Posted on February 08, 2016 in Business Counseling, Litigation & Transactions

The Court of Special Appeals of Maryland issued an opinion this week that serves as a reminder that a party’s simple failure to preserve evidence can sometimes snatch defeat from the jaws of victory. The case (and link) is Cumberland Insurance Group v. Delmarva Power.

The short version of the case: A home sustained major damage from fire. The homeowner’s insurance company [Cumberland] paid the claim. Most serious fires are investigated for origin and causation of the fire. The insurance company’s investigation in this case led it to conclude that the fire was caused by faulty wiring in the house’s electric meter box. The Insurance Company preserved the meter box; but demolished the property before the Power Company [Delmarva] had opportunity to have its own expert examine the scene and test the Insurance Company’s theory of origin and cause. The Insurance Company made a subrogation claim for damages against the Power Company. The trial court dismissed the suit on the basis that the Insurance Company had made no effort to preserve the evidence that the Power Company would need to evaluate to defend the claim.

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 Posted on February 05, 2016 in Medical Malpractice

A Philadelphia jury recently awarded $4.2 million to a woman whose leg was caused to be amputated because of an infection that she developed after undergoing a double-knee replacement.

The patient, who was a diabetic, presented in 2009 with bilateral knee pain and was diagnosed with degenerative arthritis in both knees, a diagnosis which was subsequently confirmed by x-ray. Knee replacement surgery was scheduled for December of 2010. After the surgery, the patient was transferred to a rehabilitation facility where she began to develop drainage and a large blister in the area of the incision on her right leg but was discharged soon thereafter. The infection, later determined to be Methicillin-resistant Staphylococcus Aureus (MRSA) was allowed to progress and in January of 2011, open wounds on her right leg and left heel were discovered. She underwent additional surgeries to have ulcers drained, and to have a skin graft on her right knee and a flap placed on her left leg.

By July of 2011, the patient had undergone three additional surgeries including one to have the hardware from her knee replacements removed. When doctors determined that her left leg had insufficient blood flow to heal properly, the leg was amputated below the knee. In her medical malpractice lawsuit, the patient alleged that her surgeon failed to advise her of the risks associated with bilateral knee replacement surgery in people with a history of diabetes and also failed to order that she undergo vascular evaluation to determine whether she was suffering from arterial or venous insufficiency. It also was alleged that despite the signs and symptoms of an infection that she was exhibiting, her physician negligently discharged her.

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 Posted on January 28, 2016 in Medical Malpractice

A Charleston, SC jury this week ordered a physician and his employer, a radiology company, to pay $6.9 million dollars to a woman and her husband for the loss of chance of survival after a significant delay in diagnosing breast cancer. The now-47 year old woman, employed as a nurse, was 39 when she went for a mammogram. The screening showed new calcifications that weren’t present on a mammogram performed five years prior.

Nevertheless, her doctor interpreted the study as benign and ordered no additional studies, diagnostic testing or follow-up appointments. Two years later, the woman was diagnosed with Stage III Invasive Duct Carcinoma. By 2013, the cancer had metastasized (spread) to her bones, including her sternum, spine and hip. The diagnosis was that the disease had become terminal, meaning that there was no hope for a cure.

The attorneys presented testimony of expert witnesses who stated that had additional testing been conducted, her cancer would have been diagnosed sooner and her chances of survival would have been between 85 and 100 percent. Notably, the American Cancer Society recommends that women begin yearly mammograms at age 45. The woman’s attorneys used this fact to show how proactive she was when it came to her health. The verdict included $6.2 million to the woman and $700,000 to her husband for loss of consortium.

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 Posted on January 21, 2016 in Medical Malpractice

This month, a Carroll County jury awarded $570,000 to the estate and surviving family members of a woman whose internal bleeding went undiagnosed, resulting in her untimely death.

