Maryland Malpractice Lawyer

Fooling Around with Mother Nature: Plastic Surgery Malpractice Claims Rise But Remain Legally Challenging

2012-01-09T22:34:19Z

An aging population and medical advances in cosmetic and dermatological treatments have brought an onslaught of people seeking plastic surgery to gain a more youthful and rejuvenated appearance. Television shows on the subject and celebrities with clear changes to their physical appearance have changed the public's perception of this once very private matter into a subject that is embraced and condoned as a normal part of the "anti-aging" process.

General public acceptance of plastic surgery to correct natural aging and to change body features, however, is not as freely accepted by juries asked to award damages for surgeries gone awry. Having handled these cases over the years, there are common complaints from patients, some which are legitimate and some which represent unreasonable expectations or perceptions of physical appearance or beauty.

The most frequent complaints of failed plastic surgeries we encounter involve breast enlargement and aesthetic facial surgeries of the eyes, lips and chin. We have seen a variety of less than desirable post-surgical outcomes including uneven breast size, irregular placement of implants, misplaced areola, development of severe and oftentimes painful scarring around the edges of the breast, nerve and facial numbness and palsy, eyes that are of different sizes, an eye which doesn't blink in synchronization or at all, and lips and chins that are too large or too small or that don't function normally. Some of the problems we have seen are very serious and the agony and suffering arising from failed surgeries and bad outcomes is extraordinary.

There are significant difficulties presented by plastic surgery malpractice claims. The first hurdle is overcoming the informed consent given by the patient before the surgery was performed. While typically written, some informed consent is verbally obtained. In those cases where informed consent is obtained in writing, the consent form typically describes a plethora of complications that may occur even with the best of care, including death and "failure to achieve the desired result." The latter proviso is a catchall "complication" that can be interpreted or misinterpreted to include almost anything untoward that might go wrong with the surgery, including the fact that the patient just doesn't like how it looks. And of course there's the argument that if the patient was willing to risk death as a possible complication, they should not be heard to complain of any complication falling short of death. The latter argument is rather ridiculous although it is used with some frequency albeit unsuccessfully.

The second problem arises when the person making claim has undergone multiple plastic surgeries in the past. Some people have an insatiable appetite for beauty, which proverbially, is in the eyes of the beholder. In some cases, a person complains about a feature they feel is clearly noticeable and unattractive while others may not even recognize the feature or may find it adds to the person's character and thus to their attractiveness.

Indeed, some people suffer from self-perception disorders and are never satisfied with the way they look even after extraordinary effort is undertaken to improve their appearance. When a person has undergone multiple aesthetic plastic surgeries, they will be portrayed by defense counsel as someone with self-esteem problems and who demands perfection under circumstances where perfection is undefined and cannot be guaranteed. Thus, their "desired result cannot be achieved." This defense tactic is very effective, particularly in front of a cynical jury who may already be of the opinion that if "one messes with what mother nature giveth, one deserves all that cometh."

When evaluating any plastic surgery malpractice claim, we consider the following issues, none of which on there own is typically compelling but which afford insight as to the likelihood that the person's claim will succeed through litigation:

The content of any informed consent form and the extent of the informed consent;
The severity of the complication and whether it is a notorious risk of the procedure;
The patient's past history of prior cosmetic surgeries/procedures;
The patient's mental health history and history of obsessive/compulsive disorders;
The patient's ability to provide a thorough and accurate medical history;
The patient's employment in the medical profession or a related field;
The patient's desire to undergo additional corrective surgeries to the affected area;
The patient's general perception of themselves, their physicians and other professionals;
The patient's secondary gain motives to bring legal actions;
The patient's compliance with reasonable medical advice and directives;
The extent to which the patient has received diametrically conflicting medical opinions;
The extent to which the patient has seen a large number of medical providers in the same field;
The extent to which the patient suffers from managed or unmanaged pain syndromes;
The extent to which the patient has a longstanding history of taking narcotic pain medications;
The extent to which a patient has a history of drug or alcohol abuse;
The extent to which family members have become involved in medical/legal decision-making;
The patient's employment and the past, presented and anticipated future economic losses;
The patient's past, present and anticipated future noneconomic loss.

