Posted on June 08, 2015 in Medical Malpractice

Each year, our law firm receives several requests to review medical malpractice cases involving the removal of the gallbladder to treat gallstones. We typically pursue one to two of these cases per year.

The procedure allows for bile to bypass the gallbladder on its way out of the liver. Bile is a substance created in the liver and used for digestion of food in the small intestine. Bile normally flows from the liver down the right and left "hepatic ducts" into the "common hepatic duct" and is stored in the gallbladder until it is needed for digestion. When gallstones form in the gallbladder – a condition known as "cholelithiasis," – they can interfere with the normal flow of bile and disrupt the digestion process. This can be a very painful and debilitating condition.

To treat and remove the gallstones, doctors often recommend that the patient undergo a "laparoscopic cholecystectomy," which is the removal of the gallbladder through minimally invasive surgery. During a laparoscopic cholecystectomy, the gallbladder is removed and then the bile flows directly from the liver through the right and left hepatic ducts and then into the small intestine.

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 Posted on June 04, 2015 in Criminal Defense

As an Aggressive and Experienced Criminal Defense Attorney and former Assistant State’s Attorney, I have prosecuted and defended well over a thousand First and Second Degree Assault Cases. These serious cases can carry substantial penalties to include lengthy jail sentences upon conviction – particularly when a serious injury is involved. The maximum penalties are 25 years and 10 years respectively. Many people are shocked to learn that second degree assault carries such a long jail sentence in spite of it being a misdemeanor.

I recently secured an acquittal for a Maryland school teacher who was charged in such as case. The incident, which I will describe below, resulted in the alleged victim sustaining a traumatic brain injury and was charged as a First Degree Assault. Needless to say, given the serious injury to the victim, the State was aggressively prosecuting the case. He are the facts:

My client is a school teacher who lives in Baltimore County but teaches in another jurisdiction. He lives in a relatively rural part of the county on which the houses occupy lots of 2 acres or more. One Saturday this past summer, my client and his wife hosted a first birthday party for one of their children. This child had been diagnosed at birth with a life threatening and chronic health issue so the celebration was particularly heartfelt for him and his family.

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 Posted on June 03, 2015 in Criminal Defense

Sex Offenses including Second Degree Rape charges are among the most serious criminal offenses that are handled in the criminal just system. Anyone who is charged with Rape or any other Sex Offense requires the assistance of an Aggressive and Experienced Criminal Attorney who has substantial experience handling these types of cases. In the twenty years that I have been practicing exclusively criminal law, I have handled scores if not hundreds of Rape and Sex Offense cases both as a prosecutor and as a criminal defense attorney.

I have written many times in this space about the importance of hiring an experienced criminal specialist when charged with any criminal offense. When dealing with Rape of Sex Offense charges, it is not just important, it is an imperative. I just finished successfully defending a 19 year old charged with Second Degree Rape in St. Mary’s County that was a shocking example of what can happen if this imperative is not observed. I was brought into the case 8 months after the charges were filed and just after the client’s current lawyer told him that he should plead guilty to Second Degree Rape and accept a 12 year prison sentence. His parents then reached out to me for a second opinion. Here are the facts:

My client (I will refer to him as "Joe") was 18 years old at the time of the incident which occurred late last year. The incident occurred at a house party hosted by a sister and brother who Joe went to high school with. The party was attended by upwards of 100 people and copious amounts of alcohol was consumed by most everyone who attended. Many of the party goers, including Joe, also smoked marijuana throughout the night. Several witnesses, included the host of the party who was called by the State, testified that Joe was "highly intoxicated". In fact, in his initial interview with the police, the host of the party volunteered his opinion that Joe was very drunk without even being directly asked that question.

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 Posted on June 02, 2015 in Driving Under the Influence

