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Methods to Prove Facts in Maryland Personal Injury

2009-06-17T23:41:00.000-07:00

I receive several calls each weeks from people who visit my web site. asking how they can prove their cases. What is evidence and what do they need to do. There are many ways to prove the facts necessary to establish your claim or your defense. Facts can be proven by eyewitnesses, who can be either or both friendly and/or adversarial/adverse witnesses. Facts may be proven through real and demonstrative evidence, tangible articles, photographs, models, maps, drawings, documents, or opinions of experts. Under certain circumstances facts may be established thru the opinions of non -experts and by the use of out of court statement. These out of court statements must qualify as hearsay exceptions. In some instances a fact may be admitted in pleadings or even in situations where an adverse party admits the fact in discovery by deposition testimony or admission or failure to deny in a request for admission under Maryland Rule 2-424. Facts may be proven by circumstantial evidence provided the evidence to establish the facts is not conjecture or speculation. The ability to see the relevant facts of a case coupled with the knowledge of how to secure the introduction of the facts into evidence is essential to proof of any case in court. Many attorney's create a formula for presentation. It consist of pre outlined time schedules for issuing subpoenas, securing witnesses under subpoena, issuance of discovery, seeking stipulations and identifying and securing expert witness testimony.

Maryland Personal Injury Offsets to Underinsured Coverage by Workers Compensation Benefits Received.

2009-05-14T11:52:00.001-07:00

In a Maryland personal injury case, there is a some what complicated situation that exist when multiple policies of insurance are all at play in the plaintiff's recovery. An interesting case was recently decided in the matter of Blackburn v Erie involving under insured coverage and workers compemsation insurance. This situation involves a fairly complicated mess of who gets what from the insurance coverage and who is entitled to what as off sets to avoid a wind fall recovery to the plaintiff. The first part of the equation is easy. When the under insured coverage is greater then the liability coverage the under insured coverage must pay the deficient. Of course this assumes a policy limits offer. It becomes more interesting and perhaps more complex when you throw in a workers compensation policy. You encounter this situation when a worker is injured in car accident for example. In this case when the workers compensation carrier has paid benefits the under insured carrier wants an off set to their coverage equal to the benefit received by the plaintiff. As such no wind fall by coverage duplication. Normally this argument arises when the workers compensation carrier has reduced their lien by some figure. In this case the under insured carrier says well then reduce what we owe to plaintiff by the amount of the reduction in the workers compensation lien. And guess what the courts in Maryland agree with the under insured motorist on this point.

Underinsured personal injury issues in Maryland accident cases

2009-05-13T04:19:00.000-07:00

In Maryland every driver is required to carry automobile liability insurance. However the law only requires a 20/40 policy. As such you can end up with a situation where your personal injury claim exceeds the value of the defendant's liability policy. Assuming you do not have adequate under insured motorist coverage yourself, then what are the prudent steps to follow to verify there is no other source of coverage for your personal injuries after the defendant insurer offers policy limits. I recommend you secure an affidavit from the defendant. This can be a bit tricky since you will need to communicate through the defendant's insurance company. However it is necessary in the serious accident cases. The affidavit should attest to no agency, and no insurance from business, household or any and all other sources. In the event you have reason to believe the defendant has personal assets, sometimes unlikely when there is only a 20/40 policy, however, not impossible, then I suggest an asset check. The asset checks are fairly limited in my opinion, but can find real property, which often times have value. If you have any questions on this issue please feel free to call me. I am a Maryland personal injury lawyer.

Removal from District Court To Circuit Court In Maryland Personal Injury

2009-04-22T10:23:00.000-07:00

In Maryland personal injury cases the District Court has jurisdiction over cases up to the limit of a damage demand not to exceed $30,000.00. Like everything else in the law there are several rules that guide the Maryland personal injury lawyer thru the process of removal. For example the defendant can remove only if the request is made with in 15 days of the due date of their Notice of Intent to Defend. see Maryland Rule 3-307. Notice of intention to defend

(1) Generally.- Except as provided by subsection (b)(2) of this Rule, the notice shall be filed within 15 days after service of the complaint, counterclaim, cross-claim, or third-party claim.

