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Maryland Injury Lawyer settlement involving minors

2012-02-27T09:18:00.001-08:00

In a Maryland personal injury case the minor child's next friend, typically a parent, has the authority to settle a case on behalf of the minor child. The authority for this power is found in

Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 6-405 (2011)
§ 6-405. Settlement of suit by infant

a) In general. -- Any action, including one in the name of the State, brought by a next friend for the benefit of a minor may be settled by the next friend.

(b) Limitation. -- If the next friend is not a parent or person in loco parentis of the child, the settlement is not effective unless approved by the parent or other person responsible for the child.

(c) Where no parent or other person responsible. -- If both parents are dead, and there is no person responsible for the care and custody of the child, the settlement is not effective unless approved by the court in which the suit was brought. Approval may be granted only on the written application by the next friend, under oath, stating the facts of the case, and why the settlement is in the best interest of the child.

If you have questions regarding injury to a minor child or any other matter involving the need for a Maryland injury lawyer please feel free to call my office at 1-888-760-7339 we will discuss your case over the phone at no cost to you.

Maryland Injury Lawyer

2012-02-14T07:32:00.000-08:00

Future Loss Income for Disabled minor child:

The scenario is a minor child's brain injury and the claim for lost future earnings as a result of that disability. Evidence produced at trial first identified the injuries sustained. Subsequently an expert offered testimony of the probability that the child's future accomplishments would be limited by his disability resulting in a high school education and as a result limited earning capability. As compared to the probable accomplishments the child would have reached based upon his mother's educational background and the income he would have realized as a college graduate had he not encountered the disabilities. The expert testifyed that deficits will limit his ability to work in jobs suitable to the education he likely will be able to attain, thus resulting in his being a disabled worker.

In such instances the expert would be called upon to offer expert testimony about average earnings and a comparison of the amount of future earnings that minor child will not enjoy due to his disabilities.

If you or someone you know has the need for a Maryland injury lawyer please feel free to call my office at 1-888-760-7339. We will discuss your case over the phone at no cost to you.

Statute of Limitations Maryland Malpractice

2012-01-19T10:36:00.000-08:00

The statute of limitations in medical malpractice cases in Maryland is five years from the time the injury was committed or three years from the date the injury was discovered, whichever is earlier.

Any medical malpractice action must be filed either within five years from the date when the injury was committed or three years from the date when the injury was discovered, whichever is earlier. Md. Code Ann., Cts. & Jud. Proc. § 5-109 (1995). Against a minor, the statute does not begin to run until a claimant has reached the age of eleven, and if the action involves a foreign object or injury to the reproductive system, the statute does not begin to run until the claimant is sixteen. Maryland's highest court has held that the five-year part of the statute is not measured from the date treatment ends and does not violate the state constitution. Hill v. Fitzgerald, 304 Md. 689, 501 A.2d 27 (1985). If you have questions regarding a medical malpractice claim in Maryland please feel free to call my office I am happy to answer your questions over the phone at no cost to you 1-888-760-7339

Personal Injury Lawyer in Baltimore

2011-09-13T10:22:00.000-07:00

Unless it is inherently unfair a court will require a party seeking discovery from an opposing party's expert to pay the expert a reasonable fee for the time spent in responding to the discovery provided the discovery is for the purpose of finding the expert's opinions. As far as determining the reasonableness of expert fees the court has applied a six-point test to resolve the question of the reasonableness. Specifically, the court focuses on the following factors: the witness's area of expertise; the education and training that is required to provide the expert insights; the prevailing rates; the nature, quality and complexity of the discovery responses; the cost of living in a particular geographical error area; and any other factor likely to help the court. See Goldwater v Postmaster General of the United States 130 6 F.R.D. 337. Maryland courts look at Maryland rule 2–402 (e)(3), to recognize the court's authority to require the discovery party to pay the expert's preparation time when circumstances so require. The awards for preparation time typically are granted only upon extraordinary circumstances. If you have questions regarding personal injury in Maryland please feel free to give me a call at 1-888-760-7339.

Good Faith In Discovery Maryland Personal Injury

2011-08-28T11:36:00.000-07:00

Before a party can file a motion to compel discovery the attorney seeking the discovery must first exercise good faith to resolve any disputes with his counterpart. The exercise of good faith requires more than simply sending correspondence and may very well require direct verbal communication between the attorneys in an attempt to resolve the dispute. The good-faith requirement is found in Maryland Rule 2-431. Maryland law does require direct contact between opposing parties in an attempt to resolve a discovery disputes amicably prior to seeking sanctions. See Sculley v Tauber, 138 Md App 423, 771 A 2d 550 (Md App. 2001). If you have questions regarding discovery and a Maryland personal injury case or you need a personal injury attorney in Maryland please feel free to call my office we are the personal injury lawyer in Baltimore. 1-888-760-7339.

Personal Injury Protection (PIP)

2011-08-11T13:59:00.000-07:00

Personal injury protection insurance is offered in Maryland with minimum limits required of $2500. However the insurance coverage can be waived by first named insureds. If you have elected to have personal injury protection the benefits provided include reasonable and necessary expenses arising from an accident including medical costs, surgical, diagnostic, etc. and also payment of up to 85% of lost income. Specifics about the personal injury protection coverage and the benefits provided can be found in Maryland insurance code annotated section 19–505. Personal injury protection benefits are of tremendous value to a plaintiff in a personal injury case in Maryland. The money is most wisely used to first reimburse lost wages. Often times there is a race between the insured and medical providers seeking reimbursement of their cost both from the PIP coverage. One way to help control the situation is too promptly file the PIP claim while enlosing your disability slip and statement from your employer regarding lost wages. If you have questions regarding personal injury protection please feel free to give me a call. I have been representing clients in personal injury and malpractice cases for over 20 years. I am happy to answer your questions over the phone at no cost to you. 1-888-760-7339

Serving the Defendant in Maryland Personal Injury cases

2011-06-02T11:51:00.000-07:00

The first step to moving forward with your personal injury case in Maryland is to identify the defendant. Once identified, if the case will not settle, then you file suit and serve the defendant. Service can become complicated with people traveling and relocating or avoiding service. The Maryland rules on process service are found in Rule 2-121. Process - Service - In personam.

(a) Generally.- Service of process may be made within this State or, when authorized by the law of this State, outside of this State (1) by delivering to the person to be served a copy of the summons, complaint, and all other papers filed with it; (2) if the person to be served is an individual, by leaving a copy of the summons, complaint, and all other papers filed with it at the individuals dwelling house or usual place of abode with a resident of suitable age and discretion; or (3) by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting: "Restricted Delivery - show to whom, date, address of delivery." Service by certified mail under this Rule is complete upon delivery. Service outside of the State may also be made in the manner prescribed by the court or prescribed by the foreign jurisdiction if reasonably calculated to give actual notice.

(b) Evasion of service.- When proof is made by affidavit that a defendant has acted to evade service, the court may order that service be made by mailing a copy of the summons, complaint, and all other papers filed with it to the defendant at the defendant's last known residence and delivering a copy of each to a person of suitable age and discretion at the place of business of the defendant.

(c) By order of court.- When proof is made by affidavit that good faith efforts to serve the defendant pursuant to section (a) of this Rule have not succeeded and that service pursuant to section (b) of this Rule is inapplicable or impracticable, the court may order any other means of service that it deems appropriate in the circumstances and reasonably calculated to give actual notice.

(d) Methods not exclusive.- The methods of service provided in this Rule are in addition to and not exclusive of any other means of service that may be provided by statute or rule for obtaining jurisdiction over a defendant.

