To sign up to receive our firm newsletters Click Here Law Offices of Stephen A. Markey, III, P.C. Newsletter Issue 4, December 2007
Protecting Yourself with Sufficient Automobile Insurance One of the first questions we address with clients after they have been involved in an automobile accident is "what are the amounts of automobile insurance coverage that [the client] carried at the time of the accident?" Even when the accident was the other driver's fault, the amount of coverage carried by our client is very important. Unfortunately, often times I find that our clients have to be educated on the amounts of coverage that they should carry, which is often too late. Obviously the more coverage that you carry the better that you are protected in the event that an accident is your fault or the fault of someone driving your vehicle. Less obvious is the fact that automobile insurance should also protect you and the passengers in your car, in the event that the other driver is at fault and has no insurance or inadequate insurance. Your insurance will also cover you in a hit and run accident, with a phantom vehicle, or if you are struck as a pedestrian. The following are suggestions on the minimum coverages that you should carry.
Liability coverage: Liability coverage is what most people think of when they talk about automobile insurance. How much am I covered in the event that the accident is the fault of the driver of my vehicle? The amount of liability coverage on your vehicle determines the extent to which you are protected if either you or the driver of your vehicle, are determined to be at fault. It is usually reflected as an amount per person and an aggregate amount for all persons involved in the accident. Therefore, the policy might read $300,000/$500,000, which means there is $300,000 available for any one individual injured in an accident, and $500,000 available for all persons injured in an accident. In today's society it is not unusual for individuals to have significant medical bills following an automobile accident. If you or someone driving your vehicle is at fault, causing death or serious injury to another party or multiple parties, and if you have minimal insurance, you may find yourself paying out of your personal assets. Just as important, if you are the cause of an accident and somebody is killed or seriously injured, there is at least some comfort in knowing that the individual or family will be at least financially compensated when you carry adequate insurance. Whether the carrier pays $500.00 or $500,000, your insurance rates will go up the same amount. Your concern should be your personal assets and taking care of the person or persons injured (not necessarily in that order). I recommend a minimum of $300,000/$300,000 or $300,000/$500,000 for the liability portion of your policy.
Uninsured Motorist: While liability coverage protects the other driver and persons injured in an accident, uninsured motorist ("UM or UM/UIM") coverage protects the people in your vehicle and family members in your household when the accident is the other driver's fault. In Maryland, uninsured motorist coverage is automatically the same as liability coverage, unless a waiver is signed and a reduced amount is requested. This nominal savings on your policy is never a good idea. Never let an insurance company or an agent convince you to save a few dollars a year by reducing your uninsured motorist coverage. That is because uninsured motorist coverage not only protects you in the event the driver of the at-fault vehicle has no insurance, but also supplements coverage in the event that the at fault driver has inadequate insurance. This is known as being underinsured. For example, if you carry $300,000/$500,000 in uninsured motorist coverage, and the driver of the at-fault, vehicle has a $20,000/$40,000 policy (Maryland's minimum), you will have up to an additional $280,000/$460,000 in underinsured coverage for your injuries. While liability coverage protects your assets, uninsured motorist protects you, your family and passengers in your car. I suggest a minimum of $300,000/$300,000 or $300,000/$500,000 for uninsured motorist limits. Never waive UM/UIM.
Property Damage: Property damage covers any damage to the other party's vehicle in the event you or the driver of your vehicle is at fault in an accident. This also covers rental vehicle charges and personal property that may be damaged in the accident such as items in the car, a sign or road damage. In today's world, $50,000 vehicles are not uncommon. If you cause an accident which involves multiple vehicles or causes roadway damage, the required minimum of $10,000 in property damage will not make a dent. I recommend that you carry a minimum of $100,000 to cover property damage.