With in 10 days after the Notice of Intention to Defendant is to be filed the Defendant may request his jury trial see Maryland Rule 3-325 A defendant, counter-defendant, cross-defendant, or third-party defendant may elect a trial by jury of any action triable of right by a jury by filing a separate written demand therefore within ten days after the time for filing a notice of intention to defend. The failure of a party to file the demand as provided in section (a) of this Rule constitutes a waiver of trial by jury of the action for all purposes, including trial on appeal.

When a timely demand for jury trial is filed, the clerk shall transmit the record to the circuit court within 15 days. At any time before the record is transmitted pursuant to this section, the District Court may determine, on motion or on its own initiative, that the demand for jury trial was not timely filed or that the action is not triable of right by a jury.

The Maryland Rules thereafter pick up the case under Maryland Rule 2-326. Certain transfers from District Court

(a) Notice.- Upon entry on the docket of an action transferred from the District Court pursuant to a demand for jury trial or a demand for transfer pursuant to section (d) of Rule 3-326, the clerk shall send to the plaintiff and each party who has been served in the District Court action a notice that states the date of entry and the assigned docket reference and includes a "Notice to Defendant" in substantially the following form:

Notice to Defendant

If you are a "defendant," "counter-defendant," "cross defendant,"
or "third-party defendant" in this action and you wish to contest the case
against you, you must file in this court an answer or other response to the
complaint, counterclaim, cross-claim, or third-party claim within 30 days
after the date of this notice, regardless of whether you filed a notice of
intention to defend or other response in the District Court.

If an action is transferred and a defendant or third-party defendant has not been served with process, the burden is on the plaintiff or third-party plaintiff to obtain service, as if the action were originally filed in a circuit court.

(b) Answer or other response; subsequent proceedings.- Regardless of whether a notice of intention to defend or other response was filed in the District Court, a defendant, counter-defendant, cross defendant, or third-party defendant shall file an answer or other response to the complaint, counterclaim, cross-claim, or third-party claim within 30 days after the clerk sends the notice required by section (a) of this Rule. Following the expiration of the 30-day period, the action shall thereafter proceed as if originally filed in the circuit court.

As such once served the defendant has 25 days to seek a removal of the case from the district court to the circuit court. With in 15 days after the clerk transfers the case the plaintiff can object to the removal on the basis of an untimely request. After the case is transferred and docketed the defendant has 30 days to file his new answer to the complaint.

Slip and Fall Lawyer

2009-04-09T09:40:00.000-07:00

The owner of a property can be held liable to pay for your injury. In Maryland the owner's liability depends on what kind of property he has (business or residential) and why you were there in the first place (business reasons, social reasons or trespasser). For example, if the property is a business or the property is some one's home. In each case the owner has a different duty to you the visitor. If you are invited there or you are a trespasser the owner has a different duty to you. Most times premises liability is difficult to prove. Not impossible but difficult. I personally have had very good success with the premises liability claims. My largest recovery was against a hotel in Ocean City where my client slipped on ice. It was late on New Years eve the hotel had left the outdoor hot tub open and available. My client a wonderful women in her early 50's had gone with friends to the hotel. After dinner they looked outside and saw the hit tub was still open. They changed cloths and as my client exited onto the patio approaching the tub, down she went. Our theory of liability focused on the hotel's knowledge that water turned to ice in the cold. Hard to dispute that truth. And oh yeah people in hot tubs get wet. And when wet people walk from the hot tub to the door to enter the hotel they drip water. The long and short of it, don't leave the hot tub open in the freezing cold. If you do then at least warn people that is might be slippery between the patio door and the hot tub. That seems to make sense since the hotel owners have been there for many winters and knew or should have known of the danger they created and this was my client's first time ever to this hotel. You see the basis of this type of liability involving a business and a business invitee is the knowledge the owner has of the danger and the opportunity they had to correct it or warn. One of the first questions to ask a client on a slip and fall is where did you fall and secondly what made you fall. Where tells you the duty owed by the owner to your client. What made you fall is critical to success. As a lawyer you must establish the owner knew of the danger. This knowledge can be established if you can prove the danger was there for a long time or the owner created the danger. I had a slip and fall at a gas station which I won. The client slipped on oil. The owner argued the oil could have been left by the car immediately before my client arrived. In which case how could they know there was a danger in time to fix or warn. I was able to prove by eyes witnesses that the oil spill had tire marks thru it and foot prints in it. The foot prints lead directly to the glass windowed pay booth. Had the attendant been looking he would have seen the oily foot prints and could have taken corrective action to make the area safe or warned my client of the danger. It is important to note the owner of a property is not an insurer of the safety of the visitors. Giant Food v Mitchell 640 A 2d 1134. As a plaintiff you need to prove the business owner had knowledge and an opportunity to clean or warn and you the plaintiff had no reason to know or expect there was a danger there. Three ways to prove knowledge to the owner: 1. owner created the danger (Ocean City Hotel above); 2. an admission by the owner or an employee that they knew (extremely rare); and 3. constructive knowledge of the danger (the oily gas station above). Do appreciate the owner must have had an opportunity to clean or warn. So proving how long the danger existed is critical.
If you or your family member has been injured in a slip and fall, please feel free to call me. I am happy to discuss the case with you over the phone at no cost to you.

