Posted on September 25, 2008 in Medical Malpractice

Generally, recovery in Maryland for malpractice against a physician/psychiatrist is allowed only where there is a relationship between the doctor and patient. This relationship may be established by contract, express or implied, and the fact that a physician does not deal directly with a patient does not necessarily preclude the existence of a physician-patient relationship.

Complaints of malpractice and intentional infliction of emotional distress with regard to third parties have been reviewed by Maryland Courts. In the case of Dehn v. Edgecombe, 384 Md. 606 (Md. 2005), Mr. Dehn underwent a vasectomy. According to Mr. Dehn, his primary care physician advised him that he could resume engaging in unprotected intercourse with his wife without fear of pregnancy, despite the fact that requisite tests had yet to be performed. Mrs. Dehn subsequently became pregnant and sued her husband’s primary care physician, claiming that the physician had negligently counseled her husband. The Court held that there was no independent cause of action for a patient’s wife against a doctor who acted negligently while treating her husband because there was no relationship or direct interaction with the wife.

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 Posted on September 25, 2008 in Medical Malpractice

An Indiana jury has returned a $8.1 million medical malpractice verdict in favor of a 33 year old mother of two, whose cancer was not timely diagnosed and treated. Apparently, the woman had a growth removed from her bit toe in 2004 by a local podiatrist, who did not test the growth at the time. When the growth resurfaced two years later, it was tested and the test revealed malignant melanoma. The woman claimed in her malpractice lawsuit that the doctor should have tested the tissue from the excised growth. Now in stage three of the cancer, she has just a 17 percent chance of living another 12 years, according to statistics
Interestingly, the doctor’s medical practice apparently failed to participate in the state program that caps malpractice damages at $1.25 million for all care providers involved in a case. Nevertheless, the doctor will be shielded by Indiana’s $250,000 damages cap on all damages against individual doctors under the law. The woman’s lawyers will have to pursue attempting to recover the verdict from the doctor’s medical practice. A copy of the article regarding the case can be found here.

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 Posted on September 24, 2008 in Federal Crimes & White Collar Crimes

When the federal Sentencing Guidelines were first implemented in the late 1980’s, federal judges quickly became frustrated with a new system that virtually tied their hands in terms of deciding an appropriate criminal sentence. Prior to the Guidelines, federal judges had wide discretion in imposing sentences on those who pled guilty or were convicted in federal court. The judges could take into consideration the full picture of the defendant – not only the crime he or she was charged with but also his or her family, background, education, and expression of remorse. The Guidelines dramatically changed that system, and set forth rather rigid – and mandatory — Guidelines. Whether the defendant had been accused of an intricate white collar financial fraud scheme, racketeering, drug distribution, or conspiracy to sell illegal weapons, the Guidelines left very few mechanisms for the judges to allow for any leniency or exceptions.

I remember when the Guidelines went into effect, my uncle, the late Norman P. Ramsey, Judge, U.S. District Court for the District of Maryland, never missed an opportunity to express his frustration – whether on the bench or at a family gathering. Were my uncle still alive, he would now be thanking the Supreme Court, which three years ago swung the pendulum back toward the pre-Guideline days.

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 Posted on September 22, 2008 in Driving Under the Influence

Maryland DUI/DWI Lawyer/Attorney Can a person initially refuse to consent to a breathalyzer and then, upon further reflection, withdraw that refusal? And does that withdrawal of the refusal then constitute valid consent? The answer is a qualified yes. According to 16-205.1 of the Maryland Traffic code a person may withdraw an initial refusal to submit to a breathalyzer and then later consent to take a test of breath if the subsequent consent is unequivocal and it does not substantially interfere with the timely and efficacious administration of the the test.

I had a case in Baltimore County that presented this exact situation several months ago. My client was pulled over on I695 for speeding. He admitted to the officer that he had had 3 beers completing the last beer approximately 90 minutes prior to being stopped. He was asked to perform field sobriety tests and consented to do so. He believed that he had performed the tests virtually flawlessly but the State Trooper arrested him anyway. He was taken back to the State Police Barrack where he was read his rights and had the potential consequences of refusing to take the breath test or blowing over .08 explained to him. He initially said refused to consent to the breath test but then requested to use the telephone to contact his attorney.

The police allowed him to do so. (I have had several instances where the police refused to allow my client to call his attorney which constitutes a violation of the person’s rights and can lead to the inadmissibility of the tests at trial and an absolute defense to the administrative sanctions for refusing the test or blowing over .08.) My client then attempted to contact me but given that it was 3:00am was unable to do so. He then contacted another (obviously and insomniac) and discussed the situation with him at great length, almost an hour in fact. At this point the police told him that he had to make a decision as the two hour time limit was about to expire (in order for the result of the breath test to carry the legal presumptions that I have discussed in previous blogs, the breathalyzer must be administered within two hours from the time the person is arrested).

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 Posted on September 22, 2008 in Medical Malpractice

A Minnesota jury in medical malpractice case has rendered an award of almost $1 million to the family of a child injured during labor and delivery approximately five years ago. The jury reached its verdict in the medical malpractice lawsuit late last week, finding that the obstetrician was negligent by not recognizing the fetus was so large it should have been delivered by Caesarean Section. As a result, the child, who weighed more than 10 pounds at birth, suffered injuries that unfortunately will affect her for the rest of her life. The jury’s award totaled $975,501, consisting of separate amounts for past medical expenses, bodily and mental harm, future damages and mental harm, and loss of future earning capacity. A copy of the article regarding the case can be found here.

