Miscellaneous Administrative Issues

CITIZENSHIP OR RESIDENCY STATUS

The issue of whether a plaintiff is a legal or illegal resident is relevant if there is a claim for lost wages. The highest court of New York and New Hampshire discussed this issue in recent cases. See Balbuena v. IDR Realty, LLC, 845 N.E. 2d, 1246 (N.Y. 2008) and Rosa v. Partners in Progress, Inc., 868 a. 2d, 994 (N.H. 2005). As stated in Rosa, there is no general disqualification of persons from presenting a civil claim in court merely by virtue of their undocumented status.

Obtaining Information Regarding DC Cab Drivers

Contact the DC Hack Commission, they will tell you who owns the cab and the address of the cabbie. It may require a Freedom of Information Request.

Rule Preventing Social Security Number Disclosure

See Rule 16-1001 through 16-1011 and particularly 16-1007 (c) See also Commercial Law Article 14-3402. Social Security Numbers should not be disclosed in court documents.

JURISDICTION

The boundary line between Maryland and Virginia at the American Legion Memorial Bridge is the low-water mark on the southern bank of the Potomac River. See Virginia v. Maryland, 54 U.S. 56 (2003).

REQUEST FOR PRODUCTION OF DOCUMENTS COSTS

See Dynamic Corp. v. Shan Enterprises, LLC, 175 MD App 211 927 a 2d 20 (2007). Copying a document is a related act within the meaning of Maryland Rule 2-422 (c). Unless otherwise ordered it is the responsibility of a requesting party, not a producing party to pay the expense of making copies. See also Clever View Investments Ltd. v Oshatz, 233 F.R.D. 393; holding that the producing party need only make requested documents available for inspection and need not pay for copying costs.

RECOVERABLE COSTS

Deposition transcript costs may be recoverable, particularly if a party denies a request for admission and it is later proven by way of deposition. See Rule 2-424 (e).

COOPERATION OF TREATING PHYSICIAN

If a doctor is unwilling to cooperate with an attorney, it should be pointed to the doctor the portion of the Medico-Legal Code of Cooperation which states “prior to presenting testimony from a physician or producing a physician for testimony at a deposition, an attorney may choose to meet with that physician and review issues and questions which may be expected to arise. If the attorney makes such a request, the physician should cooperate by making himself available at a reasonable time to meet with the attorney prior to giving the testimony.”

FINDING OUT IF A PERSON IS IN THE MILITARY

The Service Members Civil Relief Act of 2003 provides protection to active duty military members and reservists or members of the National Guard called to active duty. The question of whether or not someone is in active duty in the military comes up regularly. The best way to determine the information is use the Department of Defense Manpower Data Center’s SCRA database. This will generate an official military status report containing the electronic signature of the Manpower Data Center’s Director along with the individual’s active duty status; begin date and service/agency. When searching, social security numbers work best but a last name, first name and a birth date is also acceptable. Reservists, who have been called to active duty but have not started yet, are included in the search results since the Department of Defense considers them “active duty.” One can look at the following article in the latest VTLA Journal on-line: ServiceMembers Civil Relief Act: Procedural Overview

Or review A Judge’s Guide to the Servicemember’s Civil Relief Act (name changed a few years ago). http://www.abanet.org/family/military/scrajudgesguidecklist.pdf

Locating Person in Military

http://www.militarysearch.org/ or http://www.defenselink.mil/faq/pis/PC09SLDR.html or https://www.dmdc.osd.mil/scra/owa/home. The first site may be a private company and a fee may apply. The second site one can get an affidavit that the person is in the military. The third site is just for a military locate.

Online Research Tools

“Public Library of Law” at www.plol.org.

