Accident and Injury Lawyer Blog

A federal jury in Nevada last week awarded $60 million to a Las Vegas man who alleged Paul Revere Life Insurance Co. and the Unum Group denied in bad faith his claim for disability benefits.

This is one of those “be careful what you wish for” cases. In a previous trial, a jury awarded Plaintiff $11.6 million but it was overturned on appeal. So the case was tried again and the second jury awards five times what the first jury awarded.

I would love to know what the settlement offer was in this case.

The Georgia Court of Appeals has ruled that a wrongful death action on behalf of family of the county court reporter killed in the March 11, 2005, courthouse shootings may file a negligence lawsuit against the Fulton County sheriff. At issue was whether Fulton County Sheriff Myron E. Freeman is a "county employee" protected from negligence lawsuits by the workers' compensation statute. Reversing the trial court, the Georgia Court of Appeals found that Sheriff Freeman is not an employee but instead “an elected constitutional county officer."

The Dallas City Counsel voted 10-5 to tow the cars of drivers who cannot produce proof of car insurance after a traffic stop. The new car insurance law will take effect on January 1, 2009.

I’m pleased to see that Dallas Police Chief David Kunkle said police would use prudence in enforcing this law. For example, police would not tow a vehicle if towing would result in a family with children being stranded at night on the side of a road.

I honestly do not know how I feel about this law but I’m having a hard time coming up with legitimate arguments against it. District 6 council member Steve Salazar, who is against the bill, does not provide me any help. He is quoted as saying, “"I want my officers catching burglars, people committing assaults, people committing rapes, people committing murders. Our priority is fighting crime."

Mr. Salazar is creating a false choice. We don’t have to choose between stopping murders and rapes and fighting back against people that refuse to get auto insurance. We can and do afford both.

The Wisconsin District 4 Court of Appeals reinstated a lawsuit filed by the family of an ABC Sports cameraman who died five years ago while installing a camera before a college football game. A Dane County Circuit judge dismissed the case in 2006. According to the wrongful death lawsuit filed on behalf of the cameraman's family, the director of Camp Randall Stadium failed to install required railings on the platform on which the cameraman was working.

A jury in Muncie, Indiana ordered a medical clinic to pay $2.75 million to a woman for failing to test a tumor for cancer that was removed from the Plaintiff's foot. A separate doctor later found that a second tumor removed from her foot was malignant. Jurors also awarded an additional $500,000 to the woman’s husband for a total of $3.25. million. As mentioned in a previous Accident and Injury Lawyer Blog post, Indiana law caps damages in malpractice cases at $1.25 million.

Congratulations to the Plaintiffs' medical malpractice lawyer Scott L. Starr of Logansport, Indiana, particularly given that the Plaintiff is now reportedly - thank God - cancer free. I would have second guessed the decision to bring a loss of consortium claim in a medical malpractice case like this but he apparently made it work.

Howard Citron, a defense medical malpractice lawyer in Fort Lauderdale that writes a good blog, wrote last week about web sites that review medical doctors. I share his concerns about this web sites that review doctors.

At first glace, everything that improves patient information is a good thing. The problem with these review web sites is that the squeaky and the most insane wheels get the most oil. More importantly, that same person can submit reviews as multiple people so if you have an ax to grind, you can destroy a doctor on the site.

I’m not saying that – on balance – they are not a good thing but I’m certainly wary of these kinds of sites and concerned about the possibility of a good doctor’s reputation being smeared by one disgruntled patient.

The Legal Medicine Blog (Dan Frith and Lauren Ellerman of the Frith Law Firm in Roanoke, VA) have a good blog post today on a pressing issue for nursing home lawyers and their clients: whether mandatory arbitration clauses should be enforced in nursing home cases.

In recent years, nursing homes not only in Maryland and Virginia but around the country have been requiring patients to sign mandatory arbitration clauses before admitting patients. Of course, this stacks the deck against the patient because, among other reasons, it limits discovery into just how awful the nursing home is to its patients generally and the plaintiff in particular.

Many people never see this clause because they rarely read the small print. If they do, think think of the Hobson's choice given to these patients and their families. They can either hope for the best (don’t we always do that walking through the door?) and just waive the right to receive a fair shot at receiving compensation for the negligence of the nursing home or they can go look for a nursing home that does not have an arbitration clause. But, realistically, the decision to choose the nursing home is already made before they get to the arbitration clause.

