Posted on January 15, 2016 in Medical Malpractice Law in Maryland

Understandably, one of the questions that we get asked most often when we first meet with new clients is “what is my case worth?” The law divides personal injury awards into two categories: economic damages and non-economic damages. While the facts of each particular case dictate which types of damages can be recovered, the following is a broad discussion of some of the types of damages available.

Economic damages are those which are easily capable of being quantified. In short, they are actual, monetary losses that a plaintiff has suffered as the result of a medical mistake (or other personal injury). The most obvious example of economic damages is lost wages. When an injury renders a person unable to work when they were able to work before, they generally can make a lost wage claim. Such a claim analyzes what their average earnings were, determines what their work-life expectancy would have been (i.e., how many more years they would have worked had they not been killed or injured), and then determines what their average earnings would have been over that period of time (taking into consideration factors such as wage increases and inflation). Importantly, a plaintiff may only make a claim for the present value of future lost wages. For example, if it is determined that a person would have earned an additional $1 million over a period of years if they had been able to keep working, the defense does not need to pay them $1 million today to settle that claim. Rather, the defense need only pay an amount which, when invested at reasonable rates of return currently available in the market, will yield a total recovery in the future of approximately $1 million. Usually, plaintiffs’ lawyers employ an expert economist to make this determination.

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 Posted on January 07, 2016 in Emergency Room Malpractice

A jury in Washington State has awarded more than $1.5 million dollars to a carpenter and his wife after a physician failed to timely diagnose the 56 year-old man’s compartment syndrome. Compartment syndrome is a condition in which swelling compresses muscles, nerves and blood vessels within an area of the body, restricting the flow of oxygen which in turn destroys nerves and muscles. It was the plaintiffs’ position that compartment syndrome must be addressed within six hours of injury to optimize the outcome of the patient.

In the case, the patient fell sixteen feet from scaffolding onto concrete at his job and was airlifted to a local hospital for treatment. At 7:45 p.m., his wife urged hospital staff to summon a physician to examine her husband but it was not until 2:24 a.m. the following morning that a first-year orthopedic resident examined him. At that time, he merely was given morphine which masked the pain. The resident again examined him at 6 a.m. but again failed to diagnose the process in the man’s left hand. It wasn’t until a 7 a.m. examination by a surgeon – more than twelve hours after the initial injury – that it was determined that the man’s hand was completely numb and that he was suffering from significant compartment syndrome.

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 Posted on January 04, 2016 in Contracts

It’s no secret that the Court of Special Appeals has been increasingly overwhelmed with cases, nor is it a secret that the Court would like to see a lot of these cases resolved or otherwise cleaned up before having to spend time on them. Those concerns led to the creation of the Court’s ADR Division and accompanying procedures for steering the parties toward settlement or streamlining of the appellate process. After trying those out for a while, however, the Maryland Courts’ Standing Committee on Rules of Practice and Procedure identified some kinks, inefficiencies, and redundancies in the overall system, and proposed some related rules changes that were adopted by the Court of Appeals this month.