CLIENT DISAPPEARANCE

As long as a lawyer undertakes reasonable efforts to find a client, a lawyer probably does not have any obligation to file suit before the Statute of Limitations expires. See Ronald E. Mallen and Jeffrey M. Smith, Legal Malpractice Section 21.2 et 83 (2006). Citing Harris v. Govett, 3 Wakly. Notes CAS. 560 (PA 1877). A lawyer has the inherent right to withdraw from representation of a client if the client intentionally makes himself unavailable and does not stay in communication with the lawyer. See Harris v. Wabaunsee, 593 P. 2d 86 (1979). This even applies on the day of trial because a lawyer is not required to spend his time proceeding with a trial without his clients. In addition, Maryland Lawyers Rules of Professional Conduct 1.16 B 5 provides that a lawyer may withdraw from representing a client if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. A client cannot cite non-receipt of the warning if the client’s action prevented receipt of the warning. Indeed, a client’s disappearance is probably tantamount to contributory negligence because it leads the attorney to believe that the client is no longer interested in the matter and does not wish to pursue it. Disappearance strips the lawyer of the ability to determine if the lawsuit would be meritorious and thus leads the lawyer to believe that it should not be filed. If the evidence before the lawyer at the time of filing the lawsuit would show that the lawsuit would be dismissed for failure to answer discovery because of the disappearance of a client and therefore would not be carried to a successful result, the filing of the lawsuit would be fruitless.

BALANCE BILLING

Health General Article of the Maryland Code, section 19-710P which, with certain exceptions, prohibits health care providers from balance billing HMO members. However, there is a serious question as to whether the statute would apply outside the state of Maryland. It would be important to obtain the HMO language itself because most, if not all, contracts between HMOs and their participating providers contain hold harmless language that does not allow providers to seek reimbursement from HMO members for coverage services. If a provider or lab is a participating provider, then the HMO should warn the lab not to violate its contract.

It is undecided whether a third party claim must pay the total medical bill after the bill was paid pursuant to the fee guide under worker’s compensation. Plank v. Summers, 203 Md. 552 (1954) suggests the Plaintiff is entitled to recover the “reasonable value” of medical services, regardless of what, if anything, the plaintiff actually owes to the provider of services. Queen v. Ager, 287 Md. 342 (1980) held that the medical provider could not charge a patient more than the fee guide if the provider accepted worker’s compensation payments, unless the Commission approved the greater amount. This prohibition exists even if the patient signed a contract with the provider to pay whatever the provider charged. In a third party setting, the defense might suggest that it was inappropriate for Plaintiff to rely on a total bill for damages when only the amount on the fee guide was paid. This argument would likely rest on Labor and Employment Article, Section 9-731(a)(1)(ii). This article only applies, however, if the medical services were provided under Subtitle 6, Part IX of the Maryland Worker’s Compensation Act. In a third party setting, the question would be whether the medical care provided by the employer or insurer under the Worker’s Compensation Act or was it provided by the third party defendant. The provider might argue that in the third party setting, the care , once the third party recovery is made, was not provided under the worker’s compensation act and therefore the provider may balance bill. This is undecided by the courts of Maryland. The Plaintiff would then argue that, if the provider could balance bill, there should be a proportionate reduction of the balance for the plaintiff’s attorney’s fees and litigation expenses pursuant to the “common fund” doctrine. See Garcia v. Foulger Pratt Development, Inc. 155 Md. App. 634 (2003). The plaintiff could also argue that it would be inappropriate to limit the plaintiff to use only the fee guide for what was paid to the provider for evidence in the third party case because the issue of balance billing is undecided and the provider may be able to come after the plaintiff for more money as a result of the thirds party action. Moreover, 22 Am. Jur. 2d Damages Section 571 indicates that the general rule is that reasonable value may be recovered: recovery is not necessarily limited to expenditures actually made or obligations incurred for medical care. Similarly, section 198 at 170 suggests that recovery for medical expenses is, as a rule, controlled by what the services rendered were reasonably worth and not what was actually paid or contracted to be paid. See also Kujawa v. Baltimore Transit Authority, 224 Md. 195, 208 (1961) and Thomas v. Owens, 28 Md. App. 442, 445 (1975) regarding expert testimony needed for reasonableness of medical bills in order for them to be admitted. If the defendant tries to suggest that the legislature, by adopting the fee guidelines, has established what is fair and reasonable, the plaintiff would argue that there is absolutely nothing in the Maryland Worker’s Compensation Act to suggest that the legislature determined what was reasonable for services. Indeed, in Falik v. Prince George’s Hospital & medical center, 322 Md. 409 (1991) the Court suggested that the fee guide amounts do not necessarily equal reasonable value of medical services. Rather the fee guide payments are amounts that do not exceed, but do not necessarily correspond to rates prevailing within the state. Moreover, if a court would adopt the defense argument, it would not allow for cross examination of a schedule that under Falik supra is not necessarily reasonable. In addition, the defendant should not be allowed to cross examine based up[on the fee guide either because the defendant is liable for full damages without diminution for collateral payments. See Kilgore v. Collins, 233 Md. 147, 158 (1963).

