Posted on April 01, 2014 in Medical Malpractice

A Massachusetts jury recently has found that a doctor at a hospital in Boston was guilty of medical malpractice that caused the sudden death of a 23-year-old man, and awarded the family $4.8 million in the medical malpractice case.

Apparently, the patient visited the emergency room on August 14, 2006, with symptoms of a cough, fever, and chest pains. After a very brief visit with a physician at the hospital, the patient was diagnosed with bronchitis and discharged shortly thereafter. The physician prescribed antibiotics and painkillers and suggested he get plenty of rest. Sadly, early the next morning, the patient was found dead in his bed. A copy of the article regarding the medical malpractice case can be found here.

Medical examiners subsequently identified the patient’s cause of death as myocarditis, a virus that affects the heart muscle through infection and inflammation. An electrocardiogram would have revealed this condition. However, and despite the fact that an electrocardiogram is routine for patients complaining of chest pains, the physician did not order that test. The medical malpractice lawsuit alleged that the patient’s condition was preventable, had his physician spent the appropriate time caring for the patient.

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 Posted on March 25, 2014 in Medical Malpractice

A person who is injured expects to receive adequate care and treatment from doctors and medical staff. Patients certainly do not expect that they will walk out of a hospital or doctor’s office in a worse condition than when they arrived. Unfortunately, that is exactly what happened in a recent medical malpractice case in New York.

Almost ten years ago, a New York man slipped on some steps as he made his way into work as a public safety dispatcher, breaking one of his ankles. He subsequently sought treatment for his injury from a doctor at an orthopedic practice. Later, he began experiencing significant pain on the side of his foot near his little toe. This intense pain prompted him to seek treatment from another doctor. From 2005 to 2009, a surgeon at a knee center began performing surgeries on his little toe in hopes of alleviating the patient’s pain. Eventually, however, the surgeon amputated the patient’s little toe.

Sometime after this amputation, the patient developed an infection, and the doctor was forced to amputate the fourth toe. The patient’s pain persisted, and in July 2009 the knee surgeon amputated the leg just below the knee. Once again, the patient developed another post-surgical infection which required the amputation of the remaining leg above the knee. After these surgeries in 2009, the patient no longer was able to work. In all, the patient underwent twelve surgeries from various doctors in New York. Following all of these surgeries, the patient filed a medical malpractice suit against his treating doctors and surgeons.

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 Posted on March 23, 2014 in Business Counseling, Litigation & Transactions

Liability insurance policies sold to businesses, and individuals, are often "occurrence"-based policies that provide coverage for specific events, or "occurrences," that take place during a covered period (regardless of when a lawsuit based on those events is filed). This seems easy enough on the surface, but "occurrence" policies have given rise to legions of legal opinions concerning arguments as to whether a coverage-triggering "occurrence" or "occurrences" took place, and if so, when the "occurrence(s)" took place. As most businesses purchase commercial policies of relatively short duration, one or two years, policyholders oftentimes argue that separate occurrences took place over multiple consecutive policy periods – in order to "trigger" coverage under multiple policies. Insurers typically respond, if the facts support such a response, that there was no "occurrence" at all, and therefore coverage is not triggered under any of the potentially applicable policies – or alternatively, that there was only one "occurrence," triggering coverage under only one policy.

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 Posted on March 22, 2014 in Federal Crimes & White Collar Crimes

Companies and attorneys should be wary when turning documents over to a governmental entity while in an adversarial relationship, even when a signed confidentiality agreement is in place. The risks associated with doing so took center stage last summer in a civil defamation case, Gruss v. Zwirn, when United States District Judge Paul Gardephe ruled that Zwirn Entities waived the attorney-client privilege when it disclosed portions of witness statements to the SEC as part of an internal investigation.

