February 2012 Archives

February 29, 2012

Virginia Distracted Drivers Will Likely Be Required To Give Up Texting

Text Messaging.jpgOn Monday, the Virginia Senate Courts of Justice Committee jumped on the distracted driving bandwagon after many false starts, and agreed that texting and e-mailing while driving should be a primary offense. The vote (S.B. 219) was ten to four.

The law right now in Virginia is that motorists can only be pulled over while texting and driving if they are caught committing some other primary offense. The texting fine is $20 for the first offense, and $50 for the second offense.

Under the proposed law, police would be allowed to pull over Virginia drivers suspected of texting or e-mailing without any other evidence of wrongdoing. This bill has already passed the Senate Transportation Committee, and it must now go to the full Senate.

Democratic Senator George Barker, who propounded the bill, has been waging this battle for two years. Opponents believe that existing reckless driving laws are sufficient. Senator Barker is also proposing S.B. 210, which does the same thing as S.B. 219, but for provisional (new) drivers.

Also currently prohibited in Virginia is the use of cell phones or texting by drivers under the age of 18, and school bus drivers.

Our Virginia Auto Accident lawyers have seen first-hand the pain and destruction caused by distracted driving, including texting and cell phone use. The public belief that this is dangerous is so strong that many clients come to us firmly believing that the other driver was on the cell phone or texting at the time of the collision. Whether they are right or not can usually be proven by cell phone records, which our firm seeks in discovery. But the fact remains that we all know it is dangerous. We all need to take the pledge to put the cell phone down before starting the engine. It doesn't matter if it is illegal. It only matters that it is unsafe.

For More Information

February 20, 2012

Giving Up Your Rights Without Even Knowing It

Maryland Medevac.jpgLast Thursday, the Maryland Court of Special Appeals decided Murray v. TransCare, a case that has a lot to do with immunities. Let's talk about the backstory before we get to the substance of the case.

Backstory
Murray was litigated on the plaintiffs' side by Stephen Snyder's law firm. This ruling came on the same day as the Court of Special Appeals' decision in Ford v. Exxon, the groundwater contamination case also brought by Mr. Snyder. In Exxon, the trial court, and the jury, gave Snyder and his clients just about everything he could have hoped for. In a 321-page opinion, however, the Court of Special Appeals took most of it away. One can't help but wonder if the Transcare decision was meant to soften the blow of the Exxon ruling. It is comfort, but small comfort. Of course, there will be an inevitable appeal to the Court of Appeals, so it's not over yet.

Basically, Murray was a Maryland medical malpractice case. The plaintiff was sent from a hospital in Talbot County to the University of Maryland Medical System by helicopter. The defendant's paramedic was negligent in not being able to timely locate important life-saving equipment in the helicopter. The result is that the plaintiff suffered a period of time without oxygen, which led to permanent brain damage.

The plaintiff lost at the trial court on three issues. First, the case was transferred from Baltimore City to Talbot County. The more interesting issue, however, was the trial court's grant of summary judgment based on two immunities. The trial judge clearly wasn't sure what to do--first he denied the motion, but then the defendants asked him to reconsider, and he granted their motions. He knew that the case would be sent up to the Court of Special Appeals, and his decision seems to indicate that he hoped it would so that the issue would be clarified for future litigants.

Forum Non Conveniens
The Murray case was initially filed in Baltimore City Circuit Court. However, defendants requested that the judge transfer the case to Talbot County Circuit Court under the doctrine of forum non conveniens, which is legal-speak for "even though the case can be filed in one place, it is more convenient and just for everyone if the case is heard in another place." Lawyers often try to get the case into the best court possible, and these lawyers clearly believed that they had a better chance of recovery (or, a better chance of a higher recovery) with Baltimore City judges and jurors, as compared to those of Talbot County. Snyder did nothing wrong in filing the case in Baltimore City--the motion to transfer was not because it could not be filed there, but because, subjectively, there was a better place to have the case. The Baltimore City Circuit Court agreed, probably rightly so, and transferred the case.

One interesting point is that the plaintiffs' lawyers argued "that the Circuit Court for Talbot County's handling of the case and rulings subsequent to transfer demonstrate that the court was not equipped to manage the case and, as such, the Circuit Court for Baltimore City erred in granting appellees' Motion to Transfer." That may not have been a great argument to put forth, especially because this case is heading back to the Circuit Court for Talbot County (as you'll see after you read the Immunity sections, below).

