Posted on February 26, 2013 in Medical Malpractice

As news continues to unfold about the now-dead Dr. Levy’s alleged use of still cameras and video recording devices to capture surreptitiously his gynecological examinations of potentially hundreds of his patients, the entire Baltimore and Maryland community is reacting to and struggling to understand how an invasion of privacy of this magnitude occurred. In a nutshell:

• Women everywhere are thinking hard about their privacy-and cringing as they visualize what happens when they hop on a gynecological examination table and reveal their most intimate body parts to a medical care provider;
• If interviews with dozens of Dr. Levy’s patients can be taken as representative of the whole, the hundreds and hundreds of women examined by Dr. Levy are experiencing the trauma commonly associated with such an abusive invasion of their sexual privacy and are experiencing emotional distress as they imagine what pictures and videos might exist and whether those videos and images are floating about on the Internet;
• Horrifically, some of Dr. Levy’s teenage patients may be possible victims, raising the question–was Dr. Levy creating child pornography;
• Federal and state law enforcement are working diligently to investigate, gather, sort, catalog and evaluate massive amounts of electronic evidence and identify victims from that evidence;
• Prosecutors are considering what electronic privacy laws, criminal laws, child pornography laws, and medical privacy laws may come into play;
• Johns Hopkins is reaching out to former patients while trying to conduct its own internal investigation and handling a PR crisis; and • Medical malpractice attorneys have rushed to the courthouse filing suits for millions in damages for medical malpractice when not a single victim has yet to be identified, although make no mistake-victims will be identified when there is this much electronic evidence.

The unfolding facts of this case reveal far more complexity, however, than a typical medical malpractice case, and a rush to the courthouse without the full facts only generates more angst and anxiety for all of the patients as they read hyperbolic Complaints, and it potentially impedes the ability of Johns Hopkins, local police and the FBI to sort through the massive amounts of electronic evidence and to identify victims.

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 Posted on February 22, 2013 in Victim's Rights

A number of news organizations are reporting today that lawyers in Baltimore are racing to the courthouse to file lawsuits against Dr. Nikita Levy and Johns Hopkins Hospital. When I heard that, I sadly chuckled. The only thing that these lawyers know now is what the media is reporting. There is no other information available from Dr. Levy’s family, Johns Hopkins, the Baltimore County Police who executed the search warrant, the Baltimore City Police who are leading the investigation or the FBI which is assisting the Baltimore City Police with the forensic evaluation of the electronic evidence.

My firm and I are taking a different approach than rushing to the courthouse; we believe that it is better to conduct a thorough and detailed investigation rather than run the courthouse simply to be the first to file a civil lawsuit. Accordingly, I issued a pre-lawsuit deposition notice and subpoena to Johns Hopkins today seeking to determine what it knows and where documents and other evidence are located. A copy of the Deposition Notice can be found here. While I believe that ultimately a lawsuit is likely in these cases, such a lawsuit should be based upon a through analysis of the facts and not media reports.

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 Posted on February 22, 2013 in Driving Under the Influence

As a Baltimore Maryland DUI/DWI Lawyer, I have handled more than 5,000 DUI cases. I have blogged many times about the new laws that have been passed in recent years, particularly the DUI Per Se law, making it increasingly difficult to get Not Guilty verdicts for clients in these cases. More often than not, if the police have probable cause for the stop, it is a relatively easy matter for prosecutors to prove the balance of their case. particularly if the person submits to a breathalyzer and the result is .08 or greater.

I represented a client in Baltimore County District Court this week whose case proved to be one of the exceptions to the rule. In spite of the fact that she blew a .15 on the PBT at the scene, I secured her not guilty verdicts on each of the alcohol related offenses. Here are the facts:

My client was driving on the inner loop of I695 in Baltimore County one night last summer. She had been at a party most of the day and had consumed some alcohol. The police officer wrote in his report that his attention was drawn to her because she was changing lanes erratically. He conducted and pace of the vehicle and found her to be traveling at 75 MPH in a 55 MPH zone. It was also a work area.