If you have questions about filing suit in a Maryland personal injury case, please feel free to call my office. I will discuss your case over the phone at no cost to you 1-888-760-7339

Document Discovery Maryland Personal Injury

2011-04-01T05:01:00.000-07:00

In the course of litigation of a personal injury case in Maryland documents maybe requested by the opposition. The question then arises, who pays for the cost of the production, which in some cases can be very expensive. See Dynamic Corp. v. Shan Enterprises, LLC, 175 MD App 211 927 a 2d 20 (2007). Copying a document is a related act within the meaning of Maryland Rule 2-422 (c). Unless otherwise ordered it is the responsibility of a requesting party, not a producing party to pay the expense of making copies. See also Clever View Investments Ltd. v Oshatz, 233 F.R.D. 393; holding that the producing party need only make requested documents available for inspection and need not pay for copying costs.

Settlement Agreement and Counsel Fees in Maryland Workers Comp Cases

2011-02-22T12:42:00.000-08:00

The formula for determining counsel fees in a Maryland workers compensation case is a trifle bit like rocket science. Depending upon whether the fee is earned through hearing or settlement different formulas apply. Relative to the formula for attorneys fees when the award is by settlement agreement see below.

Settlement Agreements.

(a) Notwithstanding a case of a structured settlement of a claim, in a case in which an agreement
of final compromise and settlement is approved, the Commission may approve an attorney's fee
in accordance with this regulation.
(b) For a settlement amount that is less than or equal to 14 times the State average weekly wage,
the attorney's fee shall be 20 percent of the amount of the settlement.
(c) For a settlement amount that is greater than 14 times the State average weekly wage but less
than or equal to 35 times the State average weekly wage, the attorney's fee shall be:
(i) 20 percent of 14 times the State average weekly wage; plus
(ii) 15 percent of the difference between the settlement amount and 14 times the State average
weekly wage.
(d) For a settlement amount that is greater than 35 times the State average weekly wage, the
attorney's fee shall be:
(i) 20 percent of 14 times the State average weekly wage; plus
(ii) 15 percent of 21 times the State average weekly wage; plus
(iii) 10 percent of the difference between the settlement amount and 35 times the State average
weekly wage.
(e) The total amount of an attorney's fee in a case in which an agreement of final compromise
and settlement is approved may not exceed 35 times the average weekly wage.
(f) Any sums placed in a Medicare set-aside may not be included as part of the settlement for
calculation of the attorney's fee.

Lost Future Wages in a Maryland Personal Injury Case

2011-01-17T12:59:00.000-08:00

In Maryland, the law presently is that in a personal injury action, as well as in a wrongful death action, any damages awarded for loss of future earning capacity must be reduced to present value. Walston v. Sun Cab Co., 267 Md. 559, 574-75, 298 A.2d 391 (1973) (wrongful death action); Dennis v. Blanchfield, 48 Md.App. 325, 333, 428 A.2d 80 (1981), modified on other grounds sub. nom., Blanchfield v. Dennis, 292 Md. 319, 438 A.2d 1330 (1982) (personal injury action). We believe, damages awarded for loss of future earning capacity must be reduced to present value. The situation requires employing an accountant or economist to reduce a claim for future lost wages to a present value. The situation is encountered where you can expect your client can return to their prior employment but they will not be able to do so for some identifiable future period of time.

Ellicott City Office Space for Rent

2010-12-29T06:40:00.000-08:00

I will be renting out one of my office condo locations in Ellicott City, Maryland. The address of the property is 5044 Dorsey Hall Dr. Suite 205 Ellicott city MD 21042. The office is a professional presentation perfect for any business who has the need for a prestigious location, professional presentation with plenty of free parking. Please feel free to call me if you have any questions or to arrange a tour. On 888-760-7339.

Wrongful death in a Maryland personal injury action

2010-12-21T07:25:00.000-08:00

An action for wrongful death must be filed within three years of the death of the injured party. The wrongful death action arises at the time of the death and not at the time of the injury or the commission of the tort. The complaint filed with the court must state that it was brought within the proper time frame. The statute of limitations is not tolled by the provisions of courts and judicial proceedings 5-201 which normally would toll the statute of limitations during the claimants minority. A wrongful death action is a separate and distinct action from a survival action. A survivor action seeks recovery for the decedent. Whereas the wrongful death action is brought for the benefit of the decedents survivors. The damages are measured by the harm to those persons resulting from the decedents death. If you have questions regarding wrongful death in the state of Maryland please feel free to call me at 1-888-760-7339. I am more than happy to answer your questions right over the telephone at no cost to you.

Service of a Complaint Maryland Personal Injury Lawyer

2010-09-04T11:36:00.000-07:00

Before you can get your case to court you must serve the defendant with the complaint. This generally is a fairly simple task. But what about the situation where the defendant cannot be found or is hiding. Maryland rule 2-121 deals with serving an individual. You can deliver the complaint by handing it to the defendant, by sending it to him by certified mail, or handing it to somebody that he lives with provided they are mature enough to know the papers are important and will give them to the defendant. Well what if the defendant knows you're trying to serve him and purposely made himself unavailable. Section (B.) deals with the issue of defendants evading service. The court requires an affidavit establishing facts sufficient to prove the defendant is evading service. If the defendant is not evading service however you simply cannot locate him you must first make good-faith efforts to locate the defendant and serve him. Thereafter if you still cannot locate and serve the defendant you should petition the court showing your good-faith efforts to get the defendant served and in that case ask the the court to order other means of service. The court can order any other means that it believes is appropriate under the circumstances and is reasonably calculated to give the actual notice. When you file your motion asking the court to allow you to serve by alternate means it is necessary to outline how the alternate means are calculated to give actual notice.

If you have questions regarding serving your complaint please feel free to give me a call at 1-888-760-7339. I am happy to answer your questions for you over the phone at no cost to you.

Owner Liability Maryland Personal Injury Lawyer

2010-09-04T10:13:00.000-07:00

There are circumstances where the owner of a automobile allows someone else to use that automobile when the owner is not present. The question of the owner's liability arises in the event the driver is in an accident. In Maryland personal injury law there are two presumptions that favor the plaintiff, in some positive ways, in establishing not owner liability but also insurance carrier coverage.

One is the presumption of agency and the other is the presumption that a non-owner operator of a motor vehicle operated with the permission of the owner. see 343 Md 320 (1995). . It is important to know the distinction between agency permissive use. The owner of the vehicle is subject to liability if the driver was acting as his agent when the accident occurred. If the driver of the vehicle was simply using the vehicle with the permission of the owner but was not doing anything for the owner at the time of the accident, then there is no liability to the owner. Specifically, there is no liability for permissive use. As such when it comes to issues of proof at trial in oder to make the owner liable you must establish evidence of the purpose of the use by the driver. To hold the owner liable that use must establish agency between owner and driver. One other issue of significant importance is the effect of permissive use on insurance coverage. If you can establish that the driver was negligent and had permission of the owner to use the vehicle you can still collect against the owner's insurance policy even if there is no agency between driver and owner.

If you have been involved in an automobile accident please feel free to give me a call at 1-888-760-7339. I am happy to discuss your case with you over the phone at no cost to you

Perforated Small Intestine

2010-08-22T09:20:00.000-07:00

A perforation to the small intestine can sometimes occur during surgery. This is a very serious and dangerous injury if left unattended. I have experience handling medical malpractice issues in Maryland involving exactly this type of injury. In the course of removal of an ovary the OB/GYN accidentally nicked or cut the small intestine. It is generally agreed by certified OB/GYN's and board-certified general surgeons that nicking an internal organ is not in and of itself a deviation from the standard of care. However many will agree that the failure to initiate an examination of the internal organs prior to completing the surgery is a deviation from the standard of care. Specifically as it relates to a perforation of the small intestine a doctor should examine the small intestine prior to completing his surgery. This examination is done by first mobilizing the small intestine so that it can be visually accessed for inspection and secondly running the bowel. There is no guarantee that every nick will be discovered. But it is certain if this inspection procedure is not followed the nick will never be discovered.

