Posted on July 17, 2008 in Medical Malpractice

A Wisconsin court has approved an $18.2 million medical malpractice settlement from the government for a Milwaukee family whose daughter suffered severe brain damage during birth at a clinic. When the mother gave birth, her daughter was stuck in the birth canal for more than 20 minutes, and the girl suffered a major brain injury due to lack of oxygen. As a result of her birth injury, the girl will need assistance for the rest of her life, due to seizures, developmental delays and severe cerebral palsy. A copy of an article regarding the case can be found here.

Cases involving permanent injuries to kids are some of the most difficult cases that Maryland and District of Columbia medical malpractice lawyers pursue because they usually involve multiple expert witnesses, such as obstetricians, pediatric neurologists, neonatologists, placental pathologists, life care planners and economists. This makes them extremely expensive and time-consuming to pursue. Nevertheless, these cases are extremely important to file and pursue, so that compensation can be obtained for the child and the parents, in order to give the child with best medical and other care that the child can have, so as to maximize the child’s comfort and abilities. Nothing could be more important.

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 Posted on July 16, 2008 in Personal Injury

Oftentimes, in automobile accident cases, it may be difficult to obtain service for an individual defendant. Perhaps the defendant provided the wrong address at the scene of the accident. Or perhaps the defendant has moved at some point between the date of the accident and the date suit is actually filed. Fortunately, Maryland law sets forth a statutory tool for obtaining a defendant’s last known address from the defendant’s insurance company.

Under section 6-311 of the Courts and Judicial Proceedings Article, a plaintiff may request a defendant’s last known address directly from the defendant’s insurance company. In order to obtain this information, the plaintiff must file a certification with the court (i) stating that the defendant had insurance coverage at the time of the incident, (ii) detailing the reasonable efforts made by the plaintiff to locate the defendant; and (iii) stating that the defendant is evading service or that the whereabouts of the defendant are unknown. This certification must also be served upon the defendant’s insurer.

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 Posted on July 16, 2008 in Criminal Defense

As an experienced Maryland Criminal lawyer at Silverman, Thompson, Slutkin & White, LLC who has personally represented thousands of clients at the preliminary hearing stage, I am often asked by clients to explain exactly what is a preliminary hearing in Maryland?

In the Maryland criminal justice system, a preliminary hearing may occur when a defendant is charged with one or more felonies. In criminal cases in Baltimore City, preliminary hearings are automatically scheduled in all criminal cases. The practice in all other Maryland counties is to only schedule a preliminary hearing upon request of the defendant. Criminal defendants must make the request within ten days of the arrest or file a motion for good cause with a judge.

Preliminary hearings are conducted in the Maryland District Courts. If a judge finds probable cause, the case is sent (held over) to the Circuit Court for arraignment and possible trial. If the judge does not find probable cause that a felony has been committed by the defendant, then felony is dismissed. If a defendant is also charged with one or more misdemeanor, those charges remain and will be set for trial on another day at the District Court level.

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 Posted on July 16, 2008 in Driving Under the Influence

Maryland Criminal and /DUI/DWI Attorneys frequently represent individuals who are charged with driving under the influence of alcohol, DUI, or driving while impaired by alcohol, DWI, by Maryland Transportation Authority Police or Maryland State Troopers. In many of these cases the entire stop is videotaped by the State Trooper or MTA Officer and this video tape can be subpoenaed by the Maryland Criminal/DUI/DWI Attorney. In a recent DWI case that I had in Baltimore County District Court, my client had blown just a .07 and insisted that he had not failed the field sobriety tests as the MTA Officer who stopped him had claimed in his report. To be fair to the officer, he did not claim that my client had done terribly on the field sobriety tests but had nonetheless concluded that he had failed. After being retained by my client I immediately issued a subpeona decus tecum for not only the video tape but for the MTA’s General Orders regarding the operation of dash board video cameras known as MVR equipment.