As it had worked, pursuant to Md. Rule 8-206, the Court of Special Appeals can hold a “scheduling conference” at which parties appear before a judge of the Court to discuss the contents of the record and record extract, filing deadlines, and other procedural and administrative matters. Similarly, as set forth in Rule 17-401, the Court’s ADR Division also conducts free mediation or “settlement conferences” that provide an opportunity to achieve resolution on both procedural and substantive issues, including dismissing the appeal entirely or otherwise streamlining it by limiting issues, consolidating multiple actions or briefs, presenting disputes in preliminary motions, directly seeking certiorari with the Court of Appeals, and the like. That rule directs the ADR Division to screen all civil-appeal information reports and – if necessary, in consultation with the parties or attorneys (communications that aren’t regarded as ex parte) – make recommendations to the chief judge as to whether the parties should be ordered to participate in either mediation or a settlement conference.
Under Rule 8-206, the chief judge (or some other judge he’s delegated his responsibilities to) reviews the recommendation and enters an order either directing the appeal to proceed as normal; mandating that the parties or their attorneys attend mediation or a settlement conference; routing the case to a scheduling conference; or staying the case so the parties can engage in their own alternative dispute resolution. If the parties are ordered to mediation (ran by an incumbent judge of the Court of Special Appeals, a retired judge, or a designated staff attorney who has satisfied the requirements of Rule 17-403) or a settlement conference (which can only be conducted by incumbent Court of Special Appeals or other retired appellate judges) and they don’t initially settle, they can agree to keep at it or try another type of alternative dispute resolution. A failed settlement conference can also be essentially converted into a scheduling conference to streamline the appeal. All in all, not a bad system, but not perfect either, especially with all the overlap between mediation, settlement conferences, and scheduling conferences.
The new rules try to clean this up, largely by replacing the settlement conference with a “prehearing conference” and covering more ground in the scheduling conference. Further, instead of assigning duplicative functions to the two types of conferences, the changes more clearly distinguish between them but permit the chief judge to order both rather than one or the other. (The new rule also eliminates the fourth possibility – staying the case so the parties can engage in their own alternative dispute resolution – presumably because it’s already covered by other permissible preliminary motions.) Rule 17-402 also now provides that the chief judge can, regardless of what he initially ordered but provided oral arguments haven’t been held yet, change his mind and order a prehearing conference or mediation. A prehearing conference or mediation can only be held after oral arguments if the parties consent and no dispositive opinion or order has yet been issued.
The scope and purpose of the scheduling conference (which can now also be conducted by a retired judge) has been expanded to cover gray areas between purely procedural and substantive disputes. For example, whereas the scheduling conference was previously intended for tidying up purely administrative matters, now it’s also meant to cover more contentious disputes, including arguments about procedural bars to the appeal, mootness, and lack of preservation. The scheduling conference is also now the proper place to address topics previously reserved for the settlement conference, including limiting the issues; presenting disagreements to the Court in a preliminary motion rather than through appellate briefing; relying on a joint statement of the case rather than a record extract; submitting a consolidated brief for multiple appellants (along with any necessary deadline adjustments); bypassing the Court of Special Appeals and filing a petition for certiorari with the Court of Appeals; expediting or delaying proceedings; or dismissing the appeal entirely. Likewise, the revised Rule 17-403 keeps the prehearing conference more limited to settlement of substantive matters, rather than the blend of procedural and substantive issues formerly covered by a settlement conference.
Things are also slightly different in how the Court implements agreements that might come out of a scheduling conference. In the earlier version of the rules, the judge conducting the conference would enter an order reflecting any agreements reached between the parties, requiring additional conferences, or remanding the case. Going forward, the procedure will largely align with that used for resolution achieved after mediation or a pretrial conference: The parties (or the scheduling hearing judge) will file a proposed order and the chief judge signs it, rejects it, or sends it back with proposed changes (though he can’t prevent a party from ultimately maintaining or dismissing the appeal). If the parties don’t accept the changes, the appeal proceeds as if there had been no agreement at all.
In all, the new rules only nominally create additional opportunities for resolution of cases through appellate ADR. The overall effect of the adjustments, however, is to clarify the purposes and uses of the various procedures and implement them in a targeted and more efficient manner. That suggests the Court is invested in the ADR program and looking to grow it in an integrated and comprehensive way.
Silverman Thompson Slutkin & White, LLC is well suited to handle any appellate matter in Maryland. Joe Murphy was Chief Judge of the Court of Special Appeals and a Judge on the Court of Appeals before retiring and joining the Firm and Chris Mincher clerked for Judge Robert McDonald on the Court of Appeals. If we can assist you with an appellate matter, please call (410) 385-2225 and ask to speak with either Joe or Chris.

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 Posted on December 16, 2015 in Infection Malpractice

“No human being should ever die from a urinary tract infection in today’s world of modern medicine.” That was the theme of a Maryland medical malpractice case in which the jury last week awarded $2.6 million dollars to the husband and two young children of a woman who indeed died after her physicians failed to timely and appropriately diagnose and treat her urinary tract infection (UTI).

On April 14, 2013, the 33 year-old woman presented to a local hospital with chief complaints of shortness of breath, back pain, nausea, vomiting, chills, dizziness and painful urination. Hours later, it was noted by nursing staff that the patient’s urine was dark in color. The family’s attorneys argued that the presence of an infection was clear and that the medical staff needed to administer antibiotics and make prompt arrangements for her to be transferred to a facility with the capabilities to care for her condition, such as an intensive care unit. Instead, the defendants delayed more than ten hours before administering antibiotics.