Collision: Collision insurance covers the same things as property damage covers, but for your vehicle when you are at fault. Depending on your policy, collision insurance may also cover rental vehicle charges. The amount of collision insurance that you carry should be partially dependant on the value of the vehicles that you are driving. If your vehicle is worth $10,000, it is not necessary to carry a $50,000 collision policy. However, collision insurance also covers damage to any rental vehicle that you may be temporarily renting while on vacation or while your vehicle is being repaired. Therefore, even if your vehicle has low value, I recommend you carry a minimum of $25,000 in property damage, and more if the vehicles that you drive are worth more than $25,000. Never waive collision insurance.
Comprehensive: Comprehensive insurance covers your vehicle for damage that is caused when there is not an at fault accident. Striking a deer, vandalism, rocks cracking your windshield are all examples of when comprehensive may cover your vehicle. Comprehensive will also cover your vehicle in the event of a vehicle fire or if your vehicle is stolen. Like collision insurance, comprehensive should be a minimum of $25,000 or more if the value of your vehicle is more than $25,000. If your vehicles have little value you can reduce comprehensive or raise the deductible.
Personal Injury Protection and Medical Payment: Personal Injury Protection, often referred to as PIP, covers you for lost wages at 85% of your lost wages and also covers medical bills. The minimum PIP in Maryland is $2,500, which can be waived for the driver and his family but not for minors or non-family member passengers. Never waive PIP. PIP will pay for medical bills and lost wages for any injury that involves your automobile. PIP becomes your primary health insurance until it is exhausted. PIP is especially important if you do not have health insurance or if you?re insured by an HMO which is going to restrict where you received medical treatment. When using PIP, you can go to any doctor without a referral. PIP will also cover you if you are injured while working on your car which is not being driven at the time of injury. PIP also covers lost wages at 85% of actual lost wages. It is not unusual in a serious accident that the only source of income for an individual becomes PIP.
Medical coverage, referred to as "MedPay" is a supplement to PIP, after PIP is exhausted. This coverage only pays medical bills. MedPay is not required under Maryland law, but is a nice feature available with some policies. I recommend that you carry a minimum of $7,500 in a combination of PIP and MedPay. Never waive PIP.
Umbrella Polices: While the amounts of coverage suggestions in this article are my recommendations for minimums, depending on your financial situation, assets that you need to protect, type of driving that you perform, and family situation, you should consider carrying more insurance than these minimums. Most automobile insurance companies also permit the purchase of an umbrella policy which is also referred to as an excess policy. These insurance policies are on top of the amount of coverage that you purchase in your underlying automobile policy. Most umbrella policies start at $1,000,000. Some, but not all, also contain an uninsured motorist provision. Because umbrella policies require you to carry underlying insurance of a certain limit, and do not even begin coverage until that limit is exhausted, umbrella policies are relatively inexpensive when compared to the underlying policy. Therefore, you should ask you insurance agent or company about the cost of an umbrella.
Summary: While I realize that my minimum coverage suggestions can be expensive, skimping on automobile insurance is never a good idea. This year alone we had the unfortunate responsibility to tell at least five clients in wrongful death cases that the at fault driver had no insurance or limited insurance, and the underinsured motorist limits were also inadequate. Rather than reducing coverage, you should consider increasing your deductibles which will lower the cost of these policies. Do not be one of the hundreds of families we have counseled that are first devastated by an automobile accident, and then devastated a second time when they realize they have inadequate coverage.
This year, review your policies and make sure you have adequate coverage. If you are unsure if you have adequate coverage, feel free to call our office for a free consultation and review of your policy.
What do I do Following an Automobile Accident? If you are involved in an automobile accident and someone is hurt, call 911 for assistance. If you are injured, and the paramedics recommend that you go to the hospital, let them take you to the hospital. It is always better to be safe and go to the hospital, whether by ambulance or on your own. This also helps defeats the insurance company's claim that you were not injured.
Once you are in the emergency department, be sure to tell the doctor about all of your injury concerns. If an area of your body hurts just after the accident, it will probably hurt much worse over the next few days. If you don?t have your complaints documented during the initial medical treatment, the insurance adjuster handling your bodily injury or medical claim under PIP may deny there is a relationship between your medical problem and the accident. Therefore, be complete when talking to the doctor. When there are obvious signs of injury, such as bruising or lacerations, have someone photograph your injuries.