Hopefully, help is on the way. Congress is looking at this issue. Rep. Linda Sánchez from California has offered a bill that would void any mandatory arbitration agreement executed by a nursing home resident. Not so coincidentally, Rep. Sánchez father recently went to a nursing home.

The San Diego Injury Lawyer Blog reports that the California Court of Appeals has extended the protections given to doctors under the Medical Injury Compensation Reform Act (MICRA) to emergency medical technicians (EMTs) transporting patients because EMTs were "inextricably identified" with the health and medical care of their patients.

The Medical Injury Compensation Reform Act of 1975 was obstensibly enacted in California to provide for affordable medical malpractice insurance for doctors because, you know, doctors are so poor and all. MICRA limits medical malpractice jury awards $250,000 in noneconomic damages and staggers payment for verdicts over $50,000 future medicals and lost wages. Making matters worse, doctor defendants in medical malpractice cases can introduce collateral sources to show medical payments made by insurance companies.

I don't question MICRA including EMTs. I question the logic of MICRA itself.

The Arizona Court of Appeals found unconstitutional yesterday an Arizona law placing limitations on whether an expert can testify at trial in medical malpractice lawsuits.

The Plaintiff’s medical malpractice lawyer, James J. Syme, Jr., found himself in a pickle because the trial judge, Maricopa County Judge Michael C. Jones granted the defendant’s motion in lime to strike Plaintiff’s only medical expert. Judge Jones very reasonably allowed Plaintiff time to find another expert but the Plaintiff’s lawyer could not locate another expert. (Note: this is usually not the sign of a great medical malpractice case.)

The Arizona Court of Appeals found that the statute Judge Jones relied upon in excluding the expert was unconstitutional because it violates the separation of powers provision of the Arizona Constitution. Specifically, the court said that the Arizona Constitution confers on the Arizona Supreme Court the “power to make rules relative to all procedural matters in any court” and the Arizona Supreme Court has previously held that its rule making power is “exclusive and may not be infringed by the legislature.”

I’m thrilled that the Plaintiff gets a shot to have her medical malpractice lawsuit heard by a jury and it sounds like the court make the right call based on the existing case law. I also think the limitations placed by the statute – section 12-2604(A) are completely unreasonable. But does it make me a little uneasy that the legislature that is elected by the people cannot interfere in such matters? Yeah.

Wisconsin’s diploma privilege rule that allows law students who graduate from Wisconsin law school to become a lawyer without taking a bar exam has brought about a class action lawsuit by those left out. The lawsuit, that was certified by a Wisconsin judge this week, alleges that an out-of-Wisconsin law school graduate are denied due process because it treats students differently.

I think the world might be a slightly better place if people were not so concerned that someone else is "getting over." I just think the whole thing is silly.

Los Angeles Deputy District Attorney Joseph Shidler told the media that he did not have evidence to prove beyond a reasonable doubt that Brittany Spears was aware that the paparazzo foot she ran over had been struck by the car. In fact, Mr. Shidler said that the “only way the victim's foot could have been where the video indicates it to be was by the victim placing it in that location."

Is he suggesting that the victim intentionally caused his own injury? In a normal situation, I would scream that this is classic blame the victim nonsense. In this case, in the bizzaro world that is Hollywood? Who knows?

Our Maryland injury lawyers are just that: injury lawyers. We do not handle criminal, business, consumer law, domestic or divorce cases. Our Maryland injury lawyers focus exclusively on injury law: car accident, truck accident, medical malpractice, and product defect claims.

Certainly, there are Maryland injury lawyers who handle a multitude of other kinds of cases and are still qualified to handle injury claims. Some of the best injury lawyers I know handle other types of case beyond personal injury. But there is an awful lot to know for our five lawyers that focus exclusively on Maryland injury law. So we believe our clients are served best by our lawyers maintaining an exclusive focus on personal injury cases.

I’m writing this on our Accident and Injury Lawyer Blog it is worth reminding readers that while our law practice is based in Maryland, we do handle very serious injury and death cases not only in Maryland but throughout the United States. If you have been injured in an accident or by medical malpractice in Maryland or anywhere in the country, call our injury lawyers at 800-553-8082 or click here for a free Internet consultation at no obligation to you.