Experts in Maryland Injury Cases

2009-04-08T15:04:00.000-07:00

For an expert to be permitted to testify first they must qualify as an expert. Then the experts opinions will be permitted only when

1). The opinions assist a jury in understanding questions that inexperienced people are not likely to decide correctly without the assistance of an expert. In circumstances where knowledge, training, and experience enable the expert witness to form an opinion that is going to aid the jury then an expert witness will be permitted to offer his testimony.

2). When the opinions are based on facts in evidence. The facts upon which the opinion of an expert witness is predicated must be stated. The jury must be informed of the facts or the assumed facts upon which the expert's opinion is based. An expert witness may not deliver his opinions in a factual vacuum. Furthermore, there must be evidence to support these facts. Beyond that it is for the jury to determine whether the facts exist or not. It has been the practice in Maryland for some years to permit an expert to express his opinion upon the facts in evidence which he has heard or read on the assumption that these facts are true. Twombley v. Fuller Brush Co., 221 Md. 476, 158 A.2d 110 (1960). Although expert opinion that assumes the truthfulness of disputed testimony is generally admissible, the expert opinion that asserts that the disputed testimony is true is not admissible. Hall v. State, 107 Md. App. 684, 670 A.2d 962 (1996. Md. Rule 5-703 If the jury's finding on controverted questions of fact is contra to the premise upon which the expert bases his opinion, his opinion falls with the premise. Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121 (1977).

It is generally true that the opinion of an expert may not be based in whole or in part on the conclusions and opinions of other witnesses. Jackson v. Jackson, 249 Md. 170, 238 A.2d 852 (1968); nor on reports of others if they contain only opinions, inferences or conclusions. Pennsylvania Threshermen and Farmers' Mut. Cas. Co. v. Messenger, 181 Md. 295, 29 A.2d 653 (1943), Experts may rely on opinion evidence, based in part on reports of others which are not in evidence, but which the expert customarily relies on in the practice of his profession. Cohen v. Rubin, 55 Md. App. 83, 460 A.2d 1046 (1983).Where an expert relies on reports of others, he must demonstrate to the court not only that the reports were made in a reliable manner, but that they are reliable sources of information for the purposes to which the expert puts them. Madden v. Mercantile-Safe Deposit & Trust Co., 27Md. App. 17, 339 A.2d 340(1975).

In many personal injury case in Maryland I encounter situations where defense counsel seeks to introduce an expert for the sake of having an expert impress the jury. It is worth the fling of a Motion in Limine to challenge the use of experts that add nothing to the jury's need to understand and are no more then window dressing.

Medical Malpractice In Maryland Areas Of Liability

2009-04-08T12:36:00.000-07:00

The areas of liability in a Maryland medical malpractice case fall generally into four categories. Plaintiff's will often find liability in general medical care, surgical errors, radiological errors and pathological areas. Once liability is determined the theories of liability generally fall into the following list.
1. Failure of proper treatment
2. Failure to tell the patient of test results
3. Lack of informed consent
4. Failure to refer a patient to a specialist.
5. Failure to preform surgery properly, including the failure to use proper tools and equipment.