Soon I received a letter from the MTA claiming that the video camera had not been operational on the evening that my client was arrested, along with a copy of the general orders relating to the use of MVR equipment. At trial in the District Court for Baltimore County, my client was faced with a rebuttable legal presumption that he was driving while impaired based upon the intoximeter .07 blood alcohol content result. I was obviously unable to present the video to contradict the officer’s testimony, so instead I cross examined him with the general orders which stated in pertenent parts, that the objective is the "accurate documentation of events, actions, condition and statements made during arrests and critical incidents, so as to enhance the officer’s reports, collection of evidence and testimony in court". The orders also stated that the "MVR equipment shall be used on every traffic stop" and that it is officer’s responsibility to insure that the equipment is working prior to beginning his or her shift and if it is not working to report this condition to the officer’s supervisor by "written documentation". On cross, the officer admitted that he had not checked the equipment prior to beginning his shift, much less reported the fact that it was not operating by written or any other means of communication to his supervisor as required by the general orders. I also pointed out several discrepancies between the officer’s report and his testimony and had him highlight parts of the field sobriety tests that my client had performed to his satisfaction.
I then argued to the court that the video would have been particularly helpful in a case with a blood alcohol reading this low and a significant disagreement between the parties as to my client’s performance on the field sobriety tests. The State argued that the MTA was not required by law to video tape dui/dwi stops and accordingly the judge should place no weight on the fact that a recording was not made in this case. The Judge disagreed with the State and ruled that the MTA’s failure to follow their own procedures rebutted the legal presumption that my client was impaired. The court went on to find my client not guilty citing the numerous discrepancies between the officer’s original report and his testimony as well as the officer’s testimony that the client had performed some parts of the field sobriety tests correctly.

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 Posted on July 15, 2008 in Criminal Defense

Maryand Criminal Attorneys or Criminal Lawyers in Baltimore and around the State deal with a high volume of cases involving the possession of controlled dangerous substance (CDS) such as cocaine, heroin, marijuana, ecstasy, methamphetamine, etc., and cases dealing with possession with intent to distribute these substances. Confidential informants are one of the primary sources of information for narcotics detectives and are regularly utilized by them in narcotics investigations. In some instances the informants are registered and paid, in others they are facing charges themselves and are seeking leniency with the authorities also known as "working off their charge". Other informants are simply concerned citizens who are reporting criminal activity but are unwilling to testify in open court. Typically in these investigations, narcotics detectives will use information provided by the confidential informant either to secure a search warrant for a particular place or to establish probable cause to stop a particular individual, usually in the context of a car stop. These warrantless encounters are more frequently litigated than are cases involving warrants. The reason for this is that searches based upon warrants that are duly signed by a judge or magistrate are afforded a presumption of reasonableness. In challenging a search warrant the defense attorney has to get over the additional hump that is the "Leon" good faith exception. The good faith exception basically states that even if the probable cause for a search warrant is found to be deficient or some of the information contained in the statement of probable cause is found to be incorrect, the court will still uphold the constitutional validity of the search so long as the police officers acted in good faith. In other words a defense attorney basically has to show that either the police intentionally lied in order to get the warrant or that the warrant application is so completely devoid of probable cause that no police officer acting in good faith could have believed it to be sufficient. Obviously, this is a very difficult standard.

