Accident and Injury Lawyer Blog

A recent Nashua Telegraph article suggests the venue in which the suit is tried plays a pivotal role in its outcome in New Hampshire. According to newspaper’s data, not only is New Hampshire a more conservative state compared to the national average but the degree of a jury’s defense-friendliness fluctuates wildly from county to county.

The Telegraph compiled data from four major courts in the state: Merrimack County, Rockingham County, and Hillsborough County (dividing Hillsborough into Nashua and Manchester). They discovered that while juries found in favor of plaintiffs in 53 percent of the cases filed in the countries 75 most populous counties, only 41 percent of cases tried in Nashua and 44 percent in Manchester resulted in successful plaintiffs. Merrimack County and Rockingham County tended more towards the national average, weighing in at 52 percent and 49 percent respectively. The difference between Nashua and the national average is even more striking when it comes to medical malpractice cases. According to a New Hampshire Bureau of Justice study, 26 percent of medical malpractice cases find in favor of the Plaintiff, however only 13 percent of the medical malpractice cases filed in Nashua end favorably for the plaintiff. Actually, favorably is misleading: the average jury verdict was $7,000 in the three cases I which the plaintiff prevail. In a medical malpractice case, the real scorecard shows this a loss. These verdicts will cover about 1/10 of the expenses incurred by the New Hampshire medical malpractice lawyer that tried the case.

The study also showed that New Hampshire juries are conservative when they do decide in favor of the Plaintiff. Although awards reach at least $1 million dollars in 8 percent of jury awards nationally, Nashua has seen just one verdict over $1 million, and none of the other New Hampshire counties in the study come close to the 8 percent marker. One-fifth of the awards in Nashua are for $5,000 or less, and less than 30 percent ever exceed $50,000.

According to the data, New Hampshire, and Nashua in particular, seem to be somewhat anti-Plaintiff, but it is important to look at the data carefully. In some cases, the Telegraph calculated the average jury award in the New Hampshire courts but only reported on the national median for similar cases, making it a little more difficult to make a true comparison. Also, as noted by the Telegraph, not all cases are characterized the same, again making comparison tricky. For example, some courts characterize “slip and fall” accidents as a separate type of case while others lump them in under the broader “personal injury” category. Ultimately, some venues have a certain personality when it comes to favoring defendants over plaintiffs and vice versa, but the picture is not quite as clear as these number would suggest.

Overall, according to study last year by a company called Jury Verdict Research, the median compensatory award in personal injury cases that go to trial in New Hampshire trials in New Hampshire is $45,000 and plaintiffs received a financial recovery in 63% of these personal injury cases. This compares very favorably to the national median verdict is $38,461 and the nationwide plaintiff recovery rate of 55%.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Medical Malpractice , New Hampshire

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The Virginia Supreme Court is expected to rule soon on whether tax-exempt physician foundations should have immunity from malpractice liability.

The arguments on both sides are easy to predict. The hospitals’ claim that the purpose of their work- helping people who are hurt and sick - is being compromised by medical malpractice liability. Virginia is already one of just a few states that have a hard cap on economic damages in medical malpractice cases. In other words, regardless of the economic damages or future medical care cost, the cap on malpractice awards now stands at $2 million. (In other words, Virginia limits damages only in catastrophic cases. This makes absolutely no sense.)

Obviously, medical malpractice lawyers (both plaintiffs’ lawyers and defendants’ lawyers, who fear the loss of business, too) take a very different view, contending that charitable is an end run around what is a very profitable business. What is to stop a doctors’ group from forming a non-profit and then having the “charitable foundation” pay the doctors the same handsome wage they had in private practice while becoming immune from medical malpractice lawsuits? So, if the Virginia Supreme Court decides that tax-exempt physician foundations should be exempt from medical malpractice liability, the 1200 physicians and 3 Virginia medical schools might be just the tip of the iceberg.

I cannot imagine the Virginia Supreme Court would allow this to happen, but we will have to see.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Virginia

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Oklahoma Court of Civil Appeals stuck down last week a statute designed to limit medical malpractice cases in Oklahoma. The 2003 medical malpractice statute at issue can only be described as draconian, requiring anyone filing a medical malpractice lawsuit to serve a summons on the defendant within 180 days. The Oklahoma court reasoned that this statute is unconstitutional because the law treats medical negligence plaintiffs differently that plaintiffs in other personal injury cases.

This is a big win for Oklahoma medical malpractice lawyers and their clients.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Medical Malpractice , Oklahoma

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The Utah Supreme Court reversed the lower court in a lawsuit filed on behalf of a 7-year-old son suffered a skull fracture when he was struck in the head with a hockey stick by an 8 year-old player. Utah's highest court found that an 8-year-old who struck the boy was less likely to appreciate the likelihood of causing serious injury; accordingly the incident could be construed as an accident instead of an intentional tort. The boy, through his mother, seeks damages from Safeco Insurance Co., the striking boy's family’s insurance carrier.

This boy suffered a serious head injury causing some brain damage. I would suspect this case will now settle for Safeco's policy limits.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Utah

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The Orlando Sentinel reports that Florida Medical Association is asking is asking the Florida legislature to increase what doctors may charge for to obtain copies of medical records. Currently, Florida doctors can charge $1 per page for the first 25 pages and 25 thereafter.

