This is an injury that can be caused at birth and often times is the result of medical negligence. There are specific protocols doctors and mid wives are trained to follow when they encounter a birth emergency such as the baby becoming stuck due to the shoulders not passing through the birth canal. The various protocols include:
McRoberts Maneuver: Where the mother is repositioned and flexing knees to abdomen
Surapubic Pressure: Where push pressure is asserted over the mother's abdomen.
Wood's or Cork Screw Maneuver: Rotating the child's upper shoulder downward and the downward shoulder up ward.
C- Section: Which is extracting the baby through surgery.
There are four major types of injuries which occur to the nerves in the brachial plexus network which can result in some form of palsy:
1. an avulsion meaning the nerve is torn from the spine.
2. a rupture meaning the nerve is torn but not where it attaches to the spine.
3. a neuroma meaning the nerve has tried to heal but scar tissue has grown around the injury placing pressure on the injured nerve praxis. While the nerve has been damaged, it has not been torn and improvement should be seen within 3 months.
4. Neuropraxia is the mildest form of nerve injury. Neuropraxia, the most common form of Erb's Palsy is localized to the specific place where the injury occurs. It is a physiologic block of nerve conduction within an axon without any anatomical interruption. Many infants born with brachial plexus palsy have neuropraxia and sometimes recover within 4-6 weeks.
If you are not sure if negligence was involved in your baby's injury call my office. We will investigate the cause for you and provide those answers at no cost to you. 1-888-760-7339.
Friday, September 26, 2008
Wednesday, September 24, 2008
Medical Malpractice in Maryland. Those Cases Matter Too.
If you have been injured as a result of a doctor or hospital's careless treatment and you have been to the lawyers and each one tells you the damages do not justify filing suit call me before you give up the fight. A common opinion for many malpractice lawyers is that the case has to be worth seven figures to justify filing suit. I happen to disagree. I see many medical negligence issues each year where the damages are less then optimal but the case still has value beyond expenses. I am more then happy to give your case an initial evaluation or that final review after everyone has said no. Too frequently a blind eye is turned on those who deserve. This is done in favor of what many consider more prudent business decision making. Let my office be your last stop. Please feel free to call to discuss your medical malpractice case. 1-888-760-7339
Tuesday, September 23, 2008
Statute of Limitations in Maryland Personal Injury
You must be very very careful on issues involving the Statute of Limitations. Once your period of limitations has run out you will be forever barred from filing suit against the person(s) that harmed you. My first advise to you is when you are injured in an accident no matter what type accident, car accident, medical malpractice, slip and fall, not matter what, first call an attorney who practices personal injury law in Maryland. If for no other reason simply ask, what is the statue of limitations in my case. Oddly in the last week I have had two calls from people who have waited until one month before the limitations is about to expire on their cases now seeking an attorney. Let me explain some thing right off the start. First off every attorney will suspect something is wrong with this case when they get a call this close to limitations expiring. Secondly, it is a horrible risk to any attorney to try to investigate a case to determine who needs to be sued in such a short period of time before limitations will expire. Generally when an attorney gets this type call the suspicion is other attorney's have already reviewed the case and rejected it for some reason and now the potential client is still looking for an attorney to take the case and time is running out. Always contact an attorney when you are injured. You do not have to hire them just ask what is the period of limitations. Please feel free to call. I will review the case for you and answer your questions right over the phone 1-888-760-7339.
Monday, September 22, 2008
Bad Faith Failure to Settle in Maryland Personal Injury Cases
In the event you have damages that are in excess of defendant's liability coverage, setting aside the issues involving UM coverage for the moment, you can set up the potential for a bad faith claim against the defendant insurance carrier that might in the long run net you payment for the full extent of your client's harms. The Maryland personal injury case on point is Kremen v. Maryland Automobile Insurance Fund 363 Md. 663, 770 A.2d 170
Md.,2001. In this case defendant insurer had the chance to settle the case for policy limits however, refused to settle. The court determined the action for bad faith lies in tort and not in contract. In this case it was determined there was sufficient evidence in the record for the jury reasonably to have found that the defendant’s insurer did not fully investigate plaintiff's claimed head injuries. Because the jury was provided with evidence of the defendant insurers failure to investigate fully plaintiff's closed head injury claim and of plaintiff's willingness to settle unconditionally the underlying case for defendant's $20,000 policy limit, the trial court found that there was sufficient evidence before the jury to support its finding that defendant insurer acted in bad faith (negligently) when it refused to settle the case. The measure of damage was the difference between the policy limits and the amount of the judgment entered against the insured.
