The New York Times reported on January 6^th the results of a study undertaken by the inspector general of the U.S. Department of Health and Human Services (HHS) that reveals that hospital employees report only one in seven events that harm patients. The new report issued on Friday was issued in connection with a study on whether hospitals are complying with the Medicare requirement that hospitals "'track medical errors and adverse patient events, analyze their causes' and improve care."  Adverse events are defined broadly to include "medication errors, severe bedsores, infections that patients acquire in hospitals, delirium resulting from overuse of painkillers and excessive bleeding linked to improper use of blood thinners."

Republican presidential candidate, Rick Santorum's wife Karen Santorum won a medical malpractice lawsuit in Virginia against a chiropractor who negligently performed a lumbar manipulation on her which caused several lumbar discs to herniate.  She required emergent surgery to her back as a result.  The jury awarded $350,000 to Mrs. Santorum for her medical expenses and pain and suffering loses. The case was well handled by the Virginia and Pittsburgh, Pennsylvania attorneys who represented the plaintiffs in a particularly difficult negligence claim. This writer has first-hand experience with "manipulation malpractice" cases and was successful in one of the only other cases in the United States against an osteopath for an unwarranted and unnecessary cervical manipulation and knows first hand how difficult these cases can be.  Read the facts of our case here.

New York City continues to strive toward a more expeditious, economical and fair way to resolve medical malpractice claims. The Washington Post reported yesterday that the New York pilot program to assign one judge to oversee an entire case from filing to trial is being expanded. 200 cases are now working their way through a process known as "judge-directed" negotiation, which allows sufficient oversight and guidance from a judge knowledgeable in medicine to assist the parties with pretrial events and possible settlement. It's goal is to keep costs down and to prevent a variety of judges, some inexperienced, from ruling on motions and otherwise interfering with a smooth and orderly end to malpractice litigation.

Today's Baltimore Sun  has an interesting article about the liberal shift in the U.S. Fourth Circuit Court of Appeals since President Barack Obama took office. The Sun story chronicles a variety of decisions issued by the court, which was once known as the most conservative circuit court in the nation. The United States is divided into thirteen circuits (11 regional and the D.C. and Federal Circuits). The Fourth Circuit is one of the most important circuits in the nation and includes Maryland, Virginia, West Virginia, North Carolina and South Carolina. As a byproduct of its regional jurisdiction, the court also hears national intelligence matters involving the Pentagon, the National Security Agency and the Central Intelligence Agency.

Caps on noneconomic damages continue to erode the rights of personal injury victims. Juries in many states no longer have the last word in awarding what they believe is just compensation for emotional distress and other intangible losses. State supreme courts across the country are being asked to determine the constitutionality of these caps.

As reported in the Baltimore Sun last week, a Maryland cardiologist convicted criminally of implanting cardiac stents in his patients was sentenced to eight years in federal prison by United States District Court Judge William D. Quarles, Jr. Dr. John McLean was also convicted of falsifying patient records in connection with needless stents placed in patients while hospitalized at Peninsula Regional Medical Center in Salisbury, Maryland. The conviction comes in the midst of a massive investigation and hundreds of civil claims now pending against Mark G. Midei, M.D. and St. Joseph's Medical Center for alleged improper stenting of approximately 600 patients.

Our firm is investigating claims on behalf of a handful of patients. All but one received a letter from the hospital advising that an "independent" review of their medical chart and films revealed a discrepancy between the amount of occlusion reported by Dr. Midei and the amount found upon subsequent review. Th letters essentially suggested that the stentings, according to their own second look, were unnecessary. Anecdotally, one of our clients heard the news that the hospital was sending letters to past patients, but he did not receive a during the first "round."  His letter did not arrive until he requested an independent review of his chart many months after the "first wave" of letters were sent.

We are therefore encouraging any patient who underwent cardiac stenting at St Joseph to get their chart and films. You may request that the hospital re-review your films. You should retain your films and provide a copy to your cardiologist. No matter what the outcome, you should consult with attorneys to ensure against the possibility that you or your loved one was a recipient of an unnecessary medical procedure and medical device implantation.

The legal and medical implications of undergoing an unnecessary cardiac surgery are staggering. In addition to the serious health issues arising from the stenting and permanent placement of stents, the legal issues may involve negligence, battery, fraud, negligent supervision and oversight, conspiracy and other very serious legal violations.   

