Posted on August 31, 2009 in Medical Malpractice

A Los Angeles jury has awarded $7.3 million in a medical negligence lawsuit against a hospital due to the alleged failure to timely diagnose and treat a baby with meningitis in a neonatal intensive care unit. The baby had suffered brain damage as a result of the malpractice.

As an experienced Baltimore, Maryland medical malpractice attorney, I have handled a number of failure to timely diagnose and treat infection cases. One critical issue in these cases is what lawyers call causation. The attorney for the plaintiff must be able to prove that had the diagnosis been timely made, that there was enough time to treat the infection. This requires expert testimony usually from an infectious disease specialist or medical examiner. To see some of the cases I have handled, click here .

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 Posted on August 28, 2009 in Criminal Defense

Maryland Criminal Attorneys are commonly called upon to represent defendants who are charged with domestic violence assaults. As I have noted in previous blogs on the subject of domestic violence, there was an explosion of new domestic violence arrests in this country after the OJ Simpson acquittal in 1994. Police officers were encouraged to aggressively enforce the law in domestic cases where they previously might have considered these cases family matters and not law enforcement matters.

Additionally special domestic violence police units and prosecution teams were created throughout the country and new laws were enacted to allow the police and prosecutor to more aggressively pursue perpetrators of domestic violence. For instance in Maryland, new laws were enacted to allow for the warrant-less arrest of those suspected of domestic assaults under certain circumstances – even when the defendant is only suspected of committing a misdemeanor. Unfortunately, some people have taken advantage of these new laws and the new tactics of the police and prosecutors to have others falsely arrested. I had just such a case in Baltimore County Circuit Court this week.

My client, who has no prior criminal record, found himself in a relationship with a young women with a prescription pill addiction. He was not immediately aware of the problem and, unfortunately for him, she became pregnant prior to his learning of her addiction. She had a baby boy and they continued an on-again off-again relationship for about a year after he was born. Right around the boys’ first birthday, my client decided that he wanted to end the relationship altogether and wanted custody of the child. The boys’ mother had already had one child taken from her by the Department of Social Services for child neglect. My client believed that because of this fact, he would have a relatively easy time gaining custody. He did not anticipate what would happen next.

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 Posted on August 28, 2009 in Medical Malpractice

A retired naval officer has settled has case with a Naval Hospital in Florida for close to $1 million after claiming that the hospital negligently handled his medical treatment and caused doctors to remove part of his brain. The officer, now 42 is now permanently and totally disabled and unable to support his family. He settled his medical malpractice case for $625,000 in cash along with monthly payments of $1,600 for the rest of his life (an annuity valued at about $325,000). The settlement was approved this month after the officer filed a lawsuit against the Navy that was scheduled for a jury trial in September. The lawsuit stemmed from treatment the man received in March 2007, when he went to the naval hospital complaining of severe headaches. The Hospital initially diagnosed the man with viral meningitis and discharged him that month. He still was suffering severe headaches and went to a nearby civilian hospital where he was correctly diagnosed with viral encephalitis. The delayed diagnosis resulted in severe brain swelling and doctors subsequently had to remove parts of the man’s brain. Federal law prohibits people in the armed forces from suing the military, but the man’s case was able to be filed because he was retired at the time of the incident. A copy of the article regarding the case can be found here .

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 Posted on August 19, 2009 in Divorce

With more and more Maryland couples coming to a marriage with substantial assets, those couples have property disposition issues at the time of divorce. For example, I am frequently asked what happens to the marital home that is titled as tenants by the entirety, but that one spouse contributed a substantial amount of non-marital money towards (for instance, one spouse sold a home that was acquired before the marriage and never lived in by the parties, and used those proceeds for part or all of the down payment on the marital home). Clients ask is this home then marital or non-marital, and can I get all of the non-marital money I back that I put into the home? The answer is it depends.

