Maryland medical malpractice law places a limitation on who can testify in the cases to certify and/or testify to the standard of care to those medical providers who devote no more then 20% of their professional time to testifying in personal injury cases. Specifically, MD Code, Courts and Judicial Proceedings, § 3-2A-04 b(4)
A health care provider who attests in a certificate of a qualified expert or who testifies in relation to a proceeding before an arbitration panel or a court concerning compliance with or departure from standards of care may not devote annually more than 20 percent of the expert's professional activities to activities that directly involve testimony in personal injury claims.
The issue was addressed in in Witte v. Azarian where the court addressed what kind of activities “directly involve testimony in personal injury claims,” within the meaning of CJ section 3-2A-04(b)(4), so as to constitute the numerator in the 20 Percent Rule. The court reasoned that the operative statutory phrase at issue (“activities that directly involve testimony in personal injury claims”), was ambiguous, as its meaning could not be ascertained from its plain language, and that, in light of the legislative history of the Act as amended, including the amendments establishing the certificate of qualified expert requirement, that language had to be read narrowly, so as to avoid “creat[ing] an unreasonable impediment to the pursuit, or defense, of a common law right of action” for medical negligence. The Court determined a standard to determine the issue as follows:
A more reasonable approach, we think, is to regard the statute as including only (1) the time the doctor spends in, or traveling to or from, court or deposition for the purpose of testifying, waiting to testify, or observing events in preparation for testifying, (2) the time spent assisting an attorney or other member of a litigation team in developing or responding to interrogatories and other forms of discovery, (3) the time spent in reviewing notes and other materials, preparing reports, and conferring with attorneys, insurance adjusters, other members of a litigation team, the patient, or others after being informed that the doctor will likely be called upon to sign an affidavit or otherwise testify, and (4) the time spent on any similar activity that has a clear and direct relationship to testimony to be given by the doctor or the doctor's preparation to give testimony.
Monday, November 3, 2008
Saturday, October 4, 2008
Litigation Themes
I have been reading and studying the use of themes in litigation. I thought some of what I have learned might be helpful to you. As I research on this issue I actually found a lot of material but very little concisely condensed material.
First themes are essential to success in litigation. I found a great deal of really useful information by ordering and listened to audio recording of trials in the area. I typically select the larger verdict trials. If you are interested in doing this also it is easy. You can order the audio and video (video in Baltimore City circuit court, with the consent of parties or counsel) for about $25-$45 per day of trial testimony. Interestingly I discovered every successful plaintiff's case is really just the advancement of themes. The successful attorneys have captured the simplest understanding of the human drama of their case and reduced it to a easily identifiable set of concise words. Those successful themes inherently carry the proposition that the defendant has made a careless choice and is now trying to side step responsibility for the harms by dodging responsibility or passing the buck. Like revenge these themes are best served cold and dispassionately. One author proposed developing a theme by first asking yourself what do you want from this case and then outlining the facts that support why you should have it. Others propose a similar formula which ask why should I win this case? All agree formation of the theme early in the case even before discovery is essential. Understanding the theme will be modified to changing facts as discovery progresses. Once trial is viewed as theme advancement evidential issues become some what secondary requirements. Obviously necessary but still secondary to theme advancement.
First themes are essential to success in litigation. I found a great deal of really useful information by ordering and listened to audio recording of trials in the area. I typically select the larger verdict trials. If you are interested in doing this also it is easy. You can order the audio and video (video in Baltimore City circuit court, with the consent of parties or counsel) for about $25-$45 per day of trial testimony. Interestingly I discovered every successful plaintiff's case is really just the advancement of themes. The successful attorneys have captured the simplest understanding of the human drama of their case and reduced it to a easily identifiable set of concise words. Those successful themes inherently carry the proposition that the defendant has made a careless choice and is now trying to side step responsibility for the harms by dodging responsibility or passing the buck. Like revenge these themes are best served cold and dispassionately. One author proposed developing a theme by first asking yourself what do you want from this case and then outlining the facts that support why you should have it. Others propose a similar formula which ask why should I win this case? All agree formation of the theme early in the case even before discovery is essential. Understanding the theme will be modified to changing facts as discovery progresses. Once trial is viewed as theme advancement evidential issues become some what secondary requirements. Obviously necessary but still secondary to theme advancement.
Wednesday, October 1, 2008
Wrongful Death In Maryland Personal Injury
Wrongful Death In Maryland Personal Injury
The wrongful death statute in Maryland can be found in the Courts and Judicial Proceedings Article starting with section 3-901 through 3-904. Additionally Maryland Rule 15 -1001 must also be reviewed prior to initiating suit. The wrongful death statute defines the persons who are entitled to bring an action for wrongful death as a result of the loss of someone who has died. Specifically the claim may be brought by primary beneficiaries. Those persons are defined as a spouse, a parent, and the children of the deceased person. If there is no primary beneficiary then suit may be brought by secondary beneficiaries, who are defined as any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased. A person is considered wholly dependent under the wrongful death statute when he or she existed financially entirely on the income of the deceased and has no other consequential source or means of being financially self-supporting other than income of the deceased. Even in circumstances where spouses are separated and near divorce the surviving spouse is still entitled to bring an action and obtain recovery. An illegitimate child may also qualify the primary beneficiary under the statute. Additional a viable unborn child at the time of the decedent's death may qualify as a primary beneficiary under the statute. However, a stepchild, stepparent or personal representative however is not permitted to be a claimant under the statute.
It is important to remember that primary beneficiaries who are not pursuing suit must still be named in the pleadings
The wrongful death statute in Maryland can be found in the Courts and Judicial Proceedings Article starting with section 3-901 through 3-904. Additionally Maryland Rule 15 -1001 must also be reviewed prior to initiating suit. The wrongful death statute defines the persons who are entitled to bring an action for wrongful death as a result of the loss of someone who has died. Specifically the claim may be brought by primary beneficiaries. Those persons are defined as a spouse, a parent, and the children of the deceased person. If there is no primary beneficiary then suit may be brought by secondary beneficiaries, who are defined as any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased. A person is considered wholly dependent under the wrongful death statute when he or she existed financially entirely on the income of the deceased and has no other consequential source or means of being financially self-supporting other than income of the deceased. Even in circumstances where spouses are separated and near divorce the surviving spouse is still entitled to bring an action and obtain recovery. An illegitimate child may also qualify the primary beneficiary under the statute. Additional a viable unborn child at the time of the decedent's death may qualify as a primary beneficiary under the statute. However, a stepchild, stepparent or personal representative however is not permitted to be a claimant under the statute.
It is important to remember that primary beneficiaries who are not pursuing suit must still be named in the pleadings
Friday, September 26, 2008
Erbs Palsy
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.
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.
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.
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