ETHEX issued a recall of its morphine sulfate pills last week after it was discovered that a likely manufacturing error caused some tablets to have twice their safe dosage. The risk of taking twice the recommended amount is opiate overdose which is potentially life threatening. Symptoms of an overdose include low blood pressure, difficulty breathing and anything else considered out of the ordinary, such as trouble maintaining consciousness and other symptoms consistent with the body shutting down.

The following lot numbers are involved in the recall:

Morphine Sulfate ER 30 mg Tablet/NDC #58177-320-04:
Lots 75090, 77846, 77847, 80048, 83320, 89661, 89665, 90252 through 90258, and 93284.

Morphine Sulfate ER 60 mg Tablet/NDC #58177-330-04:
Lots 91762, 75091, 75092, 77848 through 77851, 82517, 82518, 83333, 83817, 83862, 84111, 84112, 84315, 84900, 85326, 85335, 85807, 86270 through 86276, 87723, 87939, 88007, 89083, 89668, 89669, 89821, 90260 through 90272, and 91763 through 91765.

Mophine Sulfate is Schedule II narcotic that is a prescription drug that is used to control pain in people with moderate to sever pain management for the treatment of moderate to severe pain.

This is the second report of a manufacturer recall a prescription drug because it had twice the recommended dosage. Digitek, a drug for heart patients, was recalled last month because it is linked to digitalis toxicity resulting from pills that were twice the labeled dosage. How a mistake of this kind can pass though the quality assurance department of a drug company should be a concern to us all - and the FDA.

Accordingly, our Ethex morphine sulfate recall lawyers are reviewing these Ethex morphine overdose cases throughout the country for patients who have suffered serious injury or death. If you want to discuss your potential lawsuit with one of our Ethex morphine lawyers call us at 800-553-8082 for a free consultation or click here for a free Internet consultation.

On July 1st, California will ban drivers using a handheld wireless telephone while driving a motor vehicle. Of course, you can still text message while driving.

No, I cannot explain it. You could drive a truck through the flawed logic of the new California cell phone laws. There is no teeth to the new law either. Violators of the new law are subejct to a fine of $20 for the first offense and not more than $50 for each subsequent offense. No points on your license either. But I still think California is making a step in the right direction.

The husband of a Washington, D.C. pedestrian who was killed by a bus last year, settled his claim for $2.3 with Washington Metro. The Plaintiff's wife had the “walk” signal while crossing the street. A wrongful death lawsuit filed against the Washington Metro was set for trial in October.

The District of Columbia could do what Maryland, Virginia and many other jurisdictions do and cap damages when claims are brought against it or related entities. But the District chooses to do the right thing by requiring itself to be fully accountable for its own negligence.

Our medical malpractice lawyers received an interesting motion to compel from a doctor in an OB/GYN case in Maryland a few weeks ago. Defendant's medical malpractice lawyer is asking the court to compel a 2 hour interview from Plaintiff with Defendant's vocational rehabilitation expert, arguing that that because Plaintiff's vocational rehabilitation expert interviewed the Plaintiff, the Defendant is being put at a disadvantage by not being able to ask his own questions.

But Plaintiff has already been deposed. If the Defendant's medical malpractice lawyer wanted to learn more about the Plaintiff's disability - he had virtually no questions or her disability, by the way - why didn't he ask those questions in deposition?

You can find our attorneys'response to the Defendant's motion here in the event that you are ever faced with a similar issue.

The Georgia Injury Lawyer Blog has a post on how some people are still not wearing seat belts, citing fatality statistics from the National Highway Traffic Safety Administration that found that more than two-thirds of young people killed in nighttime car crashes were not wearing a seat belt.

The good news is that seat belt use is still rising; total belt use rose 1% to 82% in 2007. Still, three states - Arkansas, Massachusetts and New Hampshire - have less than 70% of vehicle occupants wearing seat belts. As we mentioned in a post last week, New Hampshire still does not require motorcycle occupants to wear a helmet. New Hampshire needs to heed its motto: "Life safe or die." (Or something like that.)

A Broward County jury in South Florida awarded a Laudehill child and his parents $35 million in a medical malpractice lawsuit against Broward General Medical Center resulting from irreversible brain damage to a now 8 year-old boy during the child’s delivery.

Thankfully, this money will allow this working class family that has been struggling to care for their child the ability to provide round-the-clock care for their son that, absent a miracle or a breakthrough in medical technology (we all should pray), he will need for the rest of his life.

