Posted on June 03, 2013 in Medical Malpractice

Unfortunately, it is not uncommon for doctors and hospitals to misdiagnose a stroke in a younger person. Many people think that strokes only happen to older people. In reality, doctors around the world treat otherwise healthy people in their 30s, 40s and 50s who have had strokes, sometimes totally out-of-the-blue.

Misdiagnosis of stroke is a major medical malpractice problem that can have catastrophic consequences. In a landmark study in 2009, doctors found that young people who are having a stroke are misdiagnosed by emergency rooms 14 percent of the time. Such a misdiagnosis results in critical delay in treating stroke. As one of the authors of the study said, "early intervention is the most critical component of effective stroke care.

Doctors have known for decades that stroke symptoms include, but are not limited to: sudden numbness or weakness of the face, arm or leg, especially on one side of the body; sudden confusion, trouble speaking or understanding; sudden trouble seeing in one or both eyes; sudden trouble walking, dizziness, loss of balance or coordination; and/or sudden, severe headache with no known cause. When a patient has any of these symptoms, the must be carefully evaluated for a stroke.

Continue Reading ››

 Posted on May 29, 2013 in Personal Injury

It is not uncommon for a business to require a parent to sign a waiver before their child may participate in any of the business’s activities. By signing such a release, a parent agrees that the business is not responsible for any injuries that the child sustains as a result of the child’s participation in an activity. These releases also often have language indemnifying the business from any claim brought on behalf of the child. Until now, the law in many states has allowed these businesses, although responsible for the injury, to rely on this waiver and avoid all liability. But in a recent case of first impression, the Maryland Court of Special Appeals ruled that such agreements are void and unenforceable on public policy grounds.

In Rosen v. BJ’s Wholesale Club, Inc., Russell and Beily Rosen were members of the Owings Mills BJ’s Wholesale store. As a perk of membership, the store provided a free, supervised children’s play area, subject to the parent signing a release, which contained both an exculpatory and indemnification clause. Russell Rosen signed that release in July 2005. Then, in October 2006, Beily Rosen dropped her five-year-old son, Ephraim, off at the play center and proceeded to shop in the BJ’s. Sadly, Ephraim fell in the play area and suffered life-threatening brain injuries. The Rosens sued BJ’s, arguing the Club was negligent because it failed to have adequate material protecting the play area floor. In turn, the Club argued that it could not be sued because the Rosens signed the waiver. The trial court sided with the Club and threw out the case.

Continue Reading ››

 Posted on May 21, 2013 in Medical Malpractice

The New York Times recently ran a fascinating op ed by Joanna Schwartz, a professor at UCLA. The subject was a study that Professor Schwartz did on the value of medical malpractice litigation in reducing medical errors. Professor Schwartz’s conclusion was that medical malpractice claims and lawsuits actually don’t result in doctors and other health professionals hiding problems and, in fact, such suits actually encourage improved practices.

In order to reach her conclusions, Professor Schwartz surveyed more than 400 people who are responsible for hospital risk management, claims management and quality improvement in hospitals in the U.S. She found that, although hospitals used to handle medical errors and lawsuits by taking an adversarial and secret approach, hospitals have begun changing that approach. Now, she reports, hospitals are more open with patients. In fact, she found that over 80 percent of hospitals that she surveyed now actually have a policy of apologizing to patients who are victims of errors. Most importantly, she found that most hospitals are willing to discuss and learn from errors with staff. This is a dramatic shift form the old days when health care providers kept from patients the fact of medical injury.

Continue Reading ››

 Posted on May 15, 2013 in Medical Malpractice

Severe and permanent nerve injuries due to medical malpractice unfortunately can occur. These cases can be challenging to win because there often is not clear evidence of exactly how the nerve injury occurred. Recently, I successfully concluded a case of a nerve injury that allegedly was caused by malpractice. That case involved a severed sciatic nerve which occurred during orthopedic surgery. The surgeon denied that he severed the nerve; however, the patient walked into the hospital on the morning of the surgery and woke up with the severed nerve.

Nerve injury cases also can be very challenging because the extent of nerve injuries can be hard to quantify objectively. In my experience, defense attorneys and insurance adjusters tend to be suspicious of plaintiffs who have nerve injuries because the pain caused by these injuries is subjective and, therefore, hard to objectively quantify.

As an experienced Baltimore, Maryland medical malpractice lawyer, I have handled a number of medical malpractice cases involving nerve injuries. They are extremely complicated and require expertise that most general personal injury attorneys do not have. To see some of the cases I have handled, click here.

