Frequently Asked Questions about Personal Injury Law

Portner & Shure Law Firm Serving Maryland, Virginia & Washington D.C.

Have you been injured in an automobile or truck accident? Wondering what your rights are and if you should pursue legal action? Have you been charged with DWI or DUI? Are you wondering whether you should hire an attorney? Did you injure yourself on the job? Check out our Frequently Asked Questions.

If you have any questions about your car accident, personal injury, workers' compensation and medical malpractice case, talk to our lawyers today at (410) 995-1515 or (Maryland) or (301) 854-9000, (703) 916-1227 (Virginia) or (202) 554-1449 (Washington, D.C.).

Mr. Portner is one of the leading attorneys in Maryland and Virginia, in both personal injury and criminal defense. In this capacity he gives back to the community by answering questions on the AVVO site. Below are recent questions presented and Mr. Portner's answers.

AVVO has awarded Portner & Shure the highest attorney rating in Maryland, Virginia, and Washington, D.C. "Zagat" rates restaurants. "AVVO" rates law firms.

The rating system apparently is based on client perceptions, peer reviews, and the law firm's experience and success rate. AVVO has rated the firm of Portner & Shure as "superb" in both personal injury and criminal defense. Superb is the highest rating a law firm can obtain. Very few law firms have obtained this high rating.

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AUTO ACCIDENT FAQ

Does an insurance company use video surveillance in automobile accident cases in Maryland and Virginia?

Absolutely. In serious accident cases you need to be aware of the fact that if you are claiming a permanent injury the insurance carrier becomes more concerned about its exposure. If the adjuster has received medical reports where you claim such a disability the adjuster may hire an investigator to follow you and video your activities. This is often done on the day you have a scheduled doctors appointment with the insurance company's doctor for an evaluation. Amazingly, Maryland and Virginia personal injury lawyers will inform their client of the questions the doctor for the insurance carrier may ask, yet forget to tell them their activities for the day may be videoed. This certainly is a home run for an insurance carrier when a client is shown raking leaves on the same day she told the doctor she was basically confined to her bed (this happened to a well known Baltimore accident attorney).

Many insurance companies, like the Hartford, are known to conduct video surveillance in injury cases where a permanency is claimed once a lawsuit if filed.

I inform all of the injury clients I meet in my Columbia, Maryland office, and tell all of the accident lawyers who work for the law firm in Maryland and Virginia, to instruct all accident clients, with respect to video surveillance in this fashion:

  • If you are not claiming a permanent injury odds are there will be no video surveillance
  • If the insurance policy for the defendant driver is 25,000 or less video surveillance is not likely
  • If you are seeking large permanent damage and are claiming you can no longer work, walk, drive, enjoy leisure activities or working outdoors, beware of video surveillance
  • If you have a scheduled deposition, or any meeting with a doctor for the defendant, expect video surveillance

How long should I treat for an automobile accident?

The answer is until your doctor determines that you are better. Persons who stop treating prematurely for personal injuries and then decide later that they want to treat again often have problems being compensated for additional damages. Insurance Companies are skeptical about paying the tab for accident victims who have stopped treating for a period of weeks. If the doctor informs you at some juncture that there is nothing more he can do for you, you might obtain a permanent disability rating. You then can be compensated for a permanent disability even though you are no longer treating.

How much should my auto accident lawyer's fee be?

Most Maryland auto accident injury attorneys are paid through contingency fees. A contingency fee basically means that the client does not pay anything to the attorney unless there is a settlement with the insurance company or judgment from the court. When there is a settlement or judgment an attorney is typically entitled to a percentage of that total settlement or judgment amount. When an injured person is considering hiring a lawyer, he or she should read the fee agreement very carefully. Before signing the fee agreement be sure to check what percentage of the settlement the attorney is charging as a fee.

Some attorneys will charge fees that are too high. If the Maryland auto accident attorney's fee agreement includes a fee of more than 33% for a case that settles that Maryland accident injury lawyer is a rip off artist. Most Maryland accident injury cases settle and a fair Maryland auto accident attorney, like the lawyers at Portner & Shure, charge a 33% fee for a case that settles.

Usually, a fee agreement will have a different fee for a case that goes into litigation. When a case goes into litigation that means that the case did not settle because of a disputed issue. Common issues insurance companies dispute are low property damage, liability and reasonableness of medical treatment. A case that is put into litigation will be decided by a judge or jury. Litigation requires much more work including pleadings, discovery, trial preparation, travel and trial. The additional work often increases the attorney fee to 40% of the total judgment. If your Maryland accident lawyer is charging you more than a 40% fee for a case in litigation or more than a 33% fee for a case that settles, that attorney is ripping you off. The Maryland accident attorneys at Portner & Shure are both fair and experienced. If you or someone you know has been injured in an automobile accident contact the Maryland accident attorneys at Portner & Shure.

I want to switch injury lawyers, can I fire my current attorney?

Yes, you can. Portner & Shure receives countless phone calls from people who want to leave their current attorneys throughout Maryland and Virginia. The reasons for leaving usually are:

  • I can't reach my injury lawyer (poor communication)
  • The law firm does not have staff who speak my language
    • (Portner & Shure has three Chinese speaking paralegals on staff, one Vietnamese speaking paralegal, four people who speak Spanish, including two paralegals, and a Korean speaking automobile accident paralegal, who has a Korean speaking assistant. Often we've seen personal injury law firms rush to meet Spanish speaking automobile accident clients in Maryland and Virginia. In fact, one firm in Howard County, Maryland, does this frequently yet has no interpreters on staff.
  • The law firm seems inexperienced.
    • Portner & Shure works on just personal injury and criminal defense work and settles or obtains approximately $10,000,000, in verdicts or settlements each year.

