Monthly Archives: November 2010

Should Contracts Limiting Malpractice Liability Be Allowed?

Picture this: You need a medical procedure, for example, having your gall bladder removed. You arrive at one of the area’s fine local hospitals, where you are seen by a doctor and told “Sure, we can help you, as long as you sign this form giving up your right to sue us for damages if you are injured by malpractice.”

Sounds like a great deal for them and a terrible deal for you, right? The Cato Institute has issued a paper advocating that agreements like this, in one form or another, should be allowed and upheld by the courts. Surely they can’t be serious? Yes, they are, and no, I won’t stop calling you Shirley. RIP, Leslie Nielsen.

Contracts like this are generally unenforceable. They are called “contracts of adhesion”, and are not allowed because of the extreme inequality in the bargaining positions of the patient and doctor, among other reasons.

Should patients be forced into unconscionable, one-sided agreements in the name of “freedom to contract”? The Cato Institute says it advocates “Individual Liberty, Free Markets, and Peace” but I think this idea pushes the freedom to contract and the free market a little too far. Obviously, I’m on one side of this debate. But I’m glad there are smart people on the other side pushing the issue, even though I don’t agree with them.

Tips From the Judges for Car Accident Lawyers

As most of you know, my primary practice area is representing people injured in car and truck accidents. As one of my “extracurricular activities,” I co-chair the Maryland Association for Justice’s Auto Negligence Section.

We just completed our sold-out fall seminar on “Maximizing Auto Negligence Claims.” The seminar included a judicial panel featuring five Maryland Circuit Court judges talking about their experiences presiding over car and truck accident cases. I served as the moderator of the panel discussion.

This was a discussion that offered something for everyone, whether a new practitioner or an experienced lawyer. It would be impossible to reproduce all of the excellent advice given, but I want to pass along some choice pieces of wisdom from a few members of our panel.

Hon. Leo E. Green, Jr. (Circuit Court for Prince George’s County): Once you file a lawsuit, you are “on the clock.” This means being ready to actively pursue service on all defendants and to move the case forward. The court’s case time management standards do not allow time for delay.

Hon. Diane O. Leasure (Circuit Court for Howard County): Be passionate in your advocacy, but not “over the top.” Do not underestimate the value of demonstrative exhibits in opening/closing.

Hon. W. Michel Pierson (Circuit Court for Baltimore City): Don’t assume the jury knows anything! Your job is to educate the jury. Even if you have handled similar cases, don’t let your presentation become rote- it will come across to the jury.

These are just a few of the great tips from our panel. No matter how busy your trial practice is, the judges will preside over more cases in a year than you will try, so you can always learn something. I have been handling car and truck accident cases for over a decade, and I found the discussion to be very valuable.

If you weren’t able to attend, a DVD of the seminar is available for purchase from the MAJ. Also, keep an eye out for the upcoming Spring Auto Negligence Seminar.

Language Barriers in Court Cases

Maryland has an increasingly diverse population. This means that our court system needs to keep pace with the needs of our residents. By law, this includes providing interpreter services to those who are not able to communicate effectively in English.

Here is an article from the Baltimore Sun about how courts in Baltimore City and Baltimore County are addressing this issue.

Because my personal injury practice is statewide, I have noticed that some courts deal with the issue of providing interpreters more effectively than others. I have found Montgomery County to be most effective and best able to provide interpreters in many languages on short notice. I think this is because Montgomery County has long been one of the most ethnically diverse counties in the state, so they have developed subtantial experience serving a variety of non-English speaking populations. There are generally Spanish interpreters available on a few minutes notice, and it there is an established procedure for quickly and simply requesting interpreters in most languages, who actually show up when they are supposed to be there.

It seems like the counties where this tends to be an issue are those where the populace has traditionally not included many non-English speakers. Baltimore City has been experiencing a tremendous rise in Spanish-speaking residents over the last decade, which has spilled into Baltimore County. So as the population in these jurisdictions changes, I expect their courts to become increasingly more efficient in providing interpreters.

Stay Strong, Bruce

It looks like there was some good news buried in yesterday’s election results for injury victims and the lawyers that represent them.

Congressman Bruce Braley held onto his seat, defeating Republican challenger Ben Lange. This is quite an accomplishment, considering Bruce had to overcome the impact of the 1.2 million dollars in spending on behalf of his opponent by the out-of-state special interest group the American Future Fund.

Congressman Braley is one of the few advocates for victims and their lawyers in Washington, D.C. It is telling that even in this election’s anti-incumbency surge, his constituents brought him back. He ran on the strength of his votes in favor of health care reform, financial regulation, and the economic stimulus package.

I was lucky enough to meet Congressman Braley a few months ago, and came away impressed. His passion for what he is doing is palpable. There’s a good reason many regard him as a rising star in Congress.

He is doing the right things for the right reasons. We are all lucky to have him back in D.C. fighting the good fight for his contituents and victims everywhere.

Montgomery County Rejects Fees for Ambulance Service

Hello, everybody! In case you noticed my absence over the last few weeks, I was away getting married and honeymooning. Now I am back at the blog, albeit a little tired from watching late election results last night.

But as they say, all politics is local. In Maryland, some jurisdictions charge for ambulance service, while others do not. For example, Baltimore City charges a $410 fee for ambulance service, while Baltimore County charges nothing.

In May, the Montgomery County Council approved a $400 fee for ambulance service to assist with a 13 million dollar budget gap. After a trip to the Court of Appeals of Maryland and back, opponents of the fee were able to get the issue on the general election ballot for a referendum. Yesterday, Montgomery County residents voted against allowing the county to continue to charge fees for ambulance service.

From a personal injury lawyer’s perspective, this is probably a good thing for injury victims. Although there an argument that charging a fee for ambulance service would lead to higher damages claims and possibly higher recoveries, I think that ignores the big picture. Having no fee for ambulance service helps victims in many ways.

First, people are more likely to seek the care they need if they are not concerned about being billed. Moreover, clients will be able to use Personal Injury Protection funds to replace lost wages or pay for other necessary medical care. Where health insurance pays for medical treatment, the lien to be repaid will be $400 smaller. Overall, this will help victims survive until they can resolve their claims, and will let them keep more of their recovery. A good thing.

Plus, why should the county charge for emergency services we pay taxes for anyway? Kudos to the citizens of Montgomery County for rejecting a new fee that would do the most harm to the least fortunate.