Conversely, when dealing with warrantless stops or searches, as in the case that I am currently litigating and blogged about yesterday, there is no good faith exception. The defense attorney simply has to demonstrate to the court that the police officers lacked probable cause to stop and arrest or search the defendant and the evidence will be suppressed. (In some circumstances a lesser standard known as reasonable articulable suspicion is utilized for encounters with the police that do not quite rise to the level of an arrest but where the person stopped is clearly not free to leave. These stops, known as Terry Stops, are shorter in duration than a stop requiring probable cause lasting only long enough for the police officer to confirm or dispel his or her suspicion.) A difficult task in and of itself but nowhere nears a daunting as overcoming a presumtively valid search warrant.
To analyze warrantless stops and arrests prior to 1983, courts utilized a two pronged test called the Aguilar – Spinelli test after the two Supreme Court decision in which it was promulgated. The two prongs were that the information provided by the informant must be reliable, usually requiring a showing of the basis for the informant’s knowledge, and that the informant was credible. In order to survive a challenge to a search warrant or a warrantless stop by the police, the government was required to show that the informant provided some tangible information related to each prong. In Illinois v. Gates, the Supreme Court scrapped the two pronged test in favor of a "less hyper technical" approach in which the courts review the information provided by the informant under a "totality of the circumstances" standard.
Under this new approach a deficiency in one of the two prongs could be compensated for by a strong showing in the other. For example if a confidential informant had provided accurate information on previous occasions, the court may be less concerned about an affirmative showing that the particular information provided by this informant was reliable. Similarly, if the information provided by the informant lends itself to independent verification by the police, such as by accurately predicting future events, then it may not be necessary to show that the informant is credible.
In the case that I am currently litigating the facts contained in the statement of charges are very favorable to my client. Those facts basically just say that a confidential informant told them that drugs would be transported in a Acura with specific tag number over a very wide geographical area, "the E. Northern Parkway Corridor", sometime during February or March. Based on this vague information, provided by an informant with unknown credibility, that doesn’t even identify my client, it would be difficult to imagine any court upholding the stop. Unfortunately, the State has recently provided me with additional facts that the court will allow to be presented. In a search warrant case, the government is limited to the facts contained in the application for the search warrant, the so called "four corners" rule. In a warrantless stop or search the courts will allow the State to supplement the information contained in the charging document.
Returning to my current case, according to the police, the informant was a registered informant. To make matters worse for my client the police claim that the informant had provided accurate information prior to my client’s case which led to the arrest of suspects and the recovery of narcotics. The police also claim that the informant called them the day of the arrest and advised them as to the location of the car, although apparently did not provide specific information related to illegal activity.
These facts make the case more difficult for my client but still give him a fighting chance unless the police further supplement the record on the stand either on direct or on cross examination. These types of cases are always difficult if not impossible to thoroughly analyze prior to the hearing on the motion to suppress because the factual basis for the stop or arrest is never complete until after the police testify and that is definitely true in my current case.

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 Posted on July 15, 2008 in Criminal Defense

For a Maryland Criminal Attorney it is imperative to understand the law regarding the use of confidential informants by police and prosecutors. There are generally two issues when dealing with confidential informants: The first issue is does the confidential informant provide sufficiently detailed information about which he or she can demonstrate a basis of knowledge to justify probable cause for a search or at least reasonable articulable suspicion for an investigatory stop. The second issue is whether or not the government must disclose the identity of the informant. I will discuss this second issue in this blog and leave the first issue for another day. The issue of whether or not the government must disclose the identity of the confidential informant issue turns on whether the informant is a "mere tipster" or an actually participant in the transaction. I have a case that I am currently working on where I intend to request the disclosure of the identity of the confidential informant. Here is my memorandum of law in support of that motion. I have deleted the last names and other identifying information of the participants including my client for privacy reasons.