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 Posted on December 11, 2015 in Stroke Malpractice

According to the Mayo Clinic, “atrial fibrillation (‘AFib’) is an irregular and often rapid heart rate that can increase your risk of stroke, heart failure and other heart-related complications.” When a patient is experiencing AFib, the heart’s two upper chambers of the heart beat chaotically and irregularly, not in unison with the lower two chambers. The symptoms of AFib include, but are not limited to shortness of breath, weakness and heart palpitations.

In a recent medical malpractice lawsuit, a 63 year-old patient who had long suffered from bouts of AFib presented to a cardiologist who was covering for his own regular doctor, who was on vacation, for an emergency appointment for a flare-up of his AFib. If not properly treated, this condition can cause an accumulation of blood in the heart’s atrial chamber causing increased risk of an embolus and a stroke. Although his regular doctor usually placed him on the medication Coumadin to treat such symptoms, on this visit, the cardiologist allegedly ignored the patient’s past successful history with Coumadin, determined the patient was a low risk for an embolic event and placed him on a high dose of aspirin with instructions to follow up a week later.

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 Posted on December 04, 2015 in Medication Malpractice

This week, the Maryland Court of Special Appeals upheld the dismissal of a medical malpractice and wrongful death action filed against a board-certified anesthesiologist and critical care physician at the University of Maryland Medical Center. STSW attorneys were not involved with the prosecution or appeal of this case.

The drug Heparin is an anticoagulant used to prevent blood clotting and is often given to patients who are undergoing dialysis. Once of its side effects is that it can decrease the blood platelet level. For this reason, Heparin is not administered to a patient whose platelet level falls below 50 because a condition called “heparin-induced thrombocytopenia” (“HIT”) can result. HIT interferes with the ability of the blood to clot and is a serious condition which can prove fatal.

On December 22, 2008, and notwithstanding the fact that the patient’s platelet level was at a dangerously low level of 1, the patient was given two doses of Heparin. It was alleged in the lawsuit that the patient developed HIT and essentially bled to death the following day. The defendant-doctor denied ordering or administering the Heparin. During the discovery phase of the litigation, the defense lawyer was successful in getting the plaintiffs’ liability expert to admit that the only way that the defendant-doctor could be considered to have acted negligently (in other words, in violation of the standards of acceptable medical care) was if: (1) the defendant-doctor himself administered the Heparin or ordered it to be administered; or (2) if a resident physician acting under the defendant-doctor’s supervision had ordered the Heparin and the order was not corrected by the defendant-doctor in his capacity as the attending physician.

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 Posted on November 25, 2015 in Corporations

In its 2009 decision in Shenker v. Laureate Educ., Inc., 411 Md. 317, the Court of Appeals of Maryland inserted a caveat in the premise that shareholder lawsuits against corporate directors must be pursued as a derivative action on behalf of the corporation itself. By declaring that a corporation’s impending sale gave rise to common-law duties by directors that could be enforced directly by shareholders, the high court outlined an exception that risked swallowing the rule. Last month, however, the Court of Special Appeals gave a more thorough explanation about when Shenker applies – and, as to be expected, it’s not as broad as disgruntled shareholders might hope.

In Sutton v. FedFirst Fin. Corp., Ct. of Spec. App., Sept. Term 2014 (Oct. 29, 2015), the planned stock-for-stock merger of FedFirst Financial Corporation and CB Financial Services, Inc., upset FedFirst shareholder Larry Sutton, who brought direct claims against the company’s individual directors alleging that, in effecting the merger, they breached their fiduciary duties to the shareholders by undervaluing the company and giving themselves exclusive benefits. (He also sued the two companies for allegedly aiding and abetting the directors’ breach of those duties.) The defendants moved to dismiss the lawsuit, arguing, among other things, that Sutton was barred from bringing a direct action against FedFirst. Sutton responded by invoking the Shenker exception, but the trial court wasn’t convinced and tossed the case out.

