The Maryland Court of Appeals is still working during the coronavirus shutdown.  The court put out a new opinion Monday in Nationwide v. Shilling that addressed the question of when the 3-year statute of limitations begins to run on a claim for underinsured motorist benefits.

The gist of the court’s holding is good for plaintiffs.  The court found that a claim for underinsured motorist benefits is basically a breach of contract action. So the statute of limitations begins to run when the insurance carrier breaches the contract by denying the insured’s UIM claim.  Our lawyers have always interpreted the law this way.  But we always pretended that the statute of limitations was not extended because even having to fight this issue and win is not worth the trouble of not fighting the issue at all.

But this case has dicta that has two big problems that are very troubling with respect to the insurance company’s ability to modify the statute of limitations in uninsured motorist cases by putting a different statute of limitations in their contracts.  This would be a disaster and lead to a ton of litigation over any issue that is well understood by everyone.

Maryland nursing home lawyers have been battling arbitration clauses for years. These clauses deny nursing home residents the right to take nursing homes to court for harm that they cause to the residents such as physical abuse and neglect and sexual assault.

Almost everyone realizes nursing homes force these agreements on residents as a precondition of admission. They are just not fair.

In 2016, the Maryland Court of Special Appeals decided Peeler v. FutureCare, which was a Miller & Zois case. In this case, FutureCare tried to use the arbitration clause to prevent a wrongful death claim. Our firm won at the trial level and won before the appellate court, making new clear law that a nursing home agreement cannot compel wrongful death beneficiaries to arbitrate. This new case pushes Maryland law further from enforcement of these Draconian agreements.

Defense lawyers in love blaming empty chairs.  A jury trial is about assigning blame and the easy out for the defense is to get the jury to blame another doctor who is not named at trial.  (This is also why plaintiffs’ lawyers get maligned over naming too many defendants — sometimes there is no choice.)

Usually, the doctor’s lawyer will not provide expert testimony to blame the doctor.  Normally,  the allegation is made indirectly with the hope that the jury blames a non-defendant doctor on their own.

This is a good strategy.  Jurors like reaching their own conclusions without getting beat over the head and most malpractice defense lawyers do not blame the empty chair directly for fear of running afoul of Maryland law.

If you are having back pain after a car crash, you are not alone.  Our law office represents hundreds of victims every year who have suffered back pain — typically low back pain — from a car accident.  I’m hoping this post answers a lot of questions you might have if you have suffered a back injury from a car accident.

What is causing lower back pain after a car accident?

Being involved in a car accident can lead to a wide variety of injuries from bumps and bruises to broken bones and even death. We have handled all of these types of cases too many times. But of all the cases we see, back injuries and the subsequent pain are common consequences of car collisions. If you were involved in a car accident, you may have wondered what caused your lower back pain.

First, whether your vehicle struck another vehicle, a stationary object, or suffered a rollover, a vehicle’s passengers experience a tremendous amount of force during an accident. This force strains muscles, joints, and bones and can cause serious injuries. Even if a passenger is wearing a seatbelt or is protected by an airbag during an accident, the force of car collision can cause a jerking motion often referred to as whiplash. This can happen with little or no damage to the vehicle.  This is not just plaintiffs’ car accident lawyer puffery. There are many scientific peer-reviewed articles that show that the damage done to the vehicle does not always reflect the damage to the occupants.  Can you break eggs in a carton without damaging the carton? Whiplash can cause two types of lower back injuries—discogenic and facet joint injuries. Because of the physiology of the back and the proximity of the thirty-one pairs of nerves known as spinal cord, lower back injuries can lead to nerve damage and paralysis.

What is the lower back physiology?

The lower back is made up of the five lowest vertebrae (referred to as L1-L5) and is known as the lumbar region. This complex system of joints, ligaments, and tendons is responsible for supporting much of the upper body’s weight and protecting the spinal cord.

A series of intervertebral disks – rubbery donuts that act like cushions – serve as shock absorbers for the back. Disc herniation is a condition that occurs when the soft inner filling of the disc protrudes through the more robust outer encasing. Discogenic pain can be unpredictable and happen when a person is sitting, lying down, or moving. Discogenic pain generally causes a sharp, shooting pain that can radiate down the body.

What are some common lower back injuries?

Another type of back injury is a lumbar sprain. Lumbar sprains occur when muscle fibers are abnormally stretched or torn. Another common condition of the back is spinal stenosis, where a ruptured disc or bone fragment enters the spinal canal space, applying pressure to the nerves or spinal cord, which can lead to severe pain.