Plastic surgery malpractice is occurring at an increasing rate but malpractice cases remain difficult to handle. Patients are encouraged to ask questions before and after the procedure and to take notes of all encounters with doctors. Photographs should be taken by the patient before and after the procedure with focus on the problem. Patients should abstain from accusing the surgeon of any wrongdoing and should stay calm and collected until they have a full understanding and can make reasonably informed and rational decisions about additional treatment and/or need for legal consultation. Patients should not rush to have additional "corrective" surgeries and should understand that additional surgeries can make cosmetic problems worse and not better. Patients should educate themselves on all risks of the contemplated procedures before they have them, and should pay particular attention to the concepts of "scar tissue formation," "wound dehiscence" and infection, as these are the most troubling and frequently seen problems our prospective clients have encountered.

Federal Study Finds Hospital Employees Fail to Report Medical Errors at Astounding Rate

2012-01-08T19:23:28Z

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."

]]> According to Daniel Levinson, inspector general of HHS, approximately 130,000 hospitalized Medicare beneficiaries suffer adverse events each month and that the problem of under- reporting is multifactoral. Hospital employees either do not recognize "'what constitutes patient harm' or do not realize that particular events harmed the patient and should be reported." In other cases, hospital employees recognized that an adverse event had occurred, but assumed someone else would report it, or that the event was so isolated that reporting was not required. Medicare officials are now developing a list of "reportable events" and are encouraging hospitals to better train their employees on those events that should be reported.

The Obama administration has placed a high priority on reducing medical errors. More than 2,900 hospitals have agreed to participate in a "partnership for patients" with the goal of saving 60,000 lives over three years. Despite the cooperative spirit, the Times story reveals that hospital managers have not implemented quality control changes in response to clear evidence of "systemic" institutional problems with patient care.

It appears President Obama is again fulfilling a promise to improve the quality of health care in the United States. Hospitals are now coming to terms with the quid pro quo for receiving payments from Medicare. It's a shame that institutions must be watched and reminded of their obligation to report adverse events and to improve the quality of the care they provide. The HHS report makes clear that hospitals must pay more attention to their own internal data, train their employees better on what must be reported and to whom, and make improvements on the quality of the health care they render.

It's Good Enough for Santorum's Family But Not Good Enough for America

2012-01-07T13:45:49Z

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.

]]> The troubling part of the case is certainly not the outcome but on whose behalf it was brought. Rick Santorum is running on a platform of tort reform unrivaled by any of the other candidates. In essence, he speaks out of both sides of his mouth both professional and personally. First, he argues in favor of a free market economy with little or no governmental oversight on private business and enterprise yet he vigorously advocates for governmental limits on the rights of common citizens to decide the amount of damages to award in civil cases. Second, what's good for the public is obviously not good enough for Mr. Santorum's own family, since his wife and her attorneys argued that Virginia's malpractice tort reform should not apply to her case. Now, granted, her case arose in 1996 and arguably the reform laws were not fully in place at that time. So, legally, she should have argued against application of the reforms since they technically didn't apply to her case. Yet, it leaves us all wondering whether Mr. Santorum is a hypocrite solely by virtue of his family's resort to the legal system to sue a physician at all. He seems to be against that too.

We congratulate Mrs. Santorum's attorneys for a job well done and hope Mr. Santorum comes to realize that the American system of justice is just fine without governmental limits on jury awards.

One Judge, One Case: New York's Model for Resolving Medical Malpractice Litigation

2011-11-22T12:52:20Z

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.

]]> The program is funded in part by a $3 million grant from the federal Agency for Healthcare Research and Quality and is seen as a potential model for a national program to handle malpractice claims and litigation.

