October 2, 2015

Boundaries of Negligent Security: When is an Employer Liable?

When there is injury or damage because of the failure to provide any or adequate security, we often want to hold the security company liable. We rarely give thought to whether the company is responsible for the negligence, acts, or omissions of the guards they employ.

Maryland law does make security companies vicariously liable for the acts of their employee guards, but a recent case tested the boundaries of that law, where employees commit acts that are not in the course and scope of their security duties.

Guards Actions are Outside Scope of Employment

The case involved two security guards, who the homeowners allege set forth on a plan to set homes on fire in Charles County, Maryland. There was some indication that the fire may have been a result of racism, specifically, that the guards were seeking to prevent residents from moving in. Although many homes were damaged, there were no injuries.

Discovery revealed that one guard had been fired by the security agency previously, but then rehired, despite having negative comments in his personnel file.

The homeowners filed suit, not just against the accused arsonists, but against the company hiring them, for negligent hiring claims. The company defended by saying that they could not be liable, because if the guards had committed the arson, they did so without the company's knowledge, consent, or permission, and outside the scope of their employment. Thus, the company argued, it could not be vicariously liable for the guards actions.

The court agreed, and dismissed the company as a defendant in the case, and an appeal ensued.

Interpreting Maryland's Security Guards Act

On appeal, the homeowners argued that the company could be held liable for the guards' actions because of the Maryland Security Guards Act, which makes employers vicariously liable for negligence of security guards. The homeowners contended that there was liability, even if the guards were not acting in the scope of their employment.

Put another way, under the statute, the homeowners argued that as long as an act was conducted while a guard was on duty, no matter what the act was, the hiring company is responsible.

The question has traditionally been whether an employee has been furthering his or her employer's goals. If not, the employer is not liable. Did the Act change this analysis?

The Act could be read many different ways. Thus, the court looked to policy considerations, to see how broad the Act could be read. The court felt that it would be unfair to hold a company responsible for acts of its employees that have nothing to do with their job. Simply making employers liable for what employees do, just because they happen to be on the job, was too far from traditional notions of vicarious liability for the court, and thus, it held the employer was properly dismissed from the case.

Negligent security cases can have multiple defendants and require detailed factual analysis. There may be parties liable you aren't even aware of. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

August 13, 2015

Baltimore Washington Medical Center Sends Out Warnings About Fake Medical Devices

Medical malpractice, and the chances of being a victim of it, are scary. Just the idea that the professionals we rely upon to safeguard our health and well being could make a mistake is frightening. But every now and then, a story comes out that reminds us even more of how scary medical mistakes can be and makes us wonder how poor the standard of care in medicine can get.

Warning About Medical Devices

This time, the news comes out of Maryland's Baltimore Washington Medical Center (BWMC). BWMC is informing hundreds of patients who underwent spinal fusion procedures that hardware used or implanted in them could actually be fake or otherwise defective.

When we undergo medical procedures, it is not just the skill of our doctors that is at issue, but also the quality of the medicines and the devices they use. The best doctor in the world won't help if the medical device he or she is using is faulty or if the medicine being used is dangerous.

That said, hospitals and medical providers do have an obligation to make sure they don't use any device or medicine that they know or should have known to be dangerous. According to allegations, the company that supplied the spinal fusion devices had been previously cited by the FDA for quality control problems. The company even previously issued a recall on spinal fusion devices. The company has since gone out of business.

According to the FDA, the faulty or fake parts could cause product failures, product breakage, or "inadequate sterilization."

The hospital apparently sent the notices to former patients as a cautionary measure to advise them as early as possible that they may be at risk.

Bad Devices are a Large Concern

There is actually a large concern over faulty or low quality medical devices. In an industry where insurance payouts can be significant, it is no surprise that shady operators with substandard products are trying to infiltrate the market.

Many device makers have relationships with doctors that may even include kickbacks or other incentives for doctors that use a certain company's devices. According to the article, to hide the kickbacks being received by doctors, the company in question developed fake consulting contracts as a way of paying doctors without the payments looking like incentives or kickbacks.

Kickbacks doesn't automatically mean the products being used are dangerous or substandard, but it does raise concern that doctors or hospitals may not always be objective in evaluating the quality of the products they are using on patients.

BWMC is not the only hospital involved in the potential problems; 17 hospitals nationally are also being investigated. BWMC is also reminding people that the faulty hardware was only used in a very specific kind of spinal surgery, which only a small number of patients even had, increasing the chance that any patients at BWMC are in danger.