Specific questions with respect to firing a lawyer are:

  • If I fire my lawyer and I have agreed to pay the attorney a contingent fee, do I owe him money?
  • If I fire my lawyer can the lawyer keep my file until I pay my bill?

The contingent fee agreement you signed with the attorney limits the amount in most cases that you pay an attorney to one-third. So the new attorney and former attorney will work out the percentage of the one-third they each can receive. Often, if you are leaving the former firm for just cause, (poor communication or a bad job) the new injury firm does not have to give the former firm a dime. The fight between the two firms never involves the client, so if you are unhappy with your current injury law firm for reasons that include inexperience or poor communication you may consider switching.

While the former personal injury firm may ask for its out-of-pocket expenses, it may not withhold sending your file. In fact, one injury firm in Herndon, Virginia, had to be reminded of this fact recently. After when we cited the law, the file for our Korean speaking Virginia accident client was immediately obtained.

If someone is using a cell phone and causes an accident can my attorney use that fact in court?

Statistics reflect that at any one time, more than 800,000 vehicles are being driven by someone using a hand-held cell phone. Studies also show that talking on a cell phone causes almost 25% of car accidents and texting while driving is approximately 6 times more likely to result in an automobile accident than driving while intoxicated. This is a shocking number, considering that 84% of cell phone users believe that using a cell phone while driving increases the risk of being in an accident. This is a classic case of "do as I say and not as I do".

With so many accidents being related to cell phone use, the last decade has seen this issue become a much more important component of litigation. Both plaintiff and defense attorneys routinely ask questions regarding a party's cell phone use in both interrogatories and depositions. The perception among attorneys is that if a party was using a phone at the time of the accident, that itself rises to the level of negligence. This determination can either force settlement, or re-enforce an insurance company's refusal to pay a personal injury claim, not based on the way in which an accident happened, but just by the mere fact that a plaintiff or defendant was on the phone. In the same way that defense attorneys have difficulty representing a client that was drunk at the time of the accident, they are very reluctant to let a jury or judge know that their client was on the phone.

In any personal injury action, an important question for a plaintiff's attorney is to determine is what sources of liability and payment are available. For instance, if a defendant gets into an accident while they are working, a claim is not only made against the driver, but again, that driver's employer as well. This has been taken further. In some cases restaurants and bars that have served alcohol to patrons that they knew would be driving have been held liable for the injuries that they cause; or employers that sponsor and serve alcohol at happy hours or other work functions may also find themselves "on the hook" for the negligence of their employees.

This same analysis could apply to cell phone use as well. Many employees text, e-mail and/or talk on the phone regarding work related issues long after their business hours have ended. While the business day is over, if an employee is doing work for the benefit of an employer, a strong case for vicarious liability or the existence of an agency relationship could be made. This argument is persuasive whether or not the employer actually knows that the employee is texting, e-mailing, and/ or talking on their behalf while driving.

The impact that cell phone use can have on the value of a personal injury case is enormous. Decisions regarding both liability and the best sources to pay for injuries caused by a defendant can be dramatically effected based upon the cell phone records of a plaintiff or defendant. As a result, a Plaintiff's attorney should now ask about the possibility of cell phone use by the defendant at the initial attorney/client interview. Further, in litigation interrogatories, document requests, and deposition questions, should be directed at this issue.

My diagnosis is soft tissue or whiplash. What does that mean?

Whiplash is an injury caused by the neck and head being thrown suddenly backward then forward upon impact. The impact forces the neck and head beyond their normal range of movement, causing soft tissue damage and pain. Whiplash may also happen in the reverse order with the head moving forward as the body moves backward.

Whiplash is a term used most often to describe the symptoms resulting from an automobile accident. A victim of car accident whiplash may experience one or all of these symptoms:

  • Headaches
  • Pain in the shoulders
  • Sleep disturbance
  • Fatigue
  • Dizziness
  • Vision problems
  • Ringing in the ears (tinnitus)
  • Poor concentration of memory
  • Neck pain/stiffness
  • Tight and/or sore muscles
  • Tenderness of the muscles
  • Lower back pain
  • Loss of motion in the neck
  • Pain between the shoulder blades

Even without these symptoms, it is a good idea to seek the advice of a medical provider in the event of a serious motor vehicle accident. There can be damage without symptoms, or there can be delayed problems.

What are common mistakes made by young Maryland and Virginia drivers?

Maryland and Virginia teenage drivers are four times at greater risks for automobile accidents than older adults. Reasons include inexperience dealing with emergency situations, distracted driving and the desire to show off.

Below are some interesting findings and a further reason to have your teenager sign our Young Driver Contract.

Being distracted

Cell phones, CDs, food and text messaging, pose serious distractions to all drivers. Recent studies, however, with respect to teenage driving are revealing in this regard. First, one study done by State Farm Insurance reported 89% of teens noted they saw other teens driving and talking on their cell phones. Further, many have admitted during the same, and more than half said they observed their peers using ipods or text messaging while driving.

Any form of distraction increases the likelihood of a Maryland or Virginia car accident. In fact, a recent study of drivers in the Maryland and Virginia area concluded that distracted driving contributed to 80% of all collisions.

Taking risks

Risks include ignoring traffic signals, or school zone signs and changing lanes without checking blind spots. Teenage brains are predisposed to more risk taking. Recent studies have revealed that when confronted with risky choices, teenage brains exhibit twice as much activity in the impulse area.

