March 24, 2014

Maryland Attorney Loses Law License for Criticizing Judges

Law Books.jpgDisbarment - the loss of a law license - is an extreme sanction. Yet, in a recent case, Maryland's top court rejected an attorney's argument that his emailed criticism of several of Maryland's government and legal officials was protected as free speech and upheld the decision to yank James Albert Frost's law license.

An attorney's knowingly false statements impugning the integrity and qualifications of several judges and public legal officers constitute a violation of the Maryland Lawyer's Rules of Professional Conduct (MLRPC) and are not protected speech under the First Amendment to the United States Constitution, the Court of Appeals has ruled.

In addition, where an attorney repeatedly makes false allegations about the qualifications or integrity of "a judge, adjudicatory officer or public legal officer," without any explanation or investigation into the allegations, he has demonstrated a lack of fitness to practice law and disbarment is an appropriate sanction, the state's top court said.

But the decision was not unanimous. Judge Robert N. McDonald said he couldn't agree with the majority decision because the primary purpose in an attorney discipline proceeding is to protect the public from inept lawyers, not to protect public officials from criticism. McDonald said he would suspend Frost for his failure to respond adequately to the AGC's inquiry but was not comfortable disbarring him based on what appeared to be an expression of opinion.

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March 18, 2014

Maryland Legislators Consider Increasing Financial Recovery for Personal Injury, Creation of Birth Injury Fund

Maryland's politicians are considering tripling the amount of non-economic damages that can be obtained for plaintiffs in civil caseMaryland State House.jpgs involving catastrophic injuries. Maryland personal injury lawyers applaud the move. However, hospitals and the lawyers who represent doctors have already denounced the measure, with hospitals warning that higher financial recoveries will increase consumer costs.

The Maryland State Medical Society (MedChi), which represents about 8,000 physicians and their patients, opposes Senate Bill 789/House Bill 1009, alleging in a statement on its Web site that the increase would "precipitate the next malpractice crisis in Maryland."

As explained in a previous blog, the malpractice cap was put into place by the General Assembly in response to claims by doctors and their insurers that a malpractice claims crisis was causing insurance hikes and would lead to doctors fleeing the state.

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February 6, 2014

Considering a Particular Doctor? Take A Look At This Website First

http www 2.jpgThe Maryland Board of Physicians has a website that contains a variety of information about physicians and other healthcare professionals who require licensure in the state. In addition to providing the dates that Maryland physicians were licensed in their area of specialty, the site provides disciplinary alerts for doctors who have been sanctioned by the Board for various types of misconduct. The site also contains useful information including the procedure for filing a complaint and monthly sanctions lists, which are current through the end of 2013.

It is interesting to note that one of the most prevalent violations where sanctions such as fines or suspensions are imposed is against those holding themselves out as physicians assistants without a license in violation of the Maryland Practice Act, MD Code Annotated, Health Occupation Section 15-401.

As physician assistants are becoming a regular part of many physicians' practices, patients should be particularly mindful of the requirement that PAs must be licensed in the State. Be certain to get the first and last name of any PA you encounter for treatment and care and check the Maryland Board of Physicians website to ensure their licensure is in full compliance with the law.

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January 9, 2014

Compensation Fund Being Set Up for NECC Fungal Meningitis Victims

A Creditors' Committee created as part of bankruptcy proceedings initiated by the New England Compounding Center (NECC) and its principals responsible for injuries and death related to a tainted injectable medication has established a $100 million fund to pay those who suffered injuries or death from exposure to a fungus causing some to develop a rare form of meningitis. Monetary contributions and commitments for the settlement fund have come multiples sources, including the company's owners and various insurance companies.

The settlement comes as a surprise to many who believed that the bankruptcy filing and the limited assets of NECC and its principals would be woefully inadequate to compensate the large number of victims exposed or potentially exposed to the contaminated steroid injectable used primarily to treat patients suffering joint pain and inflammation. The Creditors' Committee succeeded in obtaining financial contributions from a number of insurance companies, including some who are not directed related to the operation of NECC but whose insureds faced potential liability for being in the distribution chain of the tainted medication despite having no actual knowledge the medication was tainted.

Despite the recent announcement of the settlement fund in late December 2013, the deadline to file claims against NECC for those suffering from personal injury, death, distress or other harm is very short. The claims deadline for filing a "Proof of Claim" and "Personal Injury or Wrongful Death Claim Information Form" Addendum is Jan. 15, 2014 at 4 p.m. Both forms must be filed with the attorneys for the Creditors' Committee and not with the United States Bankruptcy Court for the District of Massachusetts by the stated deadline.