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 Posted on November 25, 2015 in Emergency Room Malpractice

A Philadelphia jury last week awarded more than $10 million to a now-six year-old boy and his family against a hospital and its physicians who delayed significantly in diagnosing the child’s bacterial meningitis.

The boy – at the time just 11 months old – was taken to the emergency room on December 21, 2009 with a fever and other symptoms that had been persistent over a number of days. He was diagnosed with an upper respiratory infection and sent home. When his symptoms worsened overnight, the boy was returned to the hospital with an even higher fever, an elevated respiratory rate and an elevated heart rate. According to the plaintiffs’ experts, at this critical juncture the standards of acceptable medical care required that the boy be tested for a bacterial infection. However, he was again sent home with no such test was administered.

Upon arriving at the emergency room for a third time, it took hours for blood work to be completed and even longer for medical personnel to administer the antibiotics necessary to combat the infection. By then, the child had suffered significant, irreversible brain damage. Now almost seven years old chronologically, the child is functioning at the developmental level of a three year-old. At trial, the defense took the position that with conservative treatment at the hospital during the first two visits, the boy’s symptoms – which they believed to be consistent with mere bronchitis – seemed to subside, indicating that such conservative treatment was working and leading them to believe discharging him was appropriate. The jury’s $10.1 million award was comprised of $1.5 million for future medical care, $1.1 million for loss of earning capacity and $7.5 million for pain, suffering and mental anguish.

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 Posted on November 13, 2015 in Wrongful Birth / Wrongful Life

Earlier this month, a Prince Georges County, Maryland jury awarded nearly $400,000 for wrongful birth as the result of the mother/wife becoming pregnant after undergoing a bilateral tubal ligation (BTL) procedure. A BTL is a surgical procedure that involves blocking the fallopian tubes to prevent the female’s egg from being fertilized. In this case, the BTL was performed by cauterization (burning) but it also can be performed by cutting, removing sections of, or placing clips on the fallopian tubes.

In the lawsuit, the Plaintiffs alleged that the woman became pregnant five to eight weeks after undergoing the BTL on January 19, 2011. On April 11, 2014, the woman saw the defendant doctor for a regular visit and advised that she had missed her menstrual period. A pregnancy test was ordered and it was determined that she was in fact pregnant.

After the child was born, a radiological study with dye found that one fallopian tube still was patent (able to carry an egg). She then underwent a second BTL wherein it was found that while the left fallopian tube had been properly cauterized, the right fallopian tube was still perfectly intact. The physician performing this secondary BTL took photographs and video of the tubes before properly cauterizing the right tube, thereby permitting the Plaintiffs to concretely show the jury that a medical mistake had occurred. While the defense took the position that the fallopian tube had regrown – apparently a known risk of such a procedure – the Plaintiffs’ attorneys were able to cast doubt on this theory by showing that the pregnancy occurred within just five to eight weeks of the initial BTL procedure. The jury awarded $397,000 for the future cost of raising the child and did not reduce its award at all for the joy, comfort and society received by the parents from having the child.

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 Posted on November 03, 2015 in Driving While Impaired

As an Aggressive Former Baltimore County Prosecutor and DUI/DWI Attorney, I have prosecuted and defended well over 5,000 DUI’s in my almost 20 year career. These cases are prosecuted very aggressively in Maryland with few dismissals and even fewer acquittals. The police have been trained to write highly detailed reports describing their interactions with defendants too include their performance on field sobriety tests. These detailed reports are then testified to in court and are very often viewed as sufficient evidence to convict, at least of Driving While Impaired, even with low blood alcohol readings such as .05 or .06.

I handled a case in Baltimore County this week in which my client blew only a .06. The prosecutor initially refused to dismiss the case. However, after speaking with me in detail about the circumstances of the police officer’s stop of my client and his performance on the field sobriety tests, I convinced her that she would be unable to prove the case. Here are the facts:

My client was driving home from a party on Route 40 at around 2am one night. He was following his cousin who was pulled over by a State Trooper for speeding so he (probably foolishly) pulled over a few hundred yards down the road to wait for him. At this point another State Trooper drove up behind my client and activated his emergency equipment. My client was legally pulled over on the shoulder of the road. There was no sign saying no stopping and he was not in anyway impeding traffic.

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