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 Posted on February 19, 2013 in Victim's Rights

Sexual assault and child pornography. These words have thus far been missing from the discussion concerning former Hopkins doctor Nikita A. Levy’s alleged filming of his patients in various states of undress. Dr. Levy’s alleged actions constitute a form of sexual assault against every patient he filmed in this manner. Moreover, Dr. Levy (and potentially others) are guilty of possessing, manufacturing and distributing child pornography to the extent that any of the victims were under age 18.

All who were filmed are victims of sexual assault. Victims of sexual assault have rights which are vitally important for Dr. Levy’s victims to understand. These rights are discussed in detail here. Most significantly, these victims have important privacy interests in the images and video obtained and they have the right to meaningfully participate in any criminal case that may result from the ongoing criminal investigation. Additionally, law enforcement has certain important obligations to these victims throughout the criminal investigation. All these victims may have civil causes of action against Dr. Levy’s estate and others.

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 Posted on February 19, 2013 in Victim's Rights

As a Former Baltimore Prosecutor and current criminal attorney I have been involved in the prosecution of hundreds of child sex offenders. The disgraced and now deceased Johns Hopkins Gynecologist, Dr. Nikita Levy, would have likely faced prosecution under multiple federal and state criminal statutes had he not apparently committed suicide. The police are conducting an investigation that could potentially lead to charges against others if they either conspired with him to collect the images without the knowledge of the victims or if the materials were distributed to by others. In addition to many other areas of practice at STSW, we have a Practice Area Exclusively Dedicated to the Protection of Victim’s Rights.

Among the most serious charges that could have been filed against Dr. Levy and anyone who may have participated with him in these crimes, are charges involving the possession, distribution and manufacture of child pornography. According to news reports, many of his long time patients sent subsequently sent their daughters to him for gynecological care. Assuming any of the large cache of photos allegedly found in his home, turn out to be of minor victims, these statutes have undoubtedly been violated.

Under both Maryland and federal law it is a crime to possess. manufacture of distribute child pornography. Child pornography is generally defined as being images or video of the genitalia of a child under the age of 18 or depictions of that child participating in the commission of sexual acts either with adults or with other minors. Under Maryland state law a person can be incarcerated for up 10 years for violating the statute in any of the above described ways but there are no mandatory penalties. Under federal law the penalties are much more severe.

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 Posted on February 19, 2013 in Medical Malpractice

Over the last few days, news reports have surfaced that a gynecologist / obstetrician who worked for Johns Hopkins, Dr. Nikita Levy, was improperly taking photographs and videos of patients.

Apparently, a co-worked reported Dr. Levy to a supervisor at Hopkins on 2/4/13 which resulted in Dr. Levy being fired by Hopkins on 2/8/13 and Hopkins notifying the police.

The police subsequently searched Dr. Levy’s home and found a large amount of "evidence." Presumably, this means that they found many photos and videos of his patients. After retaining a local lawyer, Dr. Levy committed suicide.

Surprisingly, patients are finding out about Dr. Levy’s misconduct through the news media instead of through Hopkins itself. Even the now disgraced St. Joseph Medical Center advised patients when its cardiologist Dr. Midei was found to have unnecessary implanted cardiac stents in hundreds of patients over years.

One major issue is who is responsible for Dr. Levy’s misconduct. He is certainly liable, but his malpractice insurance may exclude coverage for such misconduct and the extent of his assets are unknown. Hopkins, on the other hand, may be liable for the conduct of their employee.

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 Posted on January 24, 2013 in Personal Injury

Recent developments and reports regarding the side effects of energy drinks are getting more and more attention in Maryland and national news. Reports are surfacing of several deaths and other serious medical conditions potentially resulting from the consumption of energy drinks or "dietary supplements" such as; Monster Energy, Red Bull, Amp, 5-Hour Energy, Rockstar, and Venom. Personal injury lawyers are taking notice.

A recent report filed by the Substance Abuse and Mental Health Services Administration (SAMHSA) revealed some alarming information of this rising concern. The report illustrates that the number of emergency department visits involving energy drinks, since 2007, has more than doubled in 2011. Further evidencing this growing issue, the Food and Drug Administration (F.D.A.) has reported that 13 deaths over the last four years have involved the small yet caffeine packed energy shot, 5-Hour Energy. Moreover, the F.D.A. has had the same energy drink mentioned in more than 90 filings. In an article by the New York Times, the F.D.A. is also cited as receiving five fatality filings referencing 5-Hour Energy’s main competitor – Monster Energy.