If you have been injured by a fake, faulty, defective, or malfunctioning product--medical or otherwise--you need attorneys that understand these kinds of complex cases. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

July 30, 2015

Too Much Treatment Can Lead to Malpractice

When we think of injuries that are caused by our doctors and medical provides, it is common to think of a provider performing procedures negligently or failing to conduct tests or take precautions, thus overlooking significant medical symptoms that lead to injury.

But there is another category that can lead to injury - over-testing or excessive medical treatment. In common terms, this is the practice of performing a procedure that isn't necessary or where there are no conditions that would lead a reasonably prudent doctor to conduct any such procedure.

Examples of Improper Treatments

In one recent case, a physician was convicted of performing numerous tests on patients who did not need the tests in an effort to defraud insurance.

Although there doesn't appear to be any indication of patient injury, given that most of the tests seem to be diagnostic and non-invasive, the case still reminds us how important it is to ask whether the procedures we undergo are reasonable and necessary. That is especially true with young children and the elderly, who may suffer severe and permanent effects from anesthesia and other aspects of invasive medical procedures.

In a much more serious story, a Florida dentist is accused of performing numerous unnecessary procedures on young children. Again, the motivation seems to be the collection of insurance money.

In at least one case, a mother who had brought her child in to have a tooth pulled ended up having seven of her children's teeth pulled without her knowledge or consent. There are also reports that the dentist physically assaulted the child.

When the parents of the child went public with the accusations, many more parents whose children had the same experience with the dentist came forward. Some of the patients reported hearing their children crying inside the office, but were prohibited from going inside to attend to the child.

Treatments and Insurance Payments

It can be easy for medical providers to manipulate insurance. A dentist who may cap a tooth can also be paid to pull it. Doctors can be paid to perform multiple tests, and the insurance company relies upon them to truthfully verify all are needed and necessary.

Aside from the insurance company being victimized, as the events above demonstrate, patients also get victimized.

It can be hard to discern what tests or procedures are necessary and what are not. And, of course, in many cases a doctor must legitimately perform a number of tests or procedures to come to a proper diagnosis or cure an ailment.

The issue comes down to whether a reasonable physician in the same or similar circumstances would do the same thing your doctor did. If so, there is no malpractice. But if not, there's a chance that over-testing may lead to a medical malpractice claim if it causes injury to loved ones.

Medical malpractice can be difficult and complex, and often requires attorneys who know how to work with medical experts. If you have been a victim and sustained injury, contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

July 9, 2015

Biomechanics Experts are Often Overlooked in Auto Accident Cases

To a layperson, car accidents can seem relatively simple, especially if you are clearly not at fault. You may look at a rear-ending accident, for example, and just assume that it is an "easy" case that a jury will award damages for. However, car accident cases can be more complex than they seem and may even involve the use of experts for reasons that you may not think are needed.

Experts When Liability is Clear

In many cases where liability is absolutely clear--say, for example, a rear-ending accident--liability (that is, whether the defendant is negligent or not), won't be where the heart of the fight is. Rather, the fight will involve the causation and severity of your injuries. The Defendant (specifically, the Defendant's insurance company) will argue that the accident did not cause your injuries and that your injuries are not as severe as you claim.

Of course, the starting place to look would be your medical records. They, along with your doctor, if he or she needs to testify at trial, will paint a picture of the severity of your injuries. Your doctor is almost always a qualified expert witness to testify in court on your behalf.

The problem is that in most cases, your doctor can't testify about causation, because that is not his or her field of expertise.

In other words, your doctor can say you have a herniated disc, but not whether the force of the accident and the impact you sustained is enough to cause the herniation. Your doctor can't look at the damage to your vehicle and say that it evidences enough force to cause a herniation. He or she can't say that your back twisted with sufficient force in the accident to cause the herniation.

Where Biomechanical Experts Come into Play

Victims often need a biomechanical expert to testify on their behalf because these experts have knowledge of how the body and its tissues move and react in response to certain forces. They are experts in how much stress parts of the body can take before failure. They are experts in both engineering and physiology.

Many such experts have done or are familiar with studies that demonstrate how forces exerted in a car accident can lead to certain types of injuries. They can often support a correlation between damage to your car and damage to your body.

Many biomechanic experts also can read and interpret data that your vehicle stores as you drive, much like a "black box" on an airplane. An Event Data Recorder (EDR) is a device is usually common in newer model cars. Unfortunately, some models allow experts to easily access this information, while others safeguard it and will usually avoid producing it unless compelled to do so by a court.

Don't assume anyone can handle your car accident case, even if you feel it is an "easy" case. Knowledge and anticipation of the Defendant's defenses are crucial to obtaining full recovery. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

June 18, 2015

If You're Injured, When Will Your Injury Case Be Filed in Court?