In accordance with Section 8-201 of the Family Law Article, Annotated Code of Maryland, "marital property includes any interest in real property held by the parties as tenants by the entirety unless the real property is excluded by valid agreement." Therefore, even if non-martial funds are used to purchase the marital home, if it is titled as tenants by the entirety (T by E) both spouses are equal owners of the home and it is marital property. Under this scenario, Maryland case law precludes the court from employing a "source of funds" theory as it may with other types of marital property. However, the court may utilize Section 8-205 of the Family Law Article to "reimburse" a spouse by way of a monetary award. This is not an automatic refund to the contributing spouse and by current Maryland case law cannot be when non-marital funds are used to purchase a home titled as tenants by the entirety, but the court may use the monetary award to correct inequities in the way which martial property is titled.

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 Posted on August 18, 2009 in Family Law

Many non-custodial parents (parents without primary physical custody) are left wondering what to do after being denied scheduled visitation with their child. As of July 1, 2009, those parents may not only have two, but three avenues to pursue.

The first and most frequent method of enforcing a Maryland visitation order that has been violated is through the court’s contempt powers. In accordance with Section 9-105 of the Family Law Article, Annotated Code of Maryland, if "the court determines that a party to a custody or visitation order has unjustifiably denied or interfered with visitation granted by a custody or visitation order, the court may, in addition to any other remedy available to the court and in a manner consistent with the best interests of the child, take any or all of the following actions: (1) order that the [missed] visitation be rescheduled; (2) modify the custody or visitation order to require additional terms or conditions designed to ensure future compliance with the order; and (3) assess costs or counsel fees against the party who has unjustifiably or interfered with visitation rights." In practice, the non-custodial parent is often frustrated with the initial contempt process because the custodial parent more often than not receives a "slap on the wrist" from the Court. It is, however, a necessary step in order to build a case and to send a clear message to the custodial parent that the denial of visitation will not be tolerated. Ultimately, if the denial of child access continues, and subsequent Petitions for Contempt are filed and the allegations proven, the Courts, generally, take a more no-nonsense approach with the custodial parents and put more boundaries and restrictions upon the custodial parent to ensure compliance with the Court Order.

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 Posted on August 16, 2009 in Family Law

In the wake of the recent legislation signed by Governor O’Malley mandating Judges to order the surrender firearms as part of a final protective order, and authorizing Judges to order the surrender of firearms as part of a temporary protective order, it is helpful to differentiate between the two, and in addition explain the interim protective order.

An Interim Protective Order allows for domestic violence protective orders to be available 24 hours a day, 7 days a week. District Court Commissioners are available at any hour of the day and can issue an interim protective order if there is "reasonable grounds to believe" that the alleged abuser (the Respondent) has abused the person eligible for relief. This protective order lasts for up to 48 hours after the courts re-open, after which the individual seeking protection (the Petitioner) must seek a temporary protective order to extend the interim order.

A Temporary Protective Order is only issued after a hearing before a Judge. If the Judge finds that there is reasonable grounds to believe that the person eligible for relief has been abused then he or she may enter a temporary protective order, which will last for up to 7 days. However, the Judge may extend the temporary order for up to 30 days if good cause exists, prior to the final hearing (effective October 1, 2009 the temporary order may be extended for up to 6 months to effectuate service or for good cause). The Judge is authorized to order the alleged abuser to surrender all firearms when issuing a temporary protective order. Additionally, the Judge can order the alleged abuser to refrain from abuse or threats of abuse of the person eligible for relief, order the alleged abuse to refrain from contacting, attempting to contact, or harassing the person eligible for relief; order the alleged abuser to refrain from entering the residence of the person eligible for relief; order the alleged abuser to vacate the home immediately and award temporary use and possession of the home to the person eligible for relief; order the alleged abuser to remain away from the place of employment, school, or temporary residence of the person eligible for relief or home of other family members; order the alleged abuser to remain away from a child care provider of a person eligible for relief while a child of the person is in the care of the child care provider; and award temporary custody of a minor child of the person eligible for relief. The temporary protective order additionally states the date of the final protective order hearing, which is generally set 7 days after the temporary protective order has been entered.

