Posted on June 21, 2011 in Medical Malpractice

Medical errors leading to malpractice litigation generally stems from two root causes: a health-care provider choosing the wrong method of care or a health-care provider choosing the right method of care but carrying it out incorrectly. The former is particularly relevant when a health-care provider makes a misdiagnosis.

Most hospitals have faced litigation related to misdiagnosis at one time or another. For example, Mercy Medical Center in Baltimore was involved in suit regarding the misdiagnosis of cancer. The decedent in this case was diagnosed with prostate cancer and underwent radiation treatment as result. It was later determined that he did not, in fact, have prostate cancer. Prior to the institution of a medical malpractice lawsuit, he died of unrelated causes, and a representative of his estate (his wife) brought a medical malpractice action against both the physician and Mercy Medical Center to recover damages for the emotional distress associated with his misdiagnosis. The Circuit Court for Baltimore City initially granted the physician and hospital’s motion for summary judgment, dismissing the case. However, on appeal, the Maryland Court of Special Appeals reversed and remanded the decision back to the trial court. A copy the judicial opinion regarding the case can be found here.

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 Posted on June 20, 2011 in Medical Malpractice

In a Maryland medical malpractice case in which the plaintiff seeks punitive damages against a doctor for conducting an unnecessary procedure, is the employer hospital vicariously liable for punitive damages?

In general, Maryland has uniformly applied a broad rule for punitive damages and held an employer vicariously liable for punitive damages for its employee’s tortious acts. Embrey v. Holly, 293 Md. 128, 137-38, 442 A.2d 966, 971 (1982). The nature of punitive damages is such that a punitive damage award may be apportioned between multiple wrongdoers depending upon the degree of culpability and the pecuniary status of each. Embrey, 293 Md. at 141, 442 A.2d at 973. In Embrey, which was a defamation case, the Court held that it was entirely proper to permit a jury to apportion punitive damages among multiple defendants, the speaker of the defamatory language and his employer radio station. Id. at 143, 442 A.2d at 974.

However, if a tortfeasor is only liable through vicarious liability, settlement with the primary tortfeasor bars recovery from the vicariously liable tortfeasor. Anne Arundel Med. Ctr. v. Condon, 102 Md. App. 408, 649 A.2d 1189 (1994). Simply, an agent and his or her principal are not joint tortfeasors for the sake of potentially recovering from both if the principal is only vicariously liable.

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 Posted on June 20, 2011 in Criminal Defense

Maryland criminal lawyers, both defense attorneys and prosecutors, have a difficult time understanding the application of the Castle Doctrine. The answer is simple: A person’s status as an invited guest or uninvited trespasser does not impact an occupant’s right to reasonably defend their property. Under the Castle Doctrine, "a man faced with the danger of an attack upon his dwelling need not retreat from his home to escape the danger, but instead may stand his ground and, if necessary to repel the attack, may kill the attacker." Regardless of whether the attacker is an uninvited trespasser, or an invited guest-turned aggressor, the law protects an occupant’s right to use force reasonably necessary to prevent or terminate an intruder’s entry into the home.

With respect trespassers and other uninvited aggressors, "Castle Doctrine" jurisdictions uniformly hold that a person unlawfully attacked by an uninvited intruder may stand their ground and use whatever force is reasonably necessary to repel the intruder.

For invitees-turned aggressors, courts have similarly held that an occupant may stand their ground and use deadly force. Without any lawful claim to the property, the invitee-aggressor is treated the same as a trespasser-aggressor in that the occupant may defend their property with reasonable force. As stated in the leading Maryland case Gainer v. State, "when an attack occurs in one’s home by an assailant who is not an intruder but has a right to be on the premises, an assailed person who is without fault, need not ‘retreat to the wall’ before defending himself."

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 Posted on June 20, 2011 in Criminal Defense

The "spousal privilege" under Maryland criminal law precludes a person from being compelled to testify against their spouse who is charged with a crime. Even if the two are estranged at the time of trial, the privilege remains applicable until the marriage is officially annulled or dissolved. The only exceptions, where a person can be compelled to testify against their spouse, are when: 1) the defendant/spouse is charged with abuse of a child under 18; and 2) the defendant/spouse is charged with assault of the other spouse and, in a previous trial of the same nature, the other spouse invoked the spousal privilege and refused to testify.