As a matter of practice when we conduct our initial client intake one of the first points of inquiry is UM/UIM coverage. Once our clients near completion of treatment we ball park value the case. When we feel we have an excess case we investigate defendant’s assets and upon confirmation of all damages forward a policy limits demand, if appropriate.
Md.,2001. In this case defendant insurer had the chance to settle the case for policy limits however, refused to settle. The court determined the action for bad faith lies in tort and not in contract. In this case it was determined there was sufficient evidence in the record for the jury reasonably to have found that the defendant’s insurer did not fully investigate plaintiff's claimed head injuries. Because the jury was provided with evidence of the defendant insurers failure to investigate fully plaintiff's closed head injury claim and of plaintiff's willingness to settle unconditionally the underlying case for defendant's $20,000 policy limit, the trial court found that there was sufficient evidence before the jury to support its finding that defendant insurer acted in bad faith (negligently) when it refused to settle the case. The measure of damage was the difference between the policy limits and the amount of the judgment entered against the insured.
As a matter of practice when we conduct our initial client intake one of the first points of inquiry is UM/UIM coverage. Once our clients near completion of treatment we ball park value the case. When we feel we have an excess case we investigate defendant’s assets and upon confirmation of all damages forward a policy limits demand, if appropriate.
Friday, July 25, 2008
Maryland Personal Injury Discovery: Insured's Statements to Insurer
I noticed that defense counsel is fond of issuing a subpoena to my client's PIP carrier to get the PIP application. As such at my office we exercise proper caution in drafting the responses contained in the PIP application. So the question arises; does the blade cut both ways. I mean if the defnedant can get my client's PIP application, why can't I get the defendant's statements to his insurance company. The answer is maybe you can get the statements. The Maryland court has considered the issue in Cutchin v State of Maryland 143 Md App 81 (2002). In this case the court determined the statements in this matter were not prividged and were subject to discovery. However, as dicta the Court articulated a two factor test to determine if the defendant's communications to his insurer are coverd as prividged communications between attorney and client. The two facts are (1) whether the communication was predominately related to the insured's defense and (2) did the defendant have a reasonable expectation that his communications were confidential. I suggest it is a reasonable discovery question to ask for any and all statements made by the defendant to any and all persons including but not limited to his insurer.
Wednesday, July 16, 2008
Expert Disclosure in Maryland Personal Injury
What, if any, tolerance does the court have regarding expert disclosure as it related to late disclosure not of the actual expert him/herself, but rather their opinions or their reports. In Maryland a typical discovery interrogatory question will ask for the identification of expert witnesses and the basis and substance of their opinions. Additionally, the court's scheduling order will mirror this requirement and often provides a deadline for each party to disclose experts. So what happens when a party either does not fully comply with the discovery request or fails to disclose the expert opinions or provide a report to the other side. Maryland courts have addressed the issues.
Initially it is worth noting in Admiral Mortgage v. Cooper, 357 Md. 533, 545, 745 A.2d 1026 (2000), the Court of Special Appeals noted the appropriate sanction for a discovery or scheduling order violation is largely discretionary with the trial court. The Court qualified a “governing principle” and pointed out “the more draconian sanctions, of dismissing a claim or precluding the evidence necessary to support a claim, are normally reserved for persistent and deliberate violations that actually cause some prejudice, either to a party or to the court.” As such the scheduling order is not meant to function as a statute of limitations, and good faith substantial compliance with the scheduling order is ordinarily sufficient to forestay a case-ending sanction. See also Manzano v. Southern Maryland Hospital, 347 Md. 17, 29, 698 A.2d 531 (1997) (“dismissal of a claim ... is warranted only in cases of egregious misconduct”).
