Law Offices of Stephen A. Markey, III, P.C. Newsletter 

Uninsured and Underinsured Motorists 

        All car insurance polices issued in Maryland must include Uninsured Motorist coverage. This coverage, which is sometimes refereed to as "UM" or "UIM" coverage, protects you in the event that you are injured due to the negligence of another driver who has no liability insurance or who has less liability insurance than you do. 

        Unless you have specifically agreed otherwise in writing, the amount of your UM coverage is equal to the amount of your own liability insurance coverage. This means that if your liability coverage limit is $100,000 and another driver who causes an accident and injures you has no insurance, your insurance company will you up to $100,000 for your injuries. If the driver who injures who has some insurance, but less than you, your insurance company will pay you an amount up to the difference between your coverage and the coverage of the person who injured you. 

Here is how it works: 

        Let's say you are driving down the highway and, as you enter an intersection with a green light, a vehicle entering the same intersection form your right ignores a red light and hits you. You are badly injured and incur hospital bills totaling $50,000 and you incur another $50,000 in lost income because of the time you are unable to work due to your injuries. You learn that the driver who ran the red light has only $20,000 in liability coverage. You can recover $20,000 from the at-fault driver¿s insurance company and an additional $80,000 from your own insurance company pursuant to your UM Coverage. 

        If there is a dispute between you and your insurance company over how much more than the at-fault driver's coverage your claim is worth, Maryland has a special statute that allows you to recover an amount equal to the at-fault driver's coverage and then go to court to recover the excess from your own insurance company. 

       Your lawyer can explain how your UM coverage might apply to a particular situation. When you meet with your lawyer after you have been in an accident, always bring with you the "declarations" page from your car insurance policy that shows the amount of your coverage. 

Do You Understand the Importance of PIP Insurance? 

        When meeting with a client who has been involved in an automobile accident, one of the questions we ask during our initial interview is "Who is your PIP insurance carrier?" PIP insurance, otherwise known as Personal Injury Protection insurance, is no fault insurance that is provided trough your automobile insurance carrier that provides for medical, hospital and lost income benefits if you are injured in an accident, regardless of fault. PIP applies to the named insured and any family members of the named insured who reside in the household and are injured in an accident. It also applies to any persons injured in an accident while occupying your vehicle as a passenger. In fact, PIP applies to any injury arising out of the use of a car including falling out of a car or injuring yourself while working on a car. PIP insurance can be used to pay for medical expenses and/or 85% of lost wages incurred within 3 years from the date of the accident. The minimum amount of PIP that can be purchased, unless you waive PIP in writing, which you should never do, is $2,500. Some policies permit limits of upon $10,000 or even higher. 

        Some people waive PIP in an attempt to save a few dollars on their premiums. Unfortunately to save a few dollars it may cost you more in the long run not to have PIP, especially in the event that you are injured in an accident. Even if you have health insurance you should not waive PIP. Moreover, unlike some private health insurance companies who may ask for reimbursement of benefits paid out of any settlement or recovery obtained, PIP does not have to be reimbursed. Keep in mind that your insurance carrier cannot charge a surcharge regardless of how many PIP claims you make. 

        If you are unsure as to whether you have PIP insurance, check your declaration page. If you do not see PIP coverage listed, call your insurance company to immediately add PIP coverage to your policy. 

The Rest of the "Medical Malpractice Crisis" Story 

        During the last two Maryland legislative sessions, the medical and insurance industry claimed that frivolous lawsuits were forcing doctors to move out of the state or to stop or curtail some services. President Bush pronounced we had a "broken medical liability system." Doctors and the insurance industry have inundated the public with arguments that "trial lawyers" and meritless lawsuits were destroying our healthcare system. Doctors, we were told, needed relief from malpractice lawsuits. Insurance companies that insure doctors claimed they needed to raise rates or they would go out of business. These are almost the identical arguments made during the "medical malpractice crisis" in the mid 1980's. History from the 1980's show us that once the insurance cycle, which follows the market cycle, began to improve, malpractice premiums immediately began to stabilize and in some cases decrease. History also shows us that doctors did not curtail services or leave the state unless they were going to retire or leave the state anyway or they were forced to curtail services because of an inordinate amount of claims that were brought because of incompetence. However, despite what the past has proven, the panic created by the claims of a "medical malpractice crisis" has resulted in the legislature placing caps on non-economic damages (past, present and future pain and suffering), at $650,000 for all causes of action that arise between January 1, 2005 and January 1, 2009. The wrongful death cap has been frozen at $812,000. This means that in addition to lost wages, medical bills and other economic damages, regardless of how egregious the injuries, including death, the maximum any one individual can recover is $650,000 ($812,000 for all family members in a wrongful death action) in non-economic damages. Additional rules were established to make it more difficult to bring malpractice lawsuits by victums of medical negligence. Governor Ehrlich vetoed this legislation claiming that it did not go forward enough to stop frivolous lawsuits and protect doctors. During the 2005 legislative session, the legislature chose to override the Governor¿s veto. Ultimately history once again appears to show that the Governor was correct in vetoing the legislation, but for the wrong reason. 