It’s important to note that invocation of the spousal privilege does not require the exclusion of an otherwise admissible out-of-court statement by that spouse. Even if wife invokes the privilege and refuses to testify, her out-of-court statements may nonetheless be deemed admissible if the State can successfully argue that they fall under a particular hearsay exception.

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 Posted on June 17, 2011 in Medical Malpractice

In 2002, ten years after being born with among other things, cerebral palsy, mental retardation, and developmental delay, a newborn, through her guardian, filed a medical malpractice lawsuit against University of Maryland Medical System’s University of Maryland hospital. The newborn, through her guardian, alleged that hospital was negligent because it made the mother wait before conducting an emergency c-section, which resulted in severe injury to newborn. A jury in the Circuit Court for Baltimore City initially entered a verdict in favor of hospital. On appeal, the Maryland Court of Appeals reversed and remanded the case to the Circuit Court. A copy the judicial opinion regarding the case can be found here.

The underlying issue in this medical malpractice case was a factual dispute regarding culpability on the part of the University of Maryland Hospital for the newborn’s injuries. The mother stated that after arriving at the University of Maryland hospital, she waited for approximately five hours, without any treatment, before the c-section was performed. The University of Maryland hospital, on the other hand, denied that it was negligent and stated that the woman did not arrive at the hospital until minutes before the emergency c-section was performed.

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 Posted on June 14, 2011 in Medical Malpractice

In 2003 a twenty-seven year old man, Mr. Bennett, arrived at the Good Samaritan Hospital in Baltimore, Maryland. He entered the emergency department complaining of generalized weakness, vomiting and a bump on the head. Later that day, he was moved from the emergency department and admitted to the hospital. Despite his progressively septic (infected) state, the treating physician failed to follow safety rules that would have resulted in the recognition of the mans’ distress. Twelve hours later, the man was finally treated, for the first time, for sepsis. Less than twenty-four hours after he arrived at the Good Samaritan Hospital, the man was pronounced dead from severe septic shock.

Following his death, Mr. Bennett’s family filed a medical malpractice survival action and wrongful death case against the Good Samaritan Hospital in the Circuit Court of Baltimore City. The family alleged that as a result of medical negligence and medical malpractice, the doctors at the Good Samaritan Hospital failed to timely diagnose and treat the infection from which Mr. Bennett’s ultimately died. The initial award, in favor of the surviving family members, was close to $600,000 even after a reduction pursuant to statutory cap. The doctor appealed in an effort to further lower the jury verdict but both the Court of Special Appeals and the Court of Appeals affirmed the trial court’s determination. A copy the judicial opinion regarding the case can be found here.

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 Posted on June 10, 2011 in Medical Malpractice

Earlier this month the Maryland Department of Health and Mental Hygiene Office of Health Care Quality published a report regarding medical malpractice in Maryland hospitals. The report is a review of the safety and care provided to patients in Maryland hospitals. The report compiles information collected by the OHCQ in 2010 relating to serious adverse events that affected patients or their families.

The adverse events that hospitals are required to report include a rather long list of mistakes that are possible because of hospital error, medical malpractice (negligence), or inattention. Patient falls are the most frequently reported event. In 2010, there were 88 reported cases resulting in serious disability or death. Of these 88 reported cases, 10 resulted in loss of limb or function of limb, 52 required surgical interventions, 20 required medical intervention and 6 resulted in death of the patient.

Hospital-acquired pressure sores / ulcers, which are associated with high morbidity (medical complications) and mortality (death) once they reach Stage 3 and 4, were reported 59 times in 2010 making it the second most frequently reported event. However, none of the reported cases in 2010 resulted in death.

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 Posted on June 10, 2011 in Divorce

A bill has been proposed in Massachusetts that would prevent parents from having sex in their home until their divorce is final, Fox News Reported on May 19, 2011. More specifically, the bill would prevent divorcing parents from “conducting a dating or sexual relationship within the home” until their divorce is final. Those who favor the bill have stated that the bill is meant to shield children from unnecessary problems or domestic violence while their parents divorce is underway. Those who oppose the bill say it is infringing on parents rights.