Minimal Property Damage and Personal Injury In Maryland

2009-03-19T09:31:00.000-07:00

The defendants are always making the argument that minimal property damages equals no personal injury. For example how can the person inside the car be hurt when the car is hardly hurt. The argue has some persuasive value in spite of the fact that it ignores the human factor that people are not cars. I use the example in trial of going to the play ground and seeing children pushing children at play. The child falls get back up and the game continues. Well if you push an elderly person the force of the push would break the person in half. The same is true of people not in shape or turned in an odd way at the point of impact, or susceptible to injury due to pre-existing conditions. The list goes on depending upon the facts of your case. In any event the Maryland Court of Appeals addressed the issue of whether property damage photographs can be offered into evidence with out expert testimony to establish the relationship, if any, between property damage and personal injury. The Court in the matter of MASON v. LYNCH. 388 Md. 37, 878 A.2d 588 held "Courts have generally held that photographs and testimony, showing or describing vehicular damage or the nature of the impact, are relevant with respect to the personal injuries suffered in a motor vehicle accident and, in the trial judge's discretion, are admissible." In this matter Plaintiff argued because greater vehicular damage does not result in greater personal injuries, and lesser vehicular damage does not result in lesser personal injuries, in every accident, there can be no correlation between vehicular damage and personal injuries; therefore, vehicular damage evidence is not relevant. However, the Court determined this is not the test for relevancy. Maryland Rule 5-401 defines “ relevant evidence” as follows: ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Courts, almost uniformly, have taken the position that there is in motor vehicle accident cases, as a matter of probability, a correlation between the nature of the vehicular impact and the severity of the personal injuries. As the plaintiff herself acknowledges in Morgan, “[t]here apparently exists among laypersons a belief ... that significant injuries are unlikely in the absence of substantial property damage.” Courts have generally taken the position that this belief is rooted in common sense. Moreover, in personal injury actions based on motor vehicle accidents, evidence, including photographs, of the accident scene and of the damage to the vehicles, is, within the trial court's discretion, admissible under Maryland law.
In sum, the trial court in the instant case did not abuse its discretion in admitting the photographs showing the damage to the plaintiff's automobile.

Injured During Work Driving the Company Vehicle

2009-03-17T13:19:00.000-07:00

If you have been injured during work while driving the company vehicle you have two claims to bring in a Maryland injury case. The first claim is against the driver of the other vehicle. This is what we call the third party claim. The other case you have is a claim for workers compensation benefits against you employer. There are a few things you need to know before you start. One is you can not get both PIP benefits and TTD (lost wage benefits) in this situation. Additionally, the workers compensation insurer will have a credit against your third party recovery. Furthermore, in the event your third party case also gives rise to a UM claim. The workers compensation insurer will argue for a credit against the UM recovery as well. I have negotiated three cases in the past 12 months involving these issues. Each case resulted in a mid six figure recovery for my clients. Each case involved a third party claim, a UM claim, and a workers compensation claim. If you think fighting one insurance company per case is interesting try fighting three at the same time. Fortunately we were successful in each case. If you have any questions regarding this type of case, please feel free to call me I am happy to help you through this maze.

Maryland Personal Injury 19-511 UM Insurance

2009-02-18T11:03:00.000-08:00

In Maryland personal injury law you may encounter the situation where the defendant's insurance carrier has offered the liability policy limits as a full and final settlement. In this circumstance the UM carrier must be notified of the settlement offer (see Maryland Injury Attorney for information on this statute). That procedure is simple enough. However,the circumstances become a bit more complicated when the liability insurer makes this offer with in 60 days of the trial date. In this situation the UM carrier does not have the respond before the trial is held. As such arguably the parties risk the loss of the benefit of settlement or the plaintiff losses the opportunity to proceed against the UM carrier, if the plaintiff should choose to accept the settlement before the UM carrier responds. The solution is to postpone the trial to allow the UM carrier time to respond. I have had success with this approach and citing the case of Ohio Casualty Insurance Company v Chamberlin, 172 Md. App. 229, 914 A.2d 160 (2007), which reviewed section 19-511. In Chamberlin the Court soundly determined that the statute “was enacted to protect the innocent victim from irresponsible drivers with out insurance”. Or as in this case a driver with inadequate insurance. Furthermore, the Court stated the statute “is not intended to deprive the insured of the benefit of a settlement with the liability carrier.” Please feel free to call me if you encounter this problem.