Immunity No. 1: Good Samaritan Act
Long ago, Maryland decided that certain people and corporations providing emergency medical care shouldn't be sued, even if they were negligent. The Good Samaritan Act, as it has become known, was used by the defense to get out of the case. The question for the Court was whether the Good Samaritan Act applied to private commercial ambulance companies like the defendant. Though the trial court ruled that immunity applied, the Court of Special Appeals disagreed.

In reviewing the language of the law, the Court observed that "[t]he Act does not provide a definition of "person," "individual," or "member." A review of the plain meaning of those terms, however, supports the conclusion a private commercial ambulance company, is not covered by those terms, and, therefore, is not immune by application of the Act."

The Good Samaritan Act also provides immunity to certain corporations. It covers corporations that have fire department personnel, which clearly doesn't apply because TransCare has no firefighters. It also covers volunteer fire departments, ambulances and rescue squads. The Court examined that language closely, and determined that TransCare was not a volunteer ambulance or rescue squad.

Immunity No. 2: Fire and Rescue Companies
Fire & Rescue Companies are also immune from lawsuits in some circumstances, according to Maryland law. The Court had a harder time with this one, particularly because "rescue company" is not clearly defined. The law states that

"...except for any willful or grossly negligent act, a fire company or rescue company, and the personnel of a fire company or rescue company, are immune from civil liability for any act or omission in the course of performing their duties."

The Court decided that the defendants, which essentially provided transportation for the injured plaintiff, along with medical services during that transport, do not qualify as a rescue company. It defined an ambulance as "a vehicle equipped for transporting the injured or sick."

I think this decision is not as clear-cut as the decision on the Good Samaritan Act. I could see a court looking at the language of the statute and going either way, but I'm glad that this was the result. Here's why:

Immunities: Eroding Your Rights Every Year
Every year, corporate interests propose legislation in Maryland to grant them immunities. With immunity, those corporations could not be sued for negligence. Immunity leads to corporate irresponsibility. If Ford was immune from lawsuits when it sold the Pinto (which, as you recall, frequently caught on fire in rear-end collisions), they would never have recalled the product or paid victims.

Immunity laws are unjust for another reason--they are not well-publicized, and Marylanders usually don't realize that they have no rights in in some circumstances. If TransCare had immunity in this case, the plaintiffs would have had no way to know, beforehand, that they were giving up their rights. Without that knowledge, there is no way for them to know that, just maybe, they should seek some other way to get to University of Maryland's hospital.

I'm proud to belong to the Maryland Association for Justice (MAJ), where we fight to protect your rights from the corporations who would strip them away, one at a time. In fact from 2009-2010 I was the President of the Maryland Association for Justice. MAJ's legislative team routinely combats these immunity bills, many of which are hidden in hundreds of pages of text, so that your rights to a jury trial are preserved.

February 18, 2012

Does The Amount Sued For Really Matter?

Pile of Money.jpgEvery day, the newspaper websites (does anyone read an actual newspaper, anymore?) have articles loudly proclaiming the amount of money that victims seek in lawsuits (example: Former Volunteer Files $10 Million Lawsuit Against Lakewood Church). These media accounts don't tell people that the amount claimed at the beginning of a lawsuit usually has very little relationship to what is claimed at the end of the lawsuit. The cynic in me thinks that the news stories are simply for sensationalism, but pragmatically I bet that the media just has a very poor understanding of how lawsuits work.

Here in Maryland, we have courts with the following choices:

  • District Court: Lawyers must specify the upper end of what they are seeking, either (a) $5,000 (small claims cases); (b) $15,000 (for cases that can only be heard in the District Court); or (c) $30,000 (for cases that can be heard in the District or Circuit Court).
  • Circuit Court: Lawyers typically tell the court if they are requesting a maximum of $30,000, or some amount higher than that. The Circuit Court can hear cases with any amount of money in controversy over $15,000.
  • United States District Court: civil diversity cases must be filed for a minimum of $75,000.
  • Medical Malpractice cases: Lawyers are not allowed to claim a specific amount of damages in medical malpractice cases when seeking over $30,000 (Md. Cts. & Jud. Proc. ยง 3-2A-02(b)).
Journalists cite to the amount "sought" in the lawsuit (called the ad damnum clause) because, unless it is a small case filed in the District Court, it is usually a fantastic number. Sometimes it is one, two or three million dollars (or even more). There are two reasons that lawyers request outrageous amounts in their early lawsuit complaints.

