Lawsuit Information Center

August 20, 2008

First Bad Faith Car Accident Insurance Claims in Maryland

Bob Zarbin and Jim MacAlister write a telling article in this month’s journal of the Maryland Trial Lawyers Association about Maryland’s new bad faith law. The authors note that the avalanche of bad faith claims the insurance companies said were coming down the pike with Maryland’s new bad faith law was actually only 12 in the first quarter of the 2008 and only 12 all last year.

Similarly, on the medical malpractice front, Maryland malpractice insurers claimed the sky was falling one minute and the next they are declaring $74 million profit to their doctor shareholders and lowering malpractice insurance rates. The legislative process requires that the viewpoints of all stakeholders. But can we at least make sure we put the proper discounted value on “the sky is falling” on the next go around? I’m hoping the next go around includes a revised bad faith law with more teeth than mere costs and expenses.

In the same issue, Kevin Goldberg, who is with Goldberg, Finnegan & Mester in Silver Spring, Maryland, writes a great article laying out a great checklist of avenues to explore when you have a catastrophic accident and what appears to be limited coverage.

August 12, 2008

Res Ipsa in Medical Malpractice Case in Missouri: A New Rule

by Ronald V. Miller, Jr.

The Missouri Supreme Court ruled in Sides v. St. Anthony’s Medical Center, that plaintiffs in a medical malpractice case in Missouri may rely on an expert’s opinion that the injury would not have happened in the absence of the defendant’s negligence even without a specific proof of a negligent act.

Facts of Sides v. St. Anthony’s

The patient underwent a lumbar laminectomy with spinal fusion and was discharged three days later. Later on, she filed a lawsuit against both the surgeon and the hospital, alleging that she contracted an E. coli infection during the surgery.

August 7, 2008

Topamax Birth Defects

by Ronald V. Miller, Jr.

There has been an increased concern over the use of Topamax – a treatment for migraine headaches and for epilepsy – during pregnancy has been associated with an increased risk of birth defects. There have been reports of birth defects like cleft palates, cleft lips, genital defects.

Besides the anecdotal reports, the respected medical journal Neurology published an article—albeit with a small cohort—that found that women who used Topamax to prevent seizures associated with epilepsy had a much higher incidence of delivering babies with birth defects.

While the study included only 203 pregnancies (178 children), the data found that women who used Topamax while pregnant had babies born with cleft lips or palates 11 times more frequently than you would otherwise expect. These children had genital defects at a rate 14 times higher than would be expected. Of the 178 babies, 16 had major birth defects.

August 1, 2008

North Dakota Wrongful Death Settlements and Verdicts

by Ronald V. Miller, Jr.

This page will explain North Dakota wrongful death lawsuits and their settlement value. We will explain how the North Dakota wrongful death statute works and who is eligible to bring a wrongful death lawsuit and get settlement compensation. We also explain the second cause of action in death cases, a survival action which provides a second path of compensation for the victim’s family

North Dakota Wrongful Death Law

Like all states, North Dakota has statutory laws that govern wrongful death claims. Wrongful death claims are civil actions that are filed when one party’s negligence, misconduct, or criminal action results in the death of another. Understanding North Dakota’s wrongful death laws can help survivors make informed decisions when seeking justice.

May 14, 2008

New York Medical Malpractice Lawyer Cap on Fees

by Ronald V. Miller, Jr.

New York limits an attorneys medical malpractice contingent fee in a medical, dental or podiatric malpractice case to 30 percent of the first $ 250,000 of the sum recovered; 25 percent of the next $ 250,000 recovered; 20 percent of the next $ 500,000 recovered; 15 percent of the next $ 250,000 of the sum recovered; 10 percent of any amount recovered over $ 1,250,000.

While contingency fees vary from malpractice lawyer to malpractice lawyer, 40% is a common fee in medical malpractice cases. So if a case settles, or the plaintiff gets a verdict for $1,000,000, the attorneys’ fees, in many cases, is $400,000. In New York, when a malpractice case recovers $1,000,000, the malpractice lawyer’s fee is limited to $225,000.

If you are not a malpractice lawyer, you might think that this is not a bad payday for a single case. You are right. But the problem is that plaintiffs’ medical malpractice lawyers lose most cases. When a lawyer loses a case, he might lose $100,000 or more in out-of-pocket costs. This discourages many good lawyers from handling medical malpractice cases.