Continue Reading ››

 Posted on May 09, 2013 in Medical Malpractice

Most medical malpractice, wrongful death and personal injury lawyers in Maryland are hired by clients through a contingency fee agreement. In such an arrangement, the law firm generally is paid a legal fee based upon a percentage of the total amount recovered in the case plus expenses. If there is no recovery, there is no legal fee or expense. But what happens when the client fires the lawyer before there is any recovery.

The Maryland Court of Appeals recently had the opportunity to address this issue in the case of Brault Graham v. Law Offices of Peter Angelos. A copy of the court’s decision can be found here..

According to the court, "the client’s power to end the relationship is an implied term of the retainer contract," and therefore, "if the client terminates the representation, with or without cause, the client does not breach the retainer contract, and thus, the attorney is not entitled to recover on the [contingency] contract." The Court then made it clear, however, that an attorney may be entitled to recover legal fees on a quantum meruit basis. According to the court: "[W]here a client has a good faith basis to terminate the attorney-client relationship but there is no serious misconduct warranting forfeiture of any fee, the attorney is entitled to compensation based on the reasonable value of services rendered prior to discharge, considering as factors the reasonable value of the benefits the client obtained as a result of the services rendered prior to discharge and the nature and gravity of the cause that led to the attorney’s discharge."

Continue Reading ››

 Posted on May 09, 2013 in Criminal Defense

I am very used to dealing with police tactics in my role as a criminal defense lawyer that some might consider to be overly aggressive. But the tactics I am seeing more and more of recently are going beyond aggressive and are, in my opinion, becoming down right counterproductive to the basic goals of law enforcement. What I mean by that is that the police are utilizing tactics that are breaking down the fundamental trust relationship between the police and the community that is necessary, indeed essential, for effective law enforcement – mostly in the pursuit of non-violent drug offenders.

Let me give you two examples from just the last hour. Here are the facts:

I met with a client of mine this morning who had been charged with possession of marijuana. I literally could not believe my eyes when I read the police report. The police were in the neighborhood knocking on doors because there had been several burglaries in the area recently. My client was in his apartment minding his own business when the police knocked on his door. Before I go any further, you should know that my client is suffering from cancer of both the colon and the rectum. He is currently undergoing aggressive radiation and chemotherapy. He has a large pick line in his arm to administer his meds. He is bleeding regularly from his anus and is in so much pain that he literally cannot sit down. Several hours before the police knocked on his door he smoked a small amount of marijuana because it helps him with his pain and increases his appetite( oh and also because it gets him high which he finds an enjoyable thing to do in the privacy of his own home).

Continue Reading ››

 Posted on April 30, 2013 in Business Counseling, Litigation & Transactions

Delaware law permits a court to pierce the corporate veil of a company and hold its owners personally liable "where there is fraud or where [the corporation] is in fact a mere instrumentality or alter ego of its owner." See, e.g., Geyer v. Ingersoll Publ’ns Co., 621 A.2d 784, 793 (Del.Ch.1992). In order to state a claim for piercing the corporate veil under the "alter ego" theory, a party must show (1) that the corporation and its principals sought to be held liable operated as a single economic entity, and (2) that an overall element of injustice or unfairness is present. See, e.g., Trevino v. Merscorp, Inc., 583 F.Supp.2d 521, 528 (D. Del. 2008) (applying Delaware law). The fraud or injustice that must be demonstrated in order to pierce the corporate veil must be found in the principal’s use of the corporate form. See Mobil Oil Corp. v. Linear Films, Inc., 718 F. Supp. 260, 267 (1989); Blair v. Infineon Technologies AG, 720 F. Supp. 2d 462, 473 (D. Del. 2010).

Moreover, Delaware courts have noted that the alter ego theory only comes into play in piercing the corporate veil "when one seeks to hold liable an individual owner who controls the [company]." See In re Opus E., L.L.C., 480 B.R. 561, 570 (D. Del. 2012) (quoting Eastern Minerals & Chems. Co. v. Mahan, 225 F.3d 330, 333 n. 7 (3d Cir.2000)). The degree of control required to pierce the veil is "exclusive domination and control … to the point that [the person sought to be held liable] no longer ha[s] legal or independent significance of [their] own." See Wallace ex rel. Cencom Cable Income Partners II, Inc., L.P. v. Wood, 752 A.2d 1175, 1184 (Del. Ch. 1999) (citing Hart Holding Co. v. Drexel Burnham Lambert, Inc., 1992 WL 127567 (Del. Ch. May 28, 1992)). In other words, a corporate principal may be held liable where they controlled the corporation and used it to commit acts that sought to "defeat the ends of justice, to perpetuate fraud, to accomplish a crime, or to otherwise evade the law." See Trevino, 583 F. Supp. 2d at 529 (quoting Bd. of Trustees of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 171 (3d Cir. 2002)).

