Monthly Archives: March 2012

What to Do When Your Expert is a D.O.?

Putting a bad pun in the title is always a great start to a blog post, right? Try the veal, I’m here all week.
But seriously, proving medical causation of an injury in a personal injury case nearly always requires expert medical testimony. There a few exceptions for objective injuries that would be obvious to a layperson (like cuts and bruises), but generally proving medical causation requires a physician to testify that within a reasonable degree of medical probability, the injury or medcial condition was causally related to the accident.

The most obvious source of this testimony is the plaintiff’s treating physician. There are strengths and weaknesses in using a treating physician as an expert witness. One of these can be that since you generally do not choose the treating physician, you are stuck with their qualifications, however good or bad they may be.
This issue can arise when the treating physician turns out to hold the degree of Doctor of Osteopathy rather than Medical Doctor. When this happens, it is a natural area of cross examination. Juries expect physicians and expert medical witnesses to be M.D.’s, and tend to be skeptical when they are not.

One way to try and remedy this is to point out that in practice, this is a distinction without a difference. On direct (and perhaps in cross-examination of the defense expert) illustrate the commonalities between the holders of the two degrees.

A few days ago, I happened to come across Declaratory Ruling 97-1 of the Maryland Board of Physician Quality Assurance. It contains a paragraph that neatly explains the many similarities and singular difference between the two degrees:

“According to Education of the Osteopathic Physician, a publication of the
American Association of Colleges of Osteopathic Medicine, both doctors of medicine
and doctors of osteopathy are physicians who have taken a prescribed amount of
premedical training, graduated from an undergraduate college, and received four years
of training in a medical school. They both use scientifically accepted methods of
diagnosis and treatment, and are often licensed by the same state medical board. The
philosophical difference is the osteopathic profession’s emphasis on the importance of
the musculoskeletal system in health and disease and the development and uses of
manipulative diagnosis and treatment.”

It is easy to see how this kind of information can be useful in putting together a list of questions that may help in ameliorate any credibility issues that may arise with a witness who holds a D.O. degree. These are all things that would be very difficult for a defense expert to deny on cross.

I’m going to save a .pdf copy of this ruling to use in the next case where my treating physician expert is a D.O. I will have to remember to let you know how it turns out. Does anyone else out there have experience with this issue? How did you handle it?

A Referring Lawyer’s Thoughts on Co-Counseling With M&Z

If you have been injured in a car or truck accident in Maryland, it is easy to find a lawyer to take your case. Just about every general practice lawyer in the state handles auto accident cases to some extent, and can usually do a good job. But sometimes these lawyers get involved in cases that can’t be settled, and they may not have the experience or resources to take the case to trial.

That’s where we come in. We get involved in a lot of cases as referrals from other lawyers under Rule 1.5 fee-sharing agreements. The referring lawyer can stay as involved in the case as they wish- it can be a straight referral, or they can stay in the case through trial.

The best way for you to find out about what co-counseling with M&Z is like is directly from one of our referring lawyers. Here’s what one of our referring lawyers had to say about a case that I got involved in about 60 days before trial:

