Articles Posted in Discovery

personal injury clients social mediaYou know what’s funny about stuff you post on the internet? It’s public, and that means people can see it. This includes those you would rather not see it. For example, if you are a disability claimant, you may want to forego that chance to post a video on YouTube of yourself half-naked, covered in tin foil, breakdancing to “Magic Carpet Ride.” Once somebody sees it, you could have a problem with your total disability claim.

This is also very important for people who are making a personal injury claim. Nowadays just about everybody has some form of social media account, and just about all of them give the user the ability to post pictures or videos.

As a personal injury lawyer, increasingly I am seeing defense attorneys checking my clients out on the web, including social media accounts. Defense attorneys also seek access to these accounts in discovery. I always object to producing social media login information, and so far I have not yet had anyone take the issue before a judge.  Even posts without pictures that describe what you are doing or how you are feeling can be easily taken out of context.

I have two cases where the same issue has recently popped up. Each of these cases is pending in a Maryland Circuit Court in what I would call the “D.C. Suburbs.” Specifically, Montgomery County and Frederick County.

In each, the defense has selected a doctor or doctors to examine my clients. This is normal in a personal injury case. Plaintiff puts his or her physical condition at issue by making a claim for damages for a bodily injury. I don’t have a problem with the defense wanting an examination of my clients, in and of itself. I agree that under Md. Rule 2-423, a court would likely find “good cause” to order an examination if I did not consent.

Related Information

defense request medical authorizationOne thing we are seeing defense attorneys do more and more is using a Md. Rule 2-422 Request for Production to try to get plaintiffs to sign authorization forms permitting the defense to access medical and other information without a subpoena. For them, it’s a more efficient (some might say lazy) way to obtain the same material they could get by serving a subpoena on the person who has whatever records they want. For plaintiffs, it’s allowing the defense free license to root through anything they want without worrying about the protections afforded plaintiffs under the Maryland Rules and the Health-General Code.

Because we see this so often, I imagine there must be personal injury lawyers out there who allow their clients to sign them.  We have too, on occasion.  You want to be reasonable.  There are circumstances where there is wisdom in having the client to sign a defense authorization. In some cases, we don’t have a choice. In first-party claims against an insurance carrier for UM/UIM benefits, for example, the carrier often arguably has a contractual right to obtain an authorization written into the policy. Or if the records being sought are maintained out of state (and therefore outside the subpoena power of a Maryland court) we will often agree to an authorization, as long as it includes appropriate limitations that we have approved in advance, like excluding records about mental health, substance abuse, or STD/HIV/AIDS treatment. If they don’t agree to our requested conditions, they are welcome to get an out-of-state subpoena issued the hard way.

It makes no sense to make opposing counsel’s life difficult just for the heck of it.  But that is not what we are doing here. We cannot just give away our clients’ privacy protections under the law for no good reason, and that is what I would do by allowing my clients to sign these broadly-drafted defense authorizations.

The most time-consuming part of getting any case ready for trial is discovery. This is the process of the two sides learning information about each other’s cases before trial. This is what the lawyers and clients spend their time doing for most of the year between when the case is filed and the trial.

Discovery happens two ways- by exchanging written material, and in person. In-person discovery is usually in the form of a deposition, where witness testimony is taken under oath and transcribed for use later on. That’s not what this blog post is about.

Ridiculous Objections to Discovery

There has been some controversy recently in the community of Maryland lawyers who handle personal injury and worker’s compensation claims when it comes to finding an expert who can testify to the plaintiff’s injuries in car accident cases.  Sometimes, you have a doctor, often the treating doctor, who was at one time faced disciplinary charges for something or another.

expert witness disciplinary chargesWhy are we dealing with a doctor with a history of problems in the first place?  Good question.  Sometimes the charges are not serious or not related to the quality of care the doctor is providing. Sometimes the doctor is a treating doctor you did not choose to have as your witness.  In other cases, you may not have knowledge of the disciplinary action against the doctor.

In the real world, it can sometimes be difficult to locate medical providers who will treat patients who were injured in accidents or on the job. If the patient was injured in an accident, the physician may have to wait for payment until the personal injury case resolves. In the case of a work-related injury, the physician must by law accept payment according to the fee schedule set by the Maryland Worker’s Compensation Commission, which is usually far less than the rates paid by private insurers. Many medical providers aren’t willing to accept these conditions, so the few who will are an invaluable resource for Maryland personal injury lawyers and our clients.

One of the local medical practices willing to treat these sorts of patients has become involved in proceedings before the Maryland Board of Physicians. Some of their doctors have pending disciplinary charges, and some others have already consented to orders resolving the charges. This has attracted the attention of those in the legal community working on those sorts of cases and has been commented on by industry bloggers.

I kind of view this as a tempest in a teapot. The charges are not the sort where I would expect any of the physicians involved to lose their licenses or have them suspended. But it absolutely is a thing.  If it might bother a single juror, it is a thing.

Anyway, the key point is that in Maryland, the existence of the charges and/or disciplinary orders before the Maryland Board of Physicians is not discoverable or admissible in any civil or criminal action in the State of Maryland.  Too many unsuspecting car accident lawyers in Maryland do not know this and their clients get burned.

The Statute on Point

The statute for this is Md. Health Occupations Code Ann. §14-410 (a). The statute says that:

(1) The proceedings records, or files of the Board or any of its investigatory bodies are not discoverable and are not admissible in evidence; and

(2) Any order passed by the Board is not admissible in evidence.