Speeding

Recent studies reveal that teenagers in the Maryland and Virginia area drive faster than all other drivers in the area as a whole. Speeding is the cause of one-third of the fatal motor vehicle accidents in the Maryland and Virginia area. This total is 50% more than the total for crashes for those 20 to 40 years old.

Overcrowding the car

A crowded car for a teenager results in more aggressive driving. A NIH study found that when accompanied by male passengers in the front seat, teens of both genders speed more and leave shorter following distances. The same trend exists for teenage girls driving with other girls. Worse yet, another study found that with two passengers Maryland and Virginia 16 year old drivers were at nearly twice the risk of having a fatal accident, and with three or more passengers the risk was nearly triple.

Driving under the influence

Recent studies reveal that approximately 40% of Maryland and Virginia high school seniors have drank alcohol in the last month. More problematic, however, is because teens take more chances after drinking, more than half of those in fatal accident were found to have not been wearing seatbelts.

Following too closely/Driving unbuckled

At 60 mph a typical car needs between 120 and 140 feet to stop. In fact, 60 mph translates to 88 feet per second. A recent study of teen drivers revealed that teenagers left less following distance behind the car ahead than other drivers. Worse, another study by NHTSA reported that approximately one quarter of drivers 16 to 24 do not wear seatbelts.

Inability to handle emergencies/Driving drowsy

Knowing how to avoid an accident comes with driving experience. Young drivers make mistakes because they don't know how to apply the brakes correctly in certain situations, or are not aware of how to handle the car when it goes into a skid.

Drowsiness affects the kids who burn the candle at both ends, also known as "over achievers". It is a known fact that sleep deprivation contributes to thousands of automobile accidents in Maryland and Virginia each year.

What can I be compensated for as a result of an automobile accident?

You can be compensated for your property damage including a rental car and damage to your vehicle. Lost wages may be reviewed, as long as you file tax returns and have a slip from your doctor stating you are off work as a result of the automobile accident.

Additionally, you can expect to recover as damages all your medical bills that are reasonably related to the accident and be compensated for pain, suffering, inconvenience, physical impairment and disfigurement. Damages in this category can be broken down to include damages for emotional distress, pain while you were under active treatment, thereafter, and for any disability

Compensation may also include damage to the family and spousal relationships. Importantly, in Maryland, Virginia, and DC personal injury damages may not be reduced by a defendant insurance carrier if you have been reimbursed for medical expenses and/or lost earnings from another source. Finally, these types of damages are not income within the meaning of federal and Maryland income tax laws, and therefore, you will not owe or have to pay any income taxes on the amount received as damages in an automobile accident case.

What do I look for when hiring an automobile accident attorney in Maryland or Virginia?

If you asked me about how to go about selecting a personal injury lawyer ten years ago, my answer would have been completely different than it is today. With the advent of Google and other Internet search engines, I think this selection process is easy. Your search for the best injury lawyer should be result oriented.

First, look for an accident attorney who has obtained a few million dollar awards. The most successful injury attorneys in the United are members of the Million Dollar Advocates Forum. This means they have obtained at least one verdict for one million dollars or more. Since fewer than 1% of all United States accident lawyers have accomplished this feat, it's a great place to start. Jonathan Portner is a member of this group and has obtained more than one million dollar award.

Second, in addition to large case results, look at the volume of results the injury firm does each year. In other words, does it do at least five million dollars in accident awards or settlements each year? If the answer is yes, you can be sure the injury firm knows how to handle automobile insurance claims. Portner & Shure in fact accomplishes nearly double that bench mark number in injury awards each year, over nine million dollars.

Third, find out if the accident firm's prior injury clients were satisfied not just with the money, but also the service. Service is king in every business. While you may have obtained a good injury settlement, the process could have been long, or simply too time consuming. Our client testimonials reflect the high quality service. Our client testimonials show that, in addition to obtaining substantial injury damage awards, the law firm provides excellent service, and comes highly recommended.

Fourth, look closely at the firm and your specific needs. Does the firm actually litigate its own cases? Many injury firms do not go to court and send their automobile accident cases to Portner & Shure when it is time for a fight. Beginning and ending a case with the same law firm is much more time effective. Not only do we handle cases from the beginning through to trial if necessary, our attorneys have a proven track record against all major insurance carriers.

Next, individual service needs are all important. For example, if transportation is an issue will the lawyer come to you? Does the firm have offices near you? Over the last seventeen years, Richard Shure has done countless home consultations for accident victims who simply cannot come to one of our many offices.

Further, if language is an issue you must go to an injury firm that has paralegals on its staff who can help you immediately. Aware of the demographics of injured accident victims in Maryland, Virginia, and the District of Columbia, everyday, we have experienced paralegals and staff who speak Spanish (in fact five), Chinese (including Mandarin, Cantonese, Fujinese, and Shanghainese), Korean (both a paralegal and secretary) and Vietnamese.

Finally, while this may sound trivial, since poor communication (not steaming from language barriers, but attorney or paralegal availability) is a cause for lower awards, ask about the attorneys availability after hours. In the personal injury business the most successful law firms understand that sometimes its difficult for a client to connect with his or her attorney between nine to five, especially if the attorneys, like ours, go to court. As a result, we handle emergency issues and clients' concerns after hours.

What is the Maryland Boulevard Rule? How does it affect motor vehicle collisions?

You may often hear insurance carriers refer to the "Boulevard Rule" when they investigate an automobile accident. However, what you may not know is what the Boulevard Rule really is.