Currently, not only is adultery a ground for divorce in Maryland, it is still codified as a crime in the Maryland Criminal Code. In our experience, it is wise to consult a mental health professional before introducing your child to a new relationship, especially while a divorce is pending. The effects of a divorce on children vary from child to child, however a mental health professional can provide some guidance and advice based on the child’s developmental, emotional, and physical age.

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 Posted on June 07, 2011 in Divorce

A divorce or separation is much more than two people parting ways, as there are often many other items that arose out of the marriage that must be resolved in order for parties to legally part ways. These items can be addressed in a separation agreement or are eventually resolved in divorce litigation. It is important to consider each of the following items at the beginning stages of pursuing a Maryland divorce:
• Child Custody – If you and your spouse have children, then custody of the children will need to be decided. Custody is comprised of two parts in Maryland, legal custody and physical custody. Legal custody involves decisions regarding the child involving health, education and religion. Physical custody is the time spent with each parent. Both forms of custody can be shared by parents, or awarded to only one parent. For more information see our September 10, 2010 blog.
• Child Access Schedule – Not only does custody of the children need to be decided but also when each parent will have access with the children. You need to consider the school year, summer vacation, holidays and school breaks. Also many parents designate how their children will communicate with the other parents when not in their care • Child Support-Child support is awarded in many cases to account for a difference in time sharing of the children, or a difference in income of the parties. For more information on child support, see our September 11, 2009 blog
• Dependency Exemption for Child(ren)- You need to consider who will designate the children for purposes of the tax dependency. Will you and your spouse alternate, each take one child, etc?
• Health Insurance – You need to consider who will cover the children on their health insurance. Also, if you are currently covered by your spouses insurance, or covering your spouse, will you continue to do so until your divorce is final?
• Uninsured Medical Expenses for Kids-Typically parties may divide this evenly or in proportion to their incomes. If one parent is bearing the whole expense, and it is significant, it will be used for child support calculations.

• Division of Marital Property – You should consider how all of the property accumulated during your marriage will be divided such as, furnishings, household items, electronics, collections, tools, equipment, cars, trucks, boats, ATV’s, RV’s etc.
• Retirement/Pension Accounts- All retirement accrued by either party during the marriage is marital and therefore your spouse has rights to it. You should consider how these accounts will be divided, if at all.
• Investment Accounts /Stock Options/Profit Sharing Plan – Like retirement accounts, all accounts opened during the marriage or monies invested during the marriage are marital and you should consider how they will be divided • Marital Home – You should decided if one party will stay in the home, and if so will there be a buy out, or will the home be sold? Additionally, were any pre-marital monies invested by either party that they are entitled to? Last, an understanding of how much the home is worth and how much equity is in the home will be helpful in these considerations.
• Any Other Real Property Issues-Are there any second homes that were purchased during the marriage? If so, who will retain the rights to these homes or will they be sold?
• Alimony- There are many factors considered in deciding whether alimony will be awarded in your matter. For more information visit our October 2, 2009 blog.
• Monetary Award- A monetaryl award can be awarded in a matter where the division of property by title is inequitable. The theory is that it balances the marital estate.
• Marital Debt- All debt accumulated during the marriage, by either party is martial and it must be decided who will be responsible for the debt.

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 Posted on June 06, 2011 in Divorce

As we have previously discussed in our blogs, many family law matters are decided outside of Court, with the assistance of attorneys. However, what happens when the parties, who have employed attorneys to assist in their divorce litigation, decide to take matters into their own hands? As the Maryland Daily Record reported on June 2, 2011, the Baltimore law firm of Tydings and Rosenberg is facing such a situation right now. The firm’s client, Julie Zorzit, after employing the firm to do a substantial amount of work, met privately with her husband, John Zorzit, and waived all rights for her attorney’s fees to be paid by her husband. The firm is now seeking the fees, as Ms. Zorzit can not afford to pay for the work that has already been done, but Mr. Zorzit can. The Circuit Court for Baltimore County denied the firms request for the fees, the case was appealed to the Maryland Court of Appeals, and a decision is awaited.

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