First, lawyers often don't know the value of the case at the beginning of the lawsuit. So much depends upon the discovery process, which involves the exchange of information between the parties during the case. Lawyers frequently enter a case with one opinion about the value, and have a completely different opinion by the middle of the case.

The second reason is that the courts require plaintiffs to put a number down, and problems can arise if the judge or jury awards an amount more than what the plaintiff claimed in his lawsuit. It is possible that a court would limit the plaintiff to what he requested in his complaint, and the lawyer could even get sued for legal malpractice. Therefore, the safest route is for the plaintiff to request a large amount that could not possibly be awarded under the law.

In personal injury cases like Maryland automobile accidents, plaintiffs can seek all economic damages relating to their injuries (which includes lost wages and medical bills), and a portion of non-economic damages (including pain, suffering, mental anguish, disfigurement and inconvenience). We have a limit on non-economic damages. For most non-medical malpractice cases, the 2012 cap (effective for injuries that occurred between 10/01/11 through 09/30/12) is $755,000. So, a lawyer should claim an amount of damages that equals the full cap plus whatever economic damages he estimates at the time of filing suit. Then, because we are risk averse, we frequently add a couple of million dollars. You never know--the non-economic damages cap could be overruled, or something might happen to increase the value of the economic damages later in the case.

If we didn't claim a high amount of damages in the ad damnum clause, our clients would have a good legal malpractice claim if the jury awarded more than we asked for, and the judge refused our request to modify the ad damnum clause.

Even Maryland courts know that the ad damnum clause is a mere formality--parties are routinely forbidden from mentioning the amount at trail because it is irrelevant to the case. The legislature has gone so far as to prohibit ad damnum clauses in medical malpractice cases that are filed in the Circuit Courts for more than $30,000. The important number is what the plaintiff asks for on the last day of closing arguments--that's what the plaintiff is really looking for at the end of the case. And that number rarely makes the newspaper headlines.

It would be nice if the Maryland legislature would take the lessons learned from medical malpractice cases and do away with requiring plaintiffs to put a specific number in their ad damnum clauses for circuit court cases. We don't like putting those meaningless numbers in our complaints.

For More Information

  • Bijou v. Young-Battle (Maryland Court of Special Appeals case examining and exploring the history of the ad damnum clause)

February 8, 2012

Supplemental Security Income (SSI) Benefits Increase For Everyone

US Treasury Check.jpgThere are over eight million people currently receiving Supplemental Security Income benefits. Unlike Social Security Disability benefits (benefits for people who paid into social security and are unable to work), Supplemental Security Income (SSI) is a program that provides payments to the blind, disabled, and some seniors, regardless of work history. After a freeze since 2009, SSI beneficiaries are finally receiving a cost of living increase in their SSI payments.

Effective this year is an increase of 3.6%, which maxes out at monthly benefits of $698 for one person, and $1,048 for a couple. This was announced by the Social Security Administration last October, after the Consumer Price Index was calculated for 2011 (as compared to the third quarter in 2008).

This is a welcome increase for many people with increasing expenses, particularly in a down economy. It will mean that individuals get up to an additional $24, and couples get an additional $37. It may not seem like much, but it can make a big difference for people on limited incomes who rely on SSI payments to make ends meet. Particularly important to many is more money to pay for increasing numbers of prescriptions.

If you have questions about Supplemental Security Income or Social Security Disability benefits, contact us at 1.888.213.8140, or online for a free consultation. We can help you to recover the money you've rightfully earned. (But please understand we do not represent you in your case until a retainer agreement is signed with our firm).

For More Information:


February 6, 2012

Medical Malpractice Is More Pervasive Than We Thought

Six out of every seven, or 86% of all hospital medical errors affecting Medicare patients go unreported. In exchange for the ability to receive Medicare funds, hospitals have a federal obligation to track and report patient harm. The Department of Health and Human Services performed their own investigation into the accuracy of those reports. It turns out that they are failing. Miserably.