If you a family member or friend have a question about a medical procedure and you believe you may be the victim of medical malpractice please feel free to call me. I am happy to answer your questions for you right over the phone at no cost to you. 1-888-760-7339

Maryland medical malpractice the certificate

2010-08-20T06:24:00.000-07:00

As I have outlined in the prior post Maryland medical malpractice law requires a certification to establish that the defendant doctor has deviated from standard of care. In order to help eliminate frivolous lawsuits the certification requirement is fairly narrowly drawn. I am offering this post as a final review of a condensed version to simplify understanding the requirements of the certificate of merit.

The certificate of merit must contain the following information.

1. The educational and experience background of the attesting doctor. Pursuant to Maryland statute § 3-2A-02 of the Courts and Judicial Proceedings Article in pertinent part: In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert or testifies in relation to a proceeding concerning a defendant's compliance with or departure from standards of care:

Shall have had clinical experience,

provided consultation relating to clinical practice, or

taught medicine in the defendant's specialty or

a related field of health care, or

in the field of health care in which the defendant provided care or treatment to the plaintiff,

within 5 years of the date of the alleged act or omission giving rise to the cause of action; and

if the defendant is board certified in a specialty,

shall be board certified in the same or

a related specialty as the defendant.

this subparagraph does not apply if:

The defendant was providing care or treatment to the plaintiff unrelated to the area in which the defendant is board certified; or

The health care provider taught medicine in the defendant's specialty or
a related field of health care

2. The 20% Rule pursuant to Maryland statute § 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. Professional activity includes(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.

3. The applicable standard of care

4. The specific identification of each defendant

5. The specific manner in which each individual defendant breached the standard of care. Articulated within a reasonable degree of medical probability.

6. A specific factually based statement as to each defendant and how the breach of the standard of care caused the injury. Articulated within a reasonable degree of medical probability.

7. No Affiliation the attesting doctor must also state: he/sheis not a party to the pending litigation; that he/she is not an employee or partner of any party to the pending litigation; that he/she is not an employee or stockholder of any professional corporation of which any party of the pending litigation is a stockholder

It is essential that your certificate of merit complying with the Maryland statute The courts Maryland have determined that compliance with the requirements is a condition precedent to filing your malpractice action. A defective certificate of merit is an issue that can be raised at any stage during the litigation. As such there is the potential you could complete your trial, win, and the defendants raise a defective certificate of merit issue. To the extent this issue is raised and the defendants prevail and the statute of limitations has expired you may be barred from refiling your claim.

Maryland Medical Malpractice requirements of the certificate of merit

2010-08-19T10:54:00.000-07:00

Recently, in Barber v. Catholic Health Initiatives, Inc., 174 Md.App. 314, 921 A.2d 811 (2007), the intermediate appellate court examined previous health care claims cases of this State, including this Court's decision in Walzer, and determined that the identity of the physicians who allegedly breached the standard of care must be discernable from the Certificate, and that a failure to do so will result in dismissal. In that case, the claimant named all twelve defendants in the original claim and defined them collectively as the "Health Care Providers." The court determined that it was clear from the Certificate, about whom the physician was speaking, when the attesting physician explained that the "Health Care Providers" breached the standard of care. The court stated that "[t]he Certificate cannot be analyzed in a vacuum; it must be considered in the context of the Statement of Claim that it supported, which had already been filed with the HCAO." The court noted, however, that "[t]o be sure, if appellants had re-named in the Certificate each person or entity listed in the Statement of Claim, this appeal would have been avoided." Barber, 174 Md.App. at 351, 921 A.2d at 833. I agree that the inclusion of the specific names is the better practice, as Dr. Simmons-Clemmons indicated in her amended Certificate.

Maryland Medical Malpractice Certificate of Merit

2010-08-19T06:23:00.000-07:00

A medical malpractice action in Maryland commences only after a certificate of merit is executed by a medical professional attesting to the deviation from the standard of care by the defendant doctor. The Maryland legislature has placed restrictions on which doctors can successfully execute a certificate of merit. see MD Code Cts. & Jud. Proc. 3-2A-04. This was done primarily to eliminate the potential for frivolous lawsuits being filed against doctors andospitals wih the expectation that malpractice insurance cost and the cost of medical services to patients would be reduced. The statute restrictions as to who can attest to a deviation from the standard of care essentially boil down to activites, experience, and affiliation. For example an attesting doctor who intends to offer testimony 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. Similarly as to the credentials of an attesting see Section 3-2A-02 Exclusiveness of procedures it states
(2) (i) This paragraph applies to a claim or action filed on or after January 1, 2005
(ii) 1. In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert or testifies in relation to a proceeding before a panel or court concerning a defendant's compliance with or departure from standards of care:

A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant's specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and B. Except as provided in item 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant.

2. Item (ii)1.B of this subparagraph does not apply if:

A. The defendant was providing care or treatment to the plaintiff unrelated to the area in which the defendant is board certified; or B. The health care provider taught medicine in the defendant's specialty or a related field of health care.

If you have questions about a medical malpractice case in Maryland please feel free to call me at 1-888-760-7339

Interrogatories Maryland personal injury case filed in the District Court

2010-08-16T14:21:00.000-07:00

There are times when a personal injury case is most appropriately filed in the District Court as opposed to the circuit court. The rules of procedure between the two different court settings will affect the timing for issuing discovery to the defendant you are suing. One example is the timing for issuing discovery interrogatories to the defendant. The Maryland rules require that the plaintiff must serve discovery interrogatories on the defendant no later then 10 days after receiving notice from the court that the defendant has filed his notice of intention to defend. As such it is good practice in the District Court particularly to serve your discovery request at the same time you serve your complaint on the defendant. Otherwise it is equally important to carefully calendar the due dates for issuing discovery, responding to discovery request, and filing your notice of intention to enter records into evidence.

If you have questions on these or any other subjects affecting personal injury in Maryland please feel free to visit MarylandinjuryAttorney.net or feel free to call me at 1-888-760-7339

Pre-trial Statement Maryland Personal Injury Lawyer

2010-08-16T08:32:00.000-07:00

In every personal injury case in Maryland that has been filed in the Circuit Court or subsequently transferred to the Circuit Court on a defendant's request for jury trial there will be a requirement that both parties file a pretrial statement. The content for a pretrial statement has already been predetermined by the Maryland rules. I have outlined below the rules affecting the filing of a pretrial statement.
Rule 2-504.2. Pretrial conference.

(a) Generally.- The court, on motion or on its own initiative, may direct all parties to appear before it for a conference before trial. If the court directs, each party shall file not later than five days before the conference a written statement addressing the matters listed in section (b) of this Rule.

(b) Matters to be considered.- The following matters may be considered at a pretrial conference:

(1) A brief statement by each plaintiff of the facts to be relied on in support of a claim;

(2) A brief statement by each defendant of the facts to be relied on as a defense to a claim;

(3) Similar statements as to any counterclaims, cross-claim, or third-party claim;

(4) Any amendments required of the pleadings;

(5) Simplification or limitation of issues;

(6) Stipulations of fact or, if unable to agree, a statement of matters of which any party requests an admission;

(7) The details of the damage claimed or any other relief sought as of the date of the pretrial conference;

(8) A listing of the documents and records to be offered in evidence by each party at the trial, other than those expected to be used solely for impeachment, indicating which documents the parties agree may be offered in evidence without the usual authentication and separately identifying those that the party may offer only if the need arises;

(9) A listing by each party of the name, address, and telephone number of each non-expert whom the party expects to call as a witness at trial (other than those expected to be used solely for impeachment) separately identifying those whom the party may call only if the need arises;

(10) A listing by each party of those witnesses whose testimony is expected to be presented by means of a deposition (other than those expected to be used solely for impeachment) and a transcript of the pertinent portions of any deposition testimony that was not taken stenographically;

(11) A listing by each party of the names and specialties of experts the party proposes to call as witnesses;

(12) Any other matter that the party wishes to raise at the conference.

