Articles Posted in Personal Injury

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It has been a very busy summer for me and there is no respite in sight. This is a good problem to have during a time when even large national law firms have been downsizing because of a lack of work.

I just finished a jury trial in Baltimore City against two defendants – the driver who struck my client and her uninsured motorist’s insurance carrier. This lady was hit by an uninsured driver. He was uninsured because he was an excluded driver on the insurance policy for the car he was using.

At first, it didn’t seem like a terrible accident. My client first noticed back and leg pain at the scene that got progressively worse. She was taken to the emergency room by ambulance, and during her follow-up treatment she was diagnosed with two herniated discs from the accident. She was evaluated by an orthopedist who said that the two herniated discs were caused by the accident, and that her problem would be permanent. Her medical bills weren’t extreme – approximately $8,000.

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I recently mediated a serious accident case with a retired Court of Appeals judge, where after a 7.5-hour mediation we were able to reach an agreement to resolve the case. This was a lot of work. A meeting to prepare the client. Draft a long (in this case 11 single-spaced pages) confidential statement to the mediator with all the facts of the case, my theory of liability, damages and an analysis of the important legal and evidentiary issues. Add exhibits showing the scene, the injuries, and key documents (deposition excerpts, witness statements, medical records). Get the exhibits turned into PowerPoint slides for the opening statement.

A mediation like this amounts to about a week’s worth of work if you include the day of the mediation itself and you properly prepare for it.

Let’s talk about some of the roadblocks to a successful mediation.

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Picture this: You need a medical procedure, for example, having your gall bladder removed. You arrive at one of the area’s fine local hospitals, where you are seen by a doctor and told “Sure, we can help you, as long as you sign this form giving up your right to sue us for damages if you are injured by malpractice.”

Sounds like a great deal for them and a terrible deal for you, right? The Cato Institute has issued a paper advocating that agreements like this, in one form or another, should be allowed and upheld by the courts. Surely they can’t be serious? Yes, they are, and no, I won’t stop calling you Shirley. RIP, Leslie Nielsen.

Contracts like this are generally unenforceable. They are called “contracts of adhesion”, and are not allowed because of the extreme inequality in the bargaining positions of the patient and doctor, among other reasons.

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Maryland has an increasingly diverse population. This means that our court system needs to keep pace with the needs of our residents. By law, this includes providing interpreter services to those who are not able to communicate effectively in English.

Here is an article from the Baltimore Sun about how courts in Baltimore City and Baltimore County are addressing this issue.

Because my personal injury practice is statewide, I have noticed that some courts deal with the issue of providing interpreters more effectively than others. I have found Montgomery County to be most effective and best able to provide interpreters in many languages on short notice. I think this is because Montgomery County has long been one of the most ethnically diverse counties in the state, so they have developed subtantial experience serving a variety of non-English speaking populations. There are generally Spanish interpreters available on a few minutes notice, and it there is an established procedure for quickly and simply requesting interpreters in most languages, who actually show up when they are supposed to be there.

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Hello, everybody! In case you noticed my absence over the last few weeks, I was away getting married and honeymooning. Now I am back at the blog, albeit a little tired from watching late election results last night.

But as they say, all politics is local. In Maryland, some jurisdictions charge for ambulance service, while others do not. For example, Baltimore City charges a $410 fee for ambulance service, while Baltimore County charges nothing.

In May, the Montgomery County Council approved a $400 fee for ambulance service to assist with a 13 million dollar budget gap. After a trip to the Court of Appeals of Maryland and back, opponents of the fee were able to get the issue on the general election ballot for a referendum. Yesterday, Montgomery County residents voted against allowing the county to continue to charge fees for ambulance service.

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In theory, human life is priceless. Under most belief systems, each human life is uniquely created by God and has an intrinsic value that cannot be measured in man’s terms.

But when you are talking about a death caused by a negligent driver, often the value of a human life ends up being the limit of the insurance coverage. For example, take a look at this Baltimore Sun article about a settlement of a lawsuit for wrongful death caused by an accident on the Bay Bridge in the summer of 2008. This case got tons of local media coverage when it happened. It was alleged that the defendant was driving with a blood-alcohol content of .03 when she crossed into oncoming traffic, causing the death of a truck driver when he swerved to avoid her and went through a traffic barrier and into the Chesapeake Bay.

The value of this truck driver to his family? Immeasurable. The recovery for his loss? $100,000. The limit of the available insurance coverage. And this defendant had five times as much insurance as the State of Maryland requires. Currently, Maryland drivers are only required to carry $20,000 in liability coverage, which will soon increase to $30,000. I have seen death cases where the only recovery is $20,000. Explaining this to grieving family members is an experience that I wish I had never had.

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One of the most annoying parts of representing plaintiffs in personal injury lawsuits is locating and serving the defendant driver with process. For non-lawyers, “process” refers to the summons issued by the court when a lawsuit is filed. The summons is an order from the court notifying the defendant of the lawsuit and directing her to respond within a particular time period. It is designed to make sure that anyone who is subjected to a lawsuit is given notice of the case and a chance to respond.

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Most often, service of process is made by having a process server physically locate the defendant and hand her the papers. The process server executes a sworn affidavit documenting service, which is then filed with the court.

What if you can’t find the defendant to serve her? Or if the defendant has been served, but has never participated and seems to have vanished? You must consider filing a Motion for Alternative Service or a Motion for Entry of Order of Default.

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One thing I do every month is read the list of sanctioned physicians published each month by the Maryland Board of Physicians. It can be found online here, and usually comes out in the middle of the month, covering the preceding month. Every personal injury lawyer should do this. It’s not schadenfreude. There is a very good reason.

In the last year alone, I have discovered that two of my clients’ treating physicians have had significant licensure problems during the period of treatment. In one case, the doctor’s license was suspended the whole time she treated my client. If you are planning to rely on a treating doctor as a witness, it is best to know about these kinds of problems. In my case, I was able to name a different doctor as my expert witness. I run any doctor I am considering naming as a witness through the “Practitioner Profiles” database to avoid these kinds of problems. If you start looking, you will be surprised at how often this happens.

It is definitely worth the effort, unless you’d rather find out your expert was unlicensed during the defense attorney’s cross-examination.

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By way of full disclosure, readers should be aware that I have a man-crush on U.S. Rep. Bruce Braley.

Here’s the deal. Braley is a former president of the Iowa Association for Justice, and despite that, won election to Congress. I am also an evil, greedy trial lawyer, and I happen to sit on the board of the Maryland Association for Justice. We recently held our annual Installation Gala recognizing our immediate past president Kevin Goldberg and honoring our new president, Robert Zarbin. Congressman Braley was our keynote speaker.

As part of Braley’s talk, he played to us this clip of bad people shouting “trial lawyer” and “ambulance chaser” at him when he spoke on the House floor about patient rights during debate on the healthcare bill:

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Medicare liens are a topic of concern for most competent personal injury lawyers. It looks like Medicare is set to begin enforcing a federal law requiring reporting on injury claims made by individuals receiving Medicare.

The key thing about this law for injury lawyers is that if you fail to protect Medicare’s interest, Medicare can go after anyone in the process to recover the payments made: the Medicare recipient, their personal injury lawyer, the defendant, the defense lawyer, or the the defendant’s liability insurer. And lets face it- we all know that the client and the defendant won’t have the money by the time Medicare comes looking. The feds are good at protecting themselves, and here they are doing it by putting a target on lawyers and insurers, which should not be a big problem as long as we are doing our jobs the right way.

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