If you are injured in an accident, you may think that the natural next step is to file a lawsuit (or hopefully, to hire a good personal injury attorney, and then file a lawsuit). But in fact, there are many steps that must be taken before a case is ripe to be filed in court. Some of them are procedural or legal, but many of them depend on how you recover from your injuries.

Your Medical Improvement

Imagine that you are injured in a car accident. You receive therapy. You sue, and you win or settle for $10,000. Six months after you settle, you are not recovering and your doctor recommends surgery. You can't reopen your case or sue again; thus the $10,000 is your only resource.

This illustration shows why it's important to wait until your medical treatment runs its course before just filing a lawsuit. Filing too early can deprive you of needed payments for your injuries. Even your doctors may not be able to testify at an early stage what your chances of recovery are or what your prognosis may be.

In many cases, a plaintiff may wish to wait until he or she reached maximum medical improvement, or MMI. Your doctor will at some point declare that no more medical improvement can be expected, thus putting you at MMI status.

Experts and Demands

In more complex liability cases, your lawyer may want to employ an expert and have him or her render an opinion as to liability to make sure that there will be a basis for the lawsuit if it's filed.

Before you file suit, your lawyer may want to send a pre-suit demand to the other side. In many cases, the other side may settle for an agreeable amount, thus avoiding the time and expense of a full-blown lawsuit. The negotiation process can take anywhere from a few weeks to a few months.

This pre-suit negotiation is especially useful where the other side may have limited insurance, or insurance that is far below what your injuries may actually be worth. In these cases, a quick settlement for the maximum of the insurance policy may be able to be reached.

When You Don't Need to Wait to File a Lawsuit

Of course, there are some instances where there is no need to wait an inordinate amount of time before filing a lawsuit. For example, in a wrongful death case, or a case where immediate catastrophic injury has occurred, there is no need to wait for MMI.

In some cases, a lawsuit may need to be filed immediately to preserve testimony. Your lawyer may want to take depositions of witnesses who may be older, or transient, before they disappear or pass away.

If you're in an accident, it's understandable to be a bit impatient--you're injured, have bills mounting, and want justice. But it's important to remember the different factors that go into deciding when to file an injury lawsuit or not. Understanding the process will make it easier to wait the time needed to obtain a good settlement or verdict.

If you're injured, make sure you have lawyers that can explain to you the process of obtaining recovery, from start to finish. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

June 11, 2015

New Study Looks at Why ER Doctors are Sued for Malpractice

When we go to the emergency room, we may be in the most precarious medical condition possible. We may be critically injured, where time is of the essence, and where a wrong decision by a medical provider can be the difference between life and death.

New Study Looks at ER Malpractice

Like any doctors, ER doctors can be sued for malpractice, and, in reality, often are. Many ER doctors lament that their higher malpractice rates are due to the nature of their job--they make snap, on-the-spot decisions with patients with whom they may not be familiar, and who are often entirely unconscious.

But a new study sought out to definitively determine why ER doctors are sued and for what. The Doctors Company, a medical insurer, conducted the study based on 332 ER malpractice claims from 2007 two2013. The study found that the highest medical malpractice claims came from the following:

● 57% - failure to diagnose. This may include failing to rule out causes of injury, or failure to consider alternative means of treatment. In common parlance, it means as it says--a claim based on the fact that a doctor could have or should have seen a sign or symptom, but failed to do so, or otherwise failed to take a certain course of treatment that should have been taken.
● 13% - Failure to manage treatment or trauma. This would include stabilizing a patient, or preventing a patient from getting worse. An example would be failure to properly brace someone with a spinal injury, leading to a more severe injury.
● 5% - Negligent performance of a procedure. This means that the doctor may have made all the right decisions, but conducted a procedure in a negligent way.
● 3% - Failure to prescribe proper medication. This includes not just prescribing the wrong medicine, but failing to prescribe medicine timely--many medicines must be provided to patients within strict time parameters to be effective.

Other Contributing Factors to ER Malpractice

The study didn't just look at medical malpractice from the physician's fault. It also looked at external factors that can contribute to malpractice. They included:

● 21% - Patient factors, including obesity, or diabetes, which can delay or alter the care given.
● 17% - Internal lack of communication. This includes failure to review the medical records, or speak with other nurses or physicians on scene about the patient.
● 14% - External lack of communication. This includes communication between the doctor and the patient's family.
● 12% - Too much work, or understaffing, particularly in busy times, or holidays.

Certainly, the job of an ER doctor is a tough one, and neither patients, nor the law, demands perfection. Ultimately, the law requires doctors to act the way other doctors in a similar situation would act. In other words, a doctor's standard of care can't slip below that of others in the medical community. That's not a huge burden to put on those that we trust with our lives.

