Monthly Archives: March 2010

You Know It’s Baltimore When…

The local paper publishes a list of top ten self-defense killings.
Apparently, I’m not the only one who thinks this is kind of inappropriate. To quote one commenter: “What’s next, a list of top ten rapes?”

You Might be A Bad Person If…

You pull into a what you think is a utility road to make a phone call. You were wrong. It is not a utility road, it is a driveway. The people who own it ask you to leave. This makes you mad. So you wait a while until they leave. Then you go back, steal their dog, and throw it off a bridge from a moving car.

You are a bad person.
However long this guy gets in jail, it isn’t enough.

Will Maryland’s Top Court Go All “Dukes of Hazzard” On Damages Caps?

Maybe Georgia hates plaintiffs less than I thought.
They have a “tort reform” law that limits non-economic damages in medical malpractice cases to an unconscionable $350,000. They also have a state constitution that says that “the right to a trial by jury shall remain inviolate.” The Georgia Supreme Court recently held the cap to be unconstitutional, stating that “[t]he very existence of the caps, in any amount, is violative of the right to trial by jury.” It is nice to see an appellate court take its role seriously in ensuring that legislative mandates conform to constitutional requirements.

Other Posts Of Interest

But I don’t practice law in Georgia. I am stuck here in Maryland, wishing that the Court of Appeals of Maryland had shown the same courage as the Georgia Supreme Court. But alas, the Court of Appeals of Maryland considered the exact same constitutional argument, and rejected it in Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1990). Our court defied logic, and held that as long as the jury determines the plaintiff’s damages, the right to a jury trial is not impaired when a statute arbitrarily reduces the jury’s award to a predetermined amount having nothing to do with the damages in the case.

I swear, I am not making this up. This is what the Court of Appeals of Maryland said in Edmonds:
“Section 11-108 fully preserves the right of having a jury resolve the factual issues with regard to the amount of noneconomic damages. Neither the $350,000 limit on recovery nor the provision that the jury shall not be informed of the limit, interferes with the jury’s proper role and its ability to resolve the factual issues which are pertinent to the cause of action.”

Basically, as long as the jury determines the damages, the Court of Appeals says that it is irrelevant that the jury’s verdict will be arbitrarily ignored, and it is irrelevant that they will not be told this is going to happen.

It isn’t just me thinking the Maryland ruling is illogical and legally unsupported. The Georgia Supreme Court considered the Court of Appeals’ holding in Edmonds and called it “unpersuasive reasoning.”

But wait! The Court of Appeals of Maryland has a chance to fix its mistake. On April 2, 2010 the court will hear argument in DRD Pool Service, Inc. v. Freed. That case has a constitutional challenge to the non-economic damages cap in non-medical malpractice cases. Hopefully, the court will get it right this time and do away with a law that does a terrible injustice to the most seriously injured Marylanders.

Our system of justice places an immense amount of trust in juries. Juries decide whether people live or die, go to prison or remain free. Why do we no longer trust them to determine damages? Presumably, the right to a jury trial was pretty important since they put it in the very document that provides for our system of government. Hopefully, our courts will restore the will of the jury to its rightful place in our civil justice system.

But I’m not holding my breath.

Why HB 825 Is A Good Bill (And The Sun Is Wrong)

Why HB 825 Is A Good Bill

HB 825 is a bill being considered by the Maryland House of Representatives this morning. What the bill does is raise Maryland’s mandatory minimum auto insurance requirements. As I write this, I am listening to the debate on the House floor.
Currently, Maryland requires drivers to purchase insurance coverage with limits of at least $20,000 per person and $40,000 per incident. This has been the requirement since 1972, when the mandatory insurance law was passed. That amount has never been changed.
HB 825 would raise the minimum limits to $30,000 per person or $60,000 per incident.

This is a change that is well overdue.
The bill has a positive fiscal note, which includes sample premium increases for drivers insured by the Maryland Automobile Insurance Fund (MAIF). These are the only numbers available, because private insurers are not required to provide this information, and refuse to do it voluntarily. In fact, I was at the committee hearing on this bill, and the insurer’s lobbyists were asked this question, and responded that they “did not have” that information.

MAIF is the state’s insurer of last resort, required by statute to cover drivers who have been turned down by at least three commercial insurers. These are Maryland’s riskiest drivers to cover, who consequently pay the most to purchase car insurance. MAIF drivers who face the biggest increase in premium would have to pay about 9.3% more, about $14.50 per month.

So what we have is a 37 year-old insurance requirement that has never been raised. The bill will cost the state nothing, and will result in only a modest premium increase even for the state’s worst drivers.
Consider what a dollar bought in 1972 (thanks to Jim MacAlister, Esq.):

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Georgia Lets Negligent ER Doctors Off The Hook So Their Insurance is Cheaper


Here is an article about a recent opinion of the Georgia Supreme Court (that state’s equivalent to the Court of Appeals of Maryland) that uphold “tort reform” laws passed by the Georgia legislature. These laws were passed in 2005 as part of a package of “tort reform” laws.

The court upheld a draconian change in the standard of care for victims of medical negligence where the negligent doctor was providing care in an emergency room. In Maryland, doctors in any setting are held to a negligence standard. If the doctor failed to act as a reasonable health care provider would have under the circumstances, that is negligence.

Georgia has a different standard of care as a result of these 2005 laws. To recover for malpractice against a Georgia ER doctor, a plaintiff must prove “gross negligence” by “clear and convincing” evidence. I think Georgia is the only state in the country with a law like this. This changed the pre-existing law in two crucial ways.

