to recover an award. So while she was statistically likely to defeat cancer even with the malpractice, she died.

The post focused on Judge Timothy E. Meredith’s dissent, who contended that the requirement that the decedent’s chance of survival should not—as a matter of fundamental mathematics—revolve around whether there was a 51% decrease in the likelihood the decedent would survive. Because if you had a 90% chance of living and the defendant’s negligence takes you down to 60% and you die, there is a 75% chance you died because of negligence.

October 22, 2008

Exact Numbers in Personal Injury Cases

by Ronald V. Miller, Jr.

David Davis, a Massachusetts based jury consultant, offers five thoughts in The Jury Expert (link since removed) on the psychology of how jurors process requests for damage awards I think interests accident and malpractice lawyers.

I found of particular interest his theory that consumers—and by implication, jurors—have a propensity to judge precise amounts of money to be lower in magnitude than similar round prices. The reason is that we use precise numbers for small amounts and round numbers for larger amounts. The example Dr. Davis provides is that a precise number like $325,425 is seen as lower than $325,000 even though obviously the former number is a higher amount.

The implication for personal injury lawyers is obvious: make a request for damages that is a specific amount and back up that amount with some logical foundation. David Ball, another jury consultant that I have relied upon an impressive deal in my damage theories, disagrees with the utility of per diem arguments. But our lawyers often use per diem arguments to come to a specific number and have had a lot of success. This does not prove the efficacy of per diem arguments, but it is hard for trial lawyers to ignore their own experiences of what is successful for them. If I noticed a correlation between wearing a red tie and successful jury verdicts, I’d faithfully keep wearing red ties.

September 26, 2008

Colossus and Allstate

by Ronald V. Miller, Jr.

I received this email from a personal injury lawyer in Maryland this morning:

I have an MIA complaint involving Allstate offered the number provided by Colossus and now, of course, refuses to produce any Colossus manuals, etc. Do you have some useful Colossus materials?

I don’t. Maryland’s bad faith law is recent and it makes relevant lines of inquiry from Maryland accident lawyers that before would have been irrelevant including, as this email suggests, how Allstate values first-party uninsured or underinsured accident cases. If any lawyer out there has anything that might be of use that I could pass along, will you drop me an email?

September 23, 2008

Medical Malpractice in Maryland: Too Often, the Names Don’t Change

by Ronald V. Miller, Jr.

I read in the paper today that attorneys Dale Adkins, III and Emily C. Malarkey, both with Salisbury, Clements, Bekman, Marder & Adkins in Baltimore, filed a wrongful death medical malpractice case against an OB/GYN in Salisbury.

We also have a case pending against the same doctor. [2013 Update: we got a million-dollar verdict in that case.] In April, a jury in Baltimore found this doctor negligent in yet another medical malpractice case.

We have previously reviewed and rejected another claim against this same doctor, not because he was not negligent but because of the damages—while significant—were not of the magnitude that would make a medical negligence lawsuit, frankly because of the cost involved of putting these suits together.

September 8, 2008

Average Wrongful Death Verdicts for Females: Age Is More Than a Number

by Ronald V. Miller, Jr.

Interesting data from Jury Verdict Research on the median and average values of wrongful death cases where the decedent is female. The overall average compensatory award for wrongful death of an adult female over the last eight years in the United States is $2,990,032 ($1,102,976 is the median).

Age is a big variable when looking at median and average female wrongful death values. The average wrongful death verdict for a female between 18 and 24 is 2,990,032 ($1,102,976 median). For females between 30 and 39, women who are far more likely to have left behind children, the median wrongful death verdict escalates to $5,605,127 ($2,500,000 median). For women over 80, the average wrongful death verdict plummets to $1,314,241 (322,920 median).

I always find it maddening when insurance companies discount the value of human life in wrongful death cases because of the age of the decedent. If you are eighty years old and you are killed, those last 10 years of seeing your kids as adults, your grandchildren coming of age and everything else that comes with it are valuable years. But these numbers, regrettably, show that there is some logic to their thinking for how juries value wrongful death cases.

September 3, 2008

Plaintiffs’ Lawyer Are Committing Fraud and Defense Lawyers are Powerless to Stop It

by Ronald V. Miller, Jr.

The Mass Torts Blog, another defense lawyer blog brought to you by our friends at Dechert, posts on Labor Day about medical screening in mass tort cases. The allegations are basically that plaintiffs’ product liability lawyers are committing fraud when screening clients. Read the post for yourself and tell me that it is not a fair summary of what the post alleges.

It would be nice to have a more moderated voice coming from Dechert, a fantastic international law firm, as opposed to the defense lawyer version of Ann Coulter. But if what the Mass Tort Blog is saying is correct – that many plaintiffs who accepted settlements in the asbestos, silica, fen-phen, silicone breast implant, and welding fume litigations were fraudulent, manufactured claims – where were the defense lawyers to protect the defendants from this fraud?

Obviously, it was easy to make this determination, as Cardozo Law School Professor Lester Brickman had done in his study, which was relied upon in the Mass Torts Blog post. Were defense medical examinations a condition of settlement? Did they just blindly trust the plaintiffs’ lawyers? If this really is the case, shouldn’t we infer that all the defense lawyers who defended these cases committed legal malpractice?

September 2, 2008

‘We Can’t Compete with MAIF’ Complain Maryland Car Insurance Companies

by Ronald V. Miller, Jr.

The Baltimore Sun reports that car insurance companies in Maryland are resisting the Maryland Automobile Insurance Fund’s (MAIF’s) car insurance rate-lowering proposal because MAIF’s plan to lower rates puts the private sector at risk. After a hearing in Baltimore, Maryland Insurance Commissioner Ralph S. Tyler delayed ruling on some insurance companies’ objections to MAIF lowering their rates.

Let me get this straight. Car insurance companies cannot compete with a non-subsidized state-run agency. Was Marx on to something? No, we all saw the Beijing Olympics; capitalism seems to work just fine.

Is this really where we are? Private car insurance companies need protection from competition by this awful company? I’m not sure what the private insurance companies’ arguments are on this issue. The only argument offered by the Baltimore Sun was provided by Hal S. Katz, president of Baltimore-based Interstate Auto Insurance (IAICO). Also specializing in writing Maryland car insurance policies for drivers that have a history of trouble, IAICO complained that MAIF does not enforce its requirement that provides car insurance only to drivers rejected by two private companies.

August 26, 2008

University of Baltimore Law School

by Ronald V. Miller, Jr.

The Wall Street Journal published an article today on law schools gaming the system to improve their U.S. News and World Report rankings. It focuses in part on the rise of the University of Baltimore School of Law, which has risen dramatically under new dean Phillip Closius, including the U.S. News and World Report rankings.

I think everyone has been “gaming the system” except for the University of Baltimore Law School and a few other schools. Now, UB is playing along just like everyone else. As Dean Closius points out, some things that the U.S. News and World Report seeks – like tracking employment better after graduation – help the students and alumni.

The University of Baltimore Law School has been spinning its wheels for years watching other law schools pass it on the food chain. Now Dean Closius steps in and not only talks about change but is making quality changes people can see. (Boy, I hope to be thinking the same thing about President Obama in a few years.) He is intent on seeing the University of Baltimore become powerful, not just in Baltimore, but regionally and nationally. The more amazing thing is that people associated with the law school now believe things are possible that they would not have imagined even three years ago.