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"Never talk to the other driver?s insurance company without talking to your attorney first"
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Start writing a journal to document not only what happened and what was said and done at the scene, but also to keep track of how you are feeling and what treatment you are receiving. You must report the accident to your insurance company as soon as possible. However, do not give any recorded statements until you speak with your attorney. Never talk to the other driver?s insurance company without talking to your attorney first.
Follow your doctor's recommendations, but if you disagree with your doctor or do not intend to follow his or her recommendations, let the doctor know you are not following his instructions and why. Finally, always talk to an attorney and keep your attorney informed of your progress and any problems or concerns you are having. If you have any questions regarding an accident that you or a loved one has been involved in, you may call our office for a free consultation.
New Happenings in our Office...
Please note that we have moved our Harford County office. Our new office is located at 2304 Rock Spring Road, Forest Hill, Maryland 21050. The phone number is still 410-803-1848.
As mentioned in last year's newsletter, Steve purchased the franchise rights to open an Extra Innings Baseball and Softball training facility in Baltimore/Harford County area. After much anticipation, Extra Innings Baltimore opened this past September. Extra Innings has a full pro shop, and offers private and group instructions in hitting, pitching and fielding for baseball and softball and strength and conditioning. The facility is located at 7904 Rossville Boulevard, Baltimore, Maryland 21236. For more information call 410-665-6789.
In April, Amy and her husband, Michael welcomed their first child. Madeline Christine Orsi was born on April 2, 2007. Amy and Michael have embraced their new role as parents and are looking forward to their first Christmas with Madeline.
Our paralegal, Jen O'Mara, recently got engaged. Jen and her fiancé, Adrian are planning an August 2008 wedding.
Finally, we would like to introduce our new full-time secretary, Jennifer Gibbons. Jennifer has replaced Cherie Eyler who left at the end of October to continue her education. Cherie anticipates starting nursing school in the fall of 2008. We welcome Jennifer and wish Cherie the best of luck.
Law Offices of Stephen A. Markey, III, P.C. Newsletter Issue 3, December 2006
When Do I Need to be Concerned with Estate Planning? Many people are under the mistaken impression that they do not need to think about estate planning until they are older. However, regardless of your age, everybody should have a basic estate plan that includes a Last Will and Testament, Power of Attorney, and Advanced Care Directive or Living Will.
A Last Will and Testament allows you to direct the distribution of your assets to your beneficiaries upon your death. If you do not have a will at the time of your death, the laws of intestate succession will determine the distribution of your assets, regardless of what your wishes may be. If you are not married, your significant other may be left with nothing. Even if you are married, depending on how your property is titled, your spouse may or may not receive your assets. A will is especially important for people with minor children because wills can identify your desired guardian and establish a trust to provide for your children.
You may amend your will at any time. It is a good idea to review it periodically, and especially when your marital status or size of your family changes. At a minimum you should review your will every five years. At the same time, you should review your beneficiary designations for your 401(k), IRA, pension, life insurance policy, etc., since those accounts may be automatically transferred to your named beneficiaries when you die.
The second document that every person should consider is a Power of Attorney (POA). A POA allows you to designate a person (called an attorney-in-fact) to manage your assets if you are not available or in the event of your disability or incapacity. There are different types of POA¿s depending on your needs. One type of POA can permit your attorney-in-fact to act for you at any time and another type springs into affect only upon your disability or incapacity.
When consulting with a client regarding a Power of Attorney, we typically recommend preparing a Durable Power of Attorney that does not terminate upon your disability. A Durable Power of Attorney will continue beyond incapacity or disability to provide you with a safety net of financial management if you are no longer able to do so.