In the case of Kleban v. Eghrari-Sabet 174 Md.App. 60, 920 A.2d 606 Md.App.,2007 the court would not allow the plaintiff’s expert to testify to a particular opinion (ie future lost wages) since the opinion was not identified as a part of the opinions this expert would offer at trial. That makes sense if you fail to outline the opinion the expert is offered for then the expert can not testify to that opinion. Conversely in the matter of Food Lion v. McNeill 393 Md. 715, 904 A.2d 464 the court refused to sanction the non disclosing party when the aggrieved party waited until trial to raise their objection not as to the opinion expressed but rather to the disclosed factual basis for the opinion. The court determined the request for exclusion of the expert’s opinion at trial should have been raised as a discovery motion. In this particular case the non disclosing party identified the expert by name but did not set forth any opinions in response to discovery request. As such the aggrieved party created the harm they complained of by not pursuing the discovery failure.
In the matter of Helman v. Mendelson 138 Md.App. 29, 769 A.2d 1025 Md.App.,2001 the court would not permit expert testimony after multiple delays affecting production of expert opinions and an expert report. In this matter the expert’s report was produced only 2 days prior to a hearing on motion for summary judgment. The court found prejudice to the aggrieved party as the foundation for the decision. Conversely in the matter of Maddox v. Stone 174 Md.App. 489, 921 A.2d 912 Md.App.,2007. Trial court abused its discretion by excluding family's expert on ground that expert’s report was disclosed 34 days after deadline contained in scheduling order, in negligence action brought against electrical contractor by family injured in house fire, where expert’s identity was disclosed before deadline in scheduling order, contractor deposed expert well in advance of trial, another expert for family whose report was disclosed prior to scheduling order's deadline had died, family had not engaged in any willful or contemptuous behavior, and trial court did not consider whether any option other than exclusion was an appropriate response to the lack of strict compliance with the discovery deadlines in the scheduling order. The Court sited no prejudice to the other party. See also Lowery v. Smithsburg Emergency Medical Service 173 Md. App. 662, 920 A.2d 546 Md.App.,2007. Former employee's delay in filing report of expert two and one-half months after close of discovery and 12 days before trial was substantial, in action against former employer for defamation and intentional interference with economic relations, so as to support a finding that exclusion of the report was not an abuse of trial court's discretion; delay in obtaining the expert report did not allow appellees sufficient time to prepare their defense and was therefore prejudicial.
The court has outlined five factors to consider in determining whether to apply sanctions. Please see Lowery v. Smithsburg Emergency Medical Service 173 Md. App. 662, 920 A.2d 546 Md.App., 2007. In the exercise of its discretion when applying sanctions for discovery violations, a trial court must consider these five factors: whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.
You must disclose the expert opinions, (this is mandatory), however not necessarily the factual basis for the opinion (unless requested and compelled in discovery), and an expert report, if any, well in advance of creating prejudice to the other side. If you do not the court has the discretion to exclude your expert testimony if after applying the five factors the court determines there is prejudice to the other side.
Initially it is worth noting in Admiral Mortgage v. Cooper, 357 Md. 533, 545, 745 A.2d 1026 (2000), the Court of Special Appeals noted the appropriate sanction for a discovery or scheduling order violation is largely discretionary with the trial court. The Court qualified a “governing principle” and pointed out “the more draconian sanctions, of dismissing a claim or precluding the evidence necessary to support a claim, are normally reserved for persistent and deliberate violations that actually cause some prejudice, either to a party or to the court.” As such the scheduling order is not meant to function as a statute of limitations, and good faith substantial compliance with the scheduling order is ordinarily sufficient to forestay a case-ending sanction. See also Manzano v. Southern Maryland Hospital, 347 Md. 17, 29, 698 A.2d 531 (1997) (“dismissal of a claim ... is warranted only in cases of egregious misconduct”).