Settlement to Minors In Maryland Personal Injury Cases

2008-12-09T06:48:00.000-08:00

There are unfortunately many instances where a minor child is injured as a result of the careless choices someone else had made. In these circumstances special attention must be given to the future consequences of the injury, if any. In Maryland personal injury cases the law requires certain provisions be observed when settling a minor's claim. These provisions are to insure that the minor child receive the benefit of the settlement. The law governing settlement of a minor's claims is outlined below. The provision apply only in situations where the proceeds the minor is to receive exceeds $5,000.00. And require funds to be held in trust for the benefit of the child until age of majority. Particualr language must be written on the check in distribution to the minor as outlined below.
§ 13-403. Payment to trustee

(a) Unless a court appoints a guardian of the property of a minor under subsection (c) of this section, if a minor or any other person in whose name a claim in tort is made or judgment in tort obtained on behalf of a minor recovers a net sum of $5,000 or more, the person responsible for the payment of the money shall make payment by check made to the order of

"................................., trustee under Title 13 of the Estates and
(name of trustee)

Trusts Article, Annotated Code of Maryland, for .............................,
(name of minor)

minor".

(b) No other act is necessary to constitute the person named a trustee.

(c)(1) In accordance with the procedures for the appointment of a guardian under Subtitle 2 of this title, the court may appoint a guardian of the property of a minor on whose behalf a recovery in tort is sought or has been obtained if the court determines that the appointment would be in the minor's best interest.
(2) The petition for guardianship may be made by an interested person or a trustee under this subtitle.

(d) If a court appoints a guardian of the property of a minor under subsection (c) of this section and the minor or any other person in whose name a claim in tort is made or judgment in tort obtained on behalf of the minor recovers a net sum of $5,000 or more, the person responsible for the payment of the money shall make payment by check made to the order of ".........., (name of guardian), guardian under Title 13, Subtitle 2 of the Estates and Trusts Article, Annotated Code of Maryland, for .......... (name of minor), minor".

Statute of Limitations Against Your Underinsured Motorist Coverage

2008-11-20T13:29:00.001-08:00

This issue covers those circumstances when you know the defendant insurance coverage will not be adequate to cover the extent of the injury you have sustained. This can happen when the defendant has no insurance or the insurance they have is not enough to compensate your damages. So the issue sometimes arises as to when do you have to file suit against your own insurance company or more accurately the insurance company covering the vehicle you were in at the time of the accident. Some people argue the time frame starts when you are injured. However in Maryland personal injury cases the suit against the UM carrier is a claim in breach of contract. As such according to Lane v. Nationwide Mut. Ins. Co., 321 Md. 165, 582 A.2d 501 (1990), the court determined the Statute of Limitations will not begin to run on a suit by the insured against the insurer for the breach of the contractual duty to indemnify until that breach literally occurs.

In the Lane case husband and wife were involved in an automobile accident that was the apparent fault of an uninsured motorist. They notified their insurance company of the accident shortly after it happened. On December 14, 1982, they brought suit against the uninsured motorist. The insurance company, however, made no effort to intervene. On April 17, 1986, over three years later, the Lanes sued their insurance company for uninsured motorist benefits. The insurance company filed a motion for summary judgment, asserting that the action was barred by the three-year Statute of Limitations. The Court of Appeals held the Statute of Limitations cannot begin running until there is an actual breach of the contract.

Maryland Medical Malpractice the Twenty Percent Rule

2008-11-03T12:08:00.000-08:00

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.

Litigation Themes

2008-10-04T11:05:00.000-07:00

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.

Wrongful Death In Maryland Personal Injury

2008-10-01T13:27:00.000-07:00

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

Erbs Palsy

2008-09-26T06:34:00.000-07:00

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.

Medical Malpractice in Maryland. Those Cases Matter Too.

2008-09-24T12:19:00.000-07:00

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

Statute of Limitations in Maryland Personal Injury

2008-09-23T04:27:00.000-07:00

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.

Bad Faith Failure to Settle in Maryland Personal Injury Cases

2008-09-22T06:34:00.000-07:00

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.

Maryland Personal Injury Discovery: Insured's Statements to Insurer

2008-07-25T04:28:00.000-07:00

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.