MEDICAL RECORDS

The federal HIPAA rules require that a healthcare provider provide access to records within thirty days unless the records are not present or accessible at the provider’s office, in which case the provider has sixty days. See 45 C.F.R. Section 164.524 B2 and C3.

MEDICAL RECORDS COPYING CHARGES

As of October 1, 1994, the law allowing physicians to charge specific funds for preparation and production of medical records went into effect. It is codified in Health General Article Section 4-304 (c) (3) of the Maryland Code. These fees are adjusted annually for inflation using the Consumer Price Index on July 1 of each year. Since 1995, MedChi has calculated and published the appropriate adjustment as a service to its member and the Maryland public. As of 2007, the adjusted rate for medical record copying was as follows: 1) a preparation fee of no more than twenty-one dollars; 2) plus a fee of no more than sixty-nine cents per page copied; 3) plus the actual cost of shipping and handling. The physicians may demand payment of these fees and charges before turning the records over to the patient or other authorized person. The law does not authorize any practitioner to withhold production of medical records until the fees for medical services themselves have been paid. The preparation fee for twenty-one dollars may not be charged if the patient himself or herself requests the records, it may be charged to an attorney. See Health General Article 4-401 and 4-304. Health General Article Section 4-309 provides civil and criminal penalties for any doctor that does not disclose medical records within twenty-one days. Including a one-thousand dollar fine for the first offense. Outstanding balances, refusal to sign A&A’s and other reasons are not valid reasons to fail to provide the records.

SUCCESSOR CORPORATION LIABILITY

Under Commercial Article, section 3-114, the successor is liable for all debts and obligations of each non-surviving corporation, partnership, limited partnership, limited liability company and business trust. An existing claim or action pending against any non-surviving corporation, etc. may by prosecuted to judgment as if the consolidation or merger had not taken place or on motion of the successor, the successor may be substituted as the party and the judgment against the non-surviving corporation constitutes a lien on the property of the successor. There does not appear to be a way for the survivor to disavow the liabilities of the non-surviving corporation.

SERVICE OF PROCESS-MOTOR VEHICLE ADMINISTRATION AS AGENT FOR NON-RESIDENT DRIVER

Under Senate Bill 413, an Amendment to Courts and Judicial Proceedings Article Section 6-313, provided that an automobile driven by a non-resident driver in which the non-resident driver is named as a party, that service of process is sufficient service on an non-resident driver if service is made by personal delivery, or by serving a copy of the process, with a certification of the last known address of the non-resident driver, with the Motor Vehicle Administration. The Motor Vehicle Administration is entitled to a fee for the service of process and must file an Affidavit of Compliance with the Clerk of the Court in the action that is pending and provide a copy of the Affidavit to the party seeking service. The party seeking service then shall send it by certified mail, return receipt requested, a copy of the Affidavit of Compliance to the Motor Vehicle Insurer of the non-resident driver. This provision took effect on October 1, 2008.

SERVICE OF PROCESS

It is likely that service of process by Federal Express complies with the mailing requirements provided for in the Rules. Black’s law dictionary describes the verb “mail” as either to deposit a letter or package with the U.S. Postal Service, to insure that the letter, package, etc. is properly addressed, stamped and placed into a receptacle for mail pick up or to deliver a letter, package to a private courier service that undertakes delivery to a third person often within a specified time. See Black’s Law Dictionary 972, 8th Edition, 2004. There are Federal decisions, however, that disagree, see Magnison v. Video Yesteryear, 85 F 3d, 1424. If the private courier service simply leaves something at the door, it may not be good service. See Green v. Lindsey, 456, US 444.

SETTLEMENT PROCEEDS FOR MINORS IN MARYLAND

In Maryland see Estates and Trust Article 13-401, 13-501, particularly 2008 supplement.