Our firm has no intention of amassing cases and provides this information as a service to our readers. Choice of an attorney is a personal decision that should involve recommendations and review of the lawyer's credentials, length of practice, case-specific results, the size of the attorney's practice, and that lawyer's reputation in the community of his or her peers.

Medical negligence cases involving massive numbers of claimants take many years to resolve, so your need to work with and communicate with your attorney is of utmost importance. Should you wish to speak with our firm about a legal need, please contact Alan J. Belsky, managing member and chairman of the firm's medical negligence practice at (410) 234-0100 or at ajbelsky@bwhlaw.com. Please read about our firm at www.legalteam.net for more information about Belsky, Weinberg & Horowitz, LLC.

Slip and fall cases on "black ice" present inherent difficulties of proof for plaintiffs' counsel. "What was the ambient temperature? Who maintained the property? How long had it been precipitating? And did the plaintiff know of the hazard?" These are all questions asked by counsel at intake and by defense counsel during deposition or at trial.

The last question-did the plaintiff know of the potential hazard and assume the risk of injury-- has been the first and last question asked of actual and potential clients. Why? Because thre4e years ago, our state's intermediate appellate court, the Maryland Court of Special Appeals, issued an opinion in Allen v. Marriott that made almost any endeavor by a plaintiff into ice or snow an assumption of the risk of injury which barred their claims under Maryland law, even if they, themselves, did not actually know of and appreciate the risk. In essence, the Marriott decision opened the door for trial judges to summarily dismiss cases based a plaintiff's "imputed" knowledge of a risk. It created a quasi-objective standard and eviscerated the long-standing subjective standard of assumed risk.

Based on this new quasi-objective concept of assumed risk, nearly no case was winnable and anyone seeking representation or already represented was either told there was no case or learned from their counsel after a motions hearing that their case was summarily dismissed and that a jury would never hear the facts and reach a decision.

We are pleased to report that Court of Appeals of Maryland has righted the course for black ice slip and fall cases and has clarified in Poole v. Coakley & Williams Construction, Inc. that the proper standard for determining whether a plaintiff assumed the of risk injury is a purely subjective one unless the risk was so notorious and known by people of common intelligence that a claim of subjective ignorance should not be believed. The Court was unwilling to find as a matter of law that people of ordinary intelligence would typically know of and appreciate the risk of black ice, and ruled that summary judgment by the trial court and affirmance by the Court of Special Appeals based on the assumption of risk defense was erroneous and that a jury should be responsible for the final decision on the issue.

The facts of Poole are straightforward: Mr. Poole was walking in his employer's parking lot where ice and snow had accumulated from prior storms. As a result of melt and water discharge from a construction project nearby, a 3-4 foot-wide water "stream" had developed. Poole decided it was safer to walk through the water than upon the adjacent ice and snow and had done this on "5-7 times" before he encountered "black ice" in the stream and fell. He brought suit for his injuries against multiple defendants for causing or contributing to the unsafe conditions. The trial court granted summary judgment in favor of some of the defendants on the basis that the claims were time barred by the statute of limitations. Based on plaintiff's deposition testimony, his answers to interrogatories and other statements he made during discovery, the trial court ruled that the plaintiff assumed the risk of injury by walking where he did, when he did, and that the facts were not "materially different" from those in the Court of Special Appeals' decision in Allen v. Marriot, where the plaintiff was found to have assumed the risk of his injury.

On appeal, Poole's counsel raised the following issues relevant to the adverse assumption of risk ruling:

1) Whether the trial judge erred in granting summary judgment in favor of Coakley and Forsgate based upon the allegation that Appellate assumed the risk of injury;

2) Whether the decisions of Allen v. Marriott Worldwide Corp., 183 Md. App. 460, 961 A.2d 1141 (2008), cert. denied, Allen v. Marriott, 408 Md. 149, 968 A.2d 1065 (2009), and Thomas v. Panco Mgmt. of Md., LLC, 195 Md. App. 245, 6 A.3d 304 (2010), cert. granted, Thomas v. Panco Mgmt., 418 Md. 190, 13 A.3d 798 (2011), as applied to Appellate's case, are erroneous. . . .

The Court in Poole took issue with the trial court's grant of summary judgment on the assumption of risk issue for two reasons: "(1) its invasion of the province of the jury where there was a disputed question of material fact concerning Appellant's knowledge of the risk of danger posed by the black ice; and (2) its reliance on Allen, an outlier case that altered the prior meaning and effect of the knowledge prong of the assumption of the risk test."