Ten years ago, the Institute of Medicine's groundbreaking report "To Err is Human," revealed that there were as many as 98,000 deaths per year from preventable hospital errors. That doesn't include other types of errors, which can cause lifelong permanent injury like cerebral palsy or Erb's palsy.

Prior reporting in 2010 showed that 27% of Medicare recipients were subject to hospital errors requiring additional treatment. That means over one and a half million hospital mistakes are made every year while treating Medicare recipients. Because unknown problems don't get solved, the Department of Health and Services did additional research to find out why hospitals were not self-reporting the vast majority of their mistakes.

Why Are Hospital Errors Underreported?
The study found that these errors are underreported because hospital staff either do not fully understand what constitutes patient harm, or they simply fail to report events that they knew were reportable. The study revealed:

Further, hospital staff reported only 2 of the 18 most serious events in our sample (i.e., those events that resulted in permanent disability or death). Serious events not captured by incident reporting systems included hospital-acquired infections, such as a case of septic shock leading to death; and medication-related events, such as four cases of excessive bleeding because of the administration of blood-thinning medication that also led to death.
Of the 86% of unreported events, 62% were because hospital staff did not believe they were reportable. Of that 62%:
  • 12%: Event not caused by perceptible error
  • 12%: Event was an expected outcome or effect
  • 11%: Event caused little harm or harm was ameliorated
  • 9%: Event was not on hospital's mandatory reporting list
  • 8%: Event occurs frequently
  • 5%: Event symptoms became apparent after discharge
  • 4%: Event occurred in patient with a history of similar events
  • 2%: No reason given
The other 25% of unreported events was because staff simply failed to report an event that they knew was reportable. So, one-quarter of the time health care providers cause harm or death to a Medicare patient at a hospital that was preventable and avoidable, the health care providers purposely choose not to report it. That is just wrong. This also further reinforces the importance of being your own advocate at hospitals, because if you don't, you know the hospital won't.

Hospitals are going to have to step up their game. In the health care community there is a great deal of concern about "frivolous lawsuits" and the costs associated with paying out medical malpractice claims. Lawsuit costs are a minute fraction of the costs associated with these preventable hospital errors, which require more hospital time, supplies and care. If we are serious about improving patient care and saving taxpayer money, this is where we should be looking to solve problems.

How does this study relate to non-Medicare patients?
It's hard to say exactly what this study and these statistics mean for non-Medicare patients. It could be that non-Medicare patient errors are underreported exactly to the same degree as Medicare patients. Or, it could be that the demographics of most Medicare recipients (older, perhaps having more hospital admissions and medical problems) means that this population has a higher quantity of underreporting. Whatever the answer, it is not a boost of confidence for hospitals.

Do all of these errors constitute medical malpractice?
While these errors may each be medical malpractice, not all of them rise to the level of a medical malpractice lawsuit. If a loved one is in the hospital, make sure someone is there to act as their voice when they cannot - to be their advocate to provide better care so that preventable mistakes are not made, and if they are, to make sure the hospital takes appropriate steps to help the patient. Our firm handles physician and hospital malpractice cases when those errors cause significant or permanent injury. If you or a loved one has been harmed by malpractice, contact us at 1.888.213.8140, or online for a free consultation. If we take your case, we become your advocate and your voice to hold those responsible accountable.

February 3, 2012

Motorcycle Accidents: Facts and Stereotypes

Motorcyle Accident Graph (1998-2007).pngMany motorcyclists are injured and killed in Maryland, Virginia and Washington D.C. due to no fault of their own. These innocent victims and their families should contact a personal injury lawyer with experience handling motorcycle crash claims, and make sure that the law firm understands the additional challenges that come with motorcycle accident cases.

Goldberg, Finnegan & Mester, LLC has experience with these cases, and we have obtained great results on behalf of many cyclists with severe injuries including paralysis, broken bones and death. The stakes in a motorcycle accident cases are always high--oftentimes higher than the average car accident case. Motorcyclists have two strikes against them before they even strap on their helmets: (1) they are motorcyclists; and (2) there are fewer barriers between them and significant, permanent injury. It is important that anyone who is injured (or family members of those killed) in a motorcycle accident know and understand the challenges of these cases from the outset because the perceptions and biases that some juror have against motorcyclist can impact the settlement value of the case, and can impact outcomes when these cases go to trial.