SETTLEMENT FOR MINOR IN DISTRICT OF COLUMBIA

See the DC Code 21-120, indicating approval of any minor settlement and a guardianship for whenever the minor receives proceeds that exceed three thousand dollars ($3,000.00).

SUIT ON BEHALF OF A MINOR CHILD

Rule 2-202 B of the Maryland Rules of Procedure addresses who may be the next friend if a child is in the sole custody of one of the parents but not the other. There does not appear to be any legal rule that provides that both parents must approve of a lawsuit and participate in the suit as next friends. If one parent is eligible to be the next friend, then that parent may sue as the next friend. The reason for having a next friend is simply that a child’s minority constitutes a disability that bars the child from suing in his or her own name. See Berrain v. Katzen, 331 MD 693 (1993). If medical bills were incurred before the child turns eighteen the right to seek recovery rests with the parents in the first instance and not with the child. The parent’s cause of action for the pre-majority medical bills does not have to be joined with the child’s suit for non-economic damages. The parent’s may assign to the child their cause of action to recover the medical expenses.

POST-JUDGMENT LEGAL INTEREST RATE

See Courts and Judicial Proceedings Article Section 11-107, it is 10% per year.

CLAIM AGAINST DECEASED DEFENDANT’S ESTATE

See Greentree v. Fertita, 338 MD. 621, 659 a 2d, 1325. Judge Eldridge distinguishes between the period required to file a claim against an estate that is not covered by insurance and the application of the statute of limitations under 8-104 (e) for claims covered by insurance. In the case, it is stated that to the extent a successful claim will be satisfied by the proceeds of an insurance policy, rather than by the assets of the estate, Section 8-104(e) makes inapplicable certain procedural requirements which would generally apply to limit claims against the states. On the other hand, a claim with a value greater than the amount of insurance coverage may be made against the assets of the estate, provided the claim was made within the shorter statutory period for filing such a claim. In order to perfect a bad faith claim, one must file a claim against the estate within the shorter period of time.

Estate Distributions Intestate

If a person dies without a will, the spouse gets one-half if there is a surviving minor child. If there is no surviving minor child but surviving issue, the spouse gets $15,000.00 plus one-half of the residue. If there is no surviving issue but a surviving parent, the share will be $ 15,000 plus one half the residue. See Estates and Trusts Article Section 3-102. If there is no surviving issue or parent, the share shall be the entire estate. The net estate shall be calculated without a deduction for tax as defined in 7-308 of the Tax-General Article. The net estate, exclusive of the share of the surviving spouse, shall be divided equally by the surviving issue by representation as defined in Section 1-210. Funeral expenses to an estate are limited to $ 5,000.

Spousal Elective Share

Instead of taking property left in a will, the surviving spouse may elect to take one-third of the net estate if there is also surviving issue or one-half if there is no surviving issue(no deduction for tax). This choice needs to be made within seven months of the appointment of the personal representative, if the elective share is taken, all property that passes under the will shall be treated as if the surviving spouse passed first and the surviving spouse won’t get anything under the will. The time limitation for making an election is not later than seven (7) months after the date of the first appointment of a personal representative under a will. The spouse may withdraw the election at any time before the expiration of the time for making the election. If the election is exercised, all property or other benefits that would have passed to the surviving spouse under the will shall be treated as if the surviving spouse had died before the execution of the will.

Small Estates

Small estates generally can be as high as $30,000.00, but can be $50,000.00 if the spouse is the sole legatee or heir (See Section 5-602 of the Estates and Trusts Article of the Annotated Code of Maryland). In small estates, notice to creditors may be required for certain small estates. A petition for probate with schedule B attached must be filed. A list of interested persons must be filed including those named in the will and those who would inherit if there was no will. There must be consent to appointment of personal representative filed if the person entitled to appointment is not applying. If the will lacks an attestation clause, there must be proof of execution of the will, information report must be filed listing trusts, jointly held property, retirement and pay on death accounts, gifts made within two years of death, other non-probate property and real property not located in Maryland. A notice of appointment, notice to creditors, designated in approved newspaper for publication may be required for some small estates. A certificate of compliance may be required to be filed before closing the estate. A paid funeral bill needs to be provided, copy of death certificate. There are no commissions for small estates.

