Maryland Injury Law Center

June 30, 2008

Riegel v. Medtronic: Congress to the Rescue?

Since the Supreme Court’s disaster in Riegel v. Medtronic, I have been hoping and expecting Congress would step in to fix the Supreme Court’s ruling, because it was clear from the amicus briefs submitted in Riegel, from history, and from common sense, that Congress did not intend to prevent medical device tort claims. Yesterday, California Congressmen Henry Waxman and New Jersey Congressman Frank Pallone, along with 62 bipartisan supporters, introduced HR 6381, the Medical Device Safety Act. This bill would undo the wrong the Riegel does to medical device victims. We expect the Senate to offer a similar bill next month.

As the Wolf said in Pulp Fiction, we can’t start congratulating ourselves yet (I’m paraphrasing). This bill has not even made it out of a committee yet. But at least something is happening.

June 24, 2008

Picking a Jury in Maryland

by Ronald V. Miller, Jr.

Voir Dire in Maryland is often a hard experience for injury lawyers on both sides of the aisle because Maryland arguably has the most truncated voir dire process in the country. I’ve tried a lot of cases where both lawyers could glean just a few relevant things from the jurors, we make the obvious strikes and both parties end up not knowing anything about who is on their jury. I’ve written a bit about this problem in a previous Maryland Injury Law Center post.

The Maryland Bar Journal has an article this month by Carolyn Koch of Jury Solutions, LLC offering some tidbits on ways to get more information under Maryland’s limited voir dire process. Two of her suggestions I found to be particularly interesting.

Ms. Koch suggests the following question: If you or someone close to you was injured because of someone else’s negligence, do you think you would sue?

June 23, 2008

Medical Malpractice Damage Caps: What Impact Do They Have?

by Ronald V. Miller, Jr.

The University of Chicago Journal of Legal Studies published an interesting article on medical malpractice tort reform. Current Research on Medical Malpractice Liability: Medical Malpractice Reform and Physicians in High-Risk Specialties, 36 J. Legal Stud. 121 (2007). The article supports the plaintiff’s view of medical malpractice tort reform… with a very notable exception.

The article concludes that introducing medical malpractice reform in response to the fear of losing doctors may be misguided because the “relationship between medical malpractice reform and physician labor supply suggest that the effects are modest.” The article suggests that many doctors are likely to be indifferent to medical malpractice reform “because their likelihood of being sued is low.”

Interestingly, the article references one study by Eric Helland and Mark Showalter titled, “The Impact of Liability on the Physician Labor Market,” which showed that medical malpractice damage caps induce physicians to work more hours in a year.

June 19, 2008

Challenge to Maryland’s Cap on Non-Economic Damages

by Ronald V. Miller, Jr.

The Maryland Daily Record reports today that The Law Offices of Peter G. Angelos intends to file an appeal in a Baltimore City medical malpractice case in which the Plaintiff’s $10.2 million jury verdict against University of Maryland Medical Center was capped at $632,500.00 because that is the limit on non-economic damages.

The Daily Record reports that the Plaintiff’s counsel intends to argue that: (1) the limitation on damages has not accomplished its purported legislative aim of reducing medical malpractice insurance rates for doctors; (2) the Maryland cap on non-economic damages is pre-empted by the ADA; (3) that it violates equal protection and due process; and (4) that it deprives the jury of the information necessary to make an informed decision.

Baltimore City Circuit Judge Carol E. Smith denied Plaintiff’s motion to overturn the cap and reduced the Plaintiff’s verdict to his medical expenses and $620,000.00 in non-economic damages (the malpractice must have occurred between October 2002 and September 2003).

June 16, 2008

Average Verdict Value In Head-on Collisions

by Ronald V. Miller, Jr.

Jury Verdict Research provides median award data and verdict probabilities in head-on auto, truck and motorcycle accident cases nationally. Plaintiffs prevail and recover damages in 64% of these cases. The median award in these head-on collision personal injury cases is only $31,875.00. This number reflects the fact that 24% of the head-on collision claims in the study were for “back strains” where the average award is only $9,312.00. These are probably not the injuries we think of when we think of a head-on collision.

But here is a genuine shocker: the median head injury verdict in head-on collision accidents is only $25,000.00. If you have a head injury, typically you have a serious accident. So this data is not what I think most attorneys would suspect. If I had to guess at the head-on collision national median, I would have predicted the number would be at least six figures. I would suspect that the average – as opposed to the median – exceeds $200,000 but I could not find any data to support my hypothesis.