Finally, every person should consider an Advanced Care Directive which is also known as a Living Will. The Teri Schiavo case best exemplifies the significance of this document. A Living Will designates someone to make a range of health related decisions for you when you are not personally able to give informed consent. It also allows you to include any specific instructions you have about the medical procedures you wish, and do not wish, to be performed. A Living Will relieves your loved ones from making tough decisions and can help avoid the need for court intervention when family members disagree on what you would want.
If you have any questions regarding estate planning or would like to schedule an appointment to prepare any of the aforementioned documents, please contact our offices.
The Rest of the "Medical Malpractice Crisis" Story In our Fall 2004 newsletter we told you that Governor Ehrlich and the insurance industry had begun to push for so called "tort reform" as a way to stop frivolous lawsuits which were being blamed for skyrocketing medical malpractice insurance premiums. We told you that bad investments by insurance companies and a down turn in the economy were the real causes of premium increases. We also told you that bad doctors, not victims of malpractice, were also to blame for the increased premiums. In our 2005 newsletter we told you that history shows us that the "medical malpractice crisis" in the mid 1980's turned out to be caused by insurance cycles which follow the market cycle and that in the past as our the economy improved, premiums came down. Unfortunately, following millions of dollars in lobbying by the insurance industry, the Maryland Legislature passed emergency legislation during a special session of 2005, restricting recoveries by victims of medical negligence and subsidizing insurance premiums for doctors. This was in spite of evidence that insurance companies rarely settled or paid claims they considered frivolous (meaning they acknowledged the vast majority of claims brought were meritorious).
On December 14, 2006 Maryland's largest medical malpractice insurer, Maryland Mutual Liability Insurance Society of Maryland ("Medical Mutual"), announced it would drop premiums by 8 percent next year. After the insurance industry and some politicians predicted doom and gloom for two years, it appears the insurance cycle has corrected itself with the improved economy. It wasn¿t frivolous lawsuits after all. It was investments by insurance companies that went bad causing a rise in premiums. The decrease in premiums was forced upon Medical Mutual by the new legislation. Medical Mutual would have preferred its traditional practice of providing doctors with rebates to avoid lowering premiums.
If you are still not convinced that frivolous claims are not the cause of increased premiums, look at your homeowner's policy or automobile policy. Even without making any claims, both polices have gone up dramatically over the last three years. Fortunately the emergency legislation requires a premium reduction if Medical Mutual reaches certain surplus levels. Unfortunately for the rest of us, homeowners and automobile insurance carriers get to keep the surplus as profits. Don't expect your premiums to go down anytime soon.
And now you know the rest of the story.
ATTORNEY SPOTLIGHT STEPHEN A. MARKEY, III Steve is about to begin his twentieth year practicing law since graduating in 1987 from the University of Baltimore. Recently Steve was advised that he has been selected as one of Maryland¿s Super Lawyers for 2007. Super Lawyers are selected by Law & Politics magazine after being nominated by one or more attorneys in the state or region. Following a nomination, Law & Politics researches the attorney for qualifications and ethics before final candidates are submitted to a blue ribbon panel for final review and selection. Only five percent of the lawyers from each state or region are named Super Lawyers. Law & Politics Super Lawyers magazine will be published early next year. Super Lawyers also appear in a special advertising section of Baltimore magazine.
Baseball Fever As many of you know, outside of the law, Steve's other passion is baseball. Throughout the years Steve has coached his kids in both baseball and softball (and every other sport known to man.) Currently he is a coach for the Churchville Heat 15U Baltimore Metro Baseball Team that his son plays on. Over the years Steve has also represented a number of professional baseball players and currently he represents two minor league players expected to play at the AA level this coming season. Steve has decided to take his baseball passion to the next level. Several years ago Steve started a limited liability corporation named "Next Level Athlete, LLC." This past year Steve purchased the franchise rights to open an Extra Innings Baseball and Softball training facility in the Baltimore/Harford County area. Steve has just finished a transaction to purchase property at the intersection of Fitch Avenue and Rossville Boulevard in Baltimore County where he hopes to break ground on an 18,000 square foot indoor baseball and softball training facility in the spring. If all goes well, it is anticipated that there will be a grand opening of the new facility in August or September of 2007.