Regular Estates

A petition for probate with Schedule A attached must be filed as well as a notice of appointment, notice to creditors.. A bond usually is required by law. Consent to appointment of personal representative is required if the person entitled to appointment is not applying. Appointment of resident agent, if the petitioner is not a Maryland resident, must also be filed. Proof of execution of the will if the will lacks attestation clause is necessary. A list of interested persons and those who would inherit if there is no will must be attached. Copy of death certificate must be provided. If the regular state is in judicial probate, the list of interested persons must be filed within twenty days after appointment of the personal representative, under administrative probate or at the time of filing of the petition for judicial probate. The bond is required immediately after the court appoints the personal representative or special administrator for judicial probate. The inventory and information report must be filed within three months from the date of appointment. The first account must be filed within nine months, subsequent accounts must be filed as required by law until the estate is closed. Petitions for personal representative’s commissions and attorneys fees are subject to court approval.

Suit Against Estate of a Deceased Defendant

Under Estates and Trusts Article 8-104, a suit must be filed against the estate or against the person to whom the property has been distributed. You must do it within the claimed time limit unless there is insurance, see 8-104 (e), in which case you are limited to the insurance. You may also file a claim under 8-104 c within the claim period even though there isn’t an estate. Under this provision a claim may actually be filed with the Register even if an estate is not opened. You don’t have to open an estate, you simply file the claim. The best way to handle things is to immediately file the claim with the register of wills and file suit if it is timely. Alternatively, immediately file the claim and then file suit when it becomes necessary. Many times it won’t be necessary because the insurance covers things. For survival action claims made by an estate, file a small estate as a place holder, if the amount of the settlement or judgment coming to the estate exceeds $30,000.00, the small estate threshold will be exceeded and you will have to convert the small estate to a regular estate and usually wait six months before you can distribute, since there was probably no publication with the small estate and no notice to unknown heirs. This can cause problems with clients as they do not tend to understand why they have to wait an additional amount of time before they can collect money from a claim, especially if the claim has already settled and the money is available for distribution.

REVERSE PHONE LOOK-UP-TRYING TO LOCATE DEFENDANT

Try cabasearch.com.

VERIZON PHONE RECORDS

In order to subpoena Verizon phone records, Verizon Maryland Custodian of Records, One East Pratt Street, Baltimore, MD 21202. The office that supplies the subpoenaed records is Verizon Legal Compliance, 99 Shawan Road, Room 133, Cockeysville, MD 21030, their telephone number 888-483-2600.

CELL PHONE RECORDS

Federal Regulations require long distance carriers to maintain records for 18 months. In order to subpoena the records one needs to do as follows:

1. Subpoena for T-Mobile, Custodian of Records: serve T-Mobile Subpoena Compliance, 4 Sylvan Way, Parsippany, NJ 07054; fax 973-292-8697; phone 973-292-8911.
2. Subpoena for Verizon records outside of state: serve Custodian of Records, Verizon CellCo Partnership/ D/B/A/ Verizon Wireless Subpoena Compliance, 180 Washington Valley Road, Bedminster, NJ 07921, fax 888-667-0028, voice 800-451-5242.
3. Subpeona for AT&T records(including what used to Cingular): serve Custodian of Records, AT&T, Subpoena Compliance, P.O. Box 24679, West Palm Beach, FL 33416, fax 888-938-4715, voice 800-451-5242.
4. Subpoena for Sprint records, including now what used to be Nextel: serve Custodian of Records, Sprint Corporate Security, 6480 Spring Parkway, Overland Park, Kansas, 66251, fax 913-315-0736 or 913-315-0735, voice 800-877-7330.
5. Subpoena for Cricket Records: Serve: Attn: Subpoena Compliance, Cricket Communications/Leap Wireless, 10307 Pacific Center Court, San Diego, CA 92121, fax 858-882-9237, voice 858-882-6084.

WEBSITE FOR LIFE TABLES

Go to http://www.cdc.gov/nchs/products/pubs/pubd/lftbls/life/1966.htm.

Weather Closing of Maryland Courts

http://www.courts.state.md.us/infoline.html.