Facet joints work with the disks to facilitate and limit movement between the vertebrae. Cartilage surfaces surround facet joints and provide for low-friction motion. These joints define the back’s range of motion and prevent injury from occurring when a person bends too far in one direction. Facet joints have a large number of nerve endings and damage to these joints and the nearby nerves can cause severe pain. Frequently, sufferers of facet joints injuries can cause muscle spasms, which may force the spine out of alignment causing back and neck pain. For example, a patient may experience a muscle spasm that causes the joint to freeze or lock in place; this can occur abruptly and without notice.

How much money do back injury cases settle for when bringing a personal injury claim?

It is impossible to give an average back injury settlement number in a vacuum with completely misleading victims. But here are some statistics and sample verdicts and settlement in back injury cases.

Last week, the Baltimore City Department of Transportation announced that it is pushing its chips to the center of the table when it comes to speed and red light cameras.

Baltimore has a program called the City’s Automated Traffic Violation Enforcement System (ATVES).  Not so much to me because I’ve seen too many people’s lives ruined by speed and running red lights, but ATVES sounds very Orwellian to many Baltimore City drivers. ATVES is in charge of the automated speed trap and red light enforcement cameras in Baltimore City.

ATVES also does something that troubles people less, particularly those who have seen truck accident statistics in this country. It has a Commercial Vehicle Height Monitoring System Camera Program to enforce violations of commercial vehicles traveling on truck restricted roadways in Baltimore City.  We got a million dollar verdict in a case a few years back in no small measure because the jury was annoyed that the truck was in a place that it clearly should not have been.   This system definitely uses some bring brother technology,  using the truck’s height to determine whether the vehicle is over ¾ of a ton).

Hypoxic-Ischemic perinatal encephalopathy (“HIE” for short) is loss of oxygen to the brain. In slightly less than half of the cases, HIE can cause death or brain injuries.

What Causes HIE?

Obviously, the brain is the key to neurological function. The brain commands and controls all of our essential actions and reactions. This includes sending messages via neurotransmitters to control all of a person’s essential cognitive and physical functions. The brain is fed by blood and oxygen. All of our brains, especially the fetal brain in particular, are highly dependent on blood and oxygen to survive. If the fetal brain is deprived of blood and oxygen for a sufficient amount of time, it becomes permanently damaged by hypoxia and ischemia. Not only does the brain need oxygen, but the cells need oxygen too. Some birth injury cases (we are handling one now) involve damage to other vital organs that have suffered irreparable injury from lack of oxygen during the birthing process. Without oxygen, the vital cells in the brain and other organs shut down. To make matters worse, dead cells give off toxins which are called cytokines and which cause additional injuries above and beyond the ischemic injury initially caused by the lack of oxygen. The amount of time that the brain is deprived of oxygen is critical to the baby’s outcome. If the child’s brain is deprived of blood and oxygen for an extended period of time, 15 minutes is the amount of time often mentioned, then the brain becomes permanently damaged. The result is a brain that cannot provide normal neurological function, meaning that the person with the brain injury loses the mental and physical abilities to move, think, and live the way their DNA intended. The result in some cases could be cerebral palsy, spastic quadriplegia, seizures, epilepsy, and/or developmental and cognitive delays.

Recently I was contacted by a very nice lady who was looking for an injury lawyer to handle a case involving the wrongful death of a family member in a Baltimore nursing home.

baltimore nursing home malpracticeWe handle a lot of nursing home cases and this call was very typical.  We get a lot of calls on nursing home cases, particularly when a serious injury or death is involved. It’s normal for a traumatic event like this to leave grief-stricken family members looking for answers.  In nursing home negligence claims, surviving family members call because they see the care at the nursing home.  In many of them, the care provided is awful.  Then, their mother/father/wife/husband/brother/sister dies.  They are calling to see if two plus two equals four.  Quite often, it does.

In this case, the caller was herself a licensed nurse-practitioner who had very specific information about exactly what she believed was done wrong. This is unusual simply because she had specialized knowledge that the average person would not.

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

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.

Medicaid Liens in Personal Injury Cases

Medicaid is a government-funded health insurance plan for low-income families and individuals. Medicaid is jointly funded by both the federal and state governments but the program is administered at the state level.

Today the Court of Appeals of Maryland issued an opinion addressing the extent to which expert witnesses who are retained solely for litigation may be forced to produce documentation of the amounts they earn providing expert witness services.

There are actually two cases, which were consolidated on appeal. The first is Falik v. Hornage, No. 60; the second is Falik v. Holthus, No. 90. They are both Miller & Zois cases.

Dr. Joel Falik