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 Posted on August 15, 2009 in Divorce

In light of the Jon and Kate’s recent news and Kate Gosselin’s filing for a no-fault divorce, I have received many questions asking what is a “no-fault” divorce? Although the Gosselin’s divorce proceedings will be held in Pennsylvania, the law in Pennsylvania is similar to Maryland, in that a party filing for divorce may elect to proceed on fault (contested) or no-fault (uncontested) based grounds.

In Maryland, a no-fault (uncontested) divorce is based on the understanding that the marriage is irretrievably broken. Meaning, that the husband and wife mutually and voluntarily separated from one another, there is no hope or expectation of a reconciliation, and they are and have been living separate and apart without cohabitation for a period of at least one year. If the prior conditions are met, either spouse may file for a divorce once they have been separated for 365 consecutive days. If only one spouse believes that the marriage is irretrievably broken, that spouse may file for a no-fault (uncontested) divorce after the parties live separate and apart for 24 months.

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 Posted on August 14, 2009 in Family Law

As a practicing family law attorney in Maryland, I am often asked if Jack and Jill who have been living together for ten years now in the State of Maryland, but have never had a lawful marriage ceremony, are legally married under the doctrine of common law marriage? The answer is no, Maryland does not recognize common law marriages. Therefore, if Jack wanted to end his relationship with Jill, no legal action would be required on his part. Also, if Jill wanted to inherit from Jack, or participate in his health benefits, this may pose a problem as they are not married under the laws of the State of Maryland.

A common law marriage, by definition, is a marriage formed between two individuals who have lived together for a specified amount of time, rather than participating in a lawful ceremony. However, the parties must be of the legal age to be married, must mutually intend to take on the status of husband and wife, and must not only live together, but represent to the community that they are husband and wife.

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 Posted on August 11, 2009 in Personal Injury

Tragic and somewhat confusing news coming out of North Carolina today. The Baltimore Sun is reporting two separate vehicles, both driven by Maryland residents, were involved in a head-on collision on U.S. 17 in North Carolina.

Apparently Loriann Bobotek, 47, of the 4000 block of Hopi Court in Ellicott City was driving her Dodge Caravan south on U.S. 17 when she attempted to pass a slower moving vehicle. When she moved into the other lane of travel, her van slammed into a black Mitsubishi Montero operated by Christina Sonn, 35 of the 3000 block of Edwards Avenue in Parkville, Maryland. Both drivers shortly after the collision.

Seven total passengers in Bobotek’s van and the Montero were taken to an area hospital in Greenville, N.C. and five have since been released.

The facts of this accident bring to light a legal dilemma victims and family’s of victims face when confronted with an out-of-state accident. Do you retain a lawyer where the accident occurred or where you live? The question is complex, but the simple answer is where you live. Using this case as an example, an experienced Maryland personal injury lawyer should be able to do everything a North Carolina injury attorney can do, and more.

For more information on the question of where to hire a lawyer in multi-venue cases, please contact us for a complimentary consultation.

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 Posted on August 11, 2009 in Family Law

On June 3, 2009, in the case of Barrett v. Ayres, the Maryland Court of Special Appeals found that Sharon Barrett did not need to show a material change in circumstances in order to modify the current set visitation schedule between her daughter and her daughter’s paternal grandparents, Bryan and Helen Ayres. Sharon Barrett had agreed to a visitation schedule between her daughter and the Ayres after her husband was seriously injured in a car accident in 2004. However, the relationship had become strained and Sharon believed that it was no longer in her daughter’s best interest to visit with her grandparents. The Court stated a parent’s decision that their child’s visitation with a third party should be modified is a material change in and of itself. The burden then shifts to the third party to establish that the parent is unfit or other exceptional circumstances exist. In this case the grandparents now have the burden to prove the parents are unfit or exceptional circumstances exist.

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