        Since the Spring of 2005 it has become increasingly clear that the ¿medical malpractice crisis¿ was created by the insurance industry to increase profits. Even before the special legislative session to solve the so called "medical malpractice crisis," David Murphy, the President and Chief Executive Officer of Medical Mutual Liability Insurance Society of Maryland (which insures 80% of Maryland doctors) testified at a Senate hearing that malpractice premium rates were not being driven by frivolous lawsuits. In fact, Mr. Murphy testified that Medical Mutual is seeing fewer meritless claims than it saw in the past. He further testified that his company "never settles a claim it considers without merit." Since studies have shown that approximately 96% of medical malpractice claims are settled and about 1/3 of the cases that go to trial result in a Plaintiff's verdict, over 97% of claims must therefore be meritorious. When you consider that it is much more difficult for a Plaintiff to find experts willing to testify against their fellow doctors, and that even in the most egregous cases of malpractice, doctors line up to testify for their brethren doctors, it is clear that only a very small percentage of malpractice lawsuits would qualify as meritless. 

        In study after study it has been proven that the number and amount of payouts in a medical malpractice claims has either remained constant or decreased over the past decade after factoring for inflation. According to the National Association of Insurance Commissioners, the number of medical malpractice cases nationwide declined by 4% between 1995 and 2000. In a studying performed by the Center for Studying Health System Change, it was determined that malpractice lawsuits and malpractice premiums "are not a particularly important driver" in healthcare costs. The study looked at the "Texas Medical Malpractice Crisis" often referred to in speeches by President Bush on tort reform, and concluded that the Texas medical malpractice crisis was being driven by medical malpractice insurance carriers push for profits, not by lawsuits. According to an article in the Institute of Medicine, National Academy of Sciences ("To Err is Human" 1999), between 44,000 and 98,000 people are killed each year in American hospitals due to medical mistakes. In Maryland 836 to 1862 deaths are caused by medical errors each year. Possibly more alarming is the fact that in Maryland 5% of doctors are responsible for over 50% of all malpractice payouts. In a Baltimore Sun investigation, published December 18, 2005, the Sun investigator revealed that approximately 120 physicians across Maryland have been sued at least five or more times for negligence in the past ten years. One Johns Hopkins Orthopedic Surgeon was found to have had 17 malpractice claims filed against him since 1973. Of those claims, 3 patients had died as a result of the alleged malpractice. 

        While there can be no doubt physician's malpractice premiums are high and in many cases disportunately high to the claims history against a particular physician, the fault does not lie with trial lawyers or victims of medical negligence. Without a doubt the fault lies with the insurance industry which continues to insure bad doctors and pass on the costs of claims payouts to other physicians. The fault also lies with Maryland's system of punishing bad doctors which has an abysmal record of punishing incompetent doctor's, often taking years to resolve investigations. The fault lies with our system or managed healthcare which pays doctors far less to treat patients, and restricts their treatment, forcing doctors to see many more patients in the same time period in order to make the same income they made before managed care. The fault lies with a poor market performance which caused insurance companies, which invest their premiums in the market, to loose money in a bad market which was also suffered by other industries. What is clear, and history proves, is that permanently manned, injured and sometimes dead victims of medical malpractice do not deserve to suffer further with caps and impediments to obtaining justice because of a so called "medical malpractice crisis." 

        And now you know the rest of the story. 

Attorney Profile 

AMY M. ORSI 

        Amy M. Orsi has been an associate with the firm since August 2002. Amy practices in the areas of serious personal injury, automobile negligence, slip and fall, wrongful death, medical malpractice and general litigation. She has been first chair and second chair in several jury trials resulting in verdicts totaling in excess of $2,000,000.00. Amy has also handled numerous trials in the District Courts, including civil, criminal, and landlord/tenant matters, as well as several administrative hearings, including both MVA hearings and unemployment hearings. 

        Amy received her B.A. from the State University of New York at Buffalo in 1998 and received her J.D. from the University of Baltimore in 2002. She is a member of the Maryland Trial Lawyers Association, the Maryland State and Baltimore City Bar Associations, and the Association of Trial Lawyers in America. Amy is a member of the bar of Maryland, the U.S. District Court for the District of Maryland, and the U.S. Court of Appeals for the 4th Circuit.