If you have questions regarding the filing of a pretrial statement please feel free to call me 1-888-760-7339

Filing For Worsening Disability Maryland Workers Compensation

2010-07-01T07:04:00.000-07:00

The Maryland workers compensation commission has the power to modify any prior award provided certain conditions are met. One such condition is that the injured worker prove a worsening disability in fact with in 5 years from the date the last compensation is paid. Additionally the injured worker must file a petition alleging the worsening disability. The court of appeals had an opportunity to address the issues in Dove 943 A2d 662. Ultimately the court decided the claimant satisfies the requirements of Maryland law by filing the motion for reconsideration alleging worsening disability, which he can prove in fact. provided the reconsideration is filed with in 5 years from the last compensation payment.

Defendant in Default Maryland Failure to Answer

2010-03-04T06:37:00.000-08:00

In a case involving personal injury lawsuits in Maryland a defendant once served has a responsibility to file an answer. There are circumstances where the defendant fails to file an answer. In that case the plaintiff would ask the court to enter a default judgment against the defendant for failure to file an answer. The question however still remains to what extent the defendant can participate in a hearing to establish damages. The Maryland Court of Special Appeals addressed this issue in Fisher v McCrary Crescent City, LLC 972 A 2d 954 and(2009). Ultimately the court determined that a defendant in default still has the right to participate in the hearing affecting damages. Specifically the defendant in default, for failure to file a responsive pleading, can present evidence to mitigate damages; cross-examine witnesses regarding damages; present evidence on damages; object to evidence and make arguments. It is my position that discovery must be executed to a defendant in default to identify his evidence on mitigation, causation issues, damages and what if any evidence he finds objectionable.

Average Weekly Wage in Maryland Waiver of Amount Disputed

2010-01-26T09:29:00.000-08:00

You will find information on the Maryland workers compensation average weekly wage in the COMAR regulations. It is interesting to note that the employer has a responsibility to provide documentation to the employee or his/her attorney if they are disputing the workers compensation commission's determination of the average weekly wage. The employer will have 60 days from the date of the initial order to provide an accounting of the average weekly wage. If the employer fails to act within that 60 day period of time they will have waived their dispute. Below is the COMAR section on point.

.07 Average Weekly Wage.

A. Preliminary Determination. For the purpose of making an initial award of compensation before a hearing in the matter, the Commission shall determine the claimant's average weekly wage from gross wages, including overtime, based on the information filed with the Commission. That information shall include:

(1) The average wage earned by the claimant during the 14 weeks before the accident, excluding the time between the end of the last pay period and the date of injury, provided that periods of involuntary layoff or involuntary authorized absences are not included in the 14 weeks;

(2) Those weeks the claimant actually worked during the 14 weeks before the accident;

(3) Vacation wages paid; and

(4) Those items set forth in Labor and Employment Article, §9-602(a)(2), Annotated Code of Maryland.

B. Subsequent Determination.

(1) Amount Disputed. If the employer, employer's insurer, or the Uninsured Employers' Fund asserts that the average weekly wage determined by the Commission under §A of this regulation exceeds the actual average weekly wage of the claimant, that party, before paying benefits at the lower rate, shall file with the Commission, with a copy to the claimant, or the claimant's attorney if the claimant is represented, a statement containing the basis of the assertion that the actual average weekly wage is less than the amount determined by the Commission. The statement shall be filed within 60 days after the date of the initial award.

(2) Waiver. The failure to file the statement in compliance with §B(1) of this regulation constitutes a waiver of the right to dispute the average wage as originally determined.

Attorney Fee Schedule Under Maryland Workers Compensation Law

2009-12-23T11:38:00.000-08:00

.25 Schedule of Attorneys' Fees.
A. The Commission shall approve attorneys' fees in accordance with the schedule of fees established from time to time by the Commission and set forth in §B.
B. Schedule of Fees.
(1) Final Award—Definition. For the purpose of this section, "final award" means the award of compensation determined by the Commission after exhaustion of all applicable appeals, regardless of whether the award is increased or decreased as a result of any appeal.
(2) Fee in Excess of Limits. The Commission may approve an attorney's fee in excess of the limits set forth in this section only if exceptional circumstances are shown.
(3) Permanent Partial Disability.
(a) General. Except as otherwise provided in §B(3)(b), in a case in which a final award of compensation is made for permanent partial disability, the Commission may approve an attorney's fee in a total amount not exceeding 20 times the State average weekly wage and computed as follows:
(i) Up to 20 percent of the amount due for the first 75 weeks of an award of compensation awarded;
(ii) Up to 15 percent of the amount due for the next 120 weeks of an award of compensation; and
(iii) Up to 10 percent of the amount due for an award of compensation in excess of 195 weeks.
(b) Disability Due to Amputation or Loss of Vision. In a case in which a final award of compensation is made for permanent partial disability due to the amputation of an arm, leg, hand, or foot, or total loss of vision in one eye, and the sole issue before the Commission is the nature and extent of disability, the Commission may approve an attorney's fee in an amount up to 5 percent of the compensation awarded, but not exceeding 6 times the State average weekly wage.
(4) Permanent Total Disability.
(a) General. Except as otherwise provided in §B(4)(b), in a case in which a final award of compensation is made for permanent total disability, the Commission may approve an attorney's fee in an amount not exceeding 20 times the State average weekly wage.
(b) Special Cases. The Commission may approve an attorney's fee in an amount not exceeding 13 times the State average weekly wage in a case in which compensability is not an issue and an award of compensation is made for permanent total disability established either pursuant to:
(i) Labor and Employment Article, §9-636(b), Annotated Code of Maryland, for the loss of two or more scheduled members; or
(ii) The stipulation on the extent of disability.
(5) Temporary Total and Temporary Partial Disability. The Commission may not approve an attorney's fee in a case in which final award of compensation is made for temporary total or temporary partial disability or temporary total disability paid while a claimant is receiving vocational rehabilitation services unless the claimant's right to the compensation is contested and the issue is resolved by evidentiary hearing or by stipulation. In such a contested case, the fee may be in an amount not exceeding 10 percent of the compensation that has accrued as of the date of the award.
(6) Dependency Claims.
(a) In a case involving a claim of dependency, if compensability is not contested, but the extent of dependency, partial or total, or the identity of a dependent, or both is contested, the Commission may approve a total attorney's fee for attorneys representing all dependents in an amount not exceeding five times the State average weekly wage in a case of partial dependency and not exceeding 12 times the State average weekly wage in a case of total dependency.
(b) In a case involving a claim of dependency, if neither compensability nor dependency is contested and a record is being made solely to determine to whom payments of compensation shall be made, the Commission may approve an attorney's fee in an amount not exceeding two times the State average weekly wage.
(c) In a case involving a claim of dependency, if compensability and dependency are contested, the Commission may approve an attorney's fee in an amount calculated under §B(3)(a) in a case of partial dependency and calculated under §B(4)(a) in a case of total dependency.
(7) Settlement Agreements. Notwithstanding a case of a structured settlement of a claim, in a case in which an agreement for final compromise and settlement is approved, the Commission may approve an attorney's fee in a total amount not exceeding $7,500 and computed as follows:
(a) Up to 20 percent of the first $10,000 of compensation awarded;
(b) Up to 15 percent of the next $15,000 of compensation awarded;
(c) Up to 10 percent of the compensation awarded in excess of $25,000.
(8) Increase in Last Award of Compensation for Permanent Partial Disability.
(a) Except as otherwise provided in §B(8)(b) of this regulation, in a case in which the Commission increases the last award of compensation for permanent partial disability upon which an attorney's fee was previously approved, the Commission may approve an additional attorney's fee in an amount not exceeding the difference between the fee approved for all prior awards and the fee computed under §B(3) or (4)(a), as the case may be, of this regulation on the increased award.
(b) In a case in which the Commission increases the last award of compensation for permanent partial disability upon which the attorney or attorneys were previously awarded the maximum fee permitted under §B(3) of this regulation, the Commission may approve an additional attorney's fee in an amount up to 5 percent of the difference between the prior awards of compensation and the increased award of compensation, but not exceeding five times the State average weekly wage.
(9) Appeals.
(a) When a compensation award of the Commission is appealed to a circuit court and the case is tried on appeal, the Commission may approve an additional attorney's fee in an amount up to 5 percent of the final award of compensation, but not exceeding six times the State average weekly wage.
(b) When a decision of a circuit court on an appeal from a compensation award of the Commission is appealed to a higher appellate court and the appeal is briefed and decided on its merits, the Commission may approve an additional attorney's fee for each appeal in an amount up to 5 percent of the final award, but not exceeding six times the State average weekly wage.
(c) When an appeal from a compensation award of the Commission to a circuit court is not tried, or an appeal to a higher appellate court is not briefed and decided on its merits, the Commission may approve an additional attorney's fee in an amount up to 2.5 percent of the final award, but not exceeding three times the State average weekly wage.
(d) When a final award has not been made and a decision of the Commission on the issue of compensability of a claim is appealed to a circuit court, if the claim is determined on appeal to be compensable, the Commission, upon remand of the case to the Commission for the passage of a final award, may approve an additional attorney's fee in an amount up to 5 percent of the final award, but not exceeding six times the State average weekly wage.
(10) Attorney's Fee Not Allowed.
(a) Absent exceptional circumstances, the Commission may not approve an attorney's fee in a case in which it is determined that the claimant is not entitled to any compensation or benefits.
(b) Absent exceptional circumstances, the Commission may not approve an attorney's fee in a case involving issues such as medical care and treatment, or vocational rehabilitation, in which the claimant does not receive any monetary award.