The client did possess a commercial driver’s license but when he was pulled over for exceeding the speed limit by 15 miles per hour, he was operating his personal vehicle. When the Trooper approached the defendant he smelled of alcohol, had a flushed face and had slurred speech. The Trooper asked him to step out of the vehicle to perform field sobriety tests. In the opinion of the officer, his performance on the field sobriety tests indicated that he was impaired by alcohol. He was taken into custody and once back at the barracks, agreed to take the breathalyzer. The test result was .11 grams of alcohol per 210 milliliters of breath. The case against the defendant was strong to be sure. The Trooper clearly had probable cause to pull him over as he was exceeding the speed limit by 15 miles per hour. Based on the smell of alcohol, his performance on the field sobriety tests and the Trooper’s other observations, it was also quite clear that the Trooper had probable cause to take him into custody and request that he take a breathalyzer. He blew a .11 which is above the legal limit of .08. The attorney pled his client guilty to the DUI "per se" charge under 21-902A2 of the Motor Vehicle Code. In mitigation, he explained his client’s circumstances to include that he was the father of 3 and the sole breadwinner for the family. He advised that he was a truck driver with a commercial driver’s license. The attorney then requested probation before judgment so that his client "would be able to maintain his CDL and his employment". The judge granted the request, stuck the guilty verdict and entered probation before judgment. Both the client and the attorney walked out of the courtroom with looks of relief and satisfaction. But did the attorney really do a good job for his client? The answer is no because, presumably due to his lack of experience, he didn’t understand the law. What the inexperienced apparently didn’t understand is that under Maryland Vehicle Law 16-803, even a probation before judgment on 21-902A violation, Driving Under the Influence of Alcohol, violation results in the mandatory revocation of a person’s commercial driver’s license for a year for the first offense and a permanent revocation for a second or subsequent offense. The fact that he received probation before judgment does not prevent the MVA from suspending his commercial driver’s license as the attorney apparently believed. The appropriate way to handle a case like this would have been to either try to convince the prosecutor to allow the client to plead to the lesser offense of 21-902(B). Under this subsection the defendant would not be subject to having his commercial license revoked. I have convinced prosecutors to do this in these types of cases many times simply because it is more often than not the right thing to do. If the State’s Attorney were unwilling to accommodate, as they usually are in these types of cases, then the case must be taken to trial. The attorney should have moved to suppress the test result and argued to the court that the evidence was sufficient only for the 21902B violation, but not the 21902A violation. These arguments are successfully made on a variety of grounds every day in the district courts of this state. Because this was not done, this client is going to have a rude awakening when he is notified by the MVA that his commercial license and therefore his livelihood will be taken away for a year. Had this client taken the time to do a little research and hired a DUI/DWI specialist, it is highly unlikely that this would have occurred.As an Aggressive and Experienced DUI Attorney, I have represented dozens of Defendants in DUI cases who have commercial driver’s license. These cases pose a unique set of challenges and considerations for Maryland DUI Attorneys as the administrative sanctions associated with commercial driver’s licenses are far different than the sanctions associated with standard Class C driver’s licenses. I have blogged often about the importance of selecting an attorney who specializes in DUI/DWI Defense when charged with this serious offense and this advice is even more applicable to cases involving commercial driver’s licenses. Unfortunately, all too often we see attorneys with little or no experience with these types of cases appearing in court to represent clients. Because of their lack of experience, these attorneys often make mistakes that can have serious consequences for their clients.
Often these attorneys make simple mistakes that no experienced DUI/DWI attorney would ever make. I was representing a client in the District Court of Baltimore County a few days ago. While waiting for my case to be called I witnessed an attorney whom I know not to be a Criminal/DUI Specialist representing a client in a DUI case involving a defendant with a commercial driver’s license. I found out later that this attorney was a so called "general practitioner who spends the majority of his time handle divorce and personal injury matters. In other words, he was NOT a DUI/DWI specialist. Here are the facts.

The client did possess a commercial driver’s license but when he was pulled over for exceeding the speed limit by 15 miles per hour, he was operating his personal vehicle. When the Trooper approached the defendant he smelled of alcohol, had a flushed face and had slurred speech. The Trooper asked him to step out of the vehicle to perform field sobriety tests. In the opinion of the officer, his performance on the field sobriety tests indicated that he was impaired by alcohol. He was taken into custody and once back at the barracks, agreed to take the breathalyzer. The test result was .11 grams of alcohol per 210 milliliters of breath.

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 Posted on June 01, 2015 in Personal Injury

In many personal injury lawsuits, the attorney representing the victim must prove that the victim experienced conscious pain and suffering. Under Maryland law, the victim’s lawyer must prove: (1) that the defendant’s negligence was a cause of the incident; (2) that the victim lived after the incident; and (3) between the time of the incident and the time of death, the victim suffered conscious pain.

Sometimes, proving conscious pain and suffering is easy because a witness saw it, heard it or the medical records document the suffering through complaints of pain or the need for pain medication. But sometimes, that evidence is lacking. In such situations, courts allow evidence of conscious and suffering if there is a "reasonable inference" of it, so I use expert witnesses to prove such a claim. These can be neurologists, medical examiners, etc.

Recently, in a case where a man’s car was struck by a much larger truck, I used a medical examiner to prove that, during the 5-10 minutes after the collision when witnesses said the man was alive, he was in fact consciously suffering. A medical examiner is a good choice to use in such a case because of such an expert’s knowledge of what injuries do to a person and how a person reacts to injuries. In this particular case, using the medical examiner as an expert, the jury awarded $675,000 for the victim’s suffering.

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 Posted on May 30, 2015 in Appeals - State & Federal

We all know the little tricks to stuffing the most content into the allotted number of pages of your appellate brief (currently 50 for the Court of Appeals and 35 for the Court of Special Appeals) – decreasing the line spacing, decreasing the margins, decreasing the kerning, decreasing the height of the text, etc. Well, you’re not fooling anybody: As noted by the Maryland Standing Committee on Rules of Practice and Procedure in its 187th Report, "Appellate judges, in Maryland and elsewhere, are regrettably familiar with those tactics and legitimately complain about them." The Committee has finally had enough, and is urging the Court of Appeals to amend the Maryland Rules to combat the problem.