Beginning in 2006, the hedge fund Zwirn Entities launched an internal investigation following allegations of financial impropriety, which ultimately focused on the fund’s CFO. Outside counsel leading these investigations interviewed 21 witnesses and prepared privileged and confidential memoranda summarizing those statements. Those findings then were voluntarily reported to the SEC in the form of various PowerPoint presentations pursuant to a signed confidentiality agreement.
The fund’s CFO subsequently brought breach of contract and defamation claims against his former company alleging that statements made to investigators and regulators implicated him while minimizing the culpability of others within focus. After receiving the PowerPoint presentations in discovery, he sought the underlying attorney notes and interview summaries from defendants; defendants refused to produce them on the basis that they were protected by the attorney-client privilege and work product doctrine. A magistrate judge agreed, citing the confidentiality agreement with the SEC and the fact that the underlying interview memoranda – unlike the PowerPoint slides – never were produced.
District Judge Gardephe reversed the magistrate’s ruling, finding that production of the PowerPoint presentation did constitute a waiver of the underlying source material: “Excerpts of Defendants’ attorneys’ work product – the interview notes and summaries – were deliberately, voluntarily, and selectively disclosed to the SEC via the PowerPoint presentations. As a result, any work product protection associated with the factual portions of the interview notes and summaries was forfeited.”
Judge Gardephe’s opinion rejected strategic and manipulative assertions of privilege, and found that the confidentiality agreement at issue provided no meaningful protection to Defendants because it essentially granted the SEC discretion to selectively disclose materials at any time and to serve its own interests or gain tactical or strategic advantage. Thus, according to the court, through their voluntary disclosure to the SEC, defendants had waived any attorney-client privilege and work product protection that may have insulated the notes and summaries from discovery.
The takeaway from this case is that companies and attorneys must recognize the risks involved in disclosing findings of an internal investigation to the government. A delicate balance exists between confidentiality interests and successful defense of wrongdoing, and practitioners must exercise due caution in discovery production.
As seasoned attorneys who have handled numerous internal investigations as well as parallel civil and criminal/regulatory enforcement proceedings, Silverman Thompson Slutkin & White is well-versed in successfully walking the narrow tightrope that such proceedings often present. If you would like to learn more, please visit our Web site at www.silvermanthompson.com or call Andrew C. White or William N. Sinclair at 410-385-2225.

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 Posted on March 15, 2014 in Federal Crimes & White Collar Crimes

Former top officials of the prominent global law firm, Dewey & LeBoeuf, were indicted last week for deceiving banks and hiding the firm’s true financial condition from creditors, investors, auditors, and even its own partners. The lengthy indictment paints an elaborate accounting fraud where executives and financial professionals desperately tried to avert financial disaster. In short, the criminal charges brought by the Manhattan District Attorney allege a massive scheme to “cook the books” where the defendants falsified financial records submitted to banks and investors to demonstrate that the firm had complied with existing loans and therefore was worthy of further investor loans. The charges also allege the defendants made fraudulent accounting entries to support these phony representations.

The Securities and Exchange Commission also has brought civil charges against the firm’s top representatives. According to the SEC’s complaint, the fraudulent scheme dates back to late 2008 when senior financial officers began using a multitude of improper accounting tricks to artificially inflate income and mask the firm’s dire financial performance.
Of the eleven criminally charged in this scheme, four have pled not guilty; the seven others reportedly have pled guilty to an indictment that remains under seal.
Unfortunately, all too often businesspeople fall into tight financial situations where they desperately need to borrow cash to keep their businesses afloat. This case serves as an important reminder of the dangers associated with falsifying income, receivables, expenses and the like to avoid a collapse like that of Dewey & LeBoeuf.
As aggressive, Baltimore, Maryland criminal defense attorneys, we have represented individuals and companies indicted in both State and Federal court on similar charges. If you would like to talk to one of our experienced attorneys, please call 410-385-2225.

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 Posted on March 10, 2014 in Medical Malpractice

Some busy surgeons are known to leave the operating room before the surgery is completed, leaving less-experienced doctors to finish. This can result in terrible consequences.

Recently, a 72-year-old man and his wife filed a medical malpractice lawsuit against a cardiac surgeon and a hospital alleging that the man’s surgeon left his open heart surgical procedure early. The patient, once active and in good health, has been bedridden in a vegetative state since the operation he underwent nearly two years ago. A copy of the article regarding the medical malpractice case can be found here.

According to the medical malpractice suit, the patient visited a prominent medical center for the repair of an ascending aortic aneurysm. A prestigious cardiac surgeon was scheduled to perform the surgery on April 2, 2012. Rather than finishing the procedure properly, the medical malpractice suit alleges that the surgeon left the operating room before the patient was stabilized and instructed a physician’s assistant to close the patient’s chest. Upon the surgeon’s exit, however, the patient’s health took a turn for the worse: his heart stopped beating as oxygen and blood rapidly escaped his body. The medical malpractice suit claims the surgeon raced back to the operating room to manually massage the patient’s heart, but it was too late – the damage already had been done. Subsequent investigations surrounding the alleged medical malpractice also revealed that the physician’s assistant who was instructed to remain in the operating room was not qualified to complete the procedure.

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 Posted on March 04, 2014 in Business Counseling, Litigation & Transactions

When an injured party has insurance coverage, it’s a tricky thing figuring out what a jury should know about that insurance during trial. It can be even trickier when the insurer is an actual party, standing there fully represented in the courtroom. At least in Maryland, however, where insurance isn’t an issue in the case, the jury doesn’t have to know why the insurer’s involved.