Why Settlement Numbers Are Likely Much Higher

June 9, 2008

False Imprisonment Cases: Median Verdicts and Settlements

by Ronald V. Miller, Jr.

The latest edition of Metro Verdicts Monthly provides numbers on false arrest/imprisonment cases.

The median legal false arrest/imprisonment verdict or settlement in Washington D.C. was $25,000.00. Virginia and Maryland have slightly higher median settlements/verdicts of $26,000.00 and $29,000.00, respectively.

I’m surprised the median verdict/settlement is this high because I would think the median case would be one with relatively insignificant injuries except for the inconvenience. There are awful exceptions to that rule, but those awful exceptions would be reflected in the averages—as opposed to the medians.

June 3, 2008

Forum Non Conveniens Opinion in Randallstown High School Shootings Case

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals ruled yesterday in Peyton-Henderson v. Evans that Baltimore City Circuit Court Judge George L. Russell, III did not err in transferring a lawsuit from Baltimore City to Baltimore County because of the May 2004 shooting at Randallstown High School.

The ruling covers no new ground, but (sort of) retired Judge Charles E. Moylan Jr. lays out the history of the Maryland case law on forum non conveniens. The court underscored the more modern Maryland trend to focus on “the interests of justice” as opposed to concentrating on convenience of the witness. With a standard as amorphous as “interests of justice” you can be sure that excluding some insane finding, the appeals court will defer to the trial judge. Therefore, I’m surprised this case was initially appealed.

Judge Moylan jabbed lightly at personal injury lawyers who forum shop, quoting now Court of Special Appeals Judge Krauser, “while home may be where the heart is, it is not necessarily where the largest recovery lies.” But, in the next breath, Judge Moylan points out that “is beside the point when dealing with the venue statute rather than forum non conveniens” because Plaintiff is well within his or her right to sue anywhere where the venue is proper.

June 2, 2008

Are High Low Agreements Admissible in Medical Malpractice Cases: Connecticut’s View

by Ronald V. Miller, Jr.

I read over the weekend an interesting decision from the Connecticut Supreme Court that came out last week. The case, Monti v. Wenkert, is an awful medical malpractice case involving a seventeen-year-old girl who presented with significant but subjective symptomology that her GP, physician’s assistant, and the hospital’s emergency room staff dismissed as psychological.

This diagnosis continued even after she collapsed at her doctor’s office with “blueish, purple” lips. The teenage girl died of acute respiratory distress syndrome caused by a viral infection. Like I said: awful. I don’t suspect this case will show up on the cover of Tort Reform Monthly soon. It is anyone’s guess how this case made it to a verdict.

At trial, after the close of Plaintiffs’ case, Plaintiff and one defendant agreed to a high-low agreement not disclosed to the other Defendant. After an adverse verdict, the Defendant kept in the dark appealed his case.

May 13, 2008

Doctor Files Medical Malpractice Lawsuit

by Ronald V. Miller, Jr.

I wrote recently about what I thought was the primary fuel to the tort reform engine: people do not expect to be the victims of an accident that results from the negligence of someone else, and they do not expect to be victims of malpractice. Statistically, they are right.

The odds were in favor of a West Virginia gynecologist when he went in for abdominal surgery last month. But after his surgery, the gynecologist developed an infection and developed severe and debilitating abdominal pain, decreased consciousness, and overwhelming septic shock, requiring mechanical ventilation and additional surgeries. The gynecologist sued his doctors and the hospital for medical malpractice, attributing his injuries to negligence.

Flashback to April 7, 2008, the day before the doctor’s surgery: What would have the doctor said about caps on medical malpractice cases on that day? What would he have said about whether litigation is the answer? Obviously, in this case, he thought litigation was the only answer, filing suit an almost unheard of one month after the alleged negligence.

April 16, 2008

Personal Injury Settlement Finance Loans

by Ronald V. Miller, Jr.

I saw today an interesting blog post by a Massachusetts law firm advocating that Massachusetts ban finance companies that offer loans to people using their personal injury cases as collateral. The post (and comment on the post) argues that by making the loans non-recourse loans contingent on the settlement, these companies get around existing usury laws. Particularly where liability is not an issue and payment is a near certainty, using non-recourse seems like a backdoor around the law.

Mixed Feelings on These Loans

The Lure of Quick Money Is Hard to Resist