MOTION TO DISCLOSE CONFIDENTIAL INFORMANT
The Defendant, Troy , through his attorney, Brian G. Thompson and Silverman, Thompson, Slutkin and White, LLC., hereby files this Motion to Disclose Confidential Informant, and in support thereof, states:
INTRODUCTION Detectives allege that they were contacted by a registered confidential informant "during the month of February 8, March 8" and advised that "large sums of illegal narcotics were being transported and sold along the Northern Parkway corridor." The registered informant allegedly further advised that a "2dr. Acura Legend bearing a Virginia #*#@$% was transporting illegal narcotics in this vehicle." On March 4, 2008 Detectives allege that they spotted this vehicle traveling in the 5500 block of Laurelton Avenue. Acting solely on the tip of the Confidential Informant the detectives initiated a traffic stop. The driver of the vehicle was identified as Lamont and the passenger was identified as the defendant, Troy. The detectives claim that upon approaching the vehicle they smelled an odor of "freshly burnt marijuana" coming from the vehicle. The detectives also claim to have seen a zip lock bag containing marijuana in plain view on the center console. Based on these observations the detectives ordered the occupants from the vehicle and allegedly advised them of their Miranda rights. The driver was asked if he had anything illegal on his person and the detectives allege that he stated "yes some weed". He was then searched and recovered from his pocket was approximately 15 grams of marijuana. Troy was then allegedly asked the same question to which he allegedly responded ""I don’t have anything on me, you can check". Troy denies making this statement. The detectives then searched Troy and allegedly recovered $1415.00 dollars in U.S. currency. The detectives then called in a K-9 Unit and allege that the K-9 alerted on the truck area of the automobile. Recovered from the trunk was approximately 3 pounds of marijuana. The detectives then allege that Troy made the unsolicited statement, "the 3 pounds of marijuana, belonged to me". " I get the marijuana from one person and sell it to another person for about $200 profit". Troy denies making this statement. Troy was arrested. Lamont was not arrested.
ARGUMENT
The Defendant seeks disclosure of the confidential informant. In Edwards v. State, 350 Md. 433, 713 A.2d 342 (1998), Judge Wilner traced the modern law governing the disclosure of the identity of confidential informants deriving from Roviaro v. United States, 353 U.S. 53, 1 L.Ed. 639, 77 S.Ct. 623 (1957), and observed the distinction between disclosure of the identity of an informant who had participated in the criminal activity and a tipster. "[T]he privilege ordinarily applies where the informer is a mere ‘tipster,’ who supplies a lead to law enforcement officers but is not present at the crime, while disclosure is usually required when the informer is a participant in the actual crime." Id. at 442, 713 A.2d at 347 (emphasis added). Lastly, Judge Wilner commented:
When the defense does rest on a showing that critical evidence was obtained in the absence of probable cause, however, and the determination of that issue depends principally on the reliability of an informant or the veracity of an affiant’s assertions of what an informant said or did, the balance [for disclosure of an informant’s identity] may have to be struck in favor of disclosure.

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 Posted on July 14, 2008 in Personal Injury

In Maryland, it is possible to admit medical bills and records at trial without calling a doctor or other health care provider to testify. Section 10-104 of the Courts and Judicial Proceedings Article of the Maryland Code sets forth the requirements for introducing medical bills and records without the support of witness testimony at trial. This provision can save a client the added expense of having to pay a doctor to testify at trial or in a deposition. In some cases, the cost of such testimony can be considerable. In many personal injury lawsuits or automobile accident cases, particularly in Maryland’s District Courts, it may be more cost-effective to introduce medical bills pursuant to section 10-104. Doing so may actually increase a client’s net recovery because it reduces certain litigation expenses.

Section 10-104 sets forth several technical requirements that must be satisfied in order to present medical bills and reports without testimony. Section 10-104 may be used in any personal injury action in the District Court or in any such action in the Circuit Court in which the amount in controversy does not exceed $30,000.00. Medical bills and reports introduced under section 10-104 are not required to contain a statement as to the fairness or reasonableness of the treatment or associated cost. In order to gain the benefits under 10-104, a party must give advance notice of his or her intention to introduce writings and records without the support of testimony. A party does this by filing a notice with the Court at least 60 days before trial and serving it on all other parties to the action. The notice must list the name of the health care provider for each writing or record, as well as the date of each report or treatment.

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 Posted on July 10, 2008 in Medical Malpractice

The family of a New York woman who died of a breast tumor in 2004 has been awarded more than $9 million in a medical malpractice case. The jury found that a surgeon failed to properly diagnose the mother of two, allowing her breast tumor to grow and kill her.

I have successfully handled a number of medical malpractice / medical negligence / medical error cases in Baltimore and other counties in Maryland involving a failure to timely diagnose and treat breast cancer and other cancers. Some of the cases I have handled involved a failure to properly read mammograms (negligent reading of mammograms). Other cases have involved a failure to properly read pathology such as tissue samples on slides from a biopsy.