There are many causes for medical malpractice. Make sure you have attorneys that can identify when malpractice occurs, and how to preserve your rights to recovery if it happens to you or your family. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

May 14, 2015

Evidence of Habit Can Make or Break an Injury Lawsuit

Medical malpractice trials in Maryland are often decided based on the kind of evidence that gets in or out at trial. One kind of evidence is called "habit" evidence, and it allows someone to testify as to what they think, but don't know for certain, they did or didn't do in a given situation.

Malpractice and Habit Evidence

A recent case discusses how testimony of habit can affect the rights of a victim injured as a result of malpractice. In 2003, a man slipped and fell, and had pain in his knee, hip and lower back. Emergency personnel immobilized him and he was transported to the emergency room.

In the emergency room, the victim's hip and knee pain, but not his back pain, were noted and treated and released by the triage doctor. After numerous visits with his own doctors, he was eventually diagnosed with a "burst fracture" in the vertebra fragments in his back. He was rushed back to the emergency room. Eventually, he underwent a spinal fusion. Days later, the wound was infected. The man eventually suffered cardiac arrest, ended up in a vegetative state, and died.

The victim's estate sued the hospital doctor for malpractice, alleging that he completely failed to see or treat his back injury at the time, and that if it had been treated he would have survived. To support his argument that the victim's back was examined, the doctor at trial testified as to what his "habit" was, specifically, that he always checked for back problems, and thus must have done so in this case.

The victim's estate challenged the doctor's ability to use "habit" evidence to show that he had or hadn't performed an exam on the victim's back on the night he was admitted, and an appeal ensued on that issue.

Habit Evidence in Maryland

Admitting habit evidence can be tricky. When someone says they do something out of habit, it doesn't mean that's how they reacted in a certain, particular situation. Rather, the jury is left to infer that because someone reacts a certain way as a matter of habit, that's how they must have acted in the case they are hearing.

Maryland law does allow people to testify as to habit, which is usually defined as an activity someone doesn't think about doing, and does with invariable regularity. The habit actions must be "semi-automatic" or reflexive in nature. Examples may be always holding a handrail down stairs, or always buckling a seatbelt.

Appellate Court Allows the Evidence

The victim's estate argued that examining someone in a certain way doesn't fit that definition. The doctor argued that he has performed thousands of exams, and that his routine is, in fact, habit. The difficulty of the doctor's exam, and the fact that every patient may be different, did not change that analysis.

The court noted the doctor's testimony that when someone comes to the emergency room on a back brace, as this victim did, that he always performs a spinal exam. The appellate court thus agreed with the doctor that the evidence was habit and that the jury could hear the doctor testify as to that fact.

The rules of evidence can make or break a medical malpractice case. Make sure you have attorneys that understand how to take injury and malpractice cases to trial. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

April 21, 2015

ACLU Issues Disturbing Report About Police Brutality in Maryland

Maryland does not currently track the number of deaths that stem from police encounters. So, the American Civil Liberties Union (ACLU) decided to track them, and is now reporting that 109 people died as a result of police encounters between 2010-2014. That's a significant number, and many lawmakers are now trying to do something about it.

ACLU Finds Disturbing Statistics

Of the 109 deaths, 31 occurred in Baltimore, the highest number in the state. The ACLU also reported that of those who died, nearly 70% were black, and more than 40% of them were unarmed. Less than 2% of the officers involved were charged with any type of criminal charge.

There are no statistics by the ACLU on how many may have been sued civilly by the decedent's family members, but the Baltimore Sun has reported that according to its research, since 2011, over $6 million has been paid in lawsuits and settlements involving police brutality.

In fairness, the report doesn't determine which, if any deaths, were justified (i.e., a suspect was putting an officer's life in danger), nor how many deaths were not related to police actions (i.e., someone suffering a heart attack in the back of a police car). The ACLU compiled its statistics from news sources, which it acknowledged was not the best source, but it was the only one, given that the information isn't tracked by police or government.

Legislature is Slow to Pass New Laws

Last year, the legislature did pass a law that required police to be trained in CPR. It also required cultural sensitivity training, proper use of force, and how to deal with those with physical or mental disabilities. But other than those general laws requiring training, the legislature hasn't passed more strenuous or punitive laws.

The legislature is considering passage of laws that eliminate a 10-day waiting period that currently exists before officers can be questioned about certain incidents, and eliminating a 90-day time limit that exists for filing complaints against police officers. The laws also seek to make public the names of officers that have committed violence, misconduct or brutality.

The change that the ACLU wants to see most, however, is transparency, which leads to accountability. It contends that some kind of tracking system, and record keeping that's publicly available, should be implemented.