Slip and Fall Maryland Personal Injury Lawyer

2009-12-22T14:14:00.000-08:00

It is that time of the year again. When snow and ice are the reason for a person to slip and fall and be injured there is a potential for liability to the owner of the property. Where a injured party can show that a dangerous condition has been created by the owner such as when an owner has permitted water or ice to accumulate in a manner not apparent to the injured person and the injured person is forced to encounter the condition the owner may be liable. Additionally even if the owner of the property undertakes the effort to remove, but fails to correct or creates an artificial condition, the owner may be liable. In order for a property owner to be liable, the property owner must have had actual or constructive notice of the unsafe condition in sufficient time prior to the injury to have it corrected or to have warned the party that was injured. There are countless examples where persons have fallen on ice in parking lots of shopping centers where the owner has been held liable. Maryland courts have stated when the public is led to believe that the premises have been offered for this entry, the law is clear that the occupation assumes the duty of reasonable care. The court has further found that a land owner may be liable when it allows the snow removal service to pile snow at one end of a parking lot while the parking lot drains at the opposite end. In such an example the court has found that the owner knew that the water from the melted snow would flow across the parking lot to the drain and on cool evenings the water would freeze. This is a perfect example of when an owner has created the dangerous condition. If you a family member or friend has been injured in a slip and fall accident please feel free to call my office 1-888-760-7339.

Estatblishing permanent Injury in a Maryland Personal Injury Case

2009-11-11T12:33:00.000-08:00

Before you can establish that the effects of an injury are permanent you first need to establish that the injury was caused by this accident at issue. Typically this is accomplished by the timing of the onset of the complaints of pain and for some people diagnostic test confirming injury. Once you have established this causal connection you will may need expert testimony to establish that the effect of the injury is not likely to change. The only exception to this requirement for expert testimony to establish permanency is when the injury is of such a nature that common knowledge is sufficient to justify its probable permanent nature. For example in Cluster v Upton, 165 Md. 566 (1933), the issue of permanent injury was submitted to the jury without expert testimony where the plaintiff's finger, fractured in the accident, was still crooked 11 months after the accident.

Lost Wages and Future Loss of Income as Damages in Maryland Personal Injury

2009-10-29T08:19:00.000-07:00

I receive several communications each week either by telephone calls or e-mails from people inquiring about the difference between lost wage claims and loss of future earnings arising out of injury in a Maryland personal injury case.

Lost wages from the date of the accident to the date of trial or to the date that you return to work, even if in some modified capacity, represent your claim for lost wages.

Future loss earnings represents the lost income you can expect from the date of trial forward into your future. Proof of future loss earnings typically requires a doctor who is familiar with your work requirements and your physical limitations as a result of your injury caused by the accident to testify within a reasonable degree of medical probability that you cannot return back to your prior employment. Coupled with that you will need a vocational rehabilitation expert, or someone of like credentials, to tell us what your post accident physical capabilities are and what job markets exist for people with your capabilities. Finally, you will need an economist to calculate the total amount of your future loss earnings. They will then have to reduce those future loss earnings to a present value. The only other piece of evidence you will need to prove future loss earnings will be the work life expectancy calculations which will be provided by the economist.

If you have any questions on these issues or any other issues affecting Maryland personal injury please feel free to call me at 1-888-760-7339.

Maryland Products Liability Lawyer

2009-10-19T13:43:00.000-07:00

In a typical product liability suit one who designs, manufacturers or sells any product in a defective condition unreasonably dangerous to the user or consumer is subject to liability for physical harm caused to the user or consumer. The liability claim can be grounded in strict liability and also negligence. An issue sometimes arises in situations where the defective condition causes injury not to the user or consumer rather to a bystander. In the case of Valk Mfg. Co. v. Rangaswamy 74 Md. App. 304 (1987) the Court of Special Appeals addressed strict liability asserted by a bystander, plaintiff. In this case the plaintiff was killed in a car accident. The plaintiff's counsel argued his client's death could have been avoided had the arms of a snow bucket assembled to the front of a truck been removed prior to the impact. Testimony indicated the assembly was not easily removable as design. As such, the workers who had completed all of their snow removing responsibilities failed to remove the fixture and subsequently crashed into the plaintiffs vehicle. Unfortunately the fixtures projecting forward from the front of the vehicle pierced through the plaintiffs passenger side window making contact with this person and causing his death. The plaintiffs successfully argued that the projecting arms enhanced the injury and could have been removed with little effort had the assembly been properly designed. In fact the plaintiff produced an expert to testify that the fix to the design was as simple as a quick disconnect hose. The importance to the plaintiff's case in proceeding on strict liability was the elimination of the defendants claim to contributory negligence. You see in a strict liability claim the only defense a defendant can raise is assumption of risk.

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.

Maryland Personal Injury The Damage Cap

2008-06-26T03:39:00.000-07:00

Maryland has long ago placed a cap on the amount of non economic damages a person can receive in compensation for injury. Since its inception the cap has been the center of great debate initiated primarily by the plaintiff aggrieved by the harsh reduction of his/her judgment. Some argue the cap thwarts justice. Once the jury has spoken and entered a judgment shouldn't that judgment be honored? Others argue the cap is needed to contain cost to the general public. Ultimately the cap removes discretion from the fact finder and leaves litigants with an inflexible mathematical boundary. A viable alternative that better serves justice is a post judgment review of the excess award. Not every case should be sustained. I am sure not every case should be reduced. The Maryland Damage cap states in pertinent part:

in any action for damages for personal injury or wrongful death in which the cause of action arises on or after October 1, 1994, an award for noneconomic damages may not exceed $500,000.