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January 3, 2014

Medmal Lawsuit Dismissed by Court for Deficient Certificate Must Start Again in Administrative Agency

Thumbnail image for Hospital.jpgWhen a lawsuit alleging medical malpractice is dismissed for failure to comply with one of the requirements -- the certificate of qualified expert -- the procedural requirements of the law governing medical malpractice in Maryland must be met. In this instance, the decision by Maryland's Court of Special Appeals means that a lawsuit where the court found the certificate to be deficient must go all the way back to the administrative agency where such claims must be first be filed, rather than get another filing in trial court.

Medical malpractice claims in Maryland are governed by the Health Care Malpractice Claims Act (HCMCA). Under the HCMCA, medical malpractice claims must first be submitted to arbitration before they are filed in circuit court. In addition, a certificate of qualified expert and report must also be filed. This takes place through an administrative agency, the Health Claims Arbitration Dispute Resolution Office (HCADRO). These requirements are important. Lawsuits have been dismissed for the failure to provide a certificate or a report. In addition, if the certificate is found to be lacking or deficient, the case can get dismissed. The arbitration requirement was put into place because of a perceived crisis in medical malpractice litigation. Lawmakers were persuaded that adding the arbitration and certificate requirements would prevent medical malpractice claims perceived to be weak or bad from clogging the courts.

But, one of the questions in a recent case decided by the appellate court was whether the dismissal of a lawsuit because the trial court had ruled that the certificate was deficient meant that the case should go back to the administrative agency or the courts.

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December 24, 2013

Maryland's Top Court Dismisses Lead Paint Cases Because Government Not Provided with Notice of Lawsuits

Downtown Baltimore.jpgSometimes pretrial requirements can make or break a case. In medical malpractice cases, cases can be thrown out of court if a certificate of merit and report is not filed even before the case goes to court. Other types of cases can have similar, substantial pre-trial requirements. When suing a local government, the government must first be given notice of the lawsuit. In two cases decided by Maryland's top court dealing with claims over the alleged effect of lead-based paint upon minors, the court threw out the cases because Baltimore's housing authority wasn't given proper notice.

Under the Local Government Tort Claims Act (LGTCA), an action for damages cannot be brought against a local government unless notice of the claim is given within 180 days after the injury. The notice has to be in writing and must state the time, place and cause of the injury. The notice has to be given to the corporate authorities of the defendant local government.

The court's rulings stemmed from two families who lived and visited relatives in houses managed by the city. The families claimed that at least one of their children was affected by exposure to lead paint. The families had filed lawsuits in the Circuit Court for Baltimore City against the Housing Authority for Baltimore City for negligence and violations of the Maryland Consumer Protection Act arising out of their alleged exposure to lead paint in properties that HABC owned and operated.

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December 18, 2013

Court: Insurer Does Not Have to Pay for Water Damage to "Unoccupied" House

Pipe water streaming.jpgThis year Marylanders are seeing an unusually cold and snowy December. A Maryland couple's attempt to recover for the substantial damage to their home caused when the pipes burst during one winter has been unsuccessful. Maryland's federal trial court ruled that State Farm Fire and Casualty Company did not have to pay the claim because the house was unoccupied.

Izatullo Khoshmukhamedov and Zoulfia Issaeva purchased a home in Potomac in 2005. They insured the residence with State Farm.

Khoshmukhamedov manages a business that supplies raw materials for the aluminum industry. The company is headquartered in Switzerland and has employees in Switzerland and Russia. The plaintiffs are Russian citizens. Khoshmukhamedov has a visa that prevents him from staying in the United States for more than 180 consecutive days.

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December 10, 2013

Court Upholds Insurer's Refusal to Cover Carport Collapse From Weight of 2010 Blizzard

Winter Landscape.jpgThe winter of 2010 was memorable for the record amount of snow that it dumped on Maryland. For several days, Charm City businesses, courts and public transportation remained closed because of blizzard conditions. Many Maryland homeowners also remember the damage caused by the snow and ice - many roofs needed repair and some failed under the weight of the wintry weather.

An Anne Arundel couple's attempt to have their insurer reimburse them under their homeowners' insurance policy for the damage caused by the February 2010 collapse of their carport was stymied by Maryland's Court of Special Appeals when it upheld their insurer's refusal to pay their claim. State Farm Fire and Casualty Insurance (State Farm) denied the claim on the ground that the carport was not a building and that the policy only covered losses due to collapse of buildings.

Under more than a foot of snow and ice, Moira and Gregory Taylor's carport collapsed. The Taylors had built the detached carport in 2007. Before construction, Mrs. Taylor had called her State Farm insurance agent to ask whether the carport would be covered under the policy. Taylor recollected that the agent said the carport would be covered. The 20x20 structure was built on an existing asphalt pad next to the house. It was not attached to the Taylor's house. When the carport fell, it landed on the Taylors' two cars, a snow blower and a power washer.

