Maryland Injury Lawyer Blog

An opinion was published yesterday by Medtronic MDL Judge Richard H. Kyle. The opinion ruling on Medtronic’s motion for summary judgment begins with this sentence:

The federal courts are frequently confronted with sympathetic plaintiffs who are, nevertheless, without remedy by operation of law.

This opinion in the Medtronic MDL is 37 pages long. I just finished reading the entire opinion. But you get everything you need to know in the first sentence.

This is a crushing defeat in the battle for victims of the Medtronic recall. But it is just that – a battle in what may still be a long campaign both on appeal and in Congress.

You can click here for the full opinion.

Continue reading "Medtronic Lead Cases Suffer Major Setback" »

The Internet tells two stories this morning. First, the Maryland Daily Record tells the story of an applicant to the Maryland bar who has been practicing law, apparently without incident, in New York for 25 years. This New York lawyer apparently wanted to relocate to Maryland and took and passed the Maryland bar. Six months before he passed the Maryland bar, this lawyer had received a DWI in Virginia. He did not disclose this fact during his character committee interview, which was less than two weeks after he had been released from a four day stint in jail for the DWI. After he passed the bar, he fessed up. From the context of the story, I’m assuming that he came clean without any concern that the arrest was going to be uncovered; he just belatedly decided to do the right thing.

The second is a blog post from the New York Personal Injury Law Blog about a New York lawyer caught in a sting operation when "he engaged in sexually explicit conversations over an internet chat room with an undercover police officer posing as a 13-year old girl, followed by his attempted meeting with the presumed minor for purposes of sexual contact." But a divided New York court decided the appropriate sentence for this man would only be three years.

In the Maryland case, I would have admitted the lawyer if I were on the Maryland Court of Appeals. It seems to me, this was not a Marion Jones or even an Andy Petitte situation where someone gets caught and suddenly claims remorse. Instead, it seems like this guy just plain did the wrong thing and then decided to do the right thing. Sure, he did not show, as Judge Lynne A. Battaglia pointed out writing for the majority, absolute candor. But while wrong can be black and white, it is still a matter of degree. How about admitting the guy – who apparently has been practicing law for a long time - and then suspending him for a year? Moreover, for me personally, I’d be more inclined to deny his application for the DWI. He did not put my wife and kids at risk by omitting something and then correcting his error. But he did by getting drunk and getting behind the wheel of a car.

On the other hand, the New York sex offender case is completely baffling to me. How in the name of Chris Hansen is this guy permitted to continue to practice law? The dissent sums up my view:

Continue reading "A Tale of Two Lawyers" »

The Daily Herald in Chicago published an editorial yesterday that urges the Illinois Supreme Court to overturn the Illinois cap on non economic damages in medical malpractice cases. The article, written by the President on the Illinois Trial Lawyers Association (I guess they have not gotten the Association for Justice memo), does not cover any new ground opposing tort reform.

In fact, it highlights the one argument in opposing tort reform that I reject: that the cap does not lower malpractice premiums. While I hate caps on non-economic damages, I’m sorry, I majored in economics. (Okay, finance, but you get the point.) You cannot assert medical malpractice rates are not impacted by less exposure. Insurance rates are a function of exposure. It’s the first thing an actuary is going to punch into that computer. The fact that rates do not immediately rise or fall after malpractice caps rise or fall does not negate this causal relationship.

Continue reading "Medical Malpractice Caps, David Petraeus, Abraham Lincoln, and Martin Luther King: Watch Me Strain to Relate Them All Together to Close Out 2008" »

The Centers for Medicare & Medicaid Services recently published a report analyzing approximately 16,000 nursing homes in this country and assigned each a rating – from one star to five stars - based on such criteria as health inspections and staffing.