(ii) The limitation on noneconomic damages provided under subparagraph (i) of this paragraph shall increase by $15,000 on October 1 of each year beginning on October 1, 1995. The increased amount shall apply to causes of action arising between October 1 of that year and September 30 of the following year, inclusive.

(3)(i) The limitation established under paragraph (2) of this subsection shall apply in a personal injury action to each direct victim of tortious conduct and all persons who claim injury by or through that victim.

(ii) In a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation established under paragraph (2) of this subsection, regardless of the number of claimants or beneficiaries who share in the award.

Vicarious Personal Injury Liability in a Maryland

2008-06-25T03:54:00.000-07:00

Maryland law says the general rule is "every automobile driver must exercise toward every other driver that duty of care which a person of ordinary prudence would exercise under similar circumstances". Baltimore Transit Co., v Prinz 215 Md 398 (1958). Makes sense if we intend to keep a sound order to society. Then everyone should act reasonably. If you act in a careless manner and you hurt someone then you are liable for the damages you have caused. So are there situations where someone else’s careless behavior makes you liable? Well in Maryland personal injury law the answer is yes. Negligent entrustment and respondeat superior cases provide examples. Negligent entrustment occurs when the owner knows or should know that the person he is entrusting his vehicle to is likely to use the vehicle in a manner involving risk of harm to others. For example lending your car to a person you know is intoxicated. Then the owner may be held liable Macky v Dorsey 104 Md. App. 250 (1995). Other wise the mere ownership of a vehicle does not impute liability Toscano v Spriggs 343 Md 320 (1996). And as far as respondeat superior is concerned this is when an employer is held liable for the careless acts of their employees provided the act was committed by their employee while acting in the scope of their employment. Oaks v Connors 339 Md 24 (1995).

Elements of a Complaint in Maryland Personal Injury Cases

2008-06-24T04:01:00.000-07:00

A properly pleaded claim of negligence includes four elements: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty. Todd v. Mass Transit Admin., 373 Md. 149, 816 A.2d 930 (2003).
As such every complaint in an personal injury case in Maryland for negligence must state, all facts which are essential to the cause of action with a reasonable degree of certainty. It is necessary to inform the defendant of the acts or omissions on which his or her liability is based. In order to state a cause of action in negligence, the complaint should state:

1. a right on the part of the plaintiff,
2. a duty on the part of the defendant with respect to that right,
3. a breach of that duty by the defendant,
4. the plaintiff has suffered an injury as a result of the breach of duty
5. the amount of damages the plaintiff is seeking to recover.

Energy Crisis and Personal Injury In Maryland

2008-06-23T04:10:00.001-07:00

The effects of the energy crisis are realized everywhere even in subtle manners. For example, in my practice I am finding more and more occasions where I am hired by multiple clients all from the same host vehicle which was involved in a car accident. The reason is car pooling as a result of efforts to save on gas cost. What issues does this raise for the Maryland personal injury lawyer? Aside from the benefits which are obvious. This generally means we are taking policy limits. But this situation gives rise to several very serious complications. For example, conflict of interest issues involving liability and settlements. Additionally, you can encounter insurance coverage issues and UM/UIM issues.

In the event of a liability conflicts you simply can not represent the driver. And if you have met the driver as an initial interview you may find yourself in a situation where you can not represent anyone in the case, absent a written consent.

As far as settlements, assuming liability is a non issue, in which case representing the driver is also fine, again as an attorney you will encounter a problem. For example let say you have five clients in your host vehicle. There is a 20/40 policy. How do you decide who gets what from the settlement with out adversely affecting the interest of any one single client over the interest of another. This is a serious situation as far as conflict of interest is concerned. The solution I have found is Consent to Representation executed by each client. The Consent tells each client of the exact conflict at issue as well as their right to seek independent counsel. As long as you as an attorney are confident your representation of any one client is not adverse to the interest of another client and this confidence is reasonable and each client is informed of the issues and consents, then you are able to represent each. Please feel free to call me to discuss if you as a Maryland personal injury lawyer are encountering the same problem.

Scheduling Orders

2008-01-02T04:58:00.000-08:00

Maryland Courts have developed scheduling order to promote the efficient administration of the cases through the court process. Specifically Md Rule RULE 2-504. SCHEDULING ORDER
(a) Order Required.
(1) Unless otherwise ordered by the County Administrative Judge for one or more specified categories of actions, the court shall enter a scheduling order in every civil action, whether or not the court orders a scheduling conference pursuant to Rule 2-504.1.
(2) The County Administrative Judge shall prescribe the general format of scheduling orders to be entered pursuant to this Rule. A copy of the prescribed format shall be furnished to the Chief Judge of the Court of Appeals.
(3) Unless the court orders a scheduling conference pursuant to Rule 2-504.1, the scheduling order shall be entered as soon as practicable, but no later than 30 days after an answer is filed by any defendant. If the court orders a scheduling conference, the scheduling order shall be entered promptly after conclusion of the conference.
(b) Contents of Scheduling Order.
(1) Required. A scheduling order shall contain:
(A) an assignment of the action to an appropriate scheduling category of a differentiated case management system established pursuant to Rule 16-202;
(B) one or more dates by which each party shall identify each person whom the party expects to call as an expert witness at trial, including all information specified in Rule 2-402 (f) (1);
(C) one or more dates by which each party shall file the notice required by Rule 2-504.3 (b) concerning computer-generated evidence;
(D) a date by which all discovery must be completed;
(E) a date by which all dispositive motions must be filed, which shall be no earlier than 15 days after the date by which all discovery must be completed;
(F) a date by which any additional parties must be joined;
(G) a date by which amendments to the pleadings are allowed as of right; and
(H) any other matter resolved at a scheduling conference held pursuant to Rule 2-504.1.
(2) Permitted. A scheduling order may also contain:
(A) any limitations on discovery otherwise permitted under these rules, including reasonable limitations on the number of interrogatories, depositions, and other forms of discovery;
(B) the resolution of any disputes existing between the parties relating to discovery;
(C) a specific referral to or direction to pursue an available and appropriate form of alternative dispute resolution, including a requirement that individuals with authority to settle be present or readily available for consultation during the alternative dispute resolution proceeding, provided that the referral or direction conforms to the limitations of Rule 2-504.1 (e);
(D) an order designating or providing for the designation of a neutral expert to be called as the court's witness;
(E) in an action involving child custody or child access, an order appointing child's counsel in accordance with Rule 9-205.1;
(F) a further scheduling conference or pretrial conference date; and
(G) any other matter pertinent to the management of the action.
(c) Modification of Order. The scheduling order controls the subsequent course of the action but shall be modified by the court to prevent injustice.

A case on point Maddox v. Stone 174 Md.App. 489, 921 A.2d 912 Md.App.,2007.

