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Judicial Difference of Opinion

Posted by Neil Tyra | Feb 03, 2009 | 0 Comments

I was defending a client in Baltimore County yesterday and ran into a judge that, in my humble opinion, misapplied MD Rule 10-104. His position was that after Plaintiff files the 10-104 that the medical treatment and cost is “presumed” to be fair and reasonable and proximately caused if the doctor so states in the records. And furthermore, that if the Defendant wishes to challenge that, they can enter their own 10-104 of a DME or else bring a doctor to trial to refute.

But as I read and re-read 10-104, the purpose of the statute is an evidentiary shortcut to get the records into evidence without the need for testimony. The statute goes on to say 10-104(d)(2) A finder of fact may attach whatever weight to a writing or record that the finder of fact deems appropriate.

To me, that says there is no presumption and that the finder of fact must consider all the evidence (including the force of impact for instance in a motor vehicle accident case) and THEN give the medical testimony whatever weight the court deems appropriate. When it was pointed out to the judge that presuming their appropriateness a priori shifted the burden to the defendant he indicated that Plaintiff had met her burden in that she presented medical evidence. When asked why he wouldn't consider all the evidence his response was “I am not going to pick apart the medical records. They are in and I take them as is.”

I do mostly plaintiff's work so I am on the opposite side of this argument most often. And I have had plenty of judges look at my records and say “I don't believe that the force of this accident can cause those types of damages” or “I do believe that the costs of this treatment is excessive” and in both situations discounted the medical bills based on that conclusion. And if the judge had gone on record and said he considered all of the evidence and found the medical treatment to be reasonable and proximately caused then I would have little to quibble about. But he went on record and said “I start with a presumption…”

To me, that is incorrect and I believe my client suffered as a result.

About the Author

Neil Tyra

Noel's Husband, Bernadette's Dad, Clark's Father – My Three Best Roles So who am I and what am I about? First I was Noel's husband. I'm married (38 years and counting) to a long time resident of Rockville whose family goes back three generations.

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