First, it raises the standard of proof from a “more likely than not” standard. Essentially, this is the difference between 51% likely and 75% likely. Second, and most awfully, it raises the standard that must be violated to “gross negligence”, which means a failure to exercise even a slight degree of care.

I am not a Georgia malpractice lawyer, but the way I understand this is as follows: If the doctor cuts off the wrong leg because he is drunk, there is gross negligence. If he cuts off the wrong leg because he simply misread the chart, there is not. I imagine this is small comfort for the guy who lost the wrong leg. But hey, it’s all good- this law has reduced the number of medical malpractice lawsuits, and (thank god) has reduced doctor’s malpractice premiums. Guess why? Because it basically means that it will always be impossible to prove the doctor breached the standard of care.

The Georgia court determined that the legislature’s goal of making physicians’ malpractice insurance more affordable was a “legitimate legislative purpose.” This is just astonishing. I have a hard time conceiving a more unfair rule of law. Doing what is cheaper is not always the same thing as doing what is just.

This rule allows a Georgia ER doctor to to walk up to a family and say something like “I am really sorry. I messed up because I just wasn’t paying attention. I am a little tired from staying up late to watch the playoffs. But I did my best, and I am sorry your mother is dead.” Under Georgia’s standard, that doctor is probably not liable for malpractice. If you can’t tell what is wrong with that, you have my pity.

I love doctors. I have one myself. I am a huge fan of the ER docs and on-call cardiologists who helped my Dad when he had a heart attack. It is important to have these kinds of doctors available. But that should not be at the price of immunizing whatever they do as long as they try hard and don’t intentionally hurt you.

Applicants for the District Court for Baltimore County

There is a seat open on the District Court of Maryland for Baltimore County, due to the retirement of the Hon. Edward P. Murphy. There are, seriously, 30(!!) applicants. The list of hopefuls is as follows:
Jennifer Buran Aist
Kimberly Smalkin Barranco
Alfred Lawrence Brennan, Jr.
Harold Lee Burgin
Alan Royce Lee Bussard
Colleen Ann Cavanaugh
Emmet Christopher Davitt
Lisa Fox Dever
Julie Lynn Glass
Alberto Joseph Halphen
Michael Benjamin Hamburg
Louis Nathan Hurwitz
Neal Marcellas Janey, Jr.
Laura Courtenay Jenifer
Justin James King
Ari Jason Kodeck
Steven I. Kroll
James Kevin MacAlister
Kevin Paul Murphy
Deborah M. Ramsey
Marsha Lynette Russell
Leo Ryan, Jr.
Katherine Turnbull Sampson
Lisa Yvette Settles
Howard Carl Sigler
Charles Edward Sydnor, III
Kimberly Michelle Thomas
Robert Harold Wolf
Steven Donald Wyman
Wendy Anne Zerwitz
Unsurpisingly, I know some of the lawyers on this list. Not because I have some special insight, but simply because I think you could take a list of 30 Baltimore County lawyers chosen at random and I would know at least a few of them. For example, James McAlister is a talented appellate lawyer and a fellow board member of the Maryland Association for Justice.

I think Jim McAlister would make a great judge. He has experience in civil and criminal practice, and is one of the brightest lawyers I know. I will certainly keep an eye out to see which of the applicants make it on the list that the Trial Courts Nominating Commission will send to the Governor.

Aggressive Advocacy

At Miller & Zois, we think one of our hallmarks is aggressive advocacy on behalf of our clients. We primarily handle personal injury cases from car and truck accidents, medical negligence, and defective products. Assuming we succeed, we generally end up with a judgment that will be paid by an insurance carrier. But there are many horrific injuries that are caused by defendants who are not covered by insurance. Recently, I blogged about a lawyer trying to recover damages for a client who was a victim of child pornography. Here is an article about victims of the 1983 terror bombing of a Beirut military barracks who won a 2.6 billion dollar judgment against the government of Iran. There’s no insurance on this one, and Iran apparently isn’t stepping up to the plate to do the right thing.

So the lawyers representing the families of the bombing victims are trying to seize a Manhattan skyscraper whose ownership is linked to terror groups to satisfy the judgment. We don’t typically get involved in judgment collection cases, but I bet seizing a Fifth Avenue skyscraper would be an achievement that would fill out a lawyer’s resume nicely. Not to mention the satisfaction of being involved in a meaningful way in securing some measure of justice for these folks.
I hope the victims succeed in taking this building, and rename it the Freedom Tower. Or maybe Semper Fi Plaza, since the victims were mostly U.S. Marines.

Advice From An Appellate Clerk

Many young lawyers are lucky enough to secure a position as a judicial law clerk between law school and beginning to practice. Appellate clerkships are generally considered the most desirable. The main reason that young lawyers want these positions is because they gain valuable experience by working with a sitting judge every day, learning the best ways to persuade a court. Perhaps even more importantly, they also learn what not to do by observing the mistakes made by the lawyers before the court.

Virginia appellate lawyer Jay O’Keefe has been running an occasional feature on his blog with practice tips from a recent judicial clerk from the Supreme Court of Virginia.
Even though I only handle appeals in Maryland state and federal courts, these tips apply to handling appeals in just about every jurisdiction.

For example, there is a tip about the placement and structure of arguments within the brief. Essentially, the advice is to lead with your strongest, most appealing arguments.
I intend to follow this recurring feature in Jay’s blog.

I’m sure it will feature lots more helpful tips.