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December 6, 2013

PA Medical Apology Law Soon to Take Effect, JHU Study Shows Lack of Courtesy Among Young Doctors

Doctor with clipboard.jpgPennsylvania has joined the ranks of states having a "medical apology" law on the books. The "I'm Sorry" laws allow doctors and other healthcare providers to express regret without fear of the apology being used against them in a medical malpractice lawsuit. The Keystone state's law becomes effective on Dec. 22.

The law will shield doctors so that an apology following an unwanted or unexpected medical outcome could not be used as evidence of negligence in a lawsuit. It protects any action or statement that conveys a sense of apology or explanation "emanating from humane impulses." The statute does not protect factual statements or admissions of guilt for a medical outcome or error. It also applies to nursing home staff and administrators.

The new law is not expected to have an impact on an injured person's ability to file a medical malpractice lawsuit.

After languishing among Pennsylvania state legislators for several years, the bill received unanimous support from the state's House of Representatives and Senate. The House passed the bill on a 202-0 vote, while the Senate passed the bill on a 50-0 vote. According to news reports, both physicians and plaintiffs' attorneys supported the law. Proponents said agreement between the two sides led to this year's swift passage.

Patient advocates fear that apologies from healthcare providers can cause patients to accept settlement offers that will not adequately compensate them for their injuries; however, proponents say apologies lead to fewer medical malpractice lawsuits.

Pennsylvania Gov. Tom Corbett signed the bill on Oct. 23.

So far, 37 states have such laws. Maryland has its own medical apology law. Maryland law states that an apology or statement of regret by a doctor is inadmissible in a medical malpractice trial. However, if there is an admission of guilt in conjunction with an apology it can be used in court. Last year, Massachusetts Gov. Deval Patrick signed legislation that emphasized an approach of "disclosure, apology and offer" to medical malpractice claims.

In similar news, Baltimore-based Johns Hopkins University has released a study finding that "common courtesy " is lacking among new doctors and that it could impact medical outcomes. Johns Hopkins investigators found that medical interns are unlikely to introduce themselves fully to hospitalized patients or to sit down to talk to them eye-to-eye, despite research suggesting that courteous bedside manners improve medical recovery along with patient satisfaction.

Observers recorded whether the interns employed five strategies known as etiquette-based communication - introducing oneself, explaining one's role in the patient's care, touching the patient, asking open-ended questions such as "How are you feeling today?" and sitting down with the patient.

Interns touched their patients (which could be either a physical exam or a handshake) during 65 percent of visits and asked open-ended questions 75 percent of the time. They introduced themselves only 40 percent of the time, explained their role only 37 percent of the time and sat down during only nine percent of visits.

Interns performed all five of the behaviors during just four percent of all patient encounters and were only slightly more likely to introduce themselves to patients during their first encounter than a later one, the researchers say.

Previous studies have shown that internal medicine trainees don't follow such procedures because senior doctors - their mentors - fail to use them.

The researchers say hospitals and training program officials can take simple steps to improve patient-doctor communication by providing chairs and adding lessons on etiquette-based communication to curriculums.

Baltimore, Maryland-based Belsky, Weinberg & Horowitz has been fighting for the victims of medical malpractice and negligence for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.

November 12, 2013

Court: Wrongful Death Lawsuits Are Not Dependent On the Filing Of A Medical Malpractice Claim

Thumbnail image for Caduceus.jpgMaryland's top court has held that wrongful death claims are not dependent on the filing of a negligence lawsuit and that the statute of limitations for bringing claims against healthcare providers in medical malpractice cases does not apply to a claim for wrongful death. The court's rulings stem from a lawsuit brought by the family of a woman who died from cancer several years after a doctor's apparent failure to diagnose her cancer. The woman had not filed a medical malpractice claim before her death.

Massoud B. Alizadeh argued that Margaret Varner's husband and children could not sue him because Margaret Varner had not filed a medical malpractice lawsuit at the time of her death, and that, had she done so, her lawsuit would have been barred as being too late. If Mrs. Varner couldn't sue at the time of the death, the doctor said, then the family couldn't take him to court with their own wrongful death claims. However, Maryland's Court of Appeals disagreed.

"We hold that the Legislature did not intend to define 'wrongful act' so as to render a wrongful death claim contingent on the decedent's ability to file timely a tort claim prior to death. In response to an additional argument raised here, we hold that the statute of limitations for bringing tort claims against health care providers in instances of alleged medical negligence does not apply to a claim for wrongful death," the state's top court said.