Suing Civilly for Police Violence

There is, of course, a way to sue civilly if someone is injured by police brutality. Federal civil rights laws allow anyone injured as a result of a violation of civil rights by a government agent to file a lawsuit and recover damages.

Still, those lawsuits don't carry the same weight as criminal penalties would for police brutality. And, they don't address the problem of lack of transparency in state reporting of incidents. In many cases, a jury may give an officer's testimony more weight than an injured victim's, making the cases difficult to prove, although there have been significant police brutality verdicts around the country.

If you feel you have been injured by unfair or excessive police force, you may have a civil lawsuit for damages. Make sure you have attorneys that understand the laws that protect you, and who can properly analyze the facts of your case. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

April 16, 2015

Proposed Law Could Make Birth Malpractice Cases More Difficult

Injuries caused by medical malpractice can be devastating and catastrophic. But they can be even more so when they involve the catastrophic injury or even death of a newborn. Despite this, Maryland is actually trying to pass laws that would make it harder to sue for malpractice related to birth injuries.

Proposed Law Sets Up Injury Fund

The bill seeks to set up a fund into which hospitals would pay for living expenses for babies that suffer neurological injuries at birth. About $25 million yearly would be paid into the fund.

On the surface, this seems like a great idea. But it's not.

First, $25 million is only calculated based on the assumption of seven babies needing the funding every year. That's right--in all of Maryland, with all the babies born, the hospitals are assuming only seven would suffer neurological injuries at birth.

And, assuming that was an accurate number, that works out to only $3.5 million per child. That sounds like a lot. But with a neurologically injured child, a lifetime (say, 70-80 years) of in-home medical care, medications, special schooling, and loss of income, and factoring in inflation, will far exceed that number. And that's only calculating the economic costs, not the non-economic damages, such as loss of enjoyment of life, pain, trauma, etc.--or, the trauma to parents, especially of children who, because of their injuries, may not live to adulthood.

Goal is to Quell Malpractice Suits

The fund wouldn't necessarily just be payable to those injured by malpractice, but could be obtained even by those who suffer injury without any negligence. Lawmakers say that it would make compensation fairer, instead of forcing families to file malpractice lawsuits, which they call "lotteries."

It is not clear yet whether the fund would necessarily prohibit malpractice lawsuits from being filed, but that seems to be the intent. Naturally, lawmakers cite rising malpractice insurance costs and "mega-verdicts" as the reason the law is needed. They contend that many malpractice lawsuits could be avoided, if families could just obtain fund money.

That position, of course, assumes that the fund is sufficient to fully compensate for damages - which it isn't. It also assumes that any administrative hearing to obtain fund money would be accessible and fair to victims, even without an attorney - another far-fetched assumption.

Many are also concerned about accountability. Doctors who commit malpractice would no longer be subject to malpractice claims, and because the system would be "no fault," there would likely be no hearing or finding of liability or fault. Many victim advocate groups see this as giving a free pass to doctors to commit malpractice, without accountability, and without having to pay the bill for damages.

The law is only in the proposal stage. A similar proposal failed last year, but the idea is gathering more support as time goes on.

Medical malpractice can involve catastrophic injury and complex medical testimony, and may be emotionally difficult. Make sure you have attorneys that understand the laws that protect you, and understand the personal toll that your injuries have caused your family. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

March 23, 2015

New Dog Bite Laws Make It Easier to Recover Damages for Injury

We love our dogs. And generally, dogs are sweet companion animals. But we sometimes forget that animals, with jaws that can impose serious damage on people. That's why every state has dog bite laws of some kind, allowing people bitten by dogs to recover for their injuries. Maryland has recently strengthened its dog bite laws.

The Old Laws

Maryland used to follow what is commonly known as the "one bite" rule. The rule "allowed" someone's dog to bite someone else once without incurring civil liability. In other words, if you are bitten, but the owner had no idea that the dog was vicious as it hadn't bitten anyone before, you would have a hard time recovering damages for your injuries.

The difficulty in proving damages, as you can imagine, is proving what the owner should have known about its own dog.

Interestingly, this rule didn't apply to dogs commonly referred to pit bulls. With pit bulls, there was strict liability. The dog bites someone, and that person can sue for damages, regardless of the dog's history.

The New Dog Bite Law

Maryland law has recently changed, allowing those injured by dogs to sue for damages, regardless of whether the dog has hurt someone previously or not. Some highlights of the new law:

● There is strict liability for owners of dogs who bite people unless the owner can prove he or she did not know, and shouldn't have known, that the dog had "vicious or dangerous propensities."