April 18, 2008

Oklahoma Medical Malpractice Statistics

by Ronald V. Miller, Jr.

Medical malpractice claims statistics from the Oklahoma Insurance Department are certainly not music to the ears of Oklahoma medical malpractice lawyers and their clients.

In 2006, 805 medical malpractice claims that resolved in Oklahoma. The malpractice cases were dismissed in 59, or almost 70%. Of the remaining medical malpractice case, 181 settled and 20 went to trial. The average claim settlement or award in 2006 was $257,887. The total amount paid in settlements and verdicts was just shy of $50 million.

The following are medical malpractice verdicts or settlements that took place in Oklahoma courts:

April 3, 2008

Malpractice Verdict in New York Stroke Case

by Ronald V. Miller, Jr.

The Times Union (Albany, New York) reports that after a three-week trial before Supreme Court Judge Michael Lynch, a jury awarded Watervliet man and his wife $1.87 million in a medical malpractice lawsuit Tuesday against a doctor whose Plaintiffs alleged failure to detect and disclose a high glucose condition leading to a stroke.

Specifically, the jury believed it was negligent not to advise the Plaintiff of the results of a blood glucose study that had been done. The jury found the doctor’s negligence was a “substantial factor” in his stroke. The doctor’s lawyer contended that there is no evidence that Plaintiff would have acted had he been given the blood glucose test results.

Samaritan Hospital was also a named defendant, but the jury did not find that the hospital was negligent.

March 13, 2008

Delaware Law on Admissibility of Photographs in Car Accident Cases

by Ronald V. Miller, Jr.

Most jurisdictions leave the judge’s discretion whether to admit photographs from a car accident for the purpose of demonstrating the extent of the injuries of the occupants of the car. In Davis v. Maute, 770 A.2d. 36 (Del. 2001), the Supreme Court of Delaware took a minority view, holding that a party in a car accident may not directly argue that the seriousness of the injuries from an auto accident correlates to the extent of the damage to the cars, unless there is testimony from an expert witness that makes a correlation.

Accordingly, lawyers in Delaware may not argue by implication what the lawyer could not argue indirectly and attempt to suggest that the lack of property damage reflects the minor injuries.

This is great for Delaware plaintiffs’ lawyers in car accident cases who have minor property damage and claim injuries. Still, our lawyers prefer the majority rule because if you have a serious injury/serious impact case, you want to get the pictures to the jury to show the severity of the injuries and the Davis v. Maute holding can backfire on plaintiffs.

February 11, 2008

Average Jury Verdicts in Kansas City

by Ronald V. Miller, Jr.

The Kansas City Star reported last month that the average plaintiffs’ verdicts in the Kansas City metro area last year averaged nearly $1.3 million, nearly double the 2006 average of $688,337.

Does this mean that Kansas City juries have become remarkably more liberal? No. Now is the time to dust off all of those “you can prove anything with statistics” clichés.

Average verdicts are always misleading because they involve highs that completely distort the average which is why most statistical analysis of jury verdicts uses the median verdict, not the average jury verdicts.

January 9, 2008

Cost of Obtaining Medical Records in Florida

by Ronald V. Miller, Jr.

The Orlando Sentinel reports that Florida Medical Association is asking the Florida legislature to change the law to increase what doctors may charge to get copies of medical records. Currently, Florida doctors can charge $1 per page for the first 25 pages and 25 after that.

Believe me, I realize the retrieval costs are such that doctors are not making money producing medical records at this price. But should they be? Patients are entitled to their medical records. You need medical records for a lawsuit. Personal injury lawyers in Florida have characterized the Florida doctors’ request as a backdoor strategy to avoid medical malpractice claims. I’m not sure that an increase in the cost of medical records will do that. But I also don’t see why the current prices don’t adequately give reimburse doctors for their costs of producing medical records.

This is an older post, obviously. But this is the 2022 Florida statute on the cost of collecting medical records. The key language: “The exclusive charge for copies of patient records may include sales tax and actual postage, and, except for nonpaper records that are subject to a charge not to exceed $2, may not exceed $1 per page. A fee of up to $1 may be charged for each year of records requested…However, a patient whose records are copied or searched for the purpose of continuing to receive medical care is not required to pay a charge for copying or for the search. “