A recent Jury Verdict Research study from 2000-2006 found that the median compensatory award in product liability cases is $1,500,000. This analysis is based on plaintiff verdicts rendered nationwide from 2000 to 2006.

The median verdicts by type are as follows:

Transportation Products: $3,000,000
Farm Products: $2,595,000
Industrial/Construction Products: $1,550,000
Medical products: $1,000,000
Commercial Products: $525,000
Consumer Products: $255,000

A Providence, Rhode Island jury awarded a Warwick man $2 million in his medical malpractice lawsuit against cardiothoracic surgeon based in Providence. The plaintiff allegedly suffered brain damage from oxygen deprivation during open heart surgery at Rhode Island Hospital.

One extremely fair aspect of Rhode Island personal injury law is that victims can get prejudgment interest of 12%. The negligence in this case occurred 10 years ago so the plaintiff’s award could exceed $3.6 million. Accordingly, defense lawyers in Rhode Island do not have the usual incentives to stall the resolution of cases.

Auto accidents lawyers should get ready for a new defense in accident claims: driving on Chantix. A safety group’s report last month found a possible association between more than two dozen auto accident and the quit smoking drug Chantix, leaving open the possiblity that auto accidents might result from using Chantix from seizures or visual disturbances.

Plaintiffs' auto accident lawyers will argue that a warning was added to the prescribing literature for Chantix that users should be careful when until they get a feel for how Chantix affects them. Still, driving while on Chantix is not a bad defense if the defendant can prove the relationship between the Chantix and the accident.

While such an outcome would be unfortunate for the plaintiff's auto accident lawyer and his client in that particular case, it would be of great help to Chantix lawyers around the country who are bringing lawsuit against Chantix for the drug's side effects.

The Eagle Tribune from the "Live Free or Die" state of New Hampshire has an interesting article on motorcycle helmets and New Hampshire's refusal to implement mandatory helmet laws.

In a few days, Motorcycle Week kicks off 300,000 visitors from June 14 to 22. If the average person spends $1,000, that is a $300 million dollar infusion in the economy. I would suspect Motorcycle Week would go elsewhere if New Hampshire changed their law, which would have a lot of pro-business lobbyist up in arms. But 27 people died in 2003 (the most recent data I have seen) in New Hampshire in motorcycle accidents. How many of those people were not wearing helmets?

The most serious accident cases our accident lawyers see disproportionately involve motorcycle accidents. At some point, New Hampshire needs to give up Motorcycle Week in exchange for Living Motorcyclist Future, $300 million or no.

If you are selling medical malpractice insurance in Maryland, Maryland Insurance Code § 19-114 (2008) requires that you offer at a minimum, medical malpractice policies with deductibles of $25,000, $50,000, and $100,000.

We have a medical malpractice lawsuit pending against a doctor in Maryland who recently was found liable at trial in another case. The doctor has a high malpractice deductible and it was reported that no offer was made in the case.

I think our case is a great deal stronger than the one this doctor just lost, both on liability and on damages because, unlike his last case, we can put on the board damages that exceed the doctor’s policy limits of $1,000,000. That has to be a strong incentive for the doctor to encourage settlement because he has personal exposure to an excess verdict. Still, I would not be surprised if we end up trying the case because the doctor does not approve a settlement because he does not want to pay the deductible again.

Still, I think the idea of allowing doctors to carry high deductibles is a good thing even if it does make settling medical malpractice cases in Maryland more difficult. It allows good doctors that do not anticipate legitimate malpractice exposure to increase their risk in such a way that reduces their medical malpractice premiums while still providing protection for themselves and their patients.

In Providence Health Center v. Dowell, the Texas Supreme Court found against he Texas Supreme Court found against the Plaintiffs who sought to recover in a medical malpractice case for their son’s suicide.

The Texas high court, in an opinion by written by Justice Hecht, based its ruling on a number of factors, most notably appears to be the fact that there was no expert testimony to a reasonable degree of medical probability that had the young man been hospitalized, that his death could have been prevented. When asked if hospitalization would have prevented the suicide, the expert only answered that the young man “would have improved” and been at a “lower risk” of suicide when he left the hospital.