As reported previously here last year, five New Your City hospitals embarked upon a pilot program to reduce medical malpractice insurance premiums and related costs by divulging medical mistakes promptly, by making settlement offers swiftly, and by utilizing specialized "health courts" to resolve disputes and negotiate settlements before litigation is commenced. The participating hospitals are Manhattan's Beth Israel Medical Center, Mount Sinai Medical Center, New York-Presbyterian Hospital, Brooklyn's Maimonides Medical Center and Bronx's Montefiore Medical Center. The goal of the program, funded with $3 million of federal money, is to reduce medical errors.

The idea of specialized jurists and courts is not particularly novel. There are specialized tribunals like the Federal Court of Claims, the United States Bankruptcy Court, and the Federal Tax Court, which are specialized tribunals which hear only certain types of cases and whose judges bring significant knowledge on the issues before the courts. Indeed, many states have attempted something similar by creating health claims arbitration tribunals where cases must be filed as a prerequisite for state court litigation. But those administrative tribunals have no teeth, allow parties to waive out of the process at a very early stage, and are nothing more than clearinghouses meant weed frivolous claims out of the court system by requiring early expert "certification" that the plaintiff's case has merit.

Under the New York scheme, the judge assigned to the case serves as the "go to" person for all issues that arise during the case. The process eliminates much of the posturing that goes on during litigation, where each party boasts of the strengths of their case and the weaknesses of their opponent's. In the end, it appears the program is worthwhile, and the Washington Post reports on disputed liability cases which have settled without protracted litigation, although the data suggests that plaintiffs are receiving a lower settlement payout under the scheme.

Many states already require early mediation of malpractice cases filed in state court. With the right mediator, cases settle because the mediator understands the medicine and the parties' positions. Selecting the appropriate mediator can be a difficult task for lawyers, because some mediators are beholden to the institutional clients who defend many cases annually and who supply certain mediators with a significant income and caseload. Although some mediators are known for "getting the job done." there is sometimes a steep price plaintiffs must pay by way of significant concessions of case value which in some instances is not fair. The topic of the pros and cons of mediation will be left for another day.

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 developments in the law that we believe are important and that relate to the areas in which we practice. Keeping abreast of legal developments as they develop 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.

Thank you for your interest in our firm.

U.S. Fourth Circuit Changes as Obama Appointments Continue

2011-11-20T19:17:25Z

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.

]]> Over the years the Fourth Circuit has issued very controversial opinions on issues of criminal law and procedure and civil rights. Historically, the Fourth Circuit has agreed to review fewer death penalty cases than other circuits whose states still permit sentences of death. It has been adverse to discrimination cases of all types, and has sided with law enforcement in a wide variety of cases allowing admission of coerced confessions at trial, and has found the slightest unusual activity of a criminal suspect justification for searches and seizures of persons and property.

Recently, however, the court has issued a number of cases which suggest that the court is no longer as conservative in its rulings. The Sun summarizes some of these rulings, which include a 2-1 decision issued last week that found that Seat Pleasant police officers overstepped their bounds when they used a suspect's prior criminal history as justification for a search and seizure during which crack cocaine was found and the defendant was sentenced to 63 months in federal prison. In March 2011, it overturned a criminal conviction which arose from a search and seizure police justified based on the suspect's unusual but otherwise innocuous movement within his vehicle. In July 2011, the court ruled that prosecutors may not strip away a defendant's right of appeal as a condition for a reduced sentence. And earlier this month, the court ruled that a stiffer sentence may not be imposed upon a defendant for claiming innocence while testifying in his own defense.

Of course, this begs the questions again and again asked: Why should politics play any role in the judicial decision making? What about the separation of powers doctrine? Is judicial activism limited to those decisions that represent expansive rather than restrictive court involvement and constitutional interpretation, or does it also include any decision where political views are as important as the laws being interpreted? The impact of political views and philosophies on court decisions is a difficult issue to reconcile, yet it is understandable in light of the fact that the views of judges is what gets them appointed (or elected).