The Maryland Boulevard Rule was adapted by a Maryland Court of Appeals in 1939 to expedite the flow of traffic on a favored highway thus allowing drivers on said highways to travel without stopping for each intersection. All drivers approaching a main street or highway have a duty or obligation to yield to the traffic on the major roadway. If the driver of a vehicle fails to yield to this rule then they were negligent as a matter of law. A claim for damaged property or bodily injuries could have been filed again the negligent party's insurance carrier.

Over the years the rule has evolved. In 1977, the Court of Appeals reduced the harshness of the application of the rule. It was found that the driver on the favored highway was negligent and his negligence was the proximate cause of the collision. Proximate cause is a legal term that means "an intervening cause which produces injury and without which the accident could not have happened, if the injury is one which might have reasonably anticipated or foreseen as a natural consequence of the wrongful act." In Covington v. Gernet, 280 Md.322, 373, A.2d 624 (1977), the Department of Motor Vehicles revised this rule and included the definition of "right of way" as "the right of one vehicle ...to proceed in a lawful manner on a highway of preference to another vehicle"

What all this means is that the Maryland Boulevard Rule no longer applies when favored drivers are driving in an unlawful manner on a main street or highway. If a favored driver is speeding, fails to yield to traffic control devices, or fails to stop, it is possible the favored driver may be found to be at fault for the accident.

What should I do immediately following an automobile accident?

It is understandable that after an automobile accident you concern yourself with your car and your injuries, and not about how to protect your personal injury rights. Unfortunately, this path may lead you to jeopardize an injury claim. You should know there are a few things you should do, which take little effort, but in the end will serve to preserve your damage recovery.

First, after an automobile accident the police generally arrive. If they do not you must call them. Unless it is a necessity do not move your car until they arrive. When they arrive calm down and give them an accurate account of the accident. Then get the officer's name and report number, as well as the address and phone number of the insurance company for the other driver. Additionally, do not rely on the police to obtain accident witness information. You must, before leaving the accident scene, make sure you have the name, address and telephone number of all witnesses.

If you are injured in any way you should see your family doctor immediately or go to a hospital emergency room. Be aware that a common insurance company defense is claiming a person was not injured in the accident and did not suffer a personal injury because they waited several days to see a physician.

Next, call your own insurance company as soon as you get home. This is important since your own carrier may, depending on your policy, be responsible for a Personal Injury Protection claim. This insurance, assuming you purchased it, provides up to $2,500 for lost wages or medical expenses. Furthermore, in the event liability is later denied your carrier will be responsible, under your collision coverage, for your own property damage claim, which may also include towing and rental car expenses. In Virginia automobile claims, Med-Pay is often available under your own policy to cover your medical expenses.

Do not talk to any representative for the other driver including his or her insurance company. They may call to obtain a recorded statement or ask you to settle your accident and personal injury for a small damage amount. They are not calling to help you. Actually, that seemingly harmless statement is often used against people when the liability carrier raises defenses to deny the personal injury claim. Be aware that a common defense that actually arises from the statement alone includes "contributory negligence", you were somehow partially responsible for the automobile accident, that arises in all forms including but not limited to speeding and failure to pay proper attention.

When I file a lawsuit for a personal injury will my car repairs get paid?

You are entitled to have your vehicle placed back into the same condition it was before the accident. If the other party is at fault their insurance will pay for the repairs. Our auto accident attorneys handle recovery for the property damage free of charge. There are cases where a vehicle is a total loss and the total loss figure may not reflect the true value of the vehicle. Using the appropriate guides, deducting where appropriate for excess mileage or damages, and adding certain accessories, your accident attorney and his or her experienced paralegals should be able to rectify this situation. If it cannot be resolved our Maryland and Virginia accident attorneys have forced the issue by litigating property damage disputes.

When should I notify my own insurance company of a possible claim?

If you believe there is any chance that you may need your own carrier to defend, or pay something on the claim, you should notify the insurance carrier immediately. The law states that the duty to provide notice to the carrier arises when an accident is sufficiently serious to lead a person of ordinary intelligence....to believe that it might give rise to a claim for damages. State Farm vs. Walton, 244 Va 498 (1992).

CRIMINAL DEFENSE FAQ

If you have a bench warrant, what steps should be taken?

Do not call the police if there is a warrant for your arrest. If you do this you may be inadvertently inviting the police department to come to your location and lock you up. I suggest that if you have a bench warrant you immediately call a criminal defense attorney at Portner & Shure. Warrants can be quashed.

In the last several years, Jon Portner has had countless bench warrants quashed (dismissed) by Howard County judges, Montgomery County judges as well as judges in Prince George's County, Baltimore County and Baltimore city judges. The procedure we follow is filing an entry of appearance by our criminal efense department with the Court, as well as a motion setting forth why the defendant is not a risk of flight, and why the charges and grounds in the bench warrant do not require an immediate incarceration.

DUI/DWI FAQ

How are federal DUI and DWI charges different from state charges?

There are many areas in Maryland that are considered federal enclaves. In these areas Maryland's implied consent laws are at issue. What laws apply in federal enclaves depends upon whether the land is under one of the following:

  • Exclusive federal jurisdiction or concurrent federal and state jurisdiction
  • The jurisdiction of the National Park Service

National Park Service properties, including Baltimore-Washington Parkway and Suitland Parkway, are patrolled by the United States Park Police. There are specific federal regulations governing conduct on these roads. For instance, refusal of a breath test is made a crime by 36 C.F.R. § 4.23(C)(2). There are no administrative sanctions for refusals or what would be administrative per se violations under National Park Service regulations. Therefore there will be no MVA hearing or automatic suspension. Unfortunately, there is no possibility of a probation before judgment in this type of Maryland DUI case. Some portions of these federal enclaves are under concurrent jurisdiction, and suspected drunk drivers who are arrested by county or state police officers are subject to Marylands implied consent laws.

