Waranch and Brown, LLC

Uncategorized

by

Alternative Causes Can Win Your Case!

If you’ve been reading our Think Pieces for a while, you know we believe in sharing successful legal strategies from all areas of our practice.

Today’s Think Piece highlights the strategy of searching for alternative causes in lead paint defense.  In defending a recent lead paint case, we faced a significant challenge.  Even after the house at issue had been renovated and the lead dust in the home was measured at low levels, the plaintiff continued to have increased lead levels and argued the lead dust in this house was the cause.  Slam dunk for the plaintiff, right?

Not so fast.  We searched for alternative causes of lead exposure that could explain the increased lead levels.  We found that the house next door had very high levels of lead.  At trial, we argued the house next door – not the house plaintiff lived in – was the source of the plaintiff’s lead exposure.  The jury agreed and we won the trial!

Other sources of lead exposure have included a child’s daycare facility, a relative’s house where the child spent weekends, and a park where an excessive amount of lead dust was found.  Interestingly, there was also the case of peeling paint from a picnic table where the child and his family frequently ate crabs that turned out to be the source of the child’s lead exposure.

The same strategy can be used in medical malpractice cases.  The cause of injury alleged by the plaintiff may not always be the true cause of injury.

Bottom Line:  Always search for an alternative cause of the plaintiff’s injury.  The answer might be closer than you think!

If we can help you explore alternative causes of injury in your case, please contact us.  We are always here to help.

by

Why can’t trial counsel tell me about the jurors?

We believe it greatly aids our insurance carrier client to understand the jury composition. That’s why we always request permission of the Court to share this information.  But when the judge says “no,” we offer other solutions.
Here’s an example:
Following jury selection in a medical malpractice trial, we asked the trial judge for permission to share with our claims representative information about our jurors, which we gleaned from the jury list.  The judge denied our request.
Per Maryland Rule 2-512(c), a party is only allowed to provide the jury list “to any person employed by the party to assist in jury selection.”  Unless permitted by the judge, a party “may not disseminate the list or information contained on the list to any other person.”  Therefore, if the Court says “no,” Rule 2-512(c) precludes dissemination of information on a jury list.

While we wanted to let our insurance carrier know certain information about our jury, this Rule and the judge’s ruling was prohibitive.  In this case, the judge concluded the information we wanted to share was outweighed by the protection of the jurors’ anonymity.

So, what do we do?  Although we could not share specific juror information gleaned from the list, we could let the claims representative know we were pleased with the jury based on the data available.  We also invited the claims representative to sit in the courtroom and make her own observations about the demographic make-up of our jury.  The claims representative attended the trial and got a “good feel” for the jury first-hand.

Bottom Line: If you are precluded from providing jury list information, plan on having the claims representative present to observe the jury make-up.

by

When Steve Hits John With His Car, Does It Matter WHY?

As an insurance carrier involved in a medical malpractice case, a key part of your legal strategy will be understanding your exposure to damages.

We all know non-economic damages arising out of negligence claims, whether common negligence or medical malpractice, are subject to caps – even if there are different caps for each.  But, do caps apply to intentional torts?

In 1996, the Court of Special Appeals decided in Cole v. Sullivan, that caps did not apply to intentional tort claims.  Fast forward 22 years …

Recently, in Rodriguez v. Cooper, the Court of Appeals of Maryland reversed the Cole decision and held that non-economic damages caps do apply to intentional torts.

Therefore, whether Steve intentionally or accidentally hit John with his car is irrelevant to the amount of non-economic compensation John can get.  Of course, John can still seek punitive damages in the intentional tort context, but then there are real questions about whether insurance will cover such a claim.

Bottom Line: Whether the injury happened because of mere negligence or because of an intentional act, the ability of a party to recover non-economic damages is capped in Maryland.

by

Informed Refusal is the Patient’s Right – And Insisting on Documentation is Yours!

Yes, you can be sued even when the patient refuses recommended medical treatment. The best way to minimize the risk to your medical practice is to document, document, document.
 
In today’s Think Piece, consider the case of a patient refusing recommended spine surgery.  The competent patient was fully cognizant of the risks, benefits and alternatives to the surgery. He was specifically advised that any delay could result in permanent neurologic injury, including loss of bowel and bladder function. Despite this information, the patient steadfastly refused to give consent and the surgeon was unable to intervene as recommended. As expected, the patient subsequently developed permanent disability, further complications and died. The family sued the physician for not performing the necessary spinal surgery.As a corollary to the doctrine of informed consent, a patient has a right to refuse recommended treatment. The AMA and other organizations confirm that all incidents of informed refusal must be well-documented in the patient’s medical records. Under certain circumstances, it is prudent to have the patient sign an AMA-type document confirming the discussion.

Bottom Line: Avoid the “I said, she said” battle. Document discussions, particularly the informed refusal, after the material risks, benefits and alternatives have been provided.

If we can assist with this, or any similar issues, please feel free to contact us at any time.

by

Not on Call? What is Your Duty?

Imagine you’re an office-based physician with privileges to practice at a hospital where you do not take call.  A patient you treated in the past presents to the Emergency Department at that hospital.  You are asked to come in but decline, as the on-call physician has already agreed to consult.

Now imagine you are sued in relation to care provided during that visit.  Can an office-based physician who is not on call be liable to a hospitalized patient when they were not involved in the medical care?  Maryland case law does not definitively answer this question, but we argue: “no!”

We recently represented a physician in this situation.  Plaintiffs argued the physician was negligent for failing to come to the hospital to evaluate the patient personally.  We filed a motion arguing the physician had no legal duty to assist in the hospital care of his patient since he was not on call and the on-call physician had been contacted.  The Court agreed and granted our motion, resulting in his dismissal.

Bottom Line:  This was a good result for our physician who was not on call at that hospital.  While this is an open question not yet completely resolved by Maryland appellate courts, one may prevail by arguing there is no legal duty when a physician is not on call.

If you have questions about a physician’s duty to a patient, please contact us.  We are always here to help.