Posted on April 22, 2016 in Medical Malpractice

A Connecticut jury has awarded $1.8 million to a 28 year-old woman whose surgeon inadvertently cut one of her fallopian tubes, rendering her sterile. The woman presented to the hospital in May of 2011 complaining of pelvic pain on her right side. At that time, the emergency department’s differential diagnosis included appendicitis and infection.

One week later, the woman underwent an appendectomy performed by one surgeon. During that surgery, a second surgeon – the defendant in this case – came into the operating room to operate on an abscess of the right fallopian tube. The second surgeon, who had never performed this type of surgery before, cut the wrong fallopian tube, rendering the woman infertile. As a result, the woman required another surgical procedure. Additionally, the only option for reproduction for this woman now is in-vitro fertilization which is expense and has unnecessary risks and side effects.

The defense’s position at trial was that the woman more likely than not would not have been able to conceive even absent this surgeon’s mistake because of the infection that she had when she came in. The jury rejected this argument after the patient’s attorneys showed that women with this type of infection are able to get pregnant between 85 and 90 percent of the time. The jury’s award included $190,000 for medical expenses, $1.3 million for emotional pain and suffering and mental anguish, and $310,000 to the woman and her husband for loss of consortium.

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 Posted on April 15, 2016 in Criminal Defense

The Maryland Assembly has recently passed the Justice Reinvestment Act which is generally aimed at significantly reduces Maryland’s prison population. Our partner, Judge Joe Murphy (ret.) played a key role in formulating much of this legislation. The legislation passed the House by a vote of 122-19 and the Senate 46-0. Gov. Hogan is expected to sign the bill into law this spring.

Many major policy changes are highlighted below in this text but include a unique opportunity for inmates serving mandatory minimum sentences for drug offenses an unprecedented opportunity to return to court and ask for a sentence modification.

Some other highlights to the bill include:

SENTENCING POLICIES • Property offenses o Raises the felony theft threshold from $1,000 to $1,500
 Reduces the penalties for misdemeanor theft for the first offense to 6mths, subsequent is 1 year
o Adds an enhancement for 5th and subsequent convictions
• Driving With a Suspended License o Makes driving with a suspended license nonjailable with a fine of $500.00 and must appear in court

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 Posted on April 15, 2016 in Medical Malpractice

When an individual is injured as the result of the negligence of someone else, whether by way of medical negligence, a car accident or otherwise, the insurer that pays that individual’s medical bills almost always has what’s called a “right of subrogation.” What the subrogation provisions in most insurance policies states is that if you recover money from the negligent third-party in a lawsuit or some other type of personal injury settlement, you have an obligation to reimburse the insurance company for the medical bills and expenses that it paid on your behalf for your care and treatment related to the injuries.

As you might imagine, the insurer’s right of subrogation can create a significant obstacle to settling your Maryland personal injury or medical malpractice lawsuit. Because the medical bills (and consequently the lien) often are extremely high, they can come close to wiping out any funds which would have been available to the injured plaintiff, leaving the injured plaintiff with next to nothing from his or her personal injury settlement.

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 Posted on April 08, 2016 in Medical Malpractice

In Maryland medical malpractice cases, there generally are two types of claims that can be asserted. The first is a garden-variety medical malpractice claim that alleges that a physician provided negligent care (care that fell below the standard of care), which caused injuries and damages to the patient. The second is called lack of "informed consent" claim, through which a patient alleges that the physician failed to properly, appropriately and/or fully explain the treatment to the patient and to warn of any material risks or dangers of the treatment so that the patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment.

At trials in which only medical malpractice claims are at issue, attorneys who represent the doctor often try to introduce evidence that the doctor had conversations with the patient about the potential risks and complications of the treatment and that the patient agreed to move forward anyway. In other words, the medical malpractice defense attorneys try to show that the doctor complied with his obligation under the informed consent doctrine even where there has been no allegation that that doctrine was breached. The purpose of this strategy is to try to convince the jury: (a) that the medical malpractice victim assumed the risk of what happened; and (b) that the cause of what happened could not have been negligence or medical malpractice because the doctor warned the patient that the issue could occur.

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 Posted on April 01, 2016 in Medical Malpractice

A Montgomery County jury awarded more than $40 million to a couple who claimed that their Rockville, Maryland fertility doctor failed to properly screen the surrogate mother who carried their child. The crux of the couple’s claim was that the standard of care required that the fertility doctor obtain and review the potential surrogate’s obstetrical and gynecological history before clearing the candidate to act as the surrogate. Although the doctor did inquire of the candidate about her history, the candidate lied by stating that she had previously carried four pregnancies to term without complications. The doctor, however, never obtained the pertinent medical records to verify the candidate’s representations.

What the couple did not know was that the candidate had in fact given birth to six children and that during the last pregnancy, she suffered from preeclampsia, a complication that resulted in premature birth. Unfortunately, the surrogate suffered from the same complication during the pregnancy with the couple’s child. The child was born at a premature gestation of 25 weeks and passed away twenty-one days later from what was described as "overwhelming" sepsis. It was alleged that had the fertility doctor properly and appropriately looked into the surrogate’s medical history – and not merely relied upon the surrogate’s statements – the couple would have had information which would have caused them reject the potential surrogate as a candidate. The fertility doctor’s defense was that it was appropriate to rely upon the representations of the candidate and not take any further action to verify those representations.