Where the land is federal, but not under the jurisdiction of the National Park Service, including Andrews Air Force Base and Fort Meade, the substance and penalties of Maryland DUI law are incorporated into federal law by the Assimilative Crimes Act, 18 U.S.C.A. § 3118. Because of this incorporation, persons arrested for drunk driving in these areas do have the possibility of a federal judge granting them a probation before judgement disposition. If you have been arrested for DUI or DWI on federal land contact the experienced DUI/DWI lawyers at Portner & Shure.

Should I request to speak to a lawyer before I take a breathalyser or field sobriety tests?

Whenever someone is arrested, as a general rule, that person should speak with an attorney. When you are placed under arrest your 6th Amendment right to a lawyer is triggered and someone who is detained by police should exercise it.

I want to address how important this rule is when someone is arrested for drinking and driving. When the police confront someone who is drinking and driving they are required to perform several different tests, including field sobriety tests and a breathalyser or B.A.C. (Blood Alcohol Content) test, which are in themselves invasive and trigger certain constitutional rights. Interestingly, if you ask to speak to a lawyer before you decide whether or not to take a breathalyser and your request is denied, it is not your 6th Amendment right to counsel that is violated. Instead, if the officer does not give you the opportunity to consult with your attorney, your 14th Amendment right to due process is violated.

The reason due process is violated results from the affect that a refusal or the result of a breathalyser will have on your ability to drive. Because the ability to drive affects an individual's employment, livelihood, etc., people confronted with the decision to take a breathalyser must be given the opportunity to consult with an attorney if requested. Further, if the police officer denies a request to speak with a lawyer or improperly advises and, as a result, there is a refusal, there is a presumption that the result of the breath test would be in the accused favor.

Most people are familiar with what a breathalyser is and its purpose. However, the consequences of performing or refusing a breathalyser in different circumstances are extremely confusing. Police officers may attempt to explain them to you and, if they advise you incorrectly or deviate substantively from the Advice of Rights DR-15 form, the results of the breathalyser or the refusal can be suppressed at trial. If you ask to speak with your lawyer at this point and the cop says "why what is a lawyer going to do for you" or "you asking for a lawyer amounts to a refusal" the officer has made two huge mistakes because the officer has violated your 14th Amendment right to due precess and incorrectly advised you. At that point, at the very least, the police officer has compromised the state's case against you and provided an experienced DUI attorney with a strong defense to the charges against you.

At an MVA hearing, instead of focusing on a violation of constitutional rights, an experienced attorney will stress that his or her client was "improperly advised" and object to the MVA putting the DR-15 form and the result of the breathalyser into evidence. At the conclusion of the MVA's case a motion for no action should be made. A motion for no action means that the MVA does not have sufficient evidence to show that you were intoxicated or that the refusal was invalid because the officer did not properly advise. If there is credible evidence that the accused was denied right to counsel or was improperly advised then the Administrative Law Judge will grant the motion for no action and your license will not be suspended.

What does probation before judgment mean?

Probation Before Judgment or PBJ under Criminal Procedure § 6-220 is not a conviction. A judge can grant this disposition to a defendant in a DUI case if appeal rights are waived, and there have been no prior DUI convictions withing ten years of the current guilty finding. The ten year period begins when the defendant was convicted or given a probation before judgement. Postponing sentencing to a date beyond the ten-year period will not help a defendant qualify for probation before judgement because the time period begins when the defendant pleads or is found guilty. A probation before judgment cannot be expunged.

The MVA's records for probations before judgment are kept separate. The MVA, other driver licensing authorities, courts, criminal justice agencies, the defendant or his or her attorney, the United States Secretary of Transportation, or employers of holders of commercial licenses have access to the records. Insurance companies on the other hand do not.

In order to ensure that a judge will grant a probation before judgment a defendant should be proactive and take steps to mitigate guilt prior to trial. One of the most important steps a defendant can take is alcohol evaluation and treatment. In more serious cases a defendant may need to take further steps. If you have been arrested for drinking and driving and charged with a DUI or DWI, our attorneys can help spot defects in the state's case and help you take the necessary steps to reach the best possible outcome in your case.

MEDICAL MALPRACTICE FAQ

Are all medical mistakes medical malpractice?

No, they are not. However, because statistics show that medical malpractice is prevalent, if you or a loved one has suffered an unexpected injury or death, you should look into whether the injury or death was caused by medical negligence. Consults with medical malpractice attorneys are generally free so there is no reason to not at least inquire. Medical malpractice claims often resolve for millions of dollars.

For example, in cerebral palsy (CP) cases, the cost of providing care for a child over a lifetime can exceed a million dollars. If the CP was caused on the part of a doctor, his insurance company may be responsible for paying for that care.

How common is medical malpractice in the United States?

Medical mistakes are common in Maryland, Virginia and throughout the entire United States. A recent study published by the Institute of Medicine reported that up to 98,000 people each year in American hospitals die due to medical mistakes. In other words, medical mistakes are the 8th leading cause of death in our Country. Medical malpractice mistakes involving errors caused injuries to over 1.3 million persons a year.

What is medical malpractice of negligence?

A: To fall within the definition, a physician or health care provider in Maryland or Virginia, commits medical malpractice and is negligent, when he or she fails to act reasonably under the circumstances and the unreasonable conduct causes harm.