Closing Arguments on Damages

2007-12-30T07:37:00.000-08:00

There is a continuing debate among even seasoned trial attorneys on how to best approach the jury in closing argument on the issue of money. I admit this can be a delicate subject. Maybe even more so in the less then profound cases. In the profound case the injury is obvious and devastating, therefore credible. When asking for money plaintiff's counsel run the risk of sounding greedy. No one likes a greedy lawyer. Worst the impact of that perception can fall upon your client. There are a number of approaches on how to cure this dilemma. And do note that the issue really appears only on the award for pain and suffering and other general damages. Special damages present far less of a problem. These are the product of the actual losses incurred for treatment, lost wages, prescriptions, toeing, repairs, mileage etc. All you need do here is add the numbers. But for the intangible general damages, the rules change. And there are some restrictions on what is or is not permitted in argument. For example, the Golden Rule prohibits arguments which ask the jury to place them selves in the shoes of the plaintiff. Questions like what would you like to receive as compensation are prohibited. One good case on this point is Simmons v Lowery 563 So. 2d 183. In this case during opening statement appellant's counsel asked the jury "to think about what you would pay someone for one day of what you will hear she has to go through and for the rest of her life." The attorney said this as he was explaining that the jury must assess damages. During closing argument the plaintiff's attorney reminded the jury that he had asked them to consider what they would pay for one day of the plaintiff's situation. At that point, defense counsel objected and requested a mistrial. After rendition of a favorable plaintiff's verdict, defense counsel moved for a new trial contending that the foregoing statements were impermissible golden rule arguments. While the trial court concluded that the statements were improper argument, we hold that they are not.
"A golden rule argument suggests to jurors that they put themselves in the shoes of one of the parties, and is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence." Cummins Alabama, Inc. v. Allbritten, 548 So.2d 258, 263 (Fla. 1st DCA 1989). "To be impermissible, the argument must strike at that sensitive area of financial responsibility and hypothetically request the jury to consider how much they would wish to receive in a similar situation." Shaffer v. Ward, 510 So.2d 602, 603 (Fla. 5th DCA 1987).
Rather than asking the jury what they might wish to receive as compensation themselves, appellant's argument asked the jury to do just what they must do--to determine how much to award or pay the plaintiff for her injuries. Appellant's argument merely asked them to consider this on a per diem basis, which is permissible and has long-standing use in personal injury trials. Rattner v. Arrington, 111 So.2d 82 (Fla. 3d DCA 1959); Perdue v. Watson, 144 So.2d 840 (Fla. 2d DCA 1962). The trial court thus erred in granting a new trial on this basis. See also Leach v. Metzger 241 Md. 533, 217 A.2d 302 MD (1966) which stated Although no Maryland cases have specifically so held, arguments, such as the one apparently made by appellees' counsel, which urge jurors to deal with counsel's clients as they would wish to be dealt with if they were in such client's position, are improper. The vice inherent in such argument is that it invites the jurors to disregard their oaths and to become non-objective viewers of the evidence which has been presented to them, or to go outside that evidence to bring to bear on the issue of damages purely subjective considerations, and resultantly courts in many other jurisdictions have deemed such ‘golden rule’ arguments to be improper.

One acceptable approach in asking for money is the per diem argument. This is essentially time and money. The argument goes like this; the plaintiff suffers this injury every hour of every day for the rest of his/her life. What is it worth per hour multiplied over the life expectancy. The product equals damages for those general damages. It makes sense, but some times when you do the math the product is so astronomical that it is shocking. So it may not be practical in every situation that is less then a profound injury.

Ultimately the law in Maryland states that for damages the jury must determine they are proven by a preponderance of the evidence and are reasonable and are not speculative. The jury is permitted to consider the health and condition of the plaintiff before and after the accident, the permanent nature of the injury, the disability resulting from the injury, the extent to which the injury impacts employments, and other activities, as well as physical pain and mental suffering and then allow a monetary award that is fair and just to compensate Adams v Benson 208 Md 261. As such evidence of depression following injury is evidence of mental suffering, pain medication is evidence of mental suffering as mental suffering naturally follows the existence of physical pain. See Timmons 133 A 322. For more information visit http://www.marylandinjuryattorney.net

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

Proof Of Loss Earning Capacity In a Self Employed Situation

2007-08-07T04:55:00.001-07:00

Loss earning capacity refers to those situations where the plaintiff has suffered a permanent injury which prevents him from earning the same income he had prior to the injury. It is not an issue of loss future wages. It is an issue of loss earning capacity. And oddly, in a Maryland personal injury case, you can get the damages in a self employed situation even when there is no history of income earnings. See ANDERSON, et al.v. LITZENBERG 694 A.2d 150 (1997). I suggest the necessary proof is as follows: (1) proof of permanent injury as established by a doctor's testimony who is familiar with the physical demands of the Plaintiff's prior employment the current physical limitations; (2) testimony from a vocational rehab expert as to the value of the services the plaintiff was performing prior to the injury as compared to the value of the services the plaintiff is capable of performing with his new physical limitations; (3) an economist to testify to the present value of the loss future earning capacity and the Plaintiff's work life expectancy.

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Discovery Admission of Fact

2007-07-25T14:27:00.000-07:00

I have often had limited success using this form of discovery in personal injury cases. Defendants normally simply deny all requested admissions. There is no penalty in the rules for a denial that ends up being true, other then the potential that I can recover cost incurred in proving a fact denied. However, I came across an idea from a very good blog that sent me to another blog that proposed an interrogatory question to be filed post the admission denials. The author of the blog proposed an interrogatory as follows:
"To the extent that any of your responses to any of Plaintiff's requests for admissions is other than an unqualified admission, list all facts on which you based any part of your response that is not an unqualified admission, identify all documents memorializing each such fact, and identify all persons with knowledge of each such fact."

This is interesting enough to try. After all I like the idea of an admission of fact. But what value when the dog has no bite.

Copy Right 2007 Your Maryland Lawyer; Maryland Injury Attorney

Discovery Of Pre-Existing Conditions

2007-07-10T07:25:00.000-07:00

I normally propound an interrogatory question to the defendant requesting information they may have regarding my client's pre-exisitng conditions, if any, or if they contend a pre-exisiting condition was aggravated by the accident. Generally, the defendant objects, stating this is work product. I came across a Discovery opinion that states the defendant is required to answer. However, their response is limited to information provided by the plaintiff. I agree this is maybe of limited value to the plaintiff absent the defendant failing to identify the condition in their answers to interrogatories, post plaintiff's disclosure, and later being denied the opportunity to make the argument at trial. Daily Record Sperti v Muhr August 10, 1966.

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Pre-Existing Conditions and Damages

2007-07-01T10:41:00.000-07:00

Yep here we go again. Plaintiff with a pre-existing condition gets into rear end accident. Plaintiff says you are responsible for my subsequent surgery. Defendant says we did'n't do nutin, ya'll had dat conditin prior too da axel dent. Wrong high insurance premium breath. Take me as I am and love me with all my susceptible body parts. You think I aggravate you well guess what you aggravate me and my pre-existing condin tin too. See MPJI 10.3 SUSCEPTIBILITY TO INJURY The effect that an injury might have upon a particular person depends upon the susceptibility to injury of the plaintiff. In other words, the fact that the injury would have been less serious if inflicted upon another person should not affect the amount of damages to which the plaintiff may be entitled. See MPJI 10:4 AGGRAVATION OF PREVIOUS CONDITION A person who had a particular condition before the accident may be awarded damages for the aggravation or worsening of that condition. And just to mention all foreseeable consequences. See Empire Reality 305 A 2d. 144 (1973). I ma comin ta geet ya boz and hidden hind dem pre-sistin arguments ain't stoppin me no wayza.

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

You Gotta Love Property Damage Photographs

2007-05-30T14:28:00.000-07:00

I start every liability theory with a complete evaluation of those property damage photographs. You know how they say a picture is worth a thousand words. Well they were right. The damages tell you everything. Direction, speed, point of impact, not to mention that they don't lie. I have a case now where the plaintiff says the defendant was backing up from a side street while turning into traffic. The defendant says the plaintiff rear ended me and I was not backing out I was simply making a turn. Even in this very close call case, I can tell you the PD photographs will win this case for my client. You watch and see if I'm right.