During the delivery of the child, the nerves in her shoulder were injured because the obstetrician had to pull the baby so hard get her out of the birth canal. The injury is called Erb’s Palsy, and occurs when the nerves of the shoulder are stretched or torn, causing permanent loss of sensation and control of the arm. Unfortunately, the injury will cause lifelong limitations and significantly reduce future earnings. The defense was that the size of the fetus can’t be easily determined and that C-Section brings with it significant complication risks. However, the Plaintiffs were able to point out that a radiology report said that measurements of the fetus were "suggestive of a macrosomic fetus." Macrosomia is a medical term describing a fetus or newborn of excessive weight. In a situation, the standard of care is to do a C-Section to prevent exactly what happened here.

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 Posted on September 19, 2008 in Personal Injury

Occasionally in Maryland personal injury claims, a situation arises when one or more insurance companies agree to pay their entire policy to the claimant(s), but are unable to do so without exposing itself to potential liability. This situation often occurs when two or more persons are are injured and are competing for a limited amount of insurance. Rather than cut a deal with one of the victims, the insurance company will file an interpleader action.

Generally, An action for interpleader may be brought against two are more adverse claimants, when those claimants claim to be entitled to certain property, said property is within the possession of the Plaintiff, and the claims are such that the Plaintiff may be exposed to double or multiple liability, meaning that the Plaintiff could be subject to pay out more money then is actually in their possession.

An Interpleader Action in Maryland can be filed in state of federal court.

There are two different ways to file an Interpleader Action in Federal Court. The first is using Rule 22 of the Federal Rules of Civil Procedure and the second is using §1335 of the USCS. For our purposes, we should use §1335 to file a Federal Interpleader Action. The reason for this is because Rule 22 requires complete diversity between the Stake-Holder (our firm) and the Claimants (all of the investors). Because the majority of the investors are from Maryland, we would not have complete diversity between Stake-holder and Investors, therefore, making it difficult to interplead under Rule 22. Section 1335, however, only requires that there be diversity between two or more adverse claimants. In this case, because at least one of the claimants is from Alabama, we satisfy the diversity requirement under §1335, therefore permitting the action to be filed in Federal Court.

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 Posted on September 19, 2008 in Federal Crimes & White Collar Crimes

In establishing a process by which a sentencing judge may depart outside the guideline range, the Federal Sentencing Commission recognized that “it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision.” U.S.S.G. ch. 1, pt. A, intro. comment 4(b).

Cognizant of the fact that unusual or atypical cases would arise, the Sentencing Commission explicitly reserved a certain degree of flexibility to the sentencing court: “The Commission intends the sentencing courts to treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes.” Id. However, a departure may be warranted where “a particular guideline linguistically applies but where conduct significantly differs from the norm.” Id. Unless specifically forbidden, the Commission, in creating the Sentencing Guidelines, did “not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.” Id. See also Koon v. United States, 518 U.S. 81, 98 (19__)(recognizing departure decisions as “embod[ying] the traditional exercise of discretion by a sentencing court”).

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 Posted on September 19, 2008 in Federal Crimes & White Collar Crimes

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a “presumption of validity with respect to the affidavit supporting the search warrant,” 438 U.S. at 171, 98 S.Ct. at 2684, and thus created a rule of “limited scope,” id. at 167, 98 S.Ct. at 2682. The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit’s integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit’s integrity, a defendant must first make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Id. at 155-56, 98 S.Ct. at 2676-77. This showing “must be more than conclusory” and must be accompanied by a detailed offer of proof. Id. at 171, 98 S.Ct. at 2684.

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 Posted on September 19, 2008 in Personal Injury

Next to contributory negligence, no defense is raised more in a Maryland personal injury case than assumption of risk. It is well-established in Maryland that in order to establish the assumption of risk defense, the defendant bears the burden of proving that the plaintiff: (i) had knowledge of the risk of the danger; (ii) appreciated that risk; and (iii) voluntarily confronted the risk of danger. The majority of the cases turn on the issue of voluntariness.

In order for a plaintiff to have voluntarily exposed himself to the risk of a known danger, "there must be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct." ADM Partnership v. Martin, 348 Md. 84, 92, 702 A.2d 730, 734 (1997).

As the Maryland Court of Appeals has explained:
[I]n order for a plaintiff to assume voluntarily a risk of danger, there must exist "the willingness of the plaintiff to take an informed chance," . . . ; there can be no restriction on the plaintiff’s freedom of choice either by the existing circumstances or by coercion emanating from the defendant. This is so because even where the plaintiff does not protest, the risk is not assumed where the conduct of the defendant has left him no reasonable alternative. Where the defendant puts him to a choice of evils, there is a species of duress, which destroys the idea of freedom of election.

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 Posted on September 19, 2008 in Federal Crimes & White Collar Crimes

Government wire interceptions must be conducted in a manner to minimize interceptions of communications not subject to interception. 18 U.S.C. Section 2518(5). Minimization embodies the constitutional requirement of avoiding, to the greatest extent possible, seizure of conversations which have no relation to the crimes being investigated or the purpose for which electronic surveillance has been authorized. United States v. Clearkley, supra, 556 F.2d at 715 & n.3 (and cases and authorities cited therein). Law enforcement personnel must exhibit a high regard for the right to privacy and do all they reasonably can to minimize interceptions of non-pertinent conversations. Id. at 716; United States v. Tortorello, 480 F.2d 764, 784 (2nd Cir.), cert. denied, 414 U.S. 866 (1973).

The minimization concept is tested on a case by case basis under a standard of reasonableness. United States v. Clearklev, supra, Id.; United States v. Webster, 473 F.Supp 586, 597, (D.Md. 1979), aff’d in part, 639 F.2d 174 (4th Cir. 1981), cert. denied, sub-named 454 U.S. 857 (1982). The Order directs that electronic surveillance “shall be conducted in such a way as to minimize,, non-pertinent calls.

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