Where to go when injured due to a doctor's negligence?

Obviously, if you are injured due to the medical malpractice of a Maryland physician you need to hire a top medical malpractice attorney. However, our medical malpractice clients often ask if there is also a way they can help others from suffering the same fate. The answer is yes.

Maryland has set up the Maryland Board of Physicians to protect the public from bad doctors. In fact, during the year 2011, the board handled 1,730 complaints against doctors. It actually took 164 formal actions against certain doctors as a result of the complaints.

Clearly, the law provides that you may seek monetary damages as a result of a negligent act committed by a Maryland doctor. However, in an attempt to protect the public from a doctor who is incompetent, or who may just clearly injure a person again, Maryland has set up this special board. A complaint must be filed for the board to take any action. Therefore, Portner & Shure advises its Maryland medical malpractice clients to also explore this remedy if they believe the incident was more than just a one time medical mistake.

PERSONAL INJURY FAQ

How much should my personal injury attorney's contigency fee be?

Most Maryland personal injury attorneys are paid through contingency fees. A contingency fee basically means that the client does not pay anything to the attorney unless there is a settlement with the insurance company or judgment from the court. When there is a settlement or judgment, the attorney is typically entitled to a percentage of that total settlement or judgement amount. When an injured person is considering hiring a lawyer, he or she should read the fee agreement very carefully. Before signing the fee agreement be sure to check what percentage of the settlement the attorney is charging as a fee.

Some attorneys will charge fees that are too high. If the fee agreement includes a fee of more than 33% for a case that settles, that lawyer is a rip off artist. Most Maryland accident injury cases settle and a fair law firm, like the lawyers at Portner & Shure, charge a 33% fee for a case that settles.

Usually, a personal injury lawyer's fee agreement will have a different fee for a case that goes into litigation. When a case goes into litigation that means that the case did not settle because of a disputed issue. Common issues insurance companies dispute are low property damage, liability and reasonableness of medical treatment. A case that is put into litigation will be decided by a judge or jury. Litigation requires much more work including pleadings, discovery, trial preparation, travel and trial. The additional work often increases the attorney fee to 40% of the total judgement. If your accident lawyer is charging you more than a 40% fee for a case in litigation or more than a 33% fee for a case that settles, that attorney is ripping you off.

What does "Assumption of the Risk" mean in a personal injury case?

The concept of "assumption of the risk" is fairly basic. For example, bee keepers assume the risk of being stung and rock climbers assume the risk of falling to their death. Simply put, a person who engages in risky activities cannot complain when the result is injury or death. The legal concept of "assumption of the risk" is based on the same principle, but does require a more detailed explanation.

In Maryland, a person assumes the risk if that individual voluntarily engages a particular action or inaction known to that person to be inherently dangerous. If that particular action or inaction leads to an accident which results in injury there can be no claim of negligence. For example, if a person is having a particularly good time and decides to dance on top of the bar, that individual cannot claim negligence if he or she slips on a spilled drink and falls. Assumption of the risk is a favorite argument of defense lawyers in Maryland, however, it is seldom applicable in auto accident, malpractice and product liability cases.

The assumption of the risk defense is often utilized successfully in Maryland slip and fall cases. In order to establish the defense of assumption of the risk the defense attorney must establish two elements:

  • Cognizance of a danger (plaintiff's knowledge and appreciation of the danger)
  • Volition in encountering it. (plaintiff cannot be forced or compelled)

The requirement that the action or inaction is voluntary makes the assumption of the risk defense inapplicable in intentional tort cases.

Assumption of the risk is frequently confused with contributory negligence. The difference between the two concepts is that contributory negligence bars recovery because it is a cause of the accident, whereas assumption of the risk bars recovery because it is a previous abandonment of the right to complain if an accident occurs. Assumption of the risk involves the negation of a defendant's duty, but contributory negligence is a defense to a breach of duty.

What does "contributory negligence" mean in a personal injury case?

Maryland is one of five states that uses contributory negligence instead of comparative negligence. The majority of states use the doctrine of comparative negligence which means, when both the victim and the defendant contributed to an accident by failing to exercise a reasonable degree of care and caution, each party's degree of liability is apportioned. The total amount that an accident victim is awarded is lessened in direct relation to his or her own negligence. For instance, if a jury found that an accident victim was entitled to $1,000,000.00 in damages but found that the victim was 20% at fault, the jury award would be $800,000.00.

Maryland's contributory negligence doctrine is more cut throat and can be a complete bar to an injured victim's recovery. Maryland personal injury attorneys often struggle to help clients because of this all or nothing rule. Under contributory negligence, the accident victim's failure to exercise a reasonable degree of care and caution, no matter how slight, is an absolute bar to recovery. If the defendant's lawyer can convince a jury that the victim was only 1% at fault, that individual will not recover any damages.

Lawyers have been struggling against the doctrine of contributory negligence since it was adopted by the Maryland Court of Appeals in 1847. In 1868, accident victims received some reprieve when the Court of Appeals adopted the last clear chance doctrine. The last clear chance doctrine allows recovery by an accident victim, who would other wise be barred from recovery due to contributory negligence, if the defendant had the last chance to avoid the accident. When the defendant is negligent and the victim is contributorily negligent, the Plaintiff can still recover damages if there is a showing that something new or sequential affords the defendant a fresh opportunity to avert the consequences of his original negligence.

Will I have to file suit to collect just compensation for my personal injury?