The big change here is that the law now places on the dog's owner the burden to prove that the dog was not dangerous. There is now an automatic presumption that the owner knew the dog was dangerous. The injured victim doesn't have to prove what the owner knew or didn't know. It's not known yet whether saying "Fifi was always such a sweet dog" will be enough for a defendant to meet that burden.

The law also is breed neutral--that is, one breed isn't treated differently than others.

● There is strict liability for injury or loss by a dog at large.

This seems to imply that if a dog is at large (in other words--loose without a leash), the owner is liable for the damages. This includes not just bites, but any "loss," which could be damage to property as well.

The statute does contain an exception for anybody trespassing, committing a crime, or taunting an at-large dog, in which case the owner is not responsible for injuries caused by the animal.

If someone other than the owner of the dog is responsible for a dog bite injury, the old law applies--there must be a previous bite or indication the dog was dangerous. So, for example, if a pet sitter allowed a dog to get loose, or the vet allows a dog in its custody to attack your dog, it would be harder to sue those non-owners for damages.

Dog bites can result in serious injuries. The law now allows a victim an easier way to seek damages from an owner. Although the law may seem unfair to dog owners, when a dog injures someone, it is fairer to make the owner (who knows and cares for the dog more so than anyone else) responsible, than to leave the victim with no ability to recover for injuries.

If you're injured in any way by a dog or other domestic animal in Maryland, you have a right to recover for your injuries. Make sure you have attorneys that understand the laws that protect you. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

February 18, 2015

Make Sure Your Personal Injury Settlement is a Binding Contract

If you're injured in Maryland, there is no doubt that you want an attorney that's ready to try your case in front of a jury if needed. But the reality is that most cases don't go to trial--they are settled out of court, through settlement agreements.

In personal injury cases, you may think of settlements as simply a matter of how much the defendant is willing to pay you for injuries you've sustained because of their negligence. But in fact, settlement agreements can contain a whole host of other provisions. And if you don't understand and agree to those terms, you may not have a settlement at all.

Recent Case Discusses Enforceability of Settlements

A recent case involving a homeowners' association (HOA) and its members is instructive as to how important it is to understand and agree to all terms of a settlement. In the case, the HOA and the members agreed to a "letter of intent," which contained material terms of a proposed settlement, but wasn't intended to be the final, binding statement of the terms of the settlement.

Naturally, the HOA then tried to get out of the deal, arguing there was no binding settlement agreement. The trial court agreed, and did not enforce the settlement, as it was only a "letter of intent."

But the appellate court disagreed, saying that even though not every term was agreed to, and even though the parties had only "agreed to agree," there was enough there to bind the HOA to the terms. In other words, a valid and binding agreement had been formed, even though not all the terms of the agreement were there.

What are the Material Terms in an Injury Settlement?

In most cases, as long as material terms to an agreement are agreed to, the agreement will be binding on the parties. It would seem that the amount the defendant will pay to an injured victim is the sole material term to a settlement of a personal injury claim.

But often, defendants will try to throw other terms in a settlement agreement. They will request confidentiality--sometimes even restricting you from discussing the settlement from your own family. Or indemnification--a provision that generally makes you responsible for paying them should anybody sue them for matters arising out of the agreement or your outstanding medical bills.

You may agree to an amount that will be paid in a settlement, only to find these kinds of provisions in the actual agreement the defendant proposes be signed. A good plaintiff's attorney may refuse, saying that the agreement to pay the amount promised is the full and final agreement, and contains all material terms.

Taking this position, however, may leave an attorney to seek court approval of the settlement--in other words, to ask a judge to declare that the parties agreed to all the material terms--payment--and the agreement did not include indemnification, confidentiality, or anything else.

Ultimately, the lesson is that simply agreeing to settle isn't enough. You need sufficient, material terms to be binding, and you should make sure your agreement doesn't bind you to provisions you didn't expect were part of the deal.

If you're in an accident in Maryland, make sure you have attorneys that protect you by paying attention to the details, all the way to verdict or settlement. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

January 26, 2015

Study Shows Maryland Drivers Are Generally Carrying Motor Vehicle Insurance

If you're driving in Maryland, you may not give much thought to insurance, so long as you have insurance to cover yourself. But you may want to give some thought about your fellow drivers. Their insurance could have a direct effect on you. Luckily, Maryland rates pretty high in the category of insured drivers.

Why Insurance Is Important

If you're injured in an automobile accident by a negligent driver that's a person (not a corporate-owned vehicle like a FedEx truck or oil tanker), you may want to consider a lawsuit to recover for your injuries.

When you sue individuals, the actual entity that is paying for any verdict or settlement that you enter into is usually the negligent driver's insurance company, not the driver himself. When a negligent driver has insurance coverage, you have a "collectable pocket"--the insurance company.