In a less prolific blow then the other shots to the head delivered in 2008 to the theory that an unfettered free market is always the best answer, approximately 27 percent of for profit homes surveyed were given one star, versus 13 percent of non-profit homes. At the top of the nursing home food chain, 19% of non-profit homes were awarded five stars, compared with 9 percent of for profit homes. From this pretty overwhelming data, it is hard to argue that for profit nursing homes provide an equal level of nursing home care to that of non-profit homes. While I am not sure what the profit to non-profit nursing home ratio is in Maryland, I don’t think this conclusion shocks a single Maryland nursing home lawyer. The vast majority of Maryland nursing home cases are against private, for profit nursing homes.

Continue reading "The Failures of For-Profit Nursing Homes" »

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The Baltimore Sun had an article on Sunday about the unfairness of the nature and the speed of lawsuits hospitals are filing against patients for unpaid hospital bills. The numbers are staggering: Maryland hospitals have filed 132,000 lawsuits in the past five years for unpaid bills, a third of which have been filed in Baltimore City District Court.

We have had personal injury and even medical malpractice clients sued by Maryland hospitals, often over incredibly small bills, even after the client has signed an assignment of funds to be paid out of their settlement. The collection lawyers hired by the hospitals are often running collection mills so getting a person on the phone typically takes an Act of Congress if you want to talk about a case.

I don’t know what the answer is. The hospital is entitled to be paid. But so many decent people are getting pounded, often at a time in their lives when they most need a break.

Baltimore is "teetering along the edge of a hellhole" because of its hospitable climate for personal injury lawsuits, according to a new study from the American Tort Reform Foundation.

If you are a lawyer handling medical malpractice, accident or products liability cases in Baltimore, this comes a little out of left field because while Baltimore is considered a more reasonable jurisdiction than most in Maryland to try personal injury cases, Baltimore plaintiffs’ lawyers hardly see Baltimore as a personal injury utopia. Baltimore makes up a large portion of personal injury cases cases in Maryland, which has a median jury verdict in personal injury cases is $12,813. In contrast, the median jury verdict in New York in personal injury cases is $287,628. There are a number of systemic reasons for this difference that have nothing to do with the judges or the juries in Maryland and New York. But still. Baltimore injury lawyers just don't have the impression that Baltimore has runaway juries. Is it a reasonable jurisdiction? Yes, particularly compared to many jurisdictions in Maryland. It is a personal injury lawyer's dream? Not by a long shot. But Baltimore’s place in the report is not based on malpractice, accident or products cases but on two specific types of cases: asbestos and lead paint.

But this is not because of judges or juries in Baltimore. It is because it is – and even more so, was – a blue collar town with a lot of workers who had exposure to asbestos. I realize some people find it frustrating that personal injury lawyers handling these cases ended up with “buy a baseball team” money. This American Tort Reform report plays to this sentiment, calling Baltimore “a welcoming host to a disproportionate share” of asbestos lawsuits and singled out Baltimore Orioles owner, Peter Angelos, calling him an "all-star plaintiffs' attorney with a specialty in asbestos cases." (Somehow, I doubt Angelos takes offense to this.)

I don’t think anyone other than a personal injury lawyer gets excited about a personal injury lawyer making billions of dollars in legal fees. But the reality is that the asbestos litigation was a once in a generation disaster. And Baltimore became a hotbed because of the industries we have here. The abject suffering caused by mesothelioma from asbestos has been lost in all of the attention being paid to the litigation.

Baltimore was also in a unique position on lead paint cases because Baltimore public officials got us out in front of the lead paint problem by testing kids much earlier than other cities which provided the data for lead paint lawyers in Baltimore to secure expert opinions. This means they were able to file a large number of cases before the insurance companies got wise and started putting lead paint exclusions in their insurance polices with landlords. Sure, there have been a number of good lead paint verdicts – including the $5.7 million verdict mentioned in the American Tort Reform report. But, look, trying a case on behalf of a brain injured child against a slum landlord is like shooting fish in a barrel. Moreover, the report neglects to mention that the jury’s award was cut to less that $1.3 million because of the caps on non-economic damages in Maryland.