In most cases no. As long as there is a police report in your favor and/or witnesses, the insurance company will in most cases accept responsibility (liability). Then any dispute concerns solely the amount they will pay for your automobile accident damages. Assuming there was damage to your automobile, and you sought medical treatment immediately, litigation can usually be avoided.

COMMUNITY FAQ

How can someone from the Korean community find the best lawyer to handle a personal injury case in Maryland or Virginia?

If you had asked me five years ago how people find the best lawyer in Maryland or Virginia to handle a personal injury case for a Korean speaking client, I may have said look at the yellow pages or the Korean Times. Our firm in fact still advertises for injury cases in both. However, the truth is now the best lawyers for serious personal injury cases for Korean speaking clients can now be found in two other ways.

First, find an attorney serving the Maryland or Virginia Korean community by word of mouth. In the Korean community, what you will find is that some injury lawyers may provide good service, but don't really get great results. Others, get good results, but their service is really poor. At Portner & Shure, we deliver good service to Korean speaking automobile accident clients in Maryland and Virginia and get great results.

Second, look at the Korean injury firms website when choosing a Korean speaking lawyer in Maryland or Virginia. Specifically, look at the testimonials from clients. Portner & Shure now posts testimonials on our website in both English and Korean. Testimonials from Korean speaking and English speaking clients show you exactly what Portner & Shure clients thought of the service and results.

Next, look at the site to see verdicts and settlements. Portner & Shure posts verdicts in cases from Korean speaking clients. Don't use a firm that is afraid to post its results. Many of these firms don't litigate cases. An injury firm in Maryland or Virginia cannot be aggressive for Korean speaking clients with an insurance company if they don't step in the courtroom. Furthermore, the insurance company's use the internet too. If a Korean speaking client can figure out that an injury lawyer rarely or never goes to court, the insurance company certainly will. The insurance carriers keep track of the tendencies of Maryland and Virginia personal injury attorneys.

Lastly, look at the organizations, the law firm servicing the Korean community belong to. For example, Mr. Portner, as a result of his advocacy skills, is a selected member of the Million Dollar Advocates Forum. Fewer than 1% of us lawyers are selected as members. The internet is now a fun shopping tool, and if used correctly, a helpful tool when searching for a Maryland or Virginia personal injury lawyer servicing the Korean community.

How to find the best lawyer to handle a personal injury case for a Chinese speaking client in Maryland or Virginia?

If you had asked me ten years ago how people find the best lawyer in Maryland or Virginia to handle a personal injury case for a Chinese speaking client, I may have said look at the yellow pages or in the World Journal. Our firm in fact still advertises for injury cases in both. However, the truth is now the best lawyers for serious personal injury cases for Chinese speaking clients can now be found in two other ways.

First, find an attorney serving the Maryland or Virginia Chinese community by word of mouth. In the Chinese community, what you will find is that some injury lawyers may provide good service, but don't really get great results. Others, get good results, but their service is really poor. At Portner & Shure, we deliver good service to Chinese speaking automobile accident clients in Maryland and Virginia and get great results.

Second, look at the Chinese injury firms website when choosing a Chinese speaking lawyer in Maryland or Virginia. Specifically, look at the testimonials from clients. Portner & Shure now posts testimonials on our website in both English and Chinese. Testimonials from Chinese speaking and English speaking clients show you exactly what Portner & Shure clients thought of the service and results.

Next, look at the website to see verdicts and settlements. Portner & Shure posts verdicts in cases from Chinese speaking clients. Don't use a firm that is afraid to post its results. Many of these firms don't litigate cases. An injury firm in Maryland or Virginia cannot be aggressive for Chinese speaking clients with an insurance company if they don't step in the Courtroom. Furthermore, the insurance company's use the internet too. If a Chinese speaking client can figure out that an injury lawyer rarely or never goes to court, the insurance company certainly will. The insurance carriers keep track of the tendencies of Maryland and Virginia personal injury attorneys.

Lastly, look at the organizations, the law firm servicing the Chinese community belong to. For example, Mr. Portner, as a result of his advocacy skills, is a selected member of the Million Dollar Advocates Forum. Fewer than 1% of us lawyers are selected as members. The internet is now a fun shopping tool, and if used correctly, a helpful tool when searching for a Maryland or Virginia personal injury lawyer servicing the Chinese community.

How to find the best lawyer to handle a personal injury case for a Spanish, speaking client in Maryland or Virginia?

If you had asked me ten years ago how people find the best lawyer in Maryland or Virginia to handle a personal injury case for a Spanish speaking client, I may have said look at the yellow pages or on Univision. Our firm in fact still advertises for injury cases in both. However, the truth is now the best lawyers for serious personal injury cases for Spanish speaking clients can now be found in two other ways.

First, find an attorney serving the Maryland or Virginia Spanish community by word of mouth. In the Spanish community, what you will find is that some injury lawyers may provide good service, but don't really get great results. Others, get good results, but their service is really poor. At Portner & Shure, we deliver good service to Spanish speaking automobile accident clients in Maryland and Virginia and get great results.

Second, look at the Spanish injury firms website when choosing a Spanish speaking lawyer in Maryland or Virginia. Specifically, look at the testimonials from clients. Portner & Shure now posts testimonials on our website in both English and Spanish. Testimonials from Spanish speaking and English speaking clients show you exactly what Portner & Shure clients thought of the service and results.

Next, look for verdicts and settlements. Portner & Shure posts verdicts in cases from Spanish speaking clients. Don't use a firm that is afraid to post its results. Many of these firms don't litigate cases. An injury firm in Maryland or Virginia cannot be aggressive for Spanish speaking clients with an insurance company if they don't step in the Courtroom. Furthermore, the insurance company's use the internet too. If a Spanish speaking client can figure out that an injury lawyer rarely or never goes to court, the insurance company certainly will. The insurance carriers keep track of the tendencies of Maryland and Virginia personal injury attorneys.