Insurance also may pay for some of your injuries that aren't caused by a negligent driver, such as if you run into a tree, or are injured by debris on the road. It's not just to protect others.

Without insurance, you'd be left to sue an individual that very likely would never have the funds to pay your judgment. You would have an uncollectible judgment that could even be wiped out if the negligent driver ever declared bankruptcy.

Recent Study Ranks Most, Least Insured Drivers

A recent study looked at the states with the highest and lowest rates of insurance coverage. At the top of the list as safest (most insured) was Maine. Rounding out the next safe states were North Dakota, New York, and a tie between New Hampshire and here in Maryland, where only 12% of drivers are estimated to be uninsured.

Of the top 5, Maryland requires the most different kinds of insurance to be carried as well: personal injury protection (PIP) and uninsured motorist (UM) for bodily injury and property damage.

The worst state was Florida. If you're hit in Florida by a car, there's an estimated 25% chance that the other driver has no insurance at all.

Of the bottom 20 uninsured states, only three have any mandatory insurance requirement for their drivers at all.

What You Can Do

In truth, there's little you can do about who around you has or doesn't have insurance. The best you can do is to carry uninsured motorist coverage, as high as you can afford. UM coverage will stand in the shoes of a negligent driver that injures you who is uninsured.

So, if you are hit by an uninsured driver (yes, even in Florida), and sustain injuries which a jury thinks is worth $100,000, your UM coverage will pay that amount (up to the limits of your UM policy, of course). It's money well spent.

If you're in an auto accident in Maryland, and are considering suit, make sure you have attorneys that understand insurance coverage issues. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

January 16, 2015

College Hazing Again Rears Its Ugly Head

It seems that there are certain topics that keep rearing their ugly head when it comes to injuries in Maryland. You'd think that after awhile, lessons would be learned. But in the case of college hazing, it appears that learning not to beat, maim and injure fraternity pledges is more difficult than anything being taught in the classroom.

New Hazing Lawsuit Filed

A $3 million lawsuit has been filed against Bowie State University by a fraternity pledge, claiming that he was beaten and hazed while pledging. He has also sued the fraternity itself. The lawsuit alleges that the student was punched, slapped and paddled during fraternity events, both by current students and fraternity members, as well as non-student members of the organization.

Photos produced by the student show brutal bruises to the student's buttocks. The student alleges in the suit that he was beaten at information sessions when he did not recite correct information that he was expected to learn to join the group.

To cover up their deeds, the fraternity allegedly ordered the student not to "snitch," and allegedly went so far as to threaten the student's mother.

Anti-Hazing Laws are Clear But Weak

Maryland's anti-hazing law is simple and clear cut: It is illegal to intentionally subject a student to bodily harm for the purpose of initiation into a student organization. To avoid coercion and peer pressure, the consent or implied consent of the person injured is not a defense. Obviously, these laws supplement other criminal laws, such as battery and assault, which would also be applicable to hazing situations.

Although hazing is a crime, the hazing statute unfortunately does not carry a very severe penalty--imprisonment of less than 6 months, and a possible $500 fine. Some Maryland lawmakers have pushed for an increased financial penalty, up to $5,000, to bring Maryland more in line with other states. Sadly, fraternity and sorority PACS have often lobbied against increased hazing penalties.

But the lenient hazing laws don't affect or limit a victim's right to sue for civil damages in court. Civil lawsuits are often needed to properly and fully obtain redress for severe hazing. Those civil lawsuits often target not just the organization, but the universities where the hazing occurs. This can be particularly true where non-students, who are not subject to university codes of conduct, and may be complete trespassers, are involved in the hazing incidents.

Universities will often react by suspending organizations that haze. But while that's admirable, it doesn't insulate a university from liability for student hazing.

More difficult questions arise when hazing occurs off-campus. The law is not as clear as to whether a university is liable for off-campus hazing that is performed by university chartered and recognized groups. In many cases, discovery must be conducted in court as to whether a university knew a group hazes, and what measures it has taken in the past to expel or suspend a student or group known to haze.

If you've suffered an injury of any severity in Maryland, and you think it may be due to the negligence or intentional act of another, you want an attorney who can identify all liable parties. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

December 24, 2014

Is Someone Who Hires an Uninsured Commercial Driver Liable for Negligent Hiring? New Case Says Maybe Not

If someone is injured in an auto accident in Maryland, there may be more than one defendant responsible. This often is the case where a commercial vehicle is involved. The vehicle may be owned by one company, and driven by a driver employed by another company, which occurs often in our world of contractors and subcontractors.

What duty does a company have to ensure it properly hires an employee who they are going to put behind the wheel of a multi-ton commercial vehicle? And to what extent can the company be held liable for negligently hiring an employee?