Believe me, I realize the retrieval costs are such that doctors are not making money producing medical records at this price. But should they be? Patients are entitled to their medical records. Personal injury lawyers in Florida have characterized the Florida doctors’ request as a backdoor strategy to avoid medical malpractice claims. I’m not sure that an increase in the cost of medical records is going to do that. But I also don’t see why the current prices don’t adequately give reimburse doctors for their costs of producing medical records.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Florida

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Last week, we wrote about how New Jersey might be coming of age and allowing pain and suffering damages as a component of their lost wage claims. The Pennsylvania legislature should also take a long look. Currently, the only way to obtain a significant recovery in a wrongful death case is having financial loss from the wrongful death because Pennsylvania does not allow pain and suffering or any type of emotional loss damages in wrongful death cases. See Marko v. Philadelphia Transportation Co., 216 A.2d 502, 503 (Pa. 1966). Accordingly, the damages recoverable in a wrongful death action include the present value of the services the deceased would have rendered to the family, had he or she lived, as well as funeral and medical expenses. But when you lose a spouse or a child, what is the primary loss? It is certainly not economic and it is not loss of services. It is the loss of your husband or wife, the loss of your child. This is a law that needs to be changed.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Pennsylvania

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The New Jersey state legislature is considering a bill allowing wrongful death beneficiaries to recover damages for emotional harm. The bill, approved Thursday by the New Jersey State Senate Judiciary Committee by a 7-4 vote, would allow the families of those killed in auto accident, by medical malpractice, or other negligence to recover non-economic damages. Family members can only recover economic damages resulting from the death of a loved one.

Retired New Jersey Supreme Court Justice Alan Handler reportedly testified to this Senate committee that New Jersey's Wrongful Death Act did not fairly and adequately compensate the families in wrongful death cases.

The New Jersey law may reflect common law traditions but it does not reflect anything resembling the modern view on appropriate compensation for the greatest pain in a wrongful death case – the loss of someone you deeply loved.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: New Jersey

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According to Jury Verdict Research, the median award in personal injury case in Tennessee that go to verdict is $18,650. Plaintiffs recovery damages in 61 percent of cases that go to trial, eight percent higher than the national average.

It is amazing what a difference a word can make. The average personal injury verdict - as opposed to the median - in Tennessee is $455,802. This includes a $44,000,000 verdict for a quadriplegic child in a minivan accident.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Tennessee

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The San Diego Union-Tribune reported yesterday on a case pending in the Nevada Supreme Court which may have a major impact on the extent to which stadium owners can be held liable when fans are injured during sporting events. Five years ago, plaintiff Kathleen Turner (not the actress) was struck by a foul ball while she was sitting in a mezzanine seating area at Les Vegas’ Cashman Stadium. Turner’s attorney claims that the beer garden area, where fans can not see the baseball game being played on the field below, created a false sense of security for the spectators. Ms. Turner was struck in the face by a foul ball and lost consciousness, suffered a broken nose and had to undergo reconstructive surgery.

Thomas Dillard, the lawyer representing the park’s owner, argues that this case involves an implied assumption of risk. He states that although Ms. Turner could not see the game, she was repeatedly made aware of the risk of stray balls in the stadium. The stadium posts warning signs at the entrance to the park, screens and plexiglass are installed in certain areas to protect fans, every ticket bears a notice of liability, and there are even warnings issued over the park’s public address system. He failed to add that common sense also tells you of the risk of a foul ball when you go to a baseball game.

The Nevada Supreme Court will decide whether or not implied assumption of risk can be applied to Ms. Turner’s case, and in doing so, Nevada may become one of the many states that abide by the “baseball rule.”

The article seems to think the ruling is relevant to whether major league baseball comes to Nevada. I think that overstates the economics of the outcome of this case. This issue of baseball in Nevada involves one thing: gambling.

Generally speaking, fans are presumed to have assumed the risk of getting hit by a baseball at a baseball game. In the Sports Law class that I teach, I argue that the best scenario for a plaintiff's verdict would be if you came to the game and specifically requested a ticket safe from a potential foul ball and you still get hit by one. Like many of my best law school hypotheticals, this has probably never happened and could never be proved even if it did.

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Posted In: Nevada

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The Pennsylvania Supreme Court ruled last week that an insurance company has a duty to defend negligence allegations against a couple accused of negligently failing to obtain proper psychiatric care for their son, failure to confiscate his handgun, and for failing to notify the police that he possessed a gun. The son later killed five people and seriously injured another who all brought suit against his parents.

The insurance company, Donegal Mutual, argued that the act was intentional and the policy covered only negligence. The Pennsylvania high court disagreed, finding that the victims' injuries were caused by an "accident" that constituted an "occurrence" under the policy. While the idea that this is an intentional act for which there is no coverage has facial appeal (because invariably, first degree murder is intentional), obviously the claim against the parents is not based on their intentional acts.

A more contentious issue was whether a killing spree constitutes a single occurrence or multiple occurrences under the policy. The majority in a 3-2 decision found that the policy language which defines occurrence as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results … in bodily injury or property damage.”

You could drive a truck through the practical difference of this ruling on this issue. If the court found that this was a series of occurrences, Donegal’s exposure would be $1.8 million because 6 people were killed or injured. If it was a single occurrence, the total coverage would only be $300,000 for six people to divide.

The court found that this killing spree was an accident that was a repeated exposure to substantially the same harmful conditions such that it should be considered a single occurrence. Accordingly, only $300,000 in potential coverage is available.

This ruling makes the case hardly worth pursing. But I think it was an uphill battle for the Plaintiffs to recover from these parents for this awful tragedy. Neither the court’s opinion nor the news article I found on the case mentioned how old the child was. So as you are reading along, you tend to assume we are talking about a 16 year-old kid. Then I looked at posted comments to the article. Turns out, the “boy” is 34 years-old. I find it hard to imagine that the law imposes these kinds of obligations on the parents of a 34 year-old man. While Donegel is filing summary judgments trying to protect itself, it might want to take a few minutes to file a motion on behalf of the policyholders it promised to protect.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Pennsylvania

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