Extra Innings is a franchise dedicated to providing instruction and a training facility for baseball and softball enthusiasts of all levels. "Extra Innings Baltimore" will have eight pitching and batting tunnels, four coin operated batting tunnels, a circuit training area, a members only area, and a pro shop.
Because Steve intends to keep his day job, the facility will be run by Rocky Coppinger, a former Baltimore Oriole and Detroit Tiger, and strength and conditioning will be run by Adrian Parkes who has a Bachelor's degree in Exercise Science from Wesley College.
Stay tuned for more information regarding the grand opening.
Law Offices of Stephen A. Markey, III, P.C. Newsletter Issue 2, December 2005
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.
Law Offices of Stephen A. Markey, III, P.C. Newsletter Issue 1, December 2004
The Rest of the McDonald's Coffee Story Since 1994 when a jury awarded 2.9 million dollars to an eighty one year old woman that was scalded by McDonald's coffee, the insurance industry has used this verdict as evidence that our tort system is out of control. The insurance and defense industry never told you the rest of the story.
Two years prior to the jury's verdict, Stella Libeck purchased a cup of coffee at an Albuquerque , New Mexico McDonald's drive-up window. While removing the lid to add cream and sugar she spilled the coffee causing immediate second and third degree burns to her groin, inner thighs and her buttocks. Mrs. Libeck incurred significant medical bills and required multiple skin grafts as a result of the burns. During the discovery process before trial, the Plaintiff's obtained McDonald's operations and training manuel which required its franchisees to brew coffee at 195 to 205 degrees and maintain the temperature of the coffee between 180 to 190 degrees. McDonald's also revealed during discovery, documents which showed that in the past decade it had received at least 700 reports of coffee injuries ranging from mild to third degree burns. McDonald's had previously settled some cases for more than $500,000. McDonald's acknowledged that it was aware of the risk posed by the scalding coffee but had no intention of lowering its temperature.
McDonald's own expert testified that any coffee hotter than 130 degrees posed a risk of third degree burns. An expert on behalf of the plaintiff testified that it takes less than three seconds to produce third degree burns with coffee at 190 degrees and about 20 seconds to produce third degree burns if the temp were lowered to 160 degrees. A McDonald's expert further testified that coffee burns were statistically insignificant when you consider the approximately one billion cups of McDonald's coffee sold annually. McDonald's argued that Ms. Libeck was partially at fault for spilling the coffee and not immediately taking her clothes off once she spilled it.
The jury of six men and six women concluded almost immediately that the overwhelming evidence supported a finding of reckless, callous and willful conduct on behalf of McDonald's awarding $200,000 in compensatory damages which was reduced to $160,000 after the jury determined that Mrs. Libeck was twenty percent at fault. In the punitive damage phase, the jury heard that McDonald's earned approximately 1.35 million dollars per day in coffee sales and awarded 2.7 million dollars in punitive damages, amounting to just two days of coffee sales.
Following the trial, McDonald's filed a Motion for a New Trial or in the Alternative to Reduce the Amount of the Verdict. Although the judge agreed that McDonalds' conduct was reckless, callous and willful, he determined that the punitive damages should be reduced to $480,000. In the end, the verdict against McDonald's was reduced to an amount which was approximately what McDonald's had previously settled other scald cases for.
Even though the defense and insurance industry would have the public believe that McDonald's was forced to pay 2.9 million dollars in a coffee spilling incident, in reality, McDonald's paid considerably less than that amount for its callous, wanton and reckless conduct as found by both the judge and the jury.
And now you know the rest of the story.
Will Tort Reform Hurt You Recently on both the national and local level much attention has been given to increased medical malpractice insurance premiums. Doctors have threatened to stop treating patients in an effort to force legislation they call "tort reform."