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 Posted on March 25, 2016 in Medical Malpractice

A Chicago jury has awarded more than $1 million to a 53 year-old man who suffers impaired vision as the result of his doctor’s failure to timely diagnose and treat syphilis. The man presented to the defendant as a new patient in February of 2008 complaining of coughing, shortness of breath and tightness in his chest. He reported that he was gay but the doctor did not note that in his medical records or ask any follow-up questions regarding his sexual practices. According to his lawyers, these symptoms can be consistent with males suffering from the initial stage of syphilis. He was sent home with medicine for bronchitis.

The man presented again one month later after his symptoms had returned. At that time, he also was experiencing a rash on his hands and feet. The defendant prescribed him Benadryl for a suspected allergic reaction to the medication and an inhaler for his chest symptoms. The symptoms went away and he was symptom free for approximately one year until in 2009, he began to experience vision problems.

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 Posted on March 04, 2016 in Medical Malpractice

A New York jury has awarded $11.6 million to a man who suffered a stroke that left him permanently disabled. The patient presented to the emergency room with dizziness, headaches and an inability to stand. He immediately came under the care of a Physician’s Assistant who ordered a CT scan of the brain. The case presented by the patient’s medical malpractice attorneys was that the CT scan was negligently reported by the radiologist as normal when it in fact showed that a blood vessel supplying blood to the brain was blocked. Because this serious abnormality was not reported to the physicians treating the patient, he was discharged home with the diagnosis of a sinus infection. He was not given blood-thinners which could have prevented a future and more damaging stroke. Weeks later, he suffered a second massive stroke that left him permanently disabled.

The testimony of expert witnesses in the fields of radiology, neurology, rehabilitative medicine and economics was presented to the jury, whose award included past, present and future pain and suffering damages of $8.5 million. The patient lost his successful business as the result of the malpractice.

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 Posted on February 26, 2016 in Medical Malpractice

A Baltimore City, Maryland jury has awarded $2.3 million to a woman who suffered a debilitating leg injury during what should have been a routine surgery. The now-59-year-old was a registered nurse working in the position of case manager for a private nursing home when she presented for a total right knee replacement.

During the procedure – and as is customary – the surgeon placed a tourniquet on her thigh. A tourniquet is a compression device (usually a bandage) used to control blood circulation to an extremity for a limited period of time. Unfortunately in this case, the tourniquet damaged the peroneal, femoral and posterior tibial nerves. The peroneal nerve did not heal and as a result, the woman experiences "foot drop," a condition which prevents her from lifting and flexing her foot. As a further consequence of this complication, her knee rehabilitation efforts after the surgery were compromised. Because of the medical mistake, the patient has been unable to return to work and requires the use of a cane in order to walk.

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 Posted on February 25, 2016 in Federal Crimes & White Collar Crimes

Long a consistent and ardent judicial champion of the constitutional protections afforded citizens under the Fourth and Sixth Amendments, one cannot help but wonder how Justice Scalia would have viewed the showdown between Apple and the Department of Justice.

The DOJ and FBI intentionally selected a headline case to push for legal authority that Congress has thus far declined to give them. Doing so in the underlying matter of the gruesome San Bernadino terrorist attack committed by a husband and wife pair of Islamic extremists plays on public fear, swaying the pole of public opinion towards law enforcement. Relying on the All Writs Act of 1789 – a law passed almost 100 years before the telephone was even invented! – a federal magistrate judge has ordered Apple to create new software, "a master key" if you will, to bypass anti-hacking protections created by Apple.

Curiously, DOJ and prosecutors accuse Apple of slapping the San Bernardino victims in the face but do not mention that Apple has cooperated with DOJ and the FBI in this case, and more importantly, DOJ already has all of the particular iPhone’s cellular service data. This includes the suspect’s texts, incoming and outgoing call numbers, call duration, and GPS location data. DOJ and the FBI obtained it directly and lawfully from the suspect’s cellular service provider or "telecom"-because federal law, the Communications Assistance for Law Enforcement Act, 47 U.S. Code § 1001 et seq. (CALEA), requires telecoms to assist law enforcement in obtaining such call related data. This type of data is not only on the iPhone; the cellular service provider in the course of its business retains and stores this data. Pursuant to CALEA, the cellular service provider in this case has provided the data to DOJ.

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 Posted on February 19, 2016 in Medical Malpractice

A Massachusetts jury awarded just under $30 million this month to a now-eleven-year-old girl who suffered a devastating brain injury in utero. In September of 2004, the girl’s mother presented to the hospital while 28 weeks pregnant complaining of decreased fetal movement. She was admitted for monitoring at 11:00 p.m. on September 5th and, until 5:30 p.m. on September 6th, everything was fine.

Soon after, however, the baby’s heart rate dropped dramatically. The on-call attending physician – who was at home at the time – was called but decided not to come to the hospital. The child’s attorneys argued that this was an emergency and that the child needed to be delivered by emergency cesarean section immediately. Unfortunately, that did not happen in a timely manner. At approximately 9:20 p.m., the baby’s heart rate dropped so low that her brain was deprived of sufficient oxygen for at least eight minutes. The lawyers presented evidence that when the baby finally was delivered by cesarean section, she essentially was not alive and had to be resuscitated.

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