WEATHER ON THE NET

NCDC: * National Climatic Data Center (NCDC)

http://www.noaa.gov/pastweather.html provides official federal numbers

LIFE TABLES

http://www.cdc.gov/nchs/products/pubs/pubd/lftbls/life/1996.htm

U.S Department of Health and Human Services Centers for Disease Control and Prevention/National Center for Health Statistics. Vital and Health Statistics.

DEATH RECORDS

If know social security number check the social security death index. Accurint puts a “D” next to the name. Check the State Department of Vital Statistics

INDEX INFORMATION

Contact American Insurance Services in Jersey City New Jersey. Call ASIC (201-469-200) and ask them to send a “Request for Disclosure to third Parties” form. Fill out form, have client sign it and date it. Cost is $ 25 per submittal. Need to submit copy of client’s i.d. or copy of retainer agreement signed by client.

LOCATING INSURANCE INFORMATION

www.measervicesinc.com

Locating a Prisoner in the State of Maryland

Call the Maryland Reception Diagnostic and Classification Center at 410-878-3500. Diagnostics will tell you where any Maryland State Inmate is at any given time as well as their six-digit ID number.

FINDING CRIMINAL RECORD ONLINE

The most comprehensive criminal records can be obtained by having the subject of inquiry sign an information release to obtain a nationwide criminal record through the criminal justice information system in Baltimore. http://www.dpscs.state.md.us/aboutdpscs/ataglance.shtml. Maryland criminal court information is at http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp. Better details on case history are at the computer terminals at the Courthouses and on the District Court computer system that might still be available through the CJIS by dial-up system. To know what a person is in jail for in state prisons, one must find the inmates location at http://www.dpscs.state.md.us/inmate. To find prison inmates out of state, use http://www.bop.gov/iloc2/LocateInmate.jsp. For federal facilities, http://www.inmatesplus.com.

ATTORNEY FEES LIEN

See Skeens v. Miller 628 A. 2d 185; Sharrow v. State Farm, 306 Md. 754; Cross v. American Country, 875 F. 2d 625; Polen v. Melondakos, 564 N.W. 2d 467; Vogelhut v. Kandel 66 Md App. 170; Kidd v. CSX Transp., 34 ATLA L.Repr. 85; In Re L-Tryptophan, 518 N.W. 2d 616 and Johnson v. Georgia Hwy. 488 F. 2d 719. See also Business Professions Article of Ann. Cod § 10-501

In the event an attorney is discharged by a client, the attorney would be entitled to a fee based upon “quantum meruit” for the value of services rendered. In Somuah v. Flach, 352 Md. 241 (1998) the court indicated there are two different types of “cause” for firing an attorney, what the dissenting opinion indicates is high grade and low grade cause. Depending on whether it is high grade cause or low grade cause would determine whether a fee was earned and when it is due. Somuah did not change the law that an attorney who is discharged without cause is entitled to a fee immediately. Western Maryland Telegraph Co.v. Semmes, 73 Md. 9 (1890), Boyd v. Johnson, 145 Md. 385 (1924), and Palmer v. Brown, 184 Md. 309 (1945) involve situations where a plaintiff dropped a claim entirely. The Court of Appeals found the attorney was entitled to a fee under these circumstances. Post v. Bregman, 349 Md. 142 (1998) held the Rules of Professional Conduct, including Rule 1.5 have the force of law. Thus, the term “quantum meruit” would be subject to Rule 1.5. There are circumstances where an attorney would be entitled to a contingency fee if fired without cause, such as if the client then tried to settle the claim directly with the insurance company for the same amount of money.

A doctor who is a Medicaid provider cannot pick and choose whether they submit the bill to Medicaid once they learn there is a third party case. They must submit their bill to Medicaid. Liability insurance is secondary to Medicare. Just because a bill is not submitted to Medicare or Medicaid does not mean that the doctor is free to bill the full fee and not the Medicare scheduled fee for their services. Ethical Aspects of Charging fees for PIP collection

See Maryland State bar Association Committee on Ethics Docket 77-4 and 76-1. Website to Search for Resident Agents in the District of Columbia

http://mblr.dc.gov/corp/lookup/index.asp