Expert Disclosure in Maryland Personal Injury

2008-07-16T08:47:00.000-07:00

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.

Maryland Personal Injury Slip and Fall

2008-07-15T04:55:00.000-07:00

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.

Statute of Limitations and Notice Requirements in Maryland Injury Cases

2008-07-14T10:16:00.001-07:00

In addition to the Statute of Limitations your Maryland personal injury case may also be controlled by a Notice requirement. I have outlined the various limitations periods and notice requirements on my web page. Please feel free to visit. And do be warned it is necessary to consult with an attorney on these very technical issues. If you miss a Limitations or a Notice requirement your case can be forever barred. Meaning you will not be able to collect any money in your case. It is also very important to take note of the proper persons to serve with the suit papers and the notice requirements. Again giving timely notice to the wrong persons can still create a bar to your recovery. If you are not sure of where you stand regarding these issues, please feel free to call my office.

Maryland Personal Injury Lawyer, Underinsured Settlement Procedures

2008-06-30T13:45:00.000-07:00

In the event you intend on settling your case with the defendant insurer (liability carrier) and your case value exceeds the defendant's policy limits you can seek additional money on your client's behalf from the client's underinsured motorist coverage. However, there is a procedure that must be followed. Please review § 19-511. Uninsured motorist coverage--settlement procedures

(a) If an injured person receives a written offer from a motor vehicle insurance liability insurer or that insurer's authorized agent to settle a claim for bodily injury or death, and the amount of the settlement offer, in combination with any other settlements arising out of the same occurrence, would exhaust the bodily injury or death limits of the applicable liability insurance policies, bonds, and securities, the injured person shall send by certified mail, to any insurer that provides uninsured motorist coverage for the bodily injury or death, a copy of the liability insurer's written settlement offer.

(b) Within 60 days after receipt of the notice required under subsection (a) of this section, the uninsured motorist insurer shall send to the injured person:

(1) written consent to acceptance of the settlement offer and to the execution of releases; or

(2) written refusal to consent to acceptance of the settlement offer.

(c) Within 30 days after a refusal to consent to acceptance of a settlement offer under subsection (b)(2) of this section, the uninsured motorist insurer shall pay to the injured person the amount of the settlement offer.

(d)(1) Payment as described in subsection (c) of this section shall preserve the uninsured motorist insurer's subrogation rights against the liability insurer and its insured.

(2) Receipt by the injured person of the payment described in subsection (c) of this section shall constitute the assignment, up to the amount of the payment, of any recovery on behalf of the injured person that is subsequently paid from the applicable liability insurance policies, bonds, and securities.

(e) The injured person may accept the liability insurer's settlement offer and execute releases in favor of the liability insurer and its insured without prejudice to any claim the injured person may have against the uninsured motorist insurer:

(1) on receipt of written consent to acceptance of the settlement offer and to the execution of releases; or

(2) if the uninsured motorist insurer has not met the requirements of subsection (b) or subsection (c) of this section.

Accident In Baltimore, The Lane Change

2008-06-30T04:46:00.000-07:00

Every personal injury lawyer in Maryland will tell you there are several types of cases you generally want to stay away from unless the damages justify the risk. The reason these are difficult cases is because the liability is sometimes difficult to prove. And as we all know, if you are frequent readers, the plaintiff has the burden to prove liability and damages. And so the red light/green light cases can end up being your word against mine. In which case the plaintiff looses since it is a tie. Likewise the lane change cases are a problem for much the same reason. Each driver will claim the other wrongly entered his lane. Often times in these cases you get little to no assistance in your proof from the property damage. Which I have found often is the evidence that does not lie and has its own story to tell. I have such a case pending in Baltimore City. I decided to take a chance on this one for several reasons. One I like the plaintiff and I believe her. The damages are not compelling. I believe the case will stay in district court, which in Baltimore is not always a blessing. However, I am impressed with the location of the vehicles post accident. My client’s vehicle once hit was forced into oncoming traffic and up over the medium. Also the plaintiff's property damage was passenger side more to front. In such an instance plaintiff’s visibility of the other vehicle was greater then defendant’s visibility. People do not purposefully run into other peoples cars. It is more probable the defendant did not see the plaintiff judging from the position of the vehicles immediately prior to impact.