The woman presented to the emergency room with a chief complaint of swelling in her left leg and was diagnosed with acute deep vein thrombosis and pulmonary embolism, was admitted and given blood thinners. She remained in the hospital for five days before being discharged with prescriptions for two blood thinners. One of the medications required regular monitoring with a test known as INR to ensure the correct dosage. A low INR is an indicator for increasing the dosage and vice versa.

Days after her release from the hospital, her INR score was below the recommended low range and so her physicians recommended increasing the dosage. Thereafter, she woke up with severe pain in her hip and pelvis which the patient’s lawyers argued were tell-tale signs of a hematoma. She returned to the emergency room by ambulance where she was given painkillers and evaluated by a physician’s assistant. At that point, she was unable to walk and complained of spasms in her thigh. No testing or scans were ordered despite the fact that her pain was not responding to narcotic pain medication. Instead, she was transferred to a nursing home facility.

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 Posted on January 15, 2016 in Medical Malpractice

Understandably, one of the questions that we get asked most often when we first meet with new clients is "what is my case worth?" The law divides personal injury awards into two categories: economic damages and non-economic damages. While the facts of each particular case dictate which types of damages can be recovered, the following is a broad discussion of some of the types of damages available.

Economic damages are those which are easily capable of being quantified. In short, they are actual, monetary losses that a plaintiff has suffered as the result of a medical mistake (or other personal injury). The most obvious example of economic damages is lost wages. When an injury renders a person unable to work when they were able to work before, they generally can make a lost wage claim. Such a claim analyzes what their average earnings were, determines what their work-life expectancy would have been (i.e., how many more years they would have worked had they not been killed or injured), and then determines what their average earnings would have been over that period of time (taking into consideration factors such as wage increases and inflation). Importantly, a plaintiff may only make a claim for the present value of future lost wages. For example, if it is determined that a person would have earned an additional $1 million over a period of years if they had been able to keep working, the defense does not need to pay them $1 million today to settle that claim. Rather, the defense need only pay an amount which, when invested at reasonable rates of return currently available in the market, will yield a total recovery in the future of approximately $1 million. Usually, plaintiffs’ lawyers employ an expert economist to make this determination.

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 Posted on January 07, 2016 in Medical Malpractice

A jury in Washington State has awarded more than $1.5 million dollars to a carpenter and his wife after a physician failed to timely diagnose the 56 year-old man’s compartment syndrome. Compartment syndrome is a condition in which swelling compresses muscles, nerves and blood vessels within an area of the body, restricting the flow of oxygen which in turn destroys nerves and muscles. It was the plaintiffs’ position that compartment syndrome must be addressed within six hours of injury to optimize the outcome of the patient.

In the case, the patient fell sixteen feet from scaffolding onto concrete at his job and was airlifted to a local hospital for treatment. At 7:45 p.m., his wife urged hospital staff to summon a physician to examine her husband but it was not until 2:24 a.m. the following morning that a first-year orthopedic resident examined him. At that time, he merely was given morphine which masked the pain. The resident again examined him at 6 a.m. but again failed to diagnose the process in the man’s left hand. It wasn’t until a 7 a.m. examination by a surgeon – more than twelve hours after the initial injury – that it was determined that the man’s hand was completely numb and that he was suffering from significant compartment syndrome.

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 Posted on January 04, 2016 in Appeals - State & Federal

It’s no secret that the Court of Special Appeals has been increasingly overwhelmed with cases, nor is it a secret that the Court would like to see a lot of these cases resolved or otherwise cleaned up before having to spend time on them. Those concerns led to the creation of the Court’s ADR Division and accompanying procedures for steering the parties toward settlement or streamlining of the appellate process. After trying those out for a while, however, the Maryland Courts’ Standing Committee on Rules of Practice and Procedure identified some kinks, inefficiencies, and redundancies in the overall system, and proposed some related rules changes that were adopted by the Court of Appeals this month.