The Court of Appeals focused first on the objective versus the subjective standard for determining whether Mr. Poole assumed the risk of his injury. Quoting extensively from the seminal Hornbook, Prosser and Keaton on the Law of Torts and the Restatement (Second) of Tort, the Court reiterated the longstanding and otherwise firmly established subjective standard for determining whether a plaintiff assumed the risk of his injuries. It further resolved any doubt that an objective test should not be applied except in circumstances where anyone of normal age and intelligence would appreciate the risk. The Court surveyed existing Maryland cases where the trial court ruled as a matter of law that the risk of injury was assumed and distinguished those cases.

The Court noted the difference between visible ice and snow which a plaintiff walks upon and falls, which has been consistently deemed an objectively voluntary assumption of the risk of injury, and cases such as Poole, where black ice is involved. In black ice cases, the Court ruled, people of normal intelligence would not ordinarily comprehend the concept or the risk of black ice. The Court overruled Allen's hybrid standard of imputed knowledge of a danger or risk, stating that prior decisions require that the risk be subjectively understood and assumed by the plaintiff and not simply imputed by virtue of conditions that are not notoriously known and understood by the community at large. The imputation of knowledge of risk, under the circumstances the Court held, was an improper invasion of the fact finder's right to decide the issue, and that any cases, including Allen, holding otherwise are effectively overruled.

In light of the Poole decision and the Court's subsequent decision in Panco, which will be reviewed in our next blog post, plaintiffs now have a fighting change of getting their cases before juries. For those whose cases have fallen into the gap between the Marriott and Poole decisions, we can only say that our system is not perfect but bad law can be changed with perseverance and tenacious lawyering. Thankfully, skillful lawyers recognized the wrong, went against the grain, and argued a position some would not have endeavored. The game has now changed and the playing field is ever so slightly evened. For now, the subjective standard for proving a plaintiff's knowledge and appreciation of the risk of injury has been clarified as the law in Maryland by the Court's decision in Poole.

Joint tortfeasor releases were the subject to two reported appellate decisions this week. The subject of joint tortfeasor releases is a complicated issue that can impact or destroy claims by plaintiffs against a nonsettling defendant if the release with the settling defendant is not properly crafted. Details of the different types of joint tortfeasor releases and the effect they can have on claims against nonsettling defendants will be discussed in the next blog on the case of Spence v. Julian, issued by the Court of Special Appeals on October 26^th.

Another case however, Tempel v. Murphy,decided by the Court of Special Appeals on October 28^th, presents a completely discernable and straightforward issue related to a nonsettling defendant's entitlement to pretrial discovery of the content of a joint tortfeasor release between the plaintiff and settling defendants. The court in Tempel ruled that a nonsettling defendant is not entitled to discover the amount of a settlement but is entitled to see other content within a joint tortfeasor release to enable the requesting defendant to prepare their case for trial.

The Court (Ayler, J.) cited Maryland Rule 2-402(a), which states that a party may discover "any matter . . . that is relevant to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. . . " and concluded that the amount of settlement contained within a joint tortfeasor release is not relevant to a determination of liability or the amount of damages allegedly sustained by a plaintiff.  Only after the jury reaches it verdict does the information become relevant to allow a court to apportion damages appropriately between all affected defendants.  The Court reiterated that discovery is intended to require disclosure of the facts giving rise to the litigation to allow the discovering party the opportunity to prepare timely their claims and defenses without undue surprise.

Although the amount of the settlement was deemed irrelevant and not discoverable pre-trial, the Court held that other terms of a joint tortfeasor release are discoverable pre-trial because the nonsettling party is entitled to know what evidence they must offer at trial to reduce their exposure to plaintiff's damage claim, e.g., whether the nonsettling defendant must prove the joint tortfeasor status of the settling parties which is required by some releases known as Swigert releases.

