Posted on March 06, 2009 in Medical Malpractice

Maryland has enacted significant limitations on the ability of Plaintiffs to use expert witnesses in Maryalnd medical malpractice cases. In 1976, the Maryland Health Claims Arbitration Act was enacted to help address a perceived medical malpractice insurance crisis. In 1986, the legislature further amended the Act to include a certificate of qualified expert requirement. As proposed in Senate Bill 559, an expert only would be qualified to sign a certificate if he or she did not receive 50 percent or more income from testimony and other activities related to personal injury claims. That language was amended to become the 20 Percent Rule; i.e., in order to qualify, a certifying expert cannot devote more than 20 percent of his or her professional activities to activities directly involving testimony in personal injury claims. The dichotomy that the General Assembly sought to reconcile was the desire, on the one hand, to exclude certain "professional witnesses" from the "pool of eligible experts" available to sign certificates of merit, while on the other, it did not want to "shrink" the size of that pool so as to "deny the parties the ability to pursue and defend these [malpractice] claims." This balance was achieved by the aforementioned language changes which "keyed the critical numerical measurement to time, instead of income," and narrowing the activities described as "related to" personal injury claims to the more circumscribed world of activities "directly involving testimony in personal injury claims."

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 Posted on March 06, 2009 in Medical Malpractice

When most people think of a medical malpractice case, they think about the kind of case in which the plaintiff (the party bringing the case) claims that a doctor of hosptial has acted below the standard of care and caused significnat injury in a patient. Another type of medcial malpractice case, however, inolves what is called "informed consent." In the seminal case of Sard v. Hardy, the Maryland Court of Appeals held that the doctrine of informed consent follows logically from the universally recognized rule that a physician treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient. The fountainhead of the doctrine of informed consent is the patient’s right to exercise control of his own body. In order for the patient’s consent to be effective and "informed," it must have been one that is given after the patient received a fair and reasonable explanation of the contemplated treatment or procedure.

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 Posted on March 06, 2009 in Medical Malpractice

A deceased woman’s family has been awarded $2.5 million in a medical malpracice case against the woman’s doctor for misdiagnosis of cancer. According to the family, the woman’s doctor’s negligent actions resulted in delayed treatment and severely reduced her chances of survival.

In 2004, the woman, who then was 24 years old, went to her doctor after experiencing blood in her stool. Her doctor diagnosed the problem as hemorrhoids on several occasions, but the real problem was colon and rectal cancer. Because her doctor failed to timely an properly diagnose her cancer, the woman’s condition went untreated for seven more months. She eventually died in 2007 at age 27.

The family argued that she would have had a extremely high probability of survival – 97% – if the doctor had timely diagnosed her cancer, but that due to the delay in diagnosis her survival rate fell below 50%. A copy of an article regarding the case can be found here.

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 Posted on March 06, 2009 in Medical Malpractice

Many of my Maryland medical malpractice clients ask me whether there is any possibility that they can claim or recover punitive damages in their cases. The answer in every case is no. In Maryland, in order to recover puntive damages, the Maryland Court of Appeals (Maryland’s "Supreme Court") decided in the 1992 case of Owens-Illinois, Inc. v. Zenobia, that a person must prove that the defendant acted with "actual malice." Actual malice has been defined to mean intent to injury, ill will, or fraud. In a medical malpractice case, I have never seen a case where a physicain intended to injure a patient, or where there was ill will toward a patient that caused injury. Similarly, I have never seen a case of fraud in a medical malpractice case that injure a patient. While I suppose it could happen, it almost never does.

There are, however, times when punitive damages can be claimed in a medical malpractice case involving a defective product. In Zenobia, the Court of Appeals held that in order to prove a claim for punitive damages, a plaintiff must plead and then demonstrate: (1) that the defendant possessed actual knowledge of the product defect; and (2) that the defendant consciously and deliberately disregarded a foreseeable harm that might result from the defect. With respect to a product manufacturer, the Zenobia Court cited with approval academic commentary which stands for the proposition that manufacturer’s requisite level of knowledge "is usually gained through…testing procedures before the marketing or through post-marketing consumer accident reports and complains received by the defendant." Additionally, actual knowledge also includes the willful refusal to know. Therefore, a defendant cannot shut his eyes or plug his ears when he is presented with evidence of a defect and thereby avoid liability for punitive damages. Id. Simply put, "the test requires a bad faith decision by the defendant to market or distribute the product, knowing of the defect and danger, in conscious disregard of the threat to the safety of those who will be exposed to the product." While this is not an easy standard to meet, it can be met, and has been met in many cases, where evidence supports such a claim.

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 Posted on March 05, 2009 in Personal Injury

The Baltimore Sun is reporting that Mathew S. Markle, 38, was tragically killed this morning in a one-car accident near Havre de Grace, Maryland this morning. an Interstate 95 on-ramp was closed for several hours. According to the Maryland State Police, Mr. Markle lost control of his pickup truck on the ramp from Route 155 to southbound I-95 on Exit 89. He lost control when his pickup left the roadway, went into a ditch and overturned. The driver was pronounced dead at the scene.