As it had worked, pursuant to Md. Rule 8-206, the Court of Special Appeals can hold a "scheduling conference" at which parties appear before a judge of the Court to discuss the contents of the record and record extract, filing deadlines, and other procedural and administrative matters. Similarly, as set forth in Rule 17-401, the Court’s ADR Division also conducts free mediation or "settlement conferences" that provide an opportunity to achieve resolution on both procedural and substantive issues, including dismissing the appeal entirely or otherwise streamlining it by limiting issues, consolidating multiple actions or briefs, presenting disputes in preliminary motions, directly seeking certiorari with the Court of Appeals, and the like. That rule directs the ADR Division to screen all civil-appeal information reports and – if necessary, in consultation with the parties or attorneys (communications that aren’t regarded as ex parte) – make recommendations to the chief judge as to whether the parties should be ordered to participate in either mediation or a settlement conference.
Under Rule 8-206, the chief judge (or some other judge he’s delegated his responsibilities to) reviews the recommendation and enters an order either directing the appeal to proceed as normal; mandating that the parties or their attorneys attend mediation or a settlement conference; routing the case to a scheduling conference; or staying the case so the parties can engage in their own alternative dispute resolution. If the parties are ordered to mediation (ran by an incumbent judge of the Court of Special Appeals, a retired judge, or a designated staff attorney who has satisfied the requirements of Rule 17-403) or a settlement conference (which can only be conducted by incumbent Court of Special Appeals or other retired appellate judges) and they don’t initially settle, they can agree to keep at it or try another type of alternative dispute resolution. A failed settlement conference can also be essentially converted into a scheduling conference to streamline the appeal. All in all, not a bad system, but not perfect either, especially with all the overlap between mediation, settlement conferences, and scheduling conferences.
The new rules try to clean this up, largely by replacing the settlement conference with a "prehearing conference" and covering more ground in the scheduling conference. Further, instead of assigning duplicative functions to the two types of conferences, the changes more clearly distinguish between them but permit the chief judge to order both rather than one or the other. (The new rule also eliminates the fourth possibility – staying the case so the parties can engage in their own alternative dispute resolution – presumably because it’s already covered by other permissible preliminary motions.) Rule 17-402 also now provides that the chief judge can, regardless of what he initially ordered but provided oral arguments haven’t been held yet, change his mind and order a prehearing conference or mediation. A prehearing conference or mediation can only be held after oral arguments if the parties consent and no dispositive opinion or order has yet been issued.
The scope and purpose of the scheduling conference (which can now also be conducted by a retired judge) has been expanded to cover gray areas between purely procedural and substantive disputes. For example, whereas the scheduling conference was previously intended for tidying up purely administrative matters, now it’s also meant to cover more contentious disputes, including arguments about procedural bars to the appeal, mootness, and lack of preservation. The scheduling conference is also now the proper place to address topics previously reserved for the settlement conference, including limiting the issues; presenting disagreements to the Court in a preliminary motion rather than through appellate briefing; relying on a joint statement of the case rather than a record extract; submitting a consolidated brief for multiple appellants (along with any necessary deadline adjustments); bypassing the Court of Special Appeals and filing a petition for certiorari with the Court of Appeals; expediting or delaying proceedings; or dismissing the appeal entirely. Likewise, the revised Rule 17-403 keeps the prehearing conference more limited to settlement of substantive matters, rather than the blend of procedural and substantive issues formerly covered by a settlement conference.
Things are also slightly different in how the Court implements agreements that might come out of a scheduling conference. In the earlier version of the rules, the judge conducting the conference would enter an order reflecting any agreements reached between the parties, requiring additional conferences, or remanding the case. Going forward, the procedure will largely align with that used for resolution achieved after mediation or a pretrial conference: The parties (or the scheduling hearing judge) will file a proposed order and the chief judge signs it, rejects it, or sends it back with proposed changes (though he can’t prevent a party from ultimately maintaining or dismissing the appeal). If the parties don’t accept the changes, the appeal proceeds as if there had been no agreement at all.
In all, the new rules only nominally create additional opportunities for resolution of cases through appellate ADR. The overall effect of the adjustments, however, is to clarify the purposes and uses of the various procedures and implement them in a targeted and more efficient manner. That suggests the Court is invested in the ADR program and looking to grow it in an integrated and comprehensive way.
Silverman Thompson Slutkin & White, LLC is well suited to handle any appellate matter in Maryland. Joe Murphy was Chief Judge of the Court of Special Appeals and a Judge on the Court of Appeals before retiring and joining the Firm and Chris Mincher clerked for Judge Robert McDonald on the Court of Appeals. If we can assist you with an appellate matter, please call 410-385-2225 and ask to speak with either Joe or Chris.