Here is the list of the 4^th Circuit Court of Appeals judges by order of seniority:

J. Harvie Wilkinson, III (Reagan); Paul V. Niemeyer (George H.W. Bush); Diana Gribbon Motz (Clinton); William B. Traxler (Clinton); Robert B. King (Clinton); Dennis W. Shedd (George W. Bush); Aliyson K. Duncan (George W. Bush); G. Steven Agee (George W. Bush); Albert Diaz (Obama); James A. Wynn (Obama); Barbara M. Keenan (Obama); Andre M. Davis (Obama);Henry F. Floyd (Obama).

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Law Firm Fighting Florida Damage Cap Cites Two Interesting Studies

2011-11-19T20:43:55Z

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.

]]> Florida's Supreme Court will be hearing arguments on February 9, 2012 in the case of Estate of McCall v. U.S., in which the U.S. Eleventh Circuit Court of Appeals has certified a question of law to the state supreme court over whether the state's cap on nonecomic loss in medical malpractice cases is constitutional. The plaintiffs/appellants in that case are represented by the Center for Constitutional Litigation (CCL), a Washington public interest law firm frequently hired by plaintiffs' trial counsel to assert constitutional challenges to laws that impede access to the courts and in appeals.

As part of its appeal to the Florida Supreme Court in McCall, CCL cited two studies which should be of interest to our readers. In one, the United States General Accounting Office found that the physician workforces in various states are increasing despite claims that doctors are fleeing certain states due to increasing insurance premiums and unlimited tort exposure. See U.S. General Accounting Office, No. GAO-04-124, Physician Workforce: Physician Supply Increased in Metropolitan and Nonmetropolitan Areas but Geographic Disparities Persisted (Oct. 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf .

The second study of malpractice claims experience in seven states undertaken by the U,S. Department of Justice, Dep't of Justice, Bureau of Justice Statistics, NCJ 216339, Medical Malpractice Insurance Claims in Seven States 2000-2004 (Mar. 2007), at 1, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mmicss04.pdf made the following findings:

Between 12% and 38% of malpractice cases are closed without any payout
The majority of malpractice cases are brought against physicians or surgeons
Most injuries occur at hospital inpatient facilities
Females made up more than half of insurance claimants
Few malpractice cases result in payouts of $1 million or more
About 95% of claims settle before trial
Insurance payouts increased as claims moved closer to trial
Medical malpractice insurance payouts have increased
Medical malpractice cases closed after trial cost more than claims settled before trial
On average, 15-24 months elapsed before claims were reported to insurance carriers

Some of the findings in the second study are self-evident but the fact remains that insurance company and interest group claims of a malpractice crisis in the United States are not supported by the data. Public policy is at the heart of legislative and common law pronoucements that expand and constrict our legal rights. It's time for the lawmakers to start looking at the facts and not the propaganda espoused in the halls of our state and federal assemblies. It's time for our elected representatives to start asking that insurance companies "show us the money" and stop hoarding it.

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Harsh Federal Sentence for Eastern Shore Doctor Who Stented Patients Unnecessarily

2011-11-14T13:07:49Z

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.

A Perfect Storm for Slip & Fall Cases: Maryland High Court Disavows Prior Decision on Assumption of the Risk in" Black Ice" Case

2011-11-07T14:01:45Z

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.

Amount of Settlement in Joint Tortfeasor Release is Not Discoverable By Nonsettling Defendant

2011-10-30T12:57:30Z

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.

Thank you for your interesting in our firm.

Health Claims Arbitration is Required in Case Brought in Maryland for Injury Occurring in D.C.

2011-10-29T15:49:40Z

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.

A Busy Day for Maryland's Appellate Courts

2011-10-28T01:07:14Z

Maryland's Appellate Courts issued fourteen reported appellate decisions today, several of which are important first impression opinions on a variety of issues including medical malpractice, professional conduct, and criminal law. Click here to read the opinions issued today.

