Posted on July 09, 2013 in Personal Injury

The Maryland Court of Appeals just issued its decision in the Coleman v. Soccer Association of Columbia case regarding whether to abandon the doctrine of contributory negligence (if a plaintiff is the least bit negligent, the plaintiff loses) in favor of the doctrine of comparative negligence (if a plaintiff is negligent, the plaintiff’s recovery is reduced by the percentage of the plaintiff’s negligence). Those on the victims’ side will say that this decision is a refusal to move from an antiquated doctrine to a modern doctrine. Those on the corporate and insurance side will consider this a win.

As set forth in the decision, contributory negligence traces its roots to 1809 in England. Almost all states in the U.S. subsequently adopted the doctrine contributory negligence. But over the years, all but four states and the District of Columbia have adopted comparative negligence. Those states that have abandoned the doctrine of contributory negligence have done so on the basis that is not fair to prevent a plaintiff from recovering when the defendant is negligent and the plaintiff is only 1/10th of 1% negligent.

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 Posted on July 02, 2013 in Medical Malpractice

Despite the continued national focus on patient safety, medical malpractice (medical errors) and other adverse events occur too frequently in Maryland hospital admissions. Hospitals in Maryland are required to report serious adverse events that occur to the Maryland Office of Health Care Quality (MOHCQ). MOHCQ then issues a yearly report regarding those reported events. In its recently-released report for fiscal year 2012, the report revealed that major adverse events (medical malpractice) still occur at an alarming frequency in Maryland.

Level 1 adverse events, which are the unexpected incidents that cause death or serious disability, were the most serious reported adverse events. Maryland hospitals reported 286 level 1 adverse events, a figure that is down from 348 in 2011. As in previous years, ulcers and falls were the most common incidents, accounting for 75 percent of all the reports in 2012.

The findings of the MOHCQ report include:

• 98 falls
• 86 hospital-acquired Stage III or IV pressure ulcers
• 16 suicides or attempted suicides
• 13 events involving post-surgical retention of foreign body
• 10 medication errors
• 10 events involving treatment delays
• 8 events involving the wrong patient or the wrong body part
• 7 events involving airway management
• 5 events involving restraints seclusion
• 5 fetal deaths or injuries
• 4 physical or sexual assaults within or on hospital grounds
• 4 events involving complication of treatment
• 3 health care associated infections
• 3 intravascular air embolism
• 2 intra-op or post-op deaths in ASA 1 patients
• 2 misdiagnoses
• 2 events involving contaminated drugs, devices or biologics
• 2 burns,
• 1 maternal death or disability associated with labor/delivery
• 1 event involving anticoagulants
• 1 event involving a failure to act
• 1 hypoglycemia event
• 1 event involving a malfunctioning device

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 Posted on July 02, 2013 in Medical Malpractice

Unfortunately, some of the most common medical malpractice lawsuits involve a doctor of hospital’s failure to diagnose a patient properly. When a patient seeks medical help, he or she trusts that their doctor or hospital will perform the necessary steps to diagnose what is causing their symptoms ultimately provide the proper treatment.

A missed or wrong diagnosis can lead a patient down the wrong treatment plan, or without any treatment plan at all. A missed diagnosis or a failure to diagnose occurs when a doctor or hospital does not diagnose a medical condition in a timely matter. Failing to properly diagnose a patient prevents doctors and medical staff from providing the proper treatment, which often can lead to further injury or sometimes even death.

Such was the situation in a recent case study involving a twenty-nine-year-old patient who delivered a child by cesarean section. One month after her delivery, the mother went to the hospital complaining of a painful migraine, blurred vision, nausea, and vomiting. The results from her CT scan were interpreted as normal, and the patient was discharged from the hospital with no medication or treatment provided. Two days later, she returned to the hospital with slurred speech, drooling and weakness in her upper and lower limbs. An additional CT scan was ordered immediately, which revealed an intracranial hemorrhage. Ultimately, she died of an intraparenchymal hemorrhage in her left cerebral hemisphere.

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 Posted on July 01, 2013 in Medical Malpractice

Surgery sometimes is necessary for patients who have an injury or medical condition that less invasive treatments cannot help. However, surgery is not always the appropriate measure in every situation, and if a doctor performs unnecessary surgery, patients may suffer a number of medical problems as a result.

A recent USA Today review of government records and medical databases found that tens of thousands of times each year patients are wheeled into the nation’s operating rooms for surgery that is not necessary. The study found that some providers do so just to take advantage of insurers or Medicare to drain them of funds, and some surgeons and doctors lack the competence and training to know when procedures are not necessary. Other times the facts don’t call for a surgery, or alternative treatments would have remedied the problem just as effectively.

A largely hidden problem, the study reported that unnecessary surgeries might account for ten to twenty percent of all operations in some specialties, particularly cardiac and spinal procedures. Knee replacements, hysterectomies, and cesarean sections were among the other surgical procedures performed more often than needed, according to the review. The study also analyzed the U.S. government’s National Practitioner Data Bank public use filed, which tracks medical malpractice suits. Since 2005, the newspaper found, more than 1,000 doctors have made payments to settle or close malpractice claims in surgical cases that involved allegations of unnecessary or inappropriate procedures. About half of these payments involved allegations of serious permanent injury or death, and many of the cases involved multiple plaintiffs, suggesting hundreds, if not thousands, of victims.

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 Posted on July 01, 2013 in Medical Malpractice

The Food and Drug Administration (FDA) regulates prescription drugs and medical devices to ensure that these products are safe and effective for their intended use. Frequently, medical professionals see clinical uses for medical devises that lie outside of the FDA-approved labeling. This is a practice known as "off label use."