Perception is Reality
We all form judgments about others based on whatever limited information we get. When we hear on the news that a motorcyclist was involved in a fatal collision, we assume that the motorcyclist was at fault. This is true especially if it was a young motorcyclist. We remember every time we were driving in the slow lane on I-95, dutifully abiding by the 55 mph speed limit with our hands at ten and two (never mind that we always go at least 5 mph over the speed limit, and we usually drive with one hand). We remember that, while we were so law-abiding, a pack of young twenty-somethings was weaving in-and-out of traffic on their brightly painted crotch-rockets. If we were any older, we'd call those people whippersnappers.

That perception, which most of us are guilty of harboring, is a problem for the motorcycle-riding community when it comes to bringing a personal injury lawsuit for injuries. The reason is that motorcyclists face an uphill battle when convincing a group of people (for example, six jurors) that they were not the cause of the collision. It's hard for us to give motorcyclists the benefit of the doubt. The reality is that motorcyclists often get less than a fair shake at trial. Somewhere deep inside, we want to believe that the motorcyclists are the cause of these collisions--it's easy for non-motorcyclists to believe this because it means that motorcyclists are more often at fault than we are (the psychologists call this a defensive attribution bias). We judge the victims for their conduct (driving motorcycles), and blame the outcome on the victim instead of the real cause of injury. This is the same reason that, statistically, women jurors sometimes have a hard time finding negligence in failure to diagnose breast cancer lawsuits. Many women, when asked, say that they would not take one doctor's word for it that a lump is benign. Instead, they believe that they would get second, third and even fourth opinions. Subconsciously, we all try to disassociate ourselves from harmful outcomes.

Fewer Barriers to Injury
Motorcyclists face a problem similar to victims of semi-truck accidents. In trucking accidents, the sheer size and weight of trucks can cause devastating injuries in what would otherwise be a minor impact. For motorcyclists, not being enclosed in the safer capsule of a car cabin, and without the benefit of seatbelts, means that they are oftentimes ejected from their vehicle suffer more serious and oftentimes permanent injuries.

The Real Reality: Motorcycle Accident Statistics
The national data for motorcycle and passenger vehicle accidents reveals:

  • 1998: 31,899 fatal passenger vehicle accidents
  • 1998: 2,294 fatal motorcycle accidents
  • 2007: 28,933 fatal passenger vehicle accidents (this number has decreased every year between 2002 and 2007)
  • 2007: 5,154 fatal motorcycle accidents (this number has increased every year between 2002 and 2007)
For local Maryland data:
  • 2008: 1,800 motorcycle accidents
  • 2008: 1,500 motorcycle injuries
  • 2008: 83 motorcycle fatalities
The rising number of motorcycle accidents is certainly due in some part to more motorcyclists on the road. Particularly in this economy, motorcycles can be an attractive gas-saving option, and are a cheaper alternative to cars and small truck.

Motorcycles can be more dangerous, but there is no data that conclusively shows motorcyclists are predominantly at fault in collisions. The National Highway Traffic Safety Administration investigated the causes of motorcycle accidents, and published a report in 2010 after seeing a doubling of motorcycle accidents (Click here for the NHTSA Report). The study was small--only 23 accidents in Orange County, California were fully investigated because the study was designed to help create a more comprehensive study. Here are the facts based on this small sample:

  • 12/23 (52%): single vehicle accidents
  • 3/23 (13%): deaths
  • 5/23 (22%): less than 2 weeks of experience in motorcycle operation
  • 2/23 (8.7%): between 2 weeks and 1 year of experience in motorcycle operation
  • 4/23 (17%): between 16 and 42 years of experience in motorcycle operation
  • 6/23 (26%): ages 18-23
  • 6/23 (26%): ages 24-40
  • 8/23 (35%): ages 41-60
  • 3/23 (13%): unknown ages
  • 12/23 (52%): had some kind of motorcycle safety training
Unfortunately, the study does not report on conclusions about the causes of the collisions. Even based on this data, it's easy to let our biases sink in--many of the motorcyclists had less than a year of motorcycle experience. Preferably, we would exclude the data on single-vehicle accidents, because those are not cases that would lead to lawsuits. The data was not parsed out in such a way to exclude them, though.