Cato Institute Policy Paper Blasts Caps on Malpractice Awards

2011-10-21T17:13:24Z

The Cato Institute, one of the Nation's most conservative think tanks, issued a policy paper on October 20^th that raises significant questions and concerns over damage caps on malpractice claims. In a paper entitled Could Mandatory Caps on Medical Malpractice Damages Harm the Consumer?, Shirley Svorny, Professor of Economics at California State University, Northridge, undertakes a detailed and highly critical analysis of the arguments asserted by insurers and physicians that damage caps will make health care more affordable. The Executive Summary of the 27 page report is quoted below and offers a glimpse of Professor Svorny's very detailed and thorough analysis:

Supporters of capping court awards for medical malpractice argue that caps will make health care more affordable. It may not be that simple. First, caps on awards may result in some patients not receiving adequate compensation for injuries they suffer as a result of physician negligence. Second, because caps limit physician liability, they can also mute incentives for physicians to reduce the risk of negligent injuries. Supporters of caps counter that this deterrent function of medical malpractice liability is not working anyway--that awards do not track actual damages, and medical malpractice insurance carriers do not translate the threat of liability into incentives that reward high quality care or penalize errant physicians.

This paper reviews an existing body of work that shows that medical malpractice awards do track actual damages. Furthermore, this paper provides evidence that medical malpractice insurance carriers use various tools to reduce the risk of patient injury, including experience rating of physicians' malpractice premiums. High risk physicians face higher malpractice insurance premiums than their less risky peers. In addition, carriers offer other incentives for physicians to reduce the risk of negligent care: they disseminate information to guide risk management efforts, oversee high_risk practitioners, and monitor providers who offer new procedures where experience is not sufficient to assess risk. On rare occasions, carriers will even deny coverage, which cuts the physician off from an affiliation with most hospitals and health maintenance organizations, and precludes practice entirely in some states.

If the medical malpractice liability insurance industry does indeed protect consumers, then policies that reduce liability or shield physicians from oversight by carriers may harm consumers. In particular, caps on damages would reduce physicians' and carriers' incentives to keep track of and reduce practice risk. Laws that shield government_employed physicians from malpractice liability eliminate insurance company oversight of physicians working for government agencies. State run insurance pools that insure risky practitioners at subsidized prices protect substandard physicians from the discipline that medical malpractice insurers otherwise would imposeOver the course of the next week, we will review in detail Professor Svorny's analysis of this extremely important issue that impacts negatively on the victims of medical malpractice and has resulted in haphazard legislation across the United States that unfairly and unnecessarily limits tort recoveries for deserving patients and their families.

Lack of oxygen & brain damage - Breech Birth

2011-07-28T20:08:21Z

In a breech birth it is possible for umbilical cord to drop down and become compressed. This serious complication can cause lack of oxygen to the baby. Lack of oxygen is the most common cause for brain damage and cerebral palsy in new born babies. So what can be done? The doctor and medical staff most properly identify this issue. Once the issue has been discovered its extremely important they now react as fast as possible for the safety of the mother and the unborn child. A c-section must be done quickly or the child will not be able to breath. In non-breech deliveries this compressed umbilical cord is very rare, aproximately less than one percent. In breech deliveries the rate jumps to almost 20%.

]]> Oxygen deprivation

Oxygen deprivation is one of the most serious dangers a new born baby can face from a breech birth. It is imparative that the medical staff react quickly to prevent this serious danger. In addition to the above mentioned cord prolapse or cord compression - head entrapment is another risk factor. Head entrapment can occur when the mother's hips are the same size as the baby's head.

Maryland law

If your child has developed brain damage or cerebral palsy you want to speak to our birth injury lawyers. Our legal team has experience in handling these unique types of cases. Often it is not clear immediately on the exact cause of the birth injury. As mentioned on this page and our birth injury page - there are many different factors that can cause injury. So how would you know? Our medical malpractice attorneys will thorougly investigate your case and help you find answers to your questions. If medical malpractice has taken place you may be eglible for signficiant financial compensation for your damages. Financial compensation that can be used to help your child get the therapy and treatment they will need.