First, the Report calls for replacing page limits for briefs with word limits (unless you’re still using a typewriter, in which case page limits still apply as set forth in a new Md. Rule 8-112). Under the proposed Rule 8-503, and based on the Committee’s estimation of 260 typed words per page, a principal brief wouldn’t be able to exceed 13,000 words in the Court of Appeals or 9,100 words in the Court of Special Appeals (except when the appellee is also a cross-appellant, in which case its gets 13,000 words). Other filings will come with their own word limits: The Court of Appeals would impose a 6,500 word limit on motions to dismiss, reply briefs, and amicus curiae briefs (except for writs, in which case 3,900 is the max), while those limits in the Court of Special Appeals would be 2,600 words for the reply brief and 3,900 words for the others. (One other quirk: In the Court of Special Appeals, the response of a cross-appellee could be 13,000 words if it also contains a reply to the appellee’s response.)
There’s a bit of an honor system to deter cheaters – attorneys will have to include a certification of the word count that tracks provided language. Sound familiar? You may recognize this scheme as in line with the word-limit option of the Federal Rules of Appellate Procedure, which the Rules Committee used as a foundation for the recommendations.

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 Posted on May 14, 2015 in Personal Injury

Another fatal train accident has taken place on the east coast. This one occurred yesterday in Philadelphia and the preliminary investigating seems to indicate that the cause of the accident was conductor error. According to the unnamed sources, the so called "black boxes" which were recovered from the crash scene indicate that the train was travelling at speeds in excess of 100 miles per hour. The accident occurred as the train attempted to negotiate a curve in the tracks where trains are not to exceed 50 miles per hour. So far, eight people are confirmed dead and hundreds more have been injured. There is a criminal investigation underway.

At Silverman Thompson, we have been handling train accident cases since 1996 when we successfully sued on behalf of the family of a student who was killed in the tragic MARC Train accident in Silver Spring Maryland. Since that time we have handled dozens of cases involving train derailments or trains striking vehicles or pedestrians. These cases are extremely complicated and require a deep understanding of both Federal and State law in this area. Please contact us for further information.

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 Posted on May 04, 2015 in Criminal Defense

The charge against the officers of 2nd Degree Depraved Heart Murder is a real stretch in the Freddie Gray Case. Manslaughter is the most appropriate charge under these facts. Here is why:

Second Degree Depraved heart murder is the killing of another person while acting with an extreme disregard for human life. In order to convict, the state must prove (1) that the conduct of the defendant caused the death, (2) that the defendant’s conduct created a very high degree of risk to the life of Freddie Gray, and (3) the defendant, conscious of such risk, acted with extreme disregard of the life-ending consequences.

Analysis:

There is no "intent" to kill or harm requirement for this charge. The term "depraved heart" means something more than conduct amounting to a high or unreasonable risk to human life. The perpetrator must realize the risk his behavior has created to the extent that his conduct may be termed willful. Moreover, the conduct must contain an element of viciousness or contemptuous disregard for the value of human life which conduct characterizes that behavior as wanton.

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 Posted on May 01, 2015 in Criminal Defense

Now that all police officers involved in the death of Freddie Gray have been charged by the Baltimore State’s Attorney, I will lay out what to expect in the next 30 days.

Charged by Criminal Information:

There are two ways to charge a felony in Maryland, one way is by Criminal Information and the other way is by Indictment. The Gray defendants have been charged by Criminal Information. Criminal Information means that the State’s Attorney believes their is probable cause the officers have committed one or more felonies. Under Maryland law, there must now be a judicial "rubber stamp" or independent finding of probable cause.

As of now, these defendants will automatically have a preliminary hearing scheduled within 30 days. At the preliminary hearing, a judge will listen to the evidence and make a determination if there is some link between the defendants and the felonies alleged. This is known as probable cause hearing. Most preliminary hearings involve a police officer simply taking the stand and reading the police report into the record . Defense counsel can ask limited questions as the questions relate to probable cause. In cases such as this, it is rare for a district court judge not to find probable cause that a felony has been committed. Upon the judicial finding of probable cause, the case is then forwarded to Circuit Court for trial.

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 Posted on April 22, 2015 in Appeals - State & Federal

As the appellant in the Maryland appellate courts, when should you file your brief? Currently, it’s within 40 days after the clerk notifies you that the court has filed the record. Sounds easy enough, except the current Maryland Rules don’t actually require the clerk to send such a notice. In fixing that little problem, however, the Rules Committee is considering working in a smidge more time for practitioners to get their briefs in.

Current practice of the appellate court clerks is to, after the record has been filed, issue notice to the parties with a date before which the appellant should file the brief. Proposed changes to Md. Rule 8-412(c) would codify this custom, providing that, "Upon receipt and docketing of the record by the Clerk of the appellate court, the Clerk shall send a notice to the parties stating (1) the date the record was received and docketed and (2) the date by which an appellant other than a cross-appellant shall file a brief conforming with 8-503." However, while the current version of Rule 8-503 requires the appellant to file its brief "[w]ithin 40 days after the clerk sends notice of the filing of the record," the tweak to Rule 8-412(c) would make that deadline sometime after 40 days: "Unless otherwise ordered by the appellate court, the date by which the appellant’s brief must be filed shall be no earlier than 40 days after the date the Clerk sends the notice" (emphasis added).

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