The majority opinion also ruled that there was no evidence that the young man would have consented to hospitalization. A dissenting opinion by supported by three justices took exception to the notion that plaintiffs should be required to prove that the patient would have consented provides a new and insurmountable hurdle in suicide cases.

I have not read the dissent because it is not available; I gleaned the dissent’s view from the majority opinion. I agree with the dissent that it is ridiculous that a plaintiff would be required to prove that their decedent would have consented to hospitalization. But I’m not sure how the dissent gets around the failure of the expert to provide a definitive “more probably than not’ answer to the question of whether hospitalization would have made a difference.

In another life, I defended an antidepressant manufacturer in litigation involving suicides while on selective serotonin reuptake inhibitors. Suicide is just an awful tragedy and the reasons for it are often incredibly complex. Not speaking to the merits of this case, but hospitals and doctors do have an obligation sometimes to protect people from themselves. I hope cases like this don’t send the wrong message to health care providers in Texas.

Of course, doctors and hospitals are already getting the wrong message as any Texas medical malpractice lawyer will tell you. Absurdly low damage caps have gutted Texas malpractice cases, living many victims without any compensation or, quite often, even a lawyer who is willing to take their malpractice case.

Legalwriting.net has a post on the 10 legal words or phrase we could do without. I've been guilty of using the "instant case" although I now promise to stop. The word I hate more than all of these is the word "same" as in, "I will write a memorandum on the issue and the discuss same with Mr. Smith." I just find it incredibly annoying. The foolishness of using these kind of words is underscored in a new book on advocacy from Justice Scalia He says that words and phrases used almost exclusively by lawyers in place of plain-English are ill advised.

I agree. Let's all agree to stop it.

Plaintiff's claim against Philip Morris, R.J. Reynolds and others is time-barred by the "first injury" rule because her first smoking-related illness - chronic pulmonary disease - was diagnosed more than ten years after Plaintiff filed her complaint.

A California U.S. District Court found that California law provides that a limitations period begins to run when the claim accrues or when the cause of action is complete with all of its elements: wrongdoing, causation, and harm. The court found that plaintiff had actual or constructive knowledge of the existence of these elements when she was diagnosed with chronic pulmonary disease (if not long before). The court found misplaced Plaintiff's reliance on when a cause of action accrues in an asbestos case which has a separate statute-of-limitations accrual rule.

I don't like tobacco companies and I really feel for people who are suffering from smoking related illness. It's just awful. But I don't believe in the cause of the plaintiffs in the tobacco litigation because almost - agreed almost - every plaintiff knew or should have known of the risk to which they were subjected to and to which they subjected themselves. (One of the very few pro defendant positions I hold.)

A Los Angeles hospital has agreed to pay $1 million to settle a (sort of) medical malpractice case. The hospital dumped a paraplegic man in Los Angeles' skid row. Incredibly, this Los Angles hospital apparently left a this paraplegic man crawling around a Los Angeles' getto in a hospital gown and colostomy bag. Try and imagine someone actually doing this. I say "sort of" a medical malpractice case but this is not really malpractice: this is human beings doing something deliberately awful to another human being.

The hospital, Hollywood Presbyterian Medical Center in Los Angeles, sounds like it is trying to do the right thing, settling the case for what I expect is more than it was worth and amending its discharge policies for patients who are homeless and indigent patients. That's all great. I just can't imagine - on a human level - the hosptial employees who saw fit to dump a paraplegic man and colostomy bag in the middle of the street with a hospital gown. Are these people still working for the hosptial?

These are the kind of cases where medical malpractice lawyers are making a difference. A part of the settlement also requires the hosptial be monitored by a former U.S. attorney for up to five years. Why did the lawyers and clients insist on this? It has nothing to do with money. But it has everything to do with justice.

You can find the Los Angeles Times article on this case here.

The Connecticut Supreme Court issued an opinion last week in Monti v. Wenkert, a medical malpractice case involving a seventeen year-old girl whose fatal viral infection was dismissed as psychological by her doctors. The case involved a high-low agreement that was not disclosed the court or the other medical malpractice defendant.

The Connecticut Supreme Court found that such agreements must be disclosed but called teh failure to disclose in this case was harmless error because the agreement came after the Plaintiffs’ had rested their case and because the agreement did not change the adversarial alignment of the parties.

You can find the full opinion of the Connecticut Supreme Court in Monti v. Wenkert here and a more indepth blog post on this medical malpractice case here.