In the case of Kleban v. Eghrari-Sabet 174 Md.App. 60, 920 A.2d 606 Md.App.,2007 the court would not allow the plaintiff’s expert to testify to a particular opinion (ie future lost wages) since the opinion was not identified as a part of the opinions this expert would offer at trial. That makes sense if you fail to outline the opinion the expert is offered for then the expert can not testify to that opinion. Conversely in the matter of Food Lion v. McNeill 393 Md. 715, 904 A.2d 464 the court refused to sanction the non disclosing party when the aggrieved party waited until trial to raise their objection not as to the opinion expressed but rather to the disclosed factual basis for the opinion. The court determined the request for exclusion of the expert’s opinion at trial should have been raised as a discovery motion. In this particular case the non disclosing party identified the expert by name but did not set forth any opinions in response to discovery request. As such the aggrieved party created the harm they complained of by not pursuing the discovery failure.
In the matter of Helman v. Mendelson 138 Md.App. 29, 769 A.2d 1025 Md.App.,2001 the court would not permit expert testimony after multiple delays affecting production of expert opinions and an expert report. In this matter the expert’s report was produced only 2 days prior to a hearing on motion for summary judgment. The court found prejudice to the aggrieved party as the foundation for the decision. Conversely in the matter of Maddox v. Stone 174 Md.App. 489, 921 A.2d 912 Md.App.,2007. Trial court abused its discretion by excluding family's expert on ground that expert’s report was disclosed 34 days after deadline contained in scheduling order, in negligence action brought against electrical contractor by family injured in house fire, where expert’s identity was disclosed before deadline in scheduling order, contractor deposed expert well in advance of trial, another expert for family whose report was disclosed prior to scheduling order's deadline had died, family had not engaged in any willful or contemptuous behavior, and trial court did not consider whether any option other than exclusion was an appropriate response to the lack of strict compliance with the discovery deadlines in the scheduling order. The Court sited no prejudice to the other party. See also Lowery v. Smithsburg Emergency Medical Service 173 Md. App. 662, 920 A.2d 546 Md.App.,2007. Former employee's delay in filing report of expert two and one-half months after close of discovery and 12 days before trial was substantial, in action against former employer for defamation and intentional interference with economic relations, so as to support a finding that exclusion of the report was not an abuse of trial court's discretion; delay in obtaining the expert report did not allow appellees sufficient time to prepare their defense and was therefore prejudicial.
The court has outlined five factors to consider in determining whether to apply sanctions. Please see Lowery v. Smithsburg Emergency Medical Service 173 Md. App. 662, 920 A.2d 546 Md.App., 2007. In the exercise of its discretion when applying sanctions for discovery violations, a trial court must consider these five factors: whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.
You must disclose the expert opinions, (this is mandatory), however not necessarily the factual basis for the opinion (unless requested and compelled in discovery), and an expert report, if any, well in advance of creating prejudice to the other side. If you do not the court has the discretion to exclude your expert testimony if after applying the five factors the court determines there is prejudice to the other side.
Tuesday, July 15, 2008
Maryland Personal Injury Slip and Fall
As in any Maryland personal injury case the plaintiff must provide liability and damages. Liability in the premises liability case or slip and fall as we generically refer to them revolves around notice. The owner of the property must have a reason to know of the danger and then fail to correct the danger or warn the plaintiff of the danger provided the plaintiff could not discover the danger himself with the exercise of ordinary care. Also, depending upon how the plaintiff is categorized the duty owned by the owner changes. For example the duty owed to a social guest is different then the duty owed to a business invitee. I find the most pertinent questions in my interview with a potential client is a slip and fall is what made you fall, how did the danger get there if you know, and how long was it there before you arrived. This last question is generally answered by circumstantial evidence. I once had a slip and fall at a gas station. My client feel on oil left by a prior vehicle. How long was the oil there before she arrived was a major problem. I solved the problem with eye witnesses who testified they saw foot prints in the oil and tire tracks in the oil. Some of the foot print stains actually travelled from the oil spill right to the attendant's window where customers pay. We won the case. The owners will always argue we did not know of the danger. However, if the danger was there for a sufficiently long enough period of time or the owner's own conduct created the danger, then you have some thing to work with in terms of proving liability. Since these are always difficult cases on liability the damages have to be adequate to justify the work the attorney will invest in the case. If you have a slip and fall case and you need to bounce it off an attorney please feel free to call. I am more then happy to review the facts with you and give you my opinion.
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