Johns Hopkins and University of Baltimore to Join Forces to Promote Understanding Between Physicians and Attorneys

2011-02-18T21:25:54Z

It was recently announced that the Johns Hopkins School of Medicine and the University of Baltimore School of Law will open a new center, located on both campuses, to focus on a variety of health law topics, including: access to health care, patient safety, medical malpractice, health insurance, disaster medicine and tort reform. The goal of the center is to educate lawyers on health related issues and to educate physicians to better understand court decisions and legal changes in the health care forum.

The co-directors of the center, Frederick Levy and Gregory Dolin, both hold joint law and medical degrees. This center is thought to be the first in the country, and will eventually produce classroom instruction, a peer-reviewed journal, position papers and symposiums that will educate future lawyers and doctors on issues they will face as they practice in their respective fields.

If you or a loved one has been the victim of medical malpractice, contact the attorneys at Belsky, Weinberg & Horowitz via email or at 410-234-0100 for a free consultation. We will work to protect your rights.

Obama Healthcare Legislation Certain to Reach the Supreme Court

2011-02-07T23:57:17Z

There are now four competing federal court decisions on the constitutionality of the so-called "Obama" healthcare legislation. The Supreme Court usually grants certiorari on issues that cannot be reconciled amongst the federal circuits. And while the decisions thus far have come from federal trial courts which hold no precedential value, it is quite clear there are significant constitutional questions raised by Obamacare that inevitably will have to be resolved by the Supreme Court.

Hopefully, the case will not be decided on political grounds as was seen in Bush v. Gore, but these days, one never knows. The justices and most economists and think tanks know the fundamental principals of the legislation will save the country billions of dollars and afford many more Americans the health care they need. Whether the economic and social impact of the law is enough for the strict constructionist majority of the Court is a question that may hinge on just one Justice's opinion-that of Justice Anthony Kennedy.

The federal district court opinions cover the gamut of analyses and outcomes. Some have deemed certain portions of the law unconstitutional but have deemed the legislation in its entirety constitutional. Others have deemed the legislation constitutional. For example, in Virginia, Judge Henry Hudson (appointed by George W. Bush) ruled that the provision requiring individuals purchase health insurance was unconstitutional, and that the penalty sought to be imposed on citizens who do not comply with this provision is not a "tax. Thus, Congress, he concluded, exceeded it powers by imposing the penalty. Judge Hudson did not, however, strike down the entire law but declared unconstitutional only the individual mandate provision. Virginia is appealing that decision, arguing the entire law must be deemed void. Contrast this to the recent decision of Florida Judge Roger Vinson (appointed by Ronald Regan), who agreed that the individual mandates are unconstitutional as a violation of the Commerce Clause, but then ruled that the entire health care law was unconstitutional, saying this portion is not severable and "the entire act must be declared void." Ohio federal Judge David Dowd (also appointed by Ronald Regan) held that the law does not violate freedom of association, due process or privacy protections, but is still considering whether the law exceeds the authority granted by the Commerce Clause.

Other courts have viewed the constitutional issues and the standing of certain interests groups to challenge the law in different ways. Currently at least two dozen lawsuits, involving 26 states, have been filed. An article in Reuters summarizes the decisions and actions of the various district courts, and can be found by clicking on the link above

The conflicting opinions and the many more that will come will certainly catapult the legislation into the hands of the nine justices of the Supreme Court. Now, we will see which justices are aligned purely with political matters of the government versus the people and which will side with the public good that comes with such a bold program that most economists and economic advisors have opined is much overdue. It has taken more than 75 years to accomplish what many have hoped and prayed would occur. Now, the law will be at the mercy of nine rather than the combined presence of Congress and the people represented.

Indeed, the governmental need should ordinarily not trump the public need, but in many instances in past jurisprudence, the social need has trumped the need to restrain overzealous governmental regulation. Our health care system is broken. Costs are unwieldy and a comparison to other countries and nations reveals that our system of health care requires reform. A simple look at prescription costs and survival statistics leaves no question that we have much to learn and much to lose should the experiences of other nations not be incorporated into our current system of high cost low impact health care in this country.