Posted on June 18, 2012 in Medical Malpractice

In a decision handed down by the Court of Special Appeals on June 6, 2012, Maryland’s intermediate appellate court clarified section 3-2A-02(c)(2)(ii)1B of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland, which sets forth the requirement that, if the defendant in a medical malpractice action is board certified in a specialty, any expert witnesses who testifies that the defendant violated the standard of care must be board certified in the same or a "related" specialty. A copy of the Court of Special Appeals opinion can be found here.

The case, DeMuth v. Strong, was a medical malpractice case action initially brought by Strong in the Circuit Court for Cecil County against Dr. DeMuth, a board certified orthopedic surgeon. When Strong called a board certified vascular surgeon as an expert witness to testify that Dr. DeMuth had breached the standard of care in his treatment of Strong and that the breach had caused Strong’s injuries, Dr. DeMuth objected which ultimately formed the basis of the appeal.

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 Posted on June 01, 2012 in Criminal Defense

https://www.silvermanthompson.com/lawyer-attorney-1300820.html Among the most difficult cases that Maryland Criminal Attorneys find themselves involved in are https://www.silvermanthompson.com/lawyer-attorney-1300820.html. These cases are always tragic but they become even more so when the person who is killed is a passenger and close friend or family member of the driver.

Most of these cases involve young people who are out together and are using alcohol and/or drugs. These cases also typical involve excessive speed or other dangerous driving. The driver is almost always a decent person without a record who never intended to hurt much less kill anyone. I concluded a particulary tragic case like this in Baltimore County Circuit Court this week. It was, in all honesty, among the most difficult and emotionally taxing cases of my career. Here are the facts:

My client is a 22 year old man who lives here in Baltimore County. He comes from a very nice family, has a good job and has no prior criminal or traffic record. He went out drinking one night last year. With him was a lifelong friend from his neighborhood. In fact, they had known eachother since my client was 7 and lived just 2 doors apart. My client told me that he loved him like a brother.

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 Posted on May 25, 2012 in Criminal Defense

https://www.silvermanthompson.com/lawyer-attorney-1300820.html As a Baltimore Maryland Criminal Defense Attorney I have represented dozens of people who have been charged with being in possession of a handgun after being convicted of a felony, a crime of violence or any other disqualifying crime. Many of these prosecutions have been meritorious cases in which the defendant had a serious criminal record, knew full well they were prohibited from possessing a handgun and chose to carry a weapon on their person or in their car in spite of that knowledge. These charges are serious and are prosecuted aggressively by every State’s Attorney’s Office in the State. Quite often the prosecutors reasonably choose to seek the mandatory five year without parole sentence against defendants who have serious felony convictions or convictions or crimes of violence.

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 Posted on May 21, 2012 in Medical Malpractice

A recent study conducted by Massachusetts General Hospital in Boston reviewed over 10,000 medical malpractice claims filed across the country and found that plaintiffs rarely win medical malpractice cases that go all the way to a jury verdict. An article discussing the study can be found here.

Most claims that are filed, over ninety-five percent (95.5%), never even make it to a jury. More than half (54.1%) are dismissed or settled before trial. Of those four and a half percent (4.5%) of medical malpractice claims that go to a jury, almost eighty percent (79.6%) result in verdicts in favor of the physician.

The study also highlights the extremely long length of time spent resolving medical malpractice claims. Understandably, the cases that were settled out of court were often resolved the quickest at just over eleven and a half months (11.6), but those that were litigated in court often lasted over twenty-five (25) months. When cases progressed all the way to a jury verdict, those won by the physician, took thirty-nine (39) months whereas those in which the patient was successful took an outstanding forty-three and half (43.5) months – almost four years!

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 Posted on May 11, 2012 in Criminal Defense

As an Aggressive and Experienced Baltimore Maryland Criminal Attorney, I have handled thousands of felony narcotics cases including Possession with the Intent to Distribute CDS and Distribution of CDS cases. These cases are serious matters in and of themselves with the potential of serious incarceration for a defendant. These cases become exponentially more serious when handguns and/or other firearms are seized along with the drugs.

Narcotics trafficking with firearms charges subject a defendant to an additional 20 year jail term on top of any sentence for the Felony CDS charges. More importantly, these charges carry a MANDATORY MINIMUM SENTENCE of five years in prison without the possibility of parole. In most instances, prosecutors reserve these charges for the worst and most violent offenders. Occasionally however, a prosecutor pursues these charges against defendants who don’t appear to fall into that category. I successfully defended a case in Baltimore County Circuit Court last week in which narcotics trafficking with firearms charges were pursued against 3 defendants who most certainly did not represent the worst of the worst violent drug dealers. At least that is my opinion. I found the decision to pursue a "five no parole count" against these defendants troubling to say the least, but I became even more troubled when I learned the details of how the police came to suspect these men as well as the nature and extent of the investigation into them. Here are the facts (as always I will be somewhat vague where necessary to protect my client’s anonymity and privacy).

My client, along with two other men, were renting a townhome together in Baltimore County Maryland. All three men are in their mid-thirties and none has a criminal history of any kind. Each is also at least a college grad and one is a physician currently employed at a hospital in Maryland. Hardly the dangerous street criminals who are usually the target of these types of prosecutions.