Our Experience
Anecdotally, the motorcycle accident victims we have represent tend to be more experienced, and most of them have taken motorcycle training and safety courses. They all wear helmets, and many of them wear more protective gear, including vests. Motorcycle accident settlements are more difficult because the insurance companies are often willing to take a bet that the jury will enter the case with the biases discussed below, rendering a defense verdict. Therefore, a disproportionate number of motorcycle injury cases go to trial. We are acutely aware of the additional challenges that come with representing a motorcyclist who is seriously injured, and will fight hard to make sure that everything possible is done to combat the negative perception of motorcyclists described above.

For More Information

February 1, 2012

Medical Malpractice Lawsuit Referrals

Hospital LogosIs it unethical for lawyers to accept referrals from negligent parties? About two dozen Maryland hospitals keep lists of "go-to" medical malpractice plaintiff lawyers (see the recent Baltimore Sun article). When the hospital makes what it considers to be a significant (and, presumably indefensible) mistake, the hospital will meet with the family and recommend that the family hire a lawyer. At that time, the hospital recommends a specific lawyer to the family - a lawyer who has agreed in advance to take a 10-15% fee (instead of the customary 33-40%). The Maryland hospitals involved in the program include institutions from MedStar Health, LifeBridge Health and the University of Maryland Medical System.

Here's how it worked in at least one case, as cited by the article. The hospital makes a mistake. They call the injured person or family in for a meeting, acknowledging their error. The hospital will either make an offer to settle the claim immediately, or they will recommend that the injured person hire a lawyer. The hospital gives them the name of a lawyer who has agreed to take a reduced fee on the case. The injured person can then contact that lawyer, or find their own lawyer. In the article's example, the hospital recommended one attorney, but the family later hired another lawyer not from the list.

Attorneys have to be wary of conflicts of interest. In the above examples, the potential conflict of interest lies with the lawyer. If he or she wants to continue receiving referrals from the hospital, the lawyer could conceivably allow that to affect case negotiation. Consciously or subconsciously, the lawyer might be afraid that if he or she does too good a job for his client (the victim), the hospital might not send him more cases. It's worth noting that these cases are significantly easier than the average medical malpractice case--the hospital is admitting liability, which means that the cases are solely about the extent of harm caused to the victim. Most medical malpractice cases take three to five years before a resolution is reached; under the scenario above, the resolutions appear to come much more quickly.

This just doesn't sit right with me - that the corporation who caused permanent injury to me or my family wants to give me the name of a lawyer to represent me, and that the hospital has previously worked out a deal with that lawyer so they accept a reduced fee? How can I fully trust that lawyer? It doesn't seem right.

That said, I don't think there is anything strictly unethical about it. In fact, the article cites to the chair of the Maryland State Bar Association's ethics committee, who doesn't see a problem as long as the lawyer uses his or her best efforts on behalf of the client (though, the chair cannot authoritatively state this--lawyer discipline is the job of the Attorney Grievance Commission and the Maryland Court of Appeals). Moreover, the lawyers the article identified as being on these lists, including Brian Nash and Andrew Slutkin, are ethical, experienced and fantastic trial lawyers. There is no doubt in my mind that they would place the best interests of their client above all else. If they are able to resolve a case for full value, at reduced fees and without filing a lawsuit (and without waiting three or more years to get to the end of the process), then that seems like a favorable situation for the client.

But, it is still one of those things that when you hear it, it sounds wrong. I don't know how a victim doesn't interpret this as a collusive effort between the hospital and the lawyer. You must have 100% confidence in your attorney; that you know they work for you and only for you and not for the party who harmed you.

If you or a loved one is in a situation where the hospital that caused harm to you provides you with the name of a lawyer, make sure you do your due diligence in finding the lawyer that is right for you: if that turns out to be this referral lawyer, then so be it; but if not, make sure you are doing what you believe is in the best interests of you and your loved one. Because you know the hospital always has its own best interest in mind - and its best interest does not mean taking care of you.