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 Posted on January 18, 2013 in Business Counseling, Litigation & Transactions

Sure, we’ve all heard that mobile software applications collect more personal data from our smart phones than they need to or should; and the mobile apps’ privacy policies are such a byzantine morass, none of us read them anyway. But the news that the most popular children’s mobile software apps are surreptitiously collecting and then selling to dozens, even hundreds, of marketers and third parties exactly where our children are at all times, what their mobile phone numbers are, and where exactly they go and what they do online, and that this all being done without notice to parent or child…well that creeps out even the most jaded adult.

Yesterday, December 10, 2012, the Federal Trade Commission released a detailed Report replete with research and data that demonstrates the most popular mobile software apps designed for, marketed to, and used by our children are doing all of this, and in so doing, may be running afoul of numerous federal and state consumer protection/deceptive advertising and privacy laws.

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 Posted on January 18, 2013 in Administrative Law/Defense of Professionals

Jennifer O’Brien, a tenured New Jersey public school elementary teacher with 13 years of teaching experience and a master’s degree in education, was teaching a class of 23-first grade students (all of whom were minorities and mostly six-years old), when she posted on her own, private Facebook page these comments about her job to her 300+ Facebook friends and their friends of friends, "I’m not a teacher-I’m a warden for future criminals!" O’Brien didn’t stop there; she later posted to Facebook, "They had a scared straight program in school-why couldn’t [I] bring [first] graders?"

When NJ school officials came across the Facebook post and confronted O’Brien, she said she didn’t intend her comments to be offensive or racist statements, but otherwise she essentially was unrepentant. Parents were deeply concerned and angered by O’Brien’s Facebook posts; protests formed outside of the school attended by dozens; and parents demanded their children be removed from O’Brien’s classroom. O’Brien was dismissed from her position; her dismissal was affirmed by an Administrative Law Judge (ALJ); and ultimately, O’Brien appealed to a NJ state appellate court. O’Brien argued that her dismissal constituted a violation of her First Amendment rights of free speech because (1) her comments addressed a matter of legitimate public concern, i.e., school discipline, and (2) because her comments were made on her private Facebook page, they were protected speech.

Finding O’Brien’s arguments unpersuasive, on January 11, 2013, the NJ court affirmed the ALJ’s findings, stating, "the posting of such derogatory and demeaning comments about first-grade students showed a lack of self-control, insensitivity and a lack of professionalism."[1] Pointing out the young age of the first-grade students, the fact that O’Brien’s students were all minorities, and the nature of Social Media, the NJ appellate court applied an earlier United States Supreme Court decision, Pickering v. Board of Education, 391 U.S. 563, 568 (1968), on teachers and free speech, and concluded that O’Brien’s right to her express comments on Facebook "was outweighed by the district’s interest in the efficient operation of its schools."

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 Posted on January 18, 2013 in Criminal Defense

In a media-generating stunt, the Journal News, a suburban paper in Westchester County, NY, accessed state public gun permit records, compiled the names and addresses of gun owners in three New York Counties, and then posted an online map identifying and marking on the map all of the gun permit holders in each county, with their home addresses. (New York state law requires that the identity of gun permit holders be made public.) Wisely citing safety concerns, Putnam County officials, however, refused to release to the Journal News their gun permit holders’ personal information.

Although the Journal News correctly points out that New York law makes the information available public and the Journal News seems to suggest that its motives are altruistic and done in response to the horrific massacre at a Connecticut elementary school, there are serious and potentially catastrophic privacy and safety problems with the law and the newspaper’s actions. First, the law was written prior to social media and Google maps-which have enabled the identity and home address of thousands of gun owners to be made public to millions in a matter of seconds. Second, the Internet "gun map" creates an online roadmap to the location of thousands and thousands of guns-and that roadmap is available to every Tom, Dick and Harry who has access to the Internet (regardless of their mental status). Can’t get a gun because of a criminal conviction? Don’t worry… thanks to the Journal News, every criminal, every stalker, every disturbed individual now can easily locate you, your home and your gun. A little surveillance-no one’s home, a quick break and enter-and presto, you have a free gun. And stalkers now know whether the targeted victim has a gun to protect him or herself.

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