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

Finding Hay in a Needle Stack

2007-05-16T03:48:00.000-07:00

I spent several hours late Monday evening outlining medical records for a very serious personal injury case I am preparing to file suit on. I was most curious to track the causation issues from initial treatment at the hospital to final discharge. My client ultimately had surgery to the c6-c7 disc as a result of herniation caused by the accident. The initial presentment at the hospital immediately post accident had my client complaining of finger numbness. Not every day I find such a clean connection. I was pleased. Next, as a matter of habit, I outlined all post hospital release treatment records looking for symptom inconsistency between doctor records and physical therapy records. I can not tell you the number of times I have a doctor's report saying he is doing better and a PT report saying the patient is unimproved and both occur on the same day and sometimes only hours apart. Finally, I look for symptom exacerbation and on this point I often notice the medical records state things like much improved released to full work only to find two weeks later problems worse with activities. Also, for serious injuries such as this case, I always find worsened conditions between October and March. The cold weather is a killer. I review the records in this manner because I know already the records are in evidence and some defense attorney is going to stand in front of the jury and say see he's lying look at the records better one day worse the next. I need to explain that apparent inconsistency. Now I can argue see his symptoms are affected by activities and weather. Argument preplanned is not paranoid. Unless it wakes you 2:30 am every night for a week.

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

Taking the Case

2007-05-12T03:51:00.000-07:00

I met with a potential client a few days ago regarding a personal injury accident that had happened nearly 3 years prior. In fact when I met him he was 9 days from expiration of the statute of limitations. After meeting the gentlemen, I had to declined to accept the case. Normally, I would not meet this close to an expiration of the limitations. However, my office always accommodates when a former client referrs a friend or family member as a matter of policy. Prior to finishing the meeting I had the potential client execute a notice of limitations to be sure he acknowledged the time frames for filing suit and the consequences of not filing suit. I declined the case not so much due to the limitations period, which was a significant issue, but also due to the intensity of his demeanor in proclaiming his damages. It was a very odd contradiction that a person would wait 3 years post accident with no more then soft tissue injury and now be outraged at the damage he suffered. Not that he was not truthful. In any event, I came upon a list of the difficult cases many personal injury attorney look at twice before accepting. Red/Light Green/Light cases, lane change cases, slip and fall cases, delayed treatment cases, client ticketed cases, low property damage cases, uninsured vehicle cases, and pending personal injury cases from prior accidents.

Settlement Process

2007-05-08T06:39:00.001-07:00

Once a client has completed treatment and reached what I call MMI (maximum medical improvement) I draft a demand letter. The demand will consist of all medical records indexed along with each bill for the cost of treatments rendered as corresponding to the date of treatment. Additionally, other cost incurred are included such as rental cost, prescriptions, towing bills, and lost wages. These are all forward to the claims adjuster in a very neat and organized package with a cover letter outlining my client's position on liability and a complete and accurate account of the damages. We use this opportunity to advocate our client's position right up front with a complete and compelling articulation of our position. It is our intention to impress upon the claims adjuster that we are thorough. We have investigated and we are prepared. Many attorneys also like to forward the complaint and discovery along with the demand package. Personally, I make this decision on a case by case basis. I prefer to make contact with the adjuster immediately after I receive a case. This way I get an idea of the type adjuster I am dealing with. I find some adjusters are professional and objective and simply evaluate the case accurately. Others are dispassionate, or indifferent, and still others are crusaders for the position that all injured persons are simply liars. I always believe the crusaders stay crusaders until they are injured in an accident. The difference in sending the complaint and discovery with the demand is minimal in effect but similar to greeting some one with a hand shake or with your fist up. When I have developed a relationship with the adjuster I see no reason to greet them with my fist at the ready. Besides the indifferent adjuster never even read the complaint/discovery, the crusaders welcome the complaint/discovery, and the professionals laugh at the complaint/discovery. In any event, in the most serious of cases, I make a practice of letting the adjuster know well in advance that we have a serious injury case. I have learned that giving this advanced notice helps the adjuster to set reserves in the case. This impact can not be minimized down the road. At the commencement of the case the adjuster sets a reserve for their evaluation of the case value. They will be evaluated by their boss later in the year based on how many cases they settled with in the limits of these initial reserves. If the adjuster has a low reserve in your case based on a misimpression of the value they will try to get your case settled with in the confines of the low reserve. Not a good situation when you are trying to settle the case at maximum value for your client. I make a point of checking with the adjuster if they prefer that I forward preliminary medical reports and updates as the treatment progresses or send the completed demand package at the end of the case. Some adjusters have a preference. I have found that treating each client's case as an individual case in stead pursuing the cookie cutter approach maximizes the potential for a successful recovery.

How To get Your Medical Records Into Evidence

2007-05-06T09:40:00.000-07:00

GETTING YOUR DOCUMENTS INTO EVIDENCE http://www.marylandinjuryattorney.net/Evid%20Documents.htm

It is important in your proof to get your documents into evidence. This can be accomplished in multiple ways and the procedures for doing so vary depending whether you are in the district court or the circuit court.
District Court Procedure: Courts and Judicial Proceedings Article 10-104 provides in pertinent part as follows: 60 days before trial you must serve pursuant to MD Rule 1-321a notice of intent to offer medical records and billing statements and provide a list to identify each record and the actual report/bill. Also you must then file with the court a Notice of Service which list and identifies each record. Upon completion of this task it is no longer necessary for you to bring in an expert to testify on causation or that the medical cost were fair reasonable and necessary. Also, it is no longer necessary to subpoena records custodians to court to have the records entered into evidence as business records. it is important to note that you can use this same procedure in the event your case is moved to the circuit court on the defendant's request for jury trial. Provided you do not seek damages in excess of the district court limit of $25,000.00.
Circuit Court Procedure: In the circuit court I use each of the following methods:
1. Stipulation by Letter. I simply forward a letter to defendant's counsel enclosing the medical records and bills and ask that they agree that the records and bills are authentic and admissible. the stipulation makes clear that the defendant's counsel is not agreeing the injury is casually connected or that the cost are fair, reasonable, and necessary. Only that the records are what they purport to be.
2. Request for Admission of Fact: I do not generally find that procedure functional. I mention it because it is available. However, generally in my experience defendant's counsel simply deny the allegations. While I recognize a failure to deny is an admission, I have not yet seen a situation where defendant's counsel fell asleep at the wheel and failed to deny. The rule has no teeth as an unreasonable denial is not subject to sanction. However you can try to recover cost later.
3. Stipulation by Pre-trial Statement. You will eventually appear before the court for a settlement conference. This is a good time to get a stipulation to your documents. Defendant's counsel are in my experience very professional attorneys. They have no reason not to agree the records are authentic. Additionally, they have no interest in appearing unreasonable to the court. You simply list your documents in the pre-trial statement and request the court to inquire if defendant's counsel has any objection to the admissibility.
4. Expert Testimony. When you review further into the web sight you will find a section on expert testimony. You can also use the expert as a way to get your records into evidence. I will mention the records will come into evidence however using this method the records do not come in as proof of injury, they come in only as the basis for the expert's opinion. It is necessary to have the expert testify that he reviewed the records, he relied upon their content in reaching his opinion and that it is customary in his profession to rely upon such information.
5. MD Rules 5-803(6) and 5-902(11) . This is my favorite means of having records entered into evidence. It requires advanced planning as the records properly must be support by the affidavit of the records custodian. To proceed in this manner order your records; secure the custodian certificates; forward the medical records and bills to defendant's counsel; and file a notice of service to the court. As an extra measure of safety I also include with filing a list of the records by date and service and cost incurred.
6. Subpoena. Simply subpoena the records custodians to appear in court with the records.
7. Defendant's Counsel Records Deposition. Once defendant's counsel issues the records deposition I forward a letter requesting a copy of the records produced. You can follow receipt of the documents with the Request for Admission of Fact, but again in practical terms simply a call the defendant's counsel should be sufficient to get a stipulation. Again in my experience the defendant bar has always been very professional in these situation.