      I have a general practice law firm and I also do personal injury work, mainly auto accidents. I have tried a number of District Court cases but I had never done a personal injury jury trial in the Circuit Court. I had an auto accident case that had to be brought in the Circuit Court. I was hoping that after discovery, etc. I would receive a reasonable offer from the defendant to settle the case since liability seemed pretty clear; a rear-end case. However, the defendant was a self-insured taxi company and, probably sensing my inexperience in the Circuit Court, would not make any offer to settle. At that point, I decided to contact Miller & Zois to see if I could get them to co-counsel with me on the case. Even though it was late in the game, I received a call promptly from Attorney John Bratt. Miller & Zois then agreed to co-counsel with me and they gave me the option to stay involved or let them take over all the way. I chose to stay involved. It was a great learning experience for me.
      Mr. Bratt is an excellent attorney and a great teacher. I was pleased with the way he handled the case, his willingness to share his knowledge and to explain the rationale behind the things he did. I was also impressed with the way he took the time to understand the case, his timeliness in appearances before the Court (he was always early, never just on time) and his composure and delivery in Court. His approach to the case was to present our strongest evidence for damages and avoid presenting evidence that would sidetrack the jury and weaken our case.
      Just before trial the Defendants’ attorney, a good defense attorney, predicted that “on our best day we could not recover more than 2 times specials” when I replied that stranger things have happened; he said “stranger things may happen; but not in Montgomery County Circuit Court.” When the jury returned a verdict for our client for almost 6 times the specials; you could have heard a pin drop in the Court room. Needless to say, I was very pleased with the outcome and with my decision to co-counsel with Miller & Zois, and in particular, for the excellent work and skills of Mr. Bratt. I would recommend Miller & Zois highly to any attorney that may need assistance in a personal injury matter.
      Elton F. Norman

The Norman Law Firm, PLLC

    Silver Spring, Maryland

So if you find yourself needing experienced trial counsel for a car or truck acccident case, consider contacting our law firm. We are happy to review referral matters form other attorneys.

Using Safety Rules in Truck and Car Accidents

I have written in the past that a trucking accident case is much more than an auto accident case with a bigger vehicle involved. Lawyers representing people injured in trucking accidents need to consider the different agency relationships that may be involved between the driver, owner/lessor/lessee of the vehicle, as well as the causes of action and/or insurance issues that arise out of those relationships.

Another difference is that trucks are perceived to be more dangerous on the road than standard automobiles. They are bigger and heavier, have more and bigger “blind spots”, and are operated by drivers who may have fatigue issues from spending hours and hours in the driver’s seat. Most drivers/jurors have had at least one terrifying personal experience out on the road as a result of an encounter with a big rig.

In fact, I nearly had one take me out on my way to work this morning. In rush hour traffic on I-695, the truck was weaving in and out of traffic (always a great idea) and came into my lane without checking to see if it was safe. Since I was on the driver’s side, this can only mean that the driver never checked his mirror before coming over. We’ve all seen those signs on trucks that say “if you can’t see my mirrors, I can’t see you.” Well, I could see this guy’s mirrors, which makes me think he would have seen me if he had looked. Thankfully, I was able to avoid a collision, but I am confident the driver had no idea I was there until he heard my horn.

Because of the real and perceived dangerousness of these vehicles to other drivers, personal injury cases involving tractor-trailers are ripe for a “Reptile/Rules of the Road” approach. Sidebar: if you are handling personal injury cases and you have not read Don Keenan and David Ball’s “Reptile” or Rick Friedman and Pat Malone’s “Rules of the Road“, you should 1) not tell anybody; and 2) read them right now.

Here is a link to Don Keenan’s blog explaining how to begin to formulate “Rules” that are simple, easy to understand, and that will resonate with your jury. Using the example from my morning commute, a Rule might say “Tractor-trailer drivers must be sure the way is clear before changing lanes, to protect other motorists on the roadway.” These can be drafted many different ways, and doing so is definitely an acquired skill. How would you draft the appropriate Rule for this situation?

Appellate Mediation?

In the past, I have written about alternative dispute resolution as a means for resolving personal injury cases before trial. Well, there is a new article out in the Maryland Bar Journal about how mediation is being used to resolve cases on appeal in the Court of Special Appeals.
I never thought that mediation would be useful on appeal, because an appeal by its very nature involves two parties with entrenched positions on opposite sides of a legal issue. I guess I was wrong, because according to the article, 69% of the cases that go through the Court’s appellate mediation program settle.
I have only had one of my appeals go through the mediation program. My case didn’t settle, but I thought it was a useful process. They use two mediators, a retired judge and an attorney mediator from the Court’s mediation office. In my case, they were both well prepared and up-to-speed on the law involved. The process wasn’t the reason my case didn’t settle. But the plus side is that now I et to argue the appeal, which I really enjoy doing!