Lastly, look at the organizations, the law firm servicing the Spanish community belong to. For example, Mr. Portner, as a result of his advocacy skills, is a selected member of the Million Dollar Advocates Forum. Fewer than 1% of us lawyers are selected as members. The internet is now a fun shopping tool, and if used correctly, a helpful tool when searching for a Maryland or Virginia personal injury lawyer servicing the Spanish community.

WORKERS' COMPENSATION FAQ

How will my attorney get paid?

Attorneys fees' in workers' compensation claims are governed by state law. In other words, an attorney does not get to chose how much they get paid. Attorneys fee's are paid out at the time of permanency award or settlement. The only exception to this is if your claim is heard before the WCC on an issue of temporary total benefits (TTD) in which case attorneys fees' are also awarded by the WCC. There is no direct out of pocket expense for you.

If I was working at the time of my automobile accident, should I have my bills paid by workers' compensation or PIP?

If you were working at the time of your automobile accident you actually have three insurance claims to make for your injuries under Maryland law. The accident claims that should be made include PIP, third party liability, and workers' compensation.

Top Maryland accident lawyers are aware that the PIP claim should be filed and processed before the workers' compensation claim. Maryland law states that the PIP carrier has no right of subrogation against any third-party recovery. See Maryland Code, Insurance Article §19-507(d). As a result, if the PIP claim is processed first the injured party does not have to pay back the PIP benefits. On the other hand, the workers' compensation carrier has subrogation rights. See Maryland Code, Labor and Employment Article §9-902(e) and §9-902(f).

Attorneys not familiar with this area of law may process the bills under workers' compensation first. This is a disaster. Not only will this give the comp carrier a lien on the automobile claim, it gives the PIP carrier a set off for the workers' compensation benefits paid. See Maryland Code Insurance Article §19-513(e).

What happens when I am released from treatment by my doctor?

When you are at Maximum Medical Improvement (MMI) you can be examined by a physician who is qualified to provide a rating as to the amount of permanent partial disability that your injuries have caused. Not every doctor is familiar with the AMA Guidelines and is therefore unfamiliar as to how to provide such a rating. The rating is one of the most important aspects of your claim so a physician should be chosen wisely.

What is a Functional Capacity Evaluation (FCE)?

A Functional Capacity Evaluation (FCE) is a series of tests designed to measure physical strength, ''range of motion'', stamina, and tolerance to functional activities, including lifting and carrying. These tests can be used to evaluate work tolerance, and the necessity for work restrictions. Related terms include "Physical Capacities Evaluation" (PCE), "Functional Capacity Assessment" (FCA) or "Work Capacity Evaluation."

An evaluator skilled in Functional Capacity Evaluation will use a battery of standardized tests designed around key factors that include diagnosis, impairment, pain and functional limitation, referral questions, and, in some instances, the case resolution goal. The FCE's value to the injured individual is the focus on functional ability instead of the pain limitation associated with an impairment. Functional Capacity Evaluation is not only a useful clinical tool, but a baseline for industry-standard results that clearly define an individual's transition from injury to employment, and from disability to deployment. Therefore the evaluator should only use tests that have to do with the specific individual's diagnosis and return-to-work goals or job demands:

Commonly used tests include activities like treadmill or step exercises, grip testing, dexterity tests, range of motion tests, as well as questionnaires. This list is not exhaustive and there are other tests as well.

In a vocational rehabilitation setting the results of Functional Capacity Evaluation are typically used to develop return-to-work plans, as the basis of an offer of alternative employment, or as the foundation for a feasibility development plan (work-focused rehabilitation); results are a sound framework for developing a Temporary Alternative Duty plan.

What is the Workers' Compensation Commission?

The Workers' Compensation Commission (WCC) is the agency that oversees all workers' compensation claims. There is a panel of commissioners that are appointed to serve and address any outstanding issues between parties. Currently on the bench in Maryland there are 10 commissioners on the bench. They are R. Karl Aumann, Patricia G. Adams, Jeffrey C. Herwig, Kenneth G. Macleay, Cynthia Miraglia, Maureen Quinn, Lauren Sfekas, Kimberly S. Ward, John R. Webster, Jr., Jeffrey T. Weinberg.

Who is responsible for making sure that my claim is filed with the Workers' Compensation Commission?

You are. The injured party has the responsibility of making sure their claim is filed with the Workers' Compensation Commission. Some insurance carriers will assist with this process but are not required to.

Why can't an employer be sued in the State of Maryland for negligence when an on the job injury occurs?

Our office receives calls everyday from injured workers who are interested in suing their employers. Not many people understand why, in the State of Maryland, an employer cannot be sued as the result of an on the job injury caused by negligence. We are going to explain to you why you cannot sue your employer in the State of Maryland when an accidental injury or occupational disease occurs.

Employers in the State of Maryland are protected by a statute called "statutory immunity" which says that, in exchange for the receipt of workers' compensation, the injured worker is deemed to have given up his or her common law right to sue the employer for negligence and damages for injuries covered by the statute. This statute was made to justify the requirement of employers to pay for workers' compensation regardless of fault.

However, most states still retain the right of the injured worker, or his or her representative, to sue an outsider (a person or company other than the employer) for negligence. Tort theory of liability, such as medical malpractice or product liability, is also permitted in the State of Maryland. These cases are often referred to as "third party claims".