Accident Leads to Negligent Hiring Lawsuit

A recent Maryland case discussed the theory of negligent hiring. In Asphalt & Concrete Services Inc. v. Perry, an individual was struck by a truck that was driven by an employee of a separate company (the "driving company"). The injured plaintiff asserted that the company that owned the truck had negligently hired the driving company.

A major theory of the case was that the driving company and its driver had no insurance. The plaintiff argued that hiring a company with no insurance is indicative of negligent hiring. The trial court agreed, allowed evidence of the lack of insurance into the trial, and a large jury verdict for the injured plaintiff was entered.

Negligent Hiring in Maryland

In Maryland, the elements of negligent hiring require demonstration:

1. Of an employee-employer relationship;
2. Of the employee's incompetence;
3. Of the employer's actual or constructive knowledge of the incompetence;
4. That the employee's act or omission caused the injuries; and
5. That the negligent hiring caused the injuries.

The Maryland Appellate court noted that in this case, the driver's lack of insurance was not because of a bad driving record, which may be evidence that the employer should have known not to use the driving company. Rather, it was simply due to non-payment.

Maryland law has long held that the financial status of a contractor is not evidence of incompetence such that an employer can be responsible for negligently hiring them. All that really matters is whether the company or contractor had something in their history to indicate actual incompetence in the performance of the job.

Because the driving company was transporting materials on public highways, which requires insurance, and insurance is presumably to protect the public, the court felt that the lack of insurance was evidence of performance.

Problem Arises With Causation

The problem came with causation, however. Was the failure to carry insurance a cause of the accident? This question usually rests on foreseeability. If a negligent party's actions could foreseeable injure someone, then there is causation, and thus liability.

It would seem that even a common sense analysis would say no, and the court agreed. The court said that it was the poor and careless driving that caused the accident, and there is nothing to suggest that such driving was because there was no insurance.

Finding that there was no negligent hiring, evidence relating to it should not have been admitted. Thus, the appellate court reversed the jury award for the injured plaintiff.

If you've suffered an injury of any severity in Maryland, and you think it may be due to the negligence of another, make sure your attorney understands all the available legal theories of recovery. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

December 15, 2014

Rear End Car Accident Victims Need to Be Aware of Sudden Incapacity Defense

If you are involved in a car accident in Maryland in which you are rear ended, it may seem like it's a clear cut case. Someone who rear ends you and causes you injuries should be liable to you for damages. And normally, that's true. But there's one special circumstance where that may not be so true, and where you, as an injured victim, may have a special burden to prove.

The Sudden Incapacity Defense

In Maryland, if someone loses control of their vehicle by what is known as "sudden incapacity," they may not be liable to you for your injuries, even though the accident was their fault. Sudden incapacity has been described by Maryland courts as "suddenly and unforeseeably" being incapacitated.

The logic is obvious--that a driver shouldn't be responsible for an accident when he wasn't conscious and couldn't control his own actions. A negligent party must be able to comprehend his own actions.

The key is the second word--"unforeseeably." The defense does not apply and cannot be used to avoid liability by a driver when the driver has reason to know that he could black out or lose consciousness. Some examples may be:

● Drivers who are prone to seizures and are unmedicated;
● Drivers who are on medication that may make them woozy or unaware of their surroundings; or
● Drivers who may have suffered a blackout or similar condition in the recent past.

The question of whether a blackout or loss of consciousness was foreseeable is one for a jury. For example, someone who had a heart attack 3 years ago may not be on notice that they could have another one at any time. But someone who recently had a doctor tell them they could have a heart attack at any time could be held responsible for an accident caused due to lack of capacity.

Maryland is not alone; other states have similar laws that will excuse a driver from negligence due to sudden incapacity.

Using and Defeating the Defense

If the defense is used, it is the defendant's burden to prove that they were incapacitated and that the incapacity was unforeseeable.

As you may imagine, proving the defense may often rely on expert medical testimony. Some conditions may make a driver more opt to blackout than others, and that takes a doctor to testify to.

A driver who uses this defense obviously puts his or her medical history into question, and a good accident attorney should take every step to acquire these records. Because of the sensitive nature of medical records, many defendants may opt not to use the defense. But if it's used, discovering medical records that show that a driver has blacked out in the past is a "smoking gun," which will often defeat the defense very quickly.

Sudden incapacity is one of the rare instances where the presumption of negligence that lies against people who rear end other drivers may not apply. A good personal injury attorney needs to look out for defendants who may want to use it.

If you've suffered an injury of any severity in Maryland, and you think it may be due to the negligence of another, you need an attorney that's ready for any defense. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.