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 Posted on March 05, 2009 in Criminal Defense

The answer to the question, at least according to this Maryland Criminal Attorney, is, I don’t know yet but what I have seen over the past few weeks has sure made me suspicious. Racial Profiling Cases, also known as "Driving While Black" cases occur when police officers stop citizens based on innate characteristics such as race and age as well as factors such as clothing and the type of vehicle the person is driving. These stops typically occur on I-95 and involve young black males driving rental cars or cars with out of state plates, especially cars bearing Florida or New York plates.

As some may be aware, Maryland has a bit of a sordid past with this issue. In fact the State Police settled a lawsuit just last year that was filed on behalf of several men who claimed that they had been "profiled" after fighting the ACLU for 12 years. The State Police paid out over $400,000 and agreed to hire an independent monitor to make sure this behavior is not repeated. So why am I suspicious that the MTA Police are engaged in racial profiling so soon after the State Police settlement? Here is why:

In just the last two weeks I have been retained by three people whom I believe may have been racially profiled by the Maryland Transportation Authority Police. In two of the three cases the facts justifying the stop are almost identical and they are quite similar in the third:

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 Posted on March 04, 2009 in Personal Injury

Terrible news out of Anne Arundel County this morning. A 33 year old woman was killed and her 5 year old daughter were injured when another vehicle struck her in the rear, forcing her directly into the path of a commercial garbage truck. According to the Baltimore Sun, Anne Arundel Police have not released the victim’s names.

Apparently after the garbage truck struck the vehicle, both vehicles caught on fire. Coast Guard Petty Officer First Class Lavelas Luckey was the hero who saved the child. Petty Officer Luckey was on his way to work when he came upon the accident. He freed the child from the back seat and attempted to save the mother as well.

The child was taken to Johns Hopkins Pediatric Trauma Center in Baltimore. Tragically, the mother died at the seen due to injuries sustained. The accident happened on Ordinance Road in Glen Burnie. Early indications are that drugs and alcohol are not factors in this accident.

For more information or a free consultation, please contact the Maryland personal injury lawyers of Silverman, Thompson, Slutkin & White, LLC. or call Steve Silverman at 410-385-2226.

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 Posted on March 01, 2009 in Federal Crimes & White Collar Crimes

The United States Federal Sentencing Guidelines are not mandatory on sentencing courts. The Guidelines are also not presumed to be reasonable. That was the very clear and very recent message sent by the United States Supreme Court in Nelson v. United States, 129 S.Ct. 890 (2009). In so ruling , the Supreme Court made it very clear that the federal sentencing guidelines are NOT what they used to be!

The federal sentencing guidelines used to strike fear into the hearts of criminal defendants accused of federal offenses. Not only were the guidelines mandatory, but they were VERY harsh. Under the old sentencing guidelines scheme, even first time offenders with compelling personal circumstances were forced to serve large non-paroleable prison terms. Federal prison populations swelled with non-violent drug offenders incarcerated for long terms of incarceration. Judges who wished to vary from the guidelines were routinely reversed by federal circuit courts. Federal prosecutors, emboldened by the harsh mandatory guidelines, had no incentive to be reasonable. Under the mandatory guidelines system, prosecutors – not Judges –were the most powerful players in determining the fate of criminal defendants. By deciding which crimes to charge, the prosecutors could effectively dictate the result faced upon conviction. Even the most skilled defense attorneys were often powerless to stop unfairly harsh sentences. Judges were equally powerless.

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 Posted on February 19, 2009 in Medical Malpractice

As a Maryland medical malpracitce lawyer / attorney, many people ask me what is a wrongful birth case. In Maryland, a wrongful birth case is a case in which parents of a child born with birth defects allege that the negligence of prenatal health care providers deprived them of the opportunity to terminate the pregnancy due to the likelihood of the child being born in an impaired state. These type of cases are brought by parents in an effort to recover the economic expenses that will accrue in raising a child with extraordinary needs.

A. The Maryland Seminal Case Recognizing "Wrongful Birth" Claims in Maryland – Jones v. Malinowski
The first case in Maryland to recognize that Maryland permits a wrongful birth claim is Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984). Jones is an action for damages based on negligent sterilization resulting in the birth of a healthy child. The Court of Appeals in Jones clearly stated that Maryland has not established an independent cause of action for wrongful birth cases; instead, it held that wrongful birth cases in Maryland are embraced within the tort of negligence: "there is a cause of action in tort based upon traditional medical malpractice principles for negligence in the performance of a sterilization procedure is well accepted." Id.

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 Posted on February 19, 2009 in Medical Malpractice

Many peole ask what type of damages they can get in a medical malpractice / medical negligenc cases. One type is lost wages. Maryland courts have repeatedly acknowledged the legitimacy of lost wage claims in negligence cases. For instance, in Adams v. Benson, 208 Md. 261, 270-271, 117 A.2d 881, 885 (1955), the Court of Appeals recognized: "That in an action for personal injuries caused by the negligence of the defendant, the plaintiff may recover not only for the consequences which have actually and naturally resulted from the tort, but also for those which may certainly or reasonably and probably result therefrom as proximate consequences, but not for consequences which are speculative or conjectural." The Court then recognized that in a personal injury action, a plaintiff may claim: "damages for (1) resulting loss of time and loss of earnings; (2) loss or diminution of earning capacity sustained by being temporarily deprived of her capacity to perform her ordinary labor, and (3) loss of future earnings, if shown with reasonable certainty and not merely speculative in character". Id., 208 Md. at 271, 117 A.2d at 885.

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