There is no question that Medical Malpractice insurance premiums have skyrocketed during the last two years. But why? Is it because of so called frivolous lawsuits? Not according to congressional studies or even Maryland's largest medical malpractice insurance company, Medical Mutual Liability Society of Maryland, which insures 80% of Maryland doctors. David L. Murray, the President and Chief Executive Officer of Medical Mutual testified, in November before a Senate panel in Annapolis, that in recent years his company has seen fewer baseless claims than it saw in the past and his company never settles a claim it considers is without merit. The truth of the matter is it is far too expensive for lawyers to pursue meritless malpractice claims. The majority of so called "frivolous" claims are brought by the patient pro se, without an attorney, or are not brought at all.
At the Law Offices of Stephen A. Markey, III, P.C. it is not unusual that we will review and investigate ten to fifteen cases before we agree to pursue one case. All cases are screened and only after a physician has verified malpractice will we move forward.
It is also apparent that caps on recoveries will not reduce premiums. On October 26, 2004, GE Medical Protective, the nations largest medical malpractice insurer, admitted before the Texas Department of Insurance that caps on damage awards and other limitations on recoveries for injured patients will not lower physician malpractice premiums. Medical Protective acknowledged capping non-economic damages would result in savings of only 1%. In fact, Texas malpractice premiums have gone up since Texas enacted caps.
Restricting access to attorneys by limiting fees is also not the answer. Are the doctors willing to restrict the fees paid to defense attorneys? It is not unusual for malpractice insurance carriers to refuse to settle even the clearest cases. Restricting fees will mean the already unlevel playing field will be tipped even further to the defense and claims with merit will not be pursued.
What do I do Following an Automobile Accident? If you are involved in an automobile accident and someone is hurt, call 911 for assistance. If you are injured, and the paramedics recommend that you go to the hospital, let them take you to the hospital. It is always better to be safe and go to the hospital, whether by ambulance or on your own. This also defeats the insurance company's claim that you were not injured.
Once you are in the emergency department, be sure to tell the doctor about all of your injury concerns. If an area of your body hurts just after the accident, it will probably hurt much worse over the next few days. If you don't have your complaints documented during the initial medical treatment, the insurance adjuster handling your bodily injury or medical claim under PIP may deny there is a relationship between your medical problem and the accident. Therefore, be complete when talking to the doctor. When there are obvious signs of injury, such as bruising or lacerations, have someone photograph your injuries. Try to use proper draping when taking photographs, to avoid offending a jury that may someday view the pictures. Also, photograph any property damage and the scene of the accident.
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"Never talk to the other driver¿s insurance company without talking to your attorney first" ----------------------------------------------------------------------------------------------------------
Start a journal writing down not only what happened and what was said and done at the scene, but also keep track of how you are feeling and what treatment you are receiving. Although you must report the accident to your insurance company, do not give any recorded statements until you speak with your attorney. Never talk to the other driver¿s insurance company without talking to your attorney first.
Follow your doctor's recommendations, but if you disagree with your doctor or do not intend to follow his or her recommendations, let the doctor know you are not following his instructions and why. Finally, always talk to an attorney and keep your attorney informed of your progress and any problems or concerns you are having.
We Need Your Help Did you know that our Governor and members of the House and Senate would like to take away the rights of victims of medical negligence to protect bad doctors and bad investments by the insurance companies that insure them? Frivolous lawsuits against doctors are rare because it is too expensive to bring malpractice claims. Only the clearest of cases of malpractice are generally brought and most of them are settled with confidentiality agreements so no one knows the doctor settled. If you want to protect your rights or the rights of your family members to obtain just compensation if a physician causes harm by committing malpractice, contact your State Senator and Delegates and tell them to vote no on any bills that take away victims rights to protect wrongdoers. To contact your legislator go to
http://mdelect.net on the web.
Firm Happenings The Law Offices of Stephen A. Markey just had its one year anniversary in its new Towson location, sharing office space with its Of Counsel, Warnken, LLC. The relocation of both law firms under one roof has been a great benefit to members of the firm and their clients alike. The firms are currently working on numerous matters together, taking advantage of the expertise each firm has to offer.