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 Posted on April 26, 2012 in Complex Civil Litigation

Simply put, an insurance agent has no general duty to advise its insureds, with regard to essentially anything after the issuance of the policy. In Maryland, as well as other jurisdictions, the basis for not holding agents to a standard of care stems from a fear that to do so would create a situation where the tort floodgates would open to allow claims against brokers whenever an incident surrounding the policy occurs. While the question of duty can become more complex when the agent is acting on behalf of the insured, as opposed to the insurance company, the question is not affected in a relevant way.

Regardless of the status of the agent, when viewed exclusively in the insurance context, once the policy is issued, the insured is responsible for noticing any problems with the policy and bringing them to the attention of the agent immediately. With regard to administration of the policy following issuance, the basis for not requiring a duty of care stems from a belief that such would require an agent to continuously monitor a clients assets and adjust coverage accordingly. Since agents are generally in a position where they must rely on the information given to them by the insured, imposing a duty of care is unreasonable.

In rare circumstances, Maryland courts will only go beyond the above mentioned bright-lined approach in situations where there is a "special relationship". Otherwise, any causes of action arising after the policy has been issued will need to be prosecuted against the actual policy provider (the insurance company), not the agent. Keep in mind, however, that there is a potential action against an agent for negligence in situations where, for example, the agent did not recommend the proper amount of coverage or failed to list the proper parties or beneficiaries.

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 Posted on April 26, 2012 in Business Counseling, Litigation & Transactions

On of the most common dispute between businesses involves a tort know as tortious Interference of contract. Maryland recognizes two types of tortious interference claims: "inducing the breach of an existing contract and, more broadly, maliciously or wrongfully interfering with economic relationships in the absence of a breach of contract." Kaser v. Fin. Prot. Mktg., Inc., 376 Md. 621, 628 (2003).

The two claims share the same elements – intentional acts done with the unlawful or wrongful purpose to cause damage to plaintiff’s lawful business with actual damage resulting – and can arise only out of the relationship between three parties, the two parties to the contract and a separate interferer. The three-party relationship applies equally in the instance of a business relationship where no express contract exists; however, in such situations, the right of an individual to interfere is treated more broadly.

We have found that if not properly and succinctly pled, this count may not survive a motion to dismiss at the start of the case, for failure to state a claim upon which relief can be granted. Although there are no Maryland state court cases which address this issue on an initial motion to dismiss, the United States District Court for Maryland-applying Maryland law-has routinely dismissed such claims.

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 Posted on April 26, 2012 in Business Counseling, Litigation & Transactions

To the surprise of many commercial litigators, Maryland does not recognize an independent breach of fiduciary duty claim. The Court of Special Appeals recently stated "In a claim for monetary damages at law … an alleged breach of fiduciary duty may give rise to a cause of action, but it does not, standing alone, constitute a cause of action." Wasserman v. Kay, 197 Md. App. 586, 631 (2011).

In other words the proper count is a breach of contract or negligence claim which follows what is commonly referred to as a breach of fiduciary duty. For additional information, please contact the commercial litigation practice group of Silverman, Thompson, Slutkin & White, LLC for more information.

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 Posted on April 24, 2012 in Personal Injury

A recent Court of Appeals decision, issued on January 27, 2012, involved a case that began over ten years ago and determined that awards for future medical expenses cannot be voided after the death of the personal injury plaintiff. A copy the judicial opinion regarding the case can be found here.

The case, Spangler, et al. v. McQuitty (McQuitty II), stems from what was initially a medical malpractice action. McQuitty, a minor, by and through his parents, sued an obstetrician and primary care physician, and their practice, for failing to obtain informed consent to treatment, after which McQuitty suffered severe injuries during his birth. In the first case, McQuitty I, the jury awarded McQuitty $13,078,515.00 in damages; $8,442,515.00 of which accounted for future medical expenses. Various post-trial motions were filed regarding this verdict, but McQuitty died in 2009 prior to the resolution of all proceedings.

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 Posted on April 23, 2012 in Business Counseling, Litigation & Transactions

Many businesses approach classifying workers as a tax strategy: classify someone who performs services for you as an employee, and the employer must withhold federal income taxes, withhold and pay social security and Medicare taxes, and pay unemployment tax on wages paid to an employee. Classify that same worker as an independent contractor, and the worker, not the business, is responsible for the related employment taxes. Seem like an easy decision? Think again. A mere label does not determine the employer-employee relationship for tax purposes, and misclassification can result in potentially crippling tax liabilities.

So what do you do if you think you’ve misclassified your employees as independent contractors? Fortunately, the IRS recently issued an amnesty program for employers dealing with such issues.

In September 2011, the IRS announced the Voluntary Classification Settlement Program to assist employers in correcting worker misclassifications. Employers who meet the criteria and voluntarily come forward must agree to prospectively treat the class of workers as employees for future tax periods and agree to a special six-year statute of limitations period (extended from the usual three-year period of limitations on assessment of employment taxes) beginning after the date on which the taxpayer has agreed under the closing agreement to begin treating the workers as employees. In exchange, the employer obtains substantial relief from federal payroll taxes they may have owed for the past, if they prospectively treat workers as employees.

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