While off label use of a medical device may be legal, a prescription drug or medical device should not be used "off label" without a patient’s consent. In Maryland, and in most states, the medical malpractice doctrine of "informed consent" requires that doctors (in a non-emergency setting) present the patient with important information about the nature of their ailment, the nature of the proposed treatment, the probability of success of contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment. This information allows the patient to decide which course of action to pursue.

In the recent Maryland case of Fusco v Shannon, the Court of Special Appeals held that a pharmacist was qualified to testify regarding off label use of a prescription drug in an medical malpractice informed consent case. The case involved an 82-year old man, Mafalda Fusco, who was diagnosed with prostate cancer and elected to undergo radiotherapy treatment. The physician to whom he was referred for this treatment explained the nature of radiation, including the need for a commonly used radiation protectant, Amifostine. Mr. Fusco underwent 23 injections of Amifostine and later suffered from a serious reaction, which causally contributed to his death.

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 Posted on June 28, 2013 in Business Counseling, Litigation & Transactions

Section 230 of the Communications Decency Act of 1996, 47 U.S.C.A. § 230, (CDA) provides online businesses a refuge from civil liability that could otherwise arise from content posted to a website, online blog or other social media platform by a third party. Specifically, § 230(c) of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties, stating: "No provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c).

Many businesses seek shelter under this provision of the CDA for legitimate business purposes, such as a commentary section for product or service reviews, but other businesses exploit this immunity, such as revenge porn sites like yougotposted.com.

It is essential, however, that all businesses that conduct business online or that operate an online website understand that the CDA’s immunity provision is not always a safe harbor. Why? Because the CDA’s grant of immunity applies only if the interactive computer service provider is not also an "information content provider," (ICP) which is defined as someone who is "responsible, in whole or in part, for the creation or development of" the offending content. 47 U.S.C.A. § 230(f)(3), emphasis added.

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 Posted on June 27, 2013 in Business Counseling, Litigation & Transactions

Depending on the nature of your business, your employees may routinely handle or have access to information that is subject to privacy protection or financial/securities regulations under various federal and state laws. Improper handling or disclosure of statutorily-protected or otherwise private information could potentially result in (1) statutory and privacy violations and (2) civil liability exposure for your business generally and for your employees individually.

Even businesses that do not handle sensitive information must consider the impact of employees’ use of social media – posts can go viral within seconds. And once content is posted on the Internet, it is very challenging, if not impossible, to remove. For these reasons, it is essential that every employee be aware of and educated about these potential legal risks when posting content on social media sites-even when they do so on their own time.

Thoughtless or unthinking social media mistakes can create ethical dilemmas and embarrass both a business and its employees. And consider the potential legal claims that may arise from employee social media misuse:

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 Posted on June 12, 2013 in Medical Malpractice

The U.S. Food and Drug Administration regulates medical devices and prescription drugs to make sure that they are safe and effective for their intended use. Frequently, doctors see clinical uses for medical devices and drugs that lie outside of the FDA-approved labeling. This is a practice known as "off-label use." The off-label use of a medical device is, in most cases, completely legal. The FDA understands that doctors have the right to make their own treatment decisions, including decisions about off-label uses, based on clinical experience and knowledge. However, the off-label use of medical devices can be a source of increased liability when such use falls short of patients’ expectations.

All doctors engaged in medical practice are liable for damages from negligent injury to patients due to medical malpractice. In such cases, the key question is whether the medical procedure or service at issue met the standard of care. The standard of care generally is defined as what a reasonable doctor would do under the same or similar circumstances.

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 Posted on June 11, 2013 in Medical Malpractice

There are many hidden and unknown dangers in the very places we expect to heal; for example, hospital beds. Many of these hospital beds have rails, typically made of metal, that run along the side of the sleeping space. These bed rails operate to prevent someone from rolling off accidentally.

Several months ago the Consumer Product Safety Commission released a review of bedrail deaths and injuries of adults. Using data from hospitals, the report cited 155 deaths involving bed rails from January 2003 to September 2012. In that same period, almost 37,000 people were injured in bed rail accidents and treated at hospital emergency rooms. According to this report, the deaths and injuries most commonly occurred when the victim became stuck in the bed rails, mainly with his or her head or neck getting caught. These alarming numbers triggered the CPSC to move forward in addressing bed rail safety.

Last week, the CPSC "merged" two petitions related to bed rail safety. Combined, the two petitions offer the CPSC an array of options: it can decide to do nothing, ban the use of bed rails entirely, or choose any various steps in between. Safety advocates are insistent that no intermediary step will eliminate all harm, suggesting that a ban likely is the best and safest option. The prevalence of these beds and bed rails in residences, nursing homes, and hospitals suggests that it is likely this petition will gain deep collective interest among a number of organizations.

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 Posted on June 07, 2013 in Business Counseling, Litigation & Transactions

The processes of setting and communicating prices are two of the most fundamental roles of a business. Price affects a business’s sales, revenue, investment returns, and ultimately profit. As a result, the term "price fixing" has a strong negative connotation, and deservedly so. Restrictions on price competition represent actual threats to the economy, and they carry the possibility of harsh penalties. However, the term sometimes may be misused in reference to pro-competitive, legal conduct, which actually may be beneficial for businesses and consumers.

In a recent decision, an administrative law judge dismissed three illegal price-fixing charges brought against McWane, Inc. by the Federal Trade Commission, but upheld four charges alleging that it illegally excluded competitors from the market.

The privately-owned McWane, Inc. is the nation’s largest manufacturer of iron pipe and other products used in water distribution and wastewater treatment. In January 2012, the FTC Complaint accused McWane of orchestrating a complex scheme in which it worked with competitors Star Pipe Products Limited and Sigma Corporation to raise and stabilize prices. The FTC also alleged that a trade group was created to assist in this illegal scheme by serving as a clearinghouse through which the companies could exchange pricing information.

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