So if you find that you have a treating physician or an expert witness who has been involved in proceedings before the Maryland Board of Physicians, relax. Those proceedings will never come into evidence, and the jury will never hear about them. Provided, of course, that you are prepared with a motion in limine citing the law on the issue.

Not for nothing, the purpose of this statute is not to help personal injury victims but to protect doctors we are suing for medical malpractice.   But this by-product sometimes helps personal injury lawyers.

This Win Might Be a Loss

Of course, the question you have to ask yourself is whether you want a doctor who has been disciplined by the Maryland Board of Physicians.  There was a case a few years ago where some Maryland doctors in a group who do a lot of personal injury and workers’ compensation cases were disciplined for something that was said to me — according to the gossip mill of unbiased observers who handle these cases — trumped-up charges.  I have no clue one way or the other.  But you want to think twice before willingly picking a doctor who has had disciplinary problems because where there is smoke there is quite often fire.


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Regular readers of this blog (Hi, Mom!) will probably remember that cross-examining defense medical experts on the issue of financial interest bias is a topic that I have discussed several times. That is because our lawyers believe that when an expert has a financial interest bias, that it is of vital importance to get that information before the jury, so they can fairly evaluate the wtiness’ testimony.

In Maryland, the most useful authority on the issue is contained in two appellate opinions: Wrobleski v. DeLara, 353 Md. 509, 727 A.2d 930 (1999), and Falik v. Hornage, 413 Md. 163, 991 A.2d 1234 (2010). The second one is a Miller & Zois case. Actually, two cases combined for appeal. My firm handled both of these cases. So we feel that our law firm is out on the leading edge in this issue.

One topic that often comes up in personal injury litigation is the issue of personal injury lawyers referring clients to particular medical providers. Defense lawyers always want to delve into this, on the theory that there is some wink and nod quid pro quo between the lawyer and the doctor that the referral will result in favorable testimony. I don’t know that this is necessarily true. There are lots of good reasons referrals like this are made: many clients do not have health insurance to pay for treatment, Maryland PIP is only $2500 (and is often used up to replace lost wages), and many treatment providers will not accept patients who were involved in accidents.

videoconferencing attorneysTechnology wise, the law has always lagged behind the rest of the world.  (Boy, we are feeling this with the coronavirus now in 2020!)

A few months ago, I tried a case in Montgomery County Circuit and got a great verdict. Shortly afterward, I received the defendant’s motion for a new trial. I read the motion and discussed it with a few of the other lawyers in my office. None of us thought it was a strong motion, and we all believed it was likely to be denied. Until I got a hearing notice in the mail.

Well, I live in Baltimore County, near Towson. I have to be in the car by 7:30 if I hope to be in Rockville by 9 a.m., and I need to make alternative arrangements to get my daughter to daycare since they don’t open early enough to drop her off and still get to Rockville in time.

Uninsured/underinsured motorist cases are probably the most complicated kind of car accident cases you will see. These cases are called “hybrid” actions because they combine contract and tort law. You have the underlying tort case against the negligent driver, along with a contract cause of action against the UM carrier. You will have the normal concerns about proving liability and damages that you would have in any car accident case. In addition, you must be careful to prove the contract elements that you need to show entitlement to UM benefits.

These are things like the existence and extent of the tortfeasor’s liability coverage, the existence and amount of the UM coverage, and the plainitff’s entitlement to benefits. Obviously, you would send interrogatories to seek to establish one or more of the contractual prerequisites. But another good way to get the needed proof is to use an under-utilized but very powerful discovery device called a Request for Admission.

Request for Admissions

These are governed by Md. Rule 2-424. Basically, they are a list of facts, the existence of which the defendant is asked to either admit or deny. If admitted, the admission is considered conclusive proof of the existence of the admitted fact for the purposes of the case. They are especially good for proving the existence of simple “paper” facts like the ones you encounter in a UM case.

Law blogs are full of “how to’s” on deposition techniques. Do a quick search and you will find tons of hints of all kinds. You can find checklists, tips for client preparation, or articles on effectively using exhibits. I’ve written some things like that myself. But today I have a quick lesson in what not to do when defending a deposition, and how to handle it when it happens.

This is from a deposition we recently took of a defendant driver in a car accident case that is pending in federal district court:

Q. And are you contending in this lawsuit that Mr. Plaintiff is a faker?

Last night, the Maryland General Assembly passed a bill to put a constitutional amendment on the ballot in November raising the jury prayer amount in civil cases. Currently, in any civil case filed seeking more than $10,000.00, the defendant has a right to a jury trial. This provision does not have an escalator allowing it to rise along with the cost of medical care and wages lost.

This bill will permit a Constitutional amendment raising that amount to $15,000.00. Because this law relates to a constitutional amendment, it needed a 2/3 majority to pass. It will now appear on the ballot in November’s general election, where it will hopefully be approved by the voters.

This is an important issue for car accident lawyers in Maryland. As an example, consider a typical soft-tissue injury case. There is an emergency room visit with X-rays and a bill from the ER physician. That’s about $800, conservatively. The client needs 8 weeks of follow-up physical therapy. That’s about $4600. Then include two weeks missed from work, at about $1400 total. That’s $6800 in out of pocket losses. If the client needs an MRI to rule out a structural problem, you are looking at $8,000 in out of pocket damages for a relatively uncomplicated sprain/strain case. Filing for $10,000 does not really provide the potential to make a recovery to adequately compensate that client. But filing for more means that the defendant may pray a jury trial and delay the case for up to a year waiting for a trial date in Circuit Court, and requiring expensive, time-consuming discovery. The plaintiff may need to miss even more time from work to appear at a deposition, a court-ordered medical exam, and a settlement conference.