I have even handled a case involving negligent failure to properly treat cancer, in a medical malpractice case against Kaiser. In that particular case, a woman (who happened to be a judge) was properly diagnosed with lymphoma. She eventually started chemotherapy, which lowered the ability of her immune system to fight infection. After the chemo, but while her immune system still was weakened, she developed a rash from her chemotherapy, for which her doctor negligently prescribed steroids. The problem with prescribing the steroids was that steroids tend to further reduce the immune system’s ability to fight infection and, because they act as strong anti-inflammatories, they reduce fever and make you feel better when you are sick, thereby masking infection. Unfortunately, no one ever told this to the patient, so she did not take precautions against infection (which she had been doing while on chemo). Not surprisingly, she developed an infection and never knew it. Her blood work showed it, but the doctor did not tell her about it. Sadly, one night, she became overwhelmed with meningitis and died before being able to summon help. The jury in that case awarded $2.5M to the woman’s estate and her son.

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 Posted on July 10, 2008 in Criminal Defense

An Aggressive Maryland Criminal Attorney will always review all criminal cases for Constitutional Violations such as Speedy Trial, Illegal Search and Seizure, Illegal Confessions in violation of a person’s Miranda Rights and, Illegal Traffic Stops. I have a case scheduled for next week in the District Court of Maryland for Baltimore City at the North Avenue location that involves a significant Speedy Trial issue that I believe will result in the dismissal of all charges.

The client allegedly had a domestic violence incident involving his girlfriend at the time, way back in March of 2006. The ex-girlfriend went to the court commissioner and swore out a warrant against him alleging that he had assaulted her in the second degree and repeatedly harassed her and committed telephone misuse by repeatedly calling her with the intent to harass her. The warrant was issued that day but there was apparently never any attempt to serve this warrant on my client until April of this year, over two years after the warrant was issued. This obviously puts the issue of Speedy Trial in play. Speedy Trial is an issue that comes up often in serious felony cases in the Circuit Court, particularly in Baltimore City. In felony cases that are charged in Circuit Court, either by way of indictment or criminal information, Speedy Trial commences upon the filing of that formal charge, not when the original warrant is issued. That is because the original warrant in the majority of circuit court cases is issued by way of a District Court charging document, known as a Statement of Charges, a charging document upon which the defendant cannot be tried.

Once the person is picked up on the warrant charging the person with a serious felony, the case will be set in for a preliminary hearing, usually 30 days or so after the warrant is served. During this time the State’s Attorney’s Office will conduct a felony review to determine whether or not they wish to file charges against the person in circuit court by way of a grand jury indictment or the filing of an information after a preliminary hearing is held or waived by the defendant. The State’s Attorney may also choose to reduce the case to a misdemeanor or dismiss it altogether which will usually occur at the preliminary hearing. The Speedy Trial calculation for these types of cases begins upon the filing of the indictment or information by the State’s Attorney. It matters not how long the case is in warrant status without being served. The reason for this as laid out by the Court of Appeals in State v. Gee is that the if a person is charged with a matter where exlusive jurisdiction is vested in the circuit court on a warrant statement of charges (examples include murder, robbery, rape, burglary, sex offenses and other serious felonies), the warrant statement of charges is not a formal charge that would activate the person’s speedy trial right because the person cannot be tried on that document. In order to be tried the State must file and indictment or information in the circuit court and it is the filing of this formal charge that activates the person’s Speedy Trial right.

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 Posted on July 08, 2008 in Personal Injury

Sometimes, individuals that do not carry automobile insurance coverage (because they do not drive) are injured by an uninsured motorist or "phantom vehicle." The Maryland legislature has created a special fund to compensate these victims. In certain circumstances, it may be possible to make a claim against this government-managed fund when a person has been injured (or his or her property has been damaged) by the negligent act or omission of an uninsured motorist or a motorist that has fled the scene of the collision and cannot be identified.

When someone is struck by a "phantom vehicle," the injured person must demonstrate that he or she has made all "reasonable efforts" to ascertain the identity of the motor vehicle and the owner/operator of the motor vehicle that stuck him or her, but was unsuccessful. What constitutes "reasonable efforts" is determined on a case by case basis, but Maryland courts have historically applied a much heightened standard. Generally speaking, "reasonable efforts" are the same efforts that one would expect an injured person to make if he or she knew there would be zero recovery unless he or she actually located the driver of the phantom vehicle. These efforts may include, but certainly are not limited to, interviewing all available witnesses, searching the surrounding area for the vehicle, publishing a notice in a local paper and/or hiring a private investigator.

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