In the recent case of Keller v. Serio & GEICO Ins. Co., Court of Appeals of Maryland, Case No. 48, September Term 2013, the plaintiff, Ms. Keller, got into a fender-bender and then went home. After talking to her attorney, Ms. Keller decided to check herself into the hospital. Five years, and more than $27,000 in medical bills later, she sued the other driver, Mr. Serio, in the Circuit Court for Baltimore County and notified her insurer, GEICO of a claim for underinsured-motorist coverage ("UM" in common insurance parlance) under that policy. GEICO then intervened in the lawsuit on the chance that an award might trigger the UM coverage.

During opening statements, Ms. Keller’s attorney identified GEICO as her insurer and the provider of her UM coverage. The rest of the trial dealt solely with Ms. Keller’s injuries and whether the accident caused them; GEICO didn’t come up again. At the close of evidence, Ms. Keller asked for a jury instruction explaining UM coverage, but the Court didn’t go for it, ruling that the instruction wasn’t warranted because insurance hadn’t been an issue in the case.

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 Posted on March 03, 2014 in Business Counseling, Litigation & Transactions

Reinsurance is a great way for insurance companies to manage their risk. An insurer issues a policy with a million dollars in liability limits, and then cedes, by way of example, 75% of that risk, or $750,000 to a "reinsurer." The reinsurer charges a small premium based on its actuarial bet that most claims will never exceed $250,000. The insurer is likewise pleased to pass of the majority of the risk for a small portion of the premium it collected. It is critical to remember, however, that the fundamental tenet of all insurance transactions, including reinsurance transactions, is risk transfer. If no risk of loss is transferred from the insurer to the reinsurer, there is no reinsurance transaction.

This precise problem was addressed recently by a federal district court in Menichino v. Citibank, N.A., 2014 WL 462622 (W.D. Pa., Feb. 4, 2014). By this opinion, a claimant was found to have successfully articulated a RESPA ("Real Estate Settlement and Procedures Act ("RESPA," for short)) cause of action against Citibank by alleging that Citibank charged fees for reinsurance but did not accept any risk. Citibank is also facing claims for unjust enrichment. While these are merely allegations, and none of these facts have been proven, the claimant’s lawsuit survived the preliminary motions stage, and provided all reinsurers a reminder to carefully consider risk transfer in structuring its transactions.

Menichino shines a spotlight on a lending practice from the pre-bubble-burst halcyon days of real-estate financing, when banks dished out mortgages like hotcakes and homebuyers ate them up without thinking twice. The plaintiff mortgagors in the case claimed to have been issued Citibank residential mortgages between 2005 and 2008 in Maryland, Pennsylvania, New York, North Carolina, Illinois, and Georgia. These mortgagors did not have the typical 20-percent of the purchase price to put down, so Citibank required them to get mortgage insurance from a select group of providers. The plaintiffs would pay the mortgage insurance as part of their regular mortgage payment. That’s a fairly standard arrangement in the mortgage industry, so no big deal there.

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 Posted on February 28, 2014 in Medical Malpractice

Over the years, I have successfully handled a number of medical malpractice birth injury cases. The birth of a child should be an exciting and happy occasion for all parents. Especially for new parents, labor and delivery can be scary and intimidating, and that is why parents trust their doctors and nurses to perform to the best of their abilities and provide excellent medical care. This means putting their own lives and their child’s life in the hands of medical staff and trusting that everyone will be happy and healthy. Sadly, the doctors and nurses who are responsible for delivering babies sometimes can endanger the health and safety of both baby and mom through mistakes and inattention. These injuries happen far too often and can result in irreparable harm to the baby prior to and during delivery. Birth injuries can have significant consequences on a child’s health and future, and on a family who must cope with the financial hardships of raising a child with a severe disability or condition.

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 Posted on February 24, 2014 in Business Counseling, Litigation & Transactions

As governments get increasingly involved in regulating telecommunications advertising, it is more important than ever for companies to be legally savvy about their mass-marketing techniques. Insurers are well aware that violations of mass-marketing laws have the potential to result in huge class action verdicts, so carriers tend to be vigilant in defending against claims for insurance coverage for these suits. A recent case from Illinois provides insurers with additional ammunition to use in effectively disclaiming such coverage.

In Windmill Nursing Pavilion v. Cincinnati Ins. Co., 2013 IL App (1st) 122431, Unitherm, Inc., a company selling a garment-labeling system, sent nearly 75,000 unsolicited faxed advertisements that allegedly violated the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. Because the TCPA provides for $500 in liquidated damages for each unsolicited faxed advertisement, Unitherm faced more than $37 million in liability for its ill-advised marketing strategy.

Unitherm’s faxes triggered coverage under two commercial general liability policies with Cincinnati – an original policy and a renewal policy. Both policies offered $1 million in general aggregate limits and $2 million in commercial umbrella liability coverage. The renewal policy, however, specifically excluded bodily injury, property damage, or personal or advertising injury arising from a violation of the TCPA.

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