Continue reading "Is Baltimore a Judicial Hellhole?" »

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Pat Malone put on his website a closing argument he made in a Maryland medical malpractice case. In his final thoughts to the jury, he reminded the jurors of what I always remind jurors of when I'm delivering a closing: the memories of the victim will fade for you and for me, but this person is going to live with these injuries for the rest of his/her life.

In this Montgomery County medical malpractice case, the jury awarded $5.8 million for the wrongful death of a 47-year-old lawyer whose untreated mole turned into a skin cancer that spread to his brain. The jury awarded $3 million in non-economic damages, including $1 million each to Plaintiff’s widow and to his estate and $500,000 each to Plaintiff’s two children. That portion of the award will be reduced to $812,500 due to Maryland’s cap on non-economic damages in medical malpractice cases with at least two claimants. Plaintiff is expected to appeal arguing the unconstitutionality of Maryland’s cap on damages generally and the specific portion of the cap that applies to medical malpractice cases.

Wisconsin Lawyer (via Overlawyered via JuryVox) has an interesting article on the impact a juror’s political bent has on the amount of damages awarded in personal injury cases.

The study contained 476 mock jurors who identified themselves as either Democrats or Republicans. The jurors participated in mock trials for cases involving a personal injury, product liability, or medical malpractice and were divided into four basic categories of damages, which were determined based on how much they actually awarded during a mock trial: no damages, low damages, medium damages, and high damages.

The results indicated that being a self described Republican or Democrat was not predictive of the damage award. In fact, 22.3 percent of self-described Democrats awarded no money damages, while 20.8 percent of self-described Republicans awarded no money.

Does this mean Plaintiffs’ personal injury lawyers should ignore information, assuming the lawyers have access, about a juror’s party affiliation? No. In spite of this broad finding indicating that there are no differences between Democrats and Republicans, even the study does not suggest that party affiliation is not a variable to consider. Moreover, the study found that many stereotypical Republican attitudes from jurors do lead to lower verdicts. But the study highlights that nuanced personal views are more helpful in projecting damage awards than mere party affiliation.

Continue reading "Republicans and Democrats and Jury Awards: Does Party Affiliation Matter?" »

In an article published Wednesday in the New England Journal of Medicine, the cardiologist who sounded an early alarm on the later recalled Medtronic Sprint Fidelis leads warns that a soon-to-be-approved electrical component for implantable heart devices may prove dangerous to patients.

Dr. Robert G. Hauser of the Minneapolis Heart Institute argues that manufacturers and federal regulators have not adequately tested the new defibrillator connections, or leads, for potential short-circuiting problems. Like the Medtronic Sprint Fidelis leads, this new technology is viewed by the FDA as a change of an existing product and so does not require the same degree of testing that is required for a new product.

Continue reading "New ICD Technologies" »

We have added to the Personal Injury Lawyer Help Center a list of mediators in Maryland handling personal injury cases.

Our law firm uses this list when someone suggests mediation (or arbitration) just to get a feel of who is out there doing these mediations. Some of these mediators we have used before and highly recommend. Others on this list we specifically would not recommend (at least for plaintffs' accident and medical malpractice lawyers) or have never used and simply heard they conduct mediations. So, again, this is not a suggested list for plaintiffs' lawyers or defense lawyers. (I feel like I'm saying the same thing over again; I just want to be clear that we are not endorsing anyone on the list.)

Moreover, there is no criteria to be on this list. If you are a mediator or arbitrator in Maryland and you want to be added (or removed) from this list, email Claire@millerandzois.com with the subject heading "Maryland Arbitrator/Mediator." But please do not request to be added to the list if you have not mediated or arbitrated any personal injury cases in Maryland in the last few years.

Many of these mediator/arbitrator list are former judges. They have not been identified as judges for fear that we did not properly designate a retired judge.