On an unrelated issue, the Court upheld the trial court's refusal to grant a judgment notwithstanding the verdict and rejected defendants' argument that the plaintiffs' economist's testiumony on lost future earnings of the decedent was speculative and should not have been considered by the jury. The economist offered opinions as to the date the decedent would have retired for purposes of calculating the future income loss claimed by the wrongful death beneficiaries. Absent an express statement by the decedent while alive, the economist based his opinions on various statistical information on average retirement ages and testified the decedent would have retired at age 66 or 67. He conceded during cross-examination that he did not know exactly when the decedent would have retired. The Court ruled that a jury could reach conclusions on all issues related to lost support claims, including decedent's likely retirement age, based on all the evidence including the amount of future lost earnings, the decedent's health, the testimony of the family, his financial situation and statistics as to when he would have retired.

Belsky, Weinberg & Horowitz is a full service Maryland law firm with practice groups in the areas of plaintiffs' personal injury, medical malpractice, workers' compensation, social security disability and bankruptcy. We supply this and other information on our website as educational materials to keep our readers abreast of important legal developments that relate to the areas in which we practice. Keeping abreast of legal developments is an important responsibility our firm takes very seriously. We make every effort to report new cases and legal issues objectively, although opinions are at times expressed. Should you have any questions about the firm or any information on our website, please contact our office by clicking here or by calling (410) 234-0100.

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It was a very active week for Maryland's appellate courts with several important opinions that affect our clients and our professional liability practice. We will summarize every case from the past week and will start with a conflict of laws case involving the doctrine of lex loci delicti (the law of place of the wrong controls). The case teaches the reader two important lessons: one is the distinction between a substantive and procedural law; the other is what can happen on appeal when the appeals court decides a case on grounds other than those argued and briefed by the parties.

In Lewis v. Waletzky,The Court of Appeals of Maryland, Maryland's highest court, answered a question certified by the U.S. Court of Appeals for the Fourth Circuit, to wit: whether Maryland's public policy exception to the doctrine of lex loci delicti requires the application of Maryland or D.C. substantive law in a malpractice case brought in Maryland for injuries sustained in D.C. Traditionally, under the doctrine of lex loci delicti, the place of the wrong controls the substantive law a court must apply in a case, but the procedural law of the forum state is applied no matter where the wrong occurred. The public policy exception allows the forum court to apply its own state's substantive law even though the wrong occurred in another jurisdiction.

The facts in Lewis are fairly straight forward. The plaintiff's psychiatrist prescribed various psychotrophic medications for conditions not described in the opinion. The plaintiff developed side-effects from the medication, but the physician did not discontinue the medications and instead prescribed others. The plaintiff was ultimately taken off of the medications by other physicians but by then the medications had caused Tardive Dyskinesia/Dystonia, a very serious neurological disorder. Because the suspect prescriptions were filled and ingested by the plaintiff in D.C., she argued her injuries arose in D.C. and that Maryland's mandatory arbitration requirement pursuant to the Maryland Health Care Claims Act (Health Claims Act) did not apply because it was a substantive law and under D.C. law health claims arbitration is not required.

At trial the Defendant sought dismissal arguing that although the Health Claims Act was substantive and despite the doctrine of lex loci delicti, Maryland's strong public policy required mandatory arbitration of the case. The trial court agreed with the defendant and dismissed the case. The plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit, who certified the question as to whether Maryland recognizes a public policy exception to the choice of law doctrine of lex loci delicti. The certified question assumed that the law at issue was substantive and not procedural.

Rather than addressing the question certified, the majority (Barbera, J.) opted to address the issue of whether the Health Claims Act was substantive or procedural and skirted the issue of whether the public policy exception to the lex loci delicti doctrine applied. The court ruled that the Health Claims Act is procedural and that noncompliance with its mandatory arbitration provisions required dismissal of the case. The Court explained that the law at issue simply affects "the manner in which the forum administers justice" and was not substantive because it does not "establish the existence or abrogate a cause of action." In reaching this conclusion, the court surveyed other cases where laws were deemed either substantive or procedural. The case is a useful primer on this basic conflict of laws issue.

The most interesting aspect of the case is found in the dissenting opinion of Judge Adkins, who, joined by Judge Murphy, complained that the parties were essentially ambushed by the majority's decision, which was based on an issue not raised by the Fourth Circuit's certified question, nor by the parties during briefing and argument. The dissent made light of the fact that the certifying court and the parties all had assumed albeit incorrectly that Maryland's Health Claims Act was substantive and inquired only as to whether a public policy exception to the lex loci delicti doctrine applied. The dissenting judges would have deferred a ruling until the parties could brief the "substantive versus procedural" issue upon which the Court decided the case.