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 Posted on December 16, 2015 in Medical Malpractice

"No human being should ever die from a urinary tract infection in today’s world of modern medicine." That was the theme of a Maryland medical malpractice case in which the jury last week awarded $2.6 million dollars to the husband and two young children of a woman who indeed died after her physicians failed to timely and appropriately diagnose and treat her urinary tract infection (UTI).

On April 14, 2013, the 33 year-old woman presented to a local hospital with chief complaints of shortness of breath, back pain, nausea, vomiting, chills, dizziness and painful urination. Hours later, it was noted by nursing staff that the patient’s urine was dark in color. The family’s attorneys argued that the presence of an infection was clear and that the medical staff needed to administer antibiotics and make prompt arrangements for her to be transferred to a facility with the capabilities to care for her condition, such as an intensive care unit. Instead, the defendants delayed more than ten hours before administering antibiotics.

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 Posted on December 11, 2015 in Medical Malpractice

According to the Mayo Clinic, "atrial fibrillation (‘AFib’) is an irregular and often rapid heart rate that can increase your risk of stroke, heart failure and other heart-related complications." When a patient is experiencing AFib, the heart’s two upper chambers of the heart beat chaotically and irregularly, not in unison with the lower two chambers. The symptoms of AFib include, but are not limited to shortness of breath, weakness and heart palpitations.

In a recent medical malpractice lawsuit, a 63 year-old patient who had long suffered from bouts of AFib presented to a cardiologist who was covering for his own regular doctor, who was on vacation, for an emergency appointment for a flare-up of his AFib. If not properly treated, this condition can cause an accumulation of blood in the heart’s atrial chamber causing increased risk of an embolus and a stroke. Although his regular doctor usually placed him on the medication Coumadin to treat such symptoms, on this visit, the cardiologist allegedly ignored the patient’s past successful history with Coumadin, determined the patient was a low risk for an embolic event and placed him on a high dose of aspirin with instructions to follow up a week later.

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 Posted on December 04, 2015 in Medical Malpractice

This week, the Maryland Court of Special Appeals upheld the dismissal of a medical malpractice and wrongful death action filed against a board-certified anesthesiologist and critical care physician at the University of Maryland Medical Center. STSW attorneys were not involved with the prosecution or appeal of this case.

The drug Heparin is an anticoagulant used to prevent blood clotting and is often given to patients who are undergoing dialysis. Once of its side effects is that it can decrease the blood platelet level. For this reason, Heparin is not administered to a patient whose platelet level falls below 50 because a condition called "heparin-induced thrombocytopenia" ("HIT") can result. HIT interferes with the ability of the blood to clot and is a serious condition which can prove fatal.

On December 22, 2008, and notwithstanding the fact that the patient’s platelet level was at a dangerously low level of 1, the patient was given two doses of Heparin. It was alleged in the lawsuit that the patient developed HIT and essentially bled to death the following day. The defendant-doctor denied ordering or administering the Heparin. During the discovery phase of the litigation, the defense lawyer was successful in getting the plaintiffs’ liability expert to admit that the only way that the defendant-doctor could be considered to have acted negligently (in other words, in violation of the standards of acceptable medical care) was if: (1) the defendant-doctor himself administered the Heparin or ordered it to be administered; or (2) if a resident physician acting under the defendant-doctor’s supervision had ordered the Heparin and the order was not corrected by the defendant-doctor in his capacity as the attending physician.

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