Continue Reading ››

 Posted on April 30, 2013 in Business Counseling, Litigation & Transactions

Generally, it is the rule that a corporate director is not personally liable for the misconduct of co-directors where he or she has not participated in the misconduct. See, e.g., Seale v. Citizens Sav. & Loan Ass’n, 806 F.2d 99 (6th Cir. 1986). Corporate officers and directors can only become personally liable if they directly authorize or actively participate in the wrongful or tortious conduct complained of by a third party. See, e.g., Taylor-Rush v. Multitech Corp., 217 Cal. App. 3d 103 (1990). In other words, directors ordinarily will not be held liable for wrongdoing over which they have no practical control. See, e.g., Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 89 N.C. App. 41 (1988).

Alternatively, the related doctrines of "piercing the corporate veil" and the "alter ego" theory can pose potentially liability concerns for corporate officers, directors and shareholders. Piercing the corporate veil involves a court disregarding the corporate entity for the purposes of inter alia adjusting the allocation of loss between a particular claimant against the corporation and a person who has, under all the circumstances, misused the corporate form. Accordingly, under the "alter ego" theory courts will "pierce the corporate veil" in order to fasten liability on a person who uses the corporation merely as an instrumentality to conduct their own personal business, which would perpetuate a fraud or injustice on third persons dealing with the corporation if such liability were not imposed. Several factors are considered regarding whether a corporate veil should be pierced under an "alter ego" theory, including: (1) insufficient capitalization for purposes of the corporate undertaking; (2) failure to observe corporate formalities; (3) non-payment of dividends; (4) insolvency of the debtor corporation at the time of the transaction in question; (5) siphoning of corporate funds by the dominant shareholder; (6) absence of corporate records; and (7) existence of the corporation as merely a façade for individual dealings. See, e.g., Blair v. Infineon Technologies, AG, 720 F. Supp. 2d 462, 470-71 (D. Del. 2010) (finding plaintiffs sufficiently plead alter ego liability under Delaware law to defeat a motion to dismiss).

Continue Reading ››

 Posted on April 30, 2013 in Personal Injury

In an effort to help our clients understand the process of negotiating a personal injury claim, I have compiled the following information that I feel is important you understand once the medical bills, lost wage statements and any other "special" damages have been obtained and the negotiating process has begun.

There are basically two types of damages to be considered when evaluating your claim, special damages and general damages:

a. Special damages are those damages for which you can show a dollar amount that you incurred as a result of having to pay money or losing money as a result of the collision and your injuries. Examples of special damages are medical bills and lost wages.

b. General damages are the damages for which you do not have a bill or for which you cannot show any "tangible" loss. Examples of general damages are pain and suffering.

2. Insurance companies tend to believe that a person could not have been seriously injured unless the automobile the person was in suffered a great deal of damage or was totaled. The insurance adjuster usually will not believe that you were severely injured if the automobile you were in suffered only a few hundred dollars damage and was driven from the scene of the collision.

Continue Reading ››

 Posted on April 30, 2013 in Criminal Defense

As an Aggressive Baltimore Maryland Criminal Attorney I have handled more of these Continental Arms Gun Range Cases that any other attorney that I am aware of. Last week I handled two of theses case in the Circuit Court for Baltimore County. Both defendants were facing mandatory 5 years prison terms – neither served a day in jail and both received unsupervised probation.

I have blogged about these cases several times in the past noting that in my view, these cases represent the worst in law enforcement and are in many ways counterproductive to main objective of law enforcement which is, of course, to keep the community safe. The reason for my belief that these cases are in fact counterproductive stems from both the simple fact that these cases are prosecuted in the first place, and this fact is compounded by the "scorched earth" tactics utilized by the police to investigate them. More on that later but here are the facts of the cases:

These two cases had substantially similar facts, the only difference being what crime the defendant had been previously convicted of that disqualified him from possessing a firearm. One of the individuals was convicted of second degree assault for a fist fight with another young man when he was just 18 years old. The other individual had a more serious record as he had been convicted of felony drug distribution.

Continue Reading ››