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November 4, 2013

Healthcare Providers Not Liable for Failing to Commit Man Killed by Police After Erratic Behavior

Hospital Corridor.jpgWhen health care providers decide to commit someone against their will, they are immune from liability as long as certain steps are undertaken. When a Maryland man - taken to the hospital for erratic behavior -- was killed later that day by police, his family sued the hospital, arguing that health care providers at Peninsula Regional Medical Center (PRMC) were liable for his death because they had failed to take action.

But, Maryland's Court of Special Appeals disagreed with the family, concluding that a statute in Maryland's health laws that gives immunity to health care providers who involuntarily admit an individual also provides immunity to those who decide not to involuntarily admit a patient.

Charles Williams Jr. was killed one night by police officers after breaking into a home, obtaining a knife and charging at police. Earlier that day, Williams had been taken to PRMC by his mother because she was concerned about his mental state. Williams told health care providers that he was communicating with "the Lord" and that his ex-girlfriend had placed a curse on him. PRMC health care providers decided not to involuntarily admit him, although they advised Williams' mother to remove any firearms from the residence.

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October 29, 2013

Court Dismisses Medical Malpractice Lawsuit, Ruling That Certificate Was Insufficient

Surgical Instruments.jpgOnce again the Maryland courts have thrown a medical malpractice case out of court because of perceived shortcomings in the certificate that is required before the case can go to court.

There are several hoops that plaintiffs must go through in order to file a medical malpractice claim in Maryland. Plaintiffs are required to first file a claim with Health Care Alternative Dispute Resolution Office (HCADRO). In order to weed out bad claims, plaintiffs are also required to file a certificate of a qualified expert attesting to a departure from the standard of care and attesting that the departure from that is the reason for the alleged injury. A certificate of merit must also be filed.

Critics say that the certificate requirement only makes it more difficult to bring medical malpractice cases to court and increases the cost of litigation. And, not all states require certificates. The Oklahoma courts ruled in June that the certificate requirement was unconstitutional, impeded access to the courts and added to the cost of litigation.

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October 21, 2013

Top Court Rules That Expert Certificate Not Necessary In Professional Malpractice Lawsuit That Didn't Name A Licensed Engineer

Statute with scales of justice.jpgUnder Maryland law, one of the requirements for taking a case alleging professional malpractice to court is that a certificate of a qualified expert must be filed. But, Maryland's top court recently narrowed the circumstances in which a certificate must be filed in a case that claimed negligence by an engineer who was not named as being licensed.

"The certificate requirement applies only to a cause of action based on a licensed engineer's negligent act or omission in rendering engineering services within the scope of the engineer's license. It may be that the alleged deficiencies in [the defendant's] services are ultimately to be laid at the doorstep at one of its licensed engineers and, if true, would be a deviation from the standard of care required of such a professional. But in the context of a motion to dismiss, when the allegations of the complaint are to be accepted as true and viewed in the light most favorable to the plaintiff and those allegations do not fault a licensed engineer, it is premature to conclude that an expert certificate was required," the Court of Appeals said. Both the trial court and the intermediate appeals court had dismissed the case on the basis that the expert certificate had not been filed.

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October 14, 2013

Lack of Board Certification Can't be Held Against A Doctor In Medical Malpractice Cases

Glasses with Scales charm.jpgBoard certification is an important credential for doctors. When searching for a physician, conventional wisdom is to find a medical practitioner who is board-certified. Many believe that it is a sign of higher medical competence; but, what happens when an attorney goes overboard in making sure that the qualifications of doctor who is not board-certified are given to the jury in a medical malpractice case?

In Little v. Schneider, defense counsel went into great detail during the trial describing Dr. Roger Schneider's credentials and qualifications. Schneider was not board certified.

The Court of Appeals ruled that when a physician is testifying as a fact witness and exceeds the reasonable limits of witness accreditation, he puts his credentials at issue and the trial judge does not abuse his discretion in ruling that the physician opened the door for the introduction of evidence of the doctor's lack of board certification.

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October 1, 2013

Insurer's Refusal to Pay Accidental Death Benefits After Man's Colon is Perforated During Surgery Upheld by Court

Scalpel.jpgA death seven hours after a colon perforation would seem to qualify as accidental. But, a woman's quest to obtain $67,000 in accidental death benefits under her husband's insurance policy has been stymied by her insurer ruling against her -- explaining that perforation is a known risk of colonoscopies -- and two federal courts deciding that the insurance company had not abused its discretion in making the decision.

Sherri Thomas' husband, Duane Middleton, underwent a partial colonoscopy in February 2010. During the medical procedure, the cecum - lining -- of his colon was unintentionally perforated, resulting in his death a short time later.

The amended death certificate listed the manner of death as an accident and the cause of death as acute peritonitis due to perforation of the cecum during a colonoscopy, with hepatitis C, cirrhosis of the liver, hypertension, and chronic renal insufficiency as other significant conditions contributing to his death.

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