Posted on January 22, 2014 in Anesthesia Malpractice

When you hear the words “medical malpractice,” what is the first thought that comes to mind? For most people, it probably is that a hospital or physician made a serious medical mistake. However, medical malpractice does not just cover physicians and their medical team, but dentists, too. And sometimes dentists can make tragic mistakes.

Just a few weeks ago, the family of a three-year-old girl filed a medical malpractice suit against their daughter’s dentist after a routine root canal procedure caused her to sustain permanent and severe brain damage and eventually die in hospice a month later. A copy of the article regarding the case can be found here.

Last November, the mother took her daughter to a pediatric dentist in their native town of Kailua, Hawaii. Although only three years old, the young girl needed several fillings and root canals. On December 3rd, the young girl returned for her procedure. At that time, her dentist administered a strong mix of five different sedatives and anesthesia. However, the girl’s vitals were not monitored afterward; rather she was left unattended for more than 25 minutes. This medical negligence caused the young girl to go into cardiac arrest and ultimately lapse into a non-responsive state. Additionally, because the dental staff was not prepared for it, the young girl did not receive immediate CPR and had to be rushed to a neighboring pediatric practice for emergency assistance.

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 Posted on January 17, 2014 in Contracts

Plaintiffs rarely enjoy having their case jettisoned from court and onto the arbitration table – whether right or wrong, arbitration has a decidedly pro-defense rep that makes plaintiffs’ attorneys do just about anything to avoid it. But as shown in the recent Court of Special Appeals of Maryland case of Gordon v. Lewis, No. 1505, Sept. Term 2011, arbitration isn’t always a graveyard for meritorious claims, and plaintiffs can even score punitive damages that are quite hard to overturn. Simply put, courts are loath to revise an arbitrator’s decision, even when it involves an exemplary award.

In Gordon, appellant Kathy Gordon, a financial advisor, advised the appellees, her clients, to invest a quarter of a million dollars in a Somerset County real-estate venture that, coincidentally, just happened to be owned by her son. The clients received supposedly secured promissory notes that assured repayment, but that never actually happened, even while Gordon repeatedly stated that high rates of interest were being earned. Meanwhile, unbeknownst to the investors, the development company had actually gone belly-up into bankruptcy. When the clients eventually discovered this important little detail, they weren’t too pleased that their notes were – despite what they had been told – completely unsecured. In other words, it was nice knowing you, 250 grand.

The investors sought relief in court, but, over their objection, the case was kicked to the Financial Industry Regulatory Authority (an independent nonprofit authorized by the U.S. Congress to oversee the securities industry and resolve disputes) for arbitration. The alternate venue didn’t much help our wayward wealth (mis)manager, however, as the panel found that she and other defendants owed her clients a full refund of their investment, plus interest, plus filing fees, plus another $25,000 in punitive damages. But before the plaintiffs could let loose a celebratory “boo-yah!” Gordon ran back into court to try to get the award tossed, particularly the punitives.

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 Posted on January 11, 2014 in Toxic Torts

More than 100,000 households and businesses have been left without potable water because of a large-scale chemical spill discovered Thursday on the Elk River near Charlestown, West Virginia. The spill occurred just north of one of the largest water treatment plants in America and as many as 480,000 residents may be affected.

Officials believe methylcyclohexene methanol, a chemical used in the coal washing process, leaked into the Elk River from a 48,000 gallon containment tank at a site run by Freedom Industries, Inc. The Governor of West Virginia has declared a state of emergency for nine counties and countless businesses have been ordered shuttered. Reports indicate that federal law enforcement and the U.S. Attorney for West Virginia are exploring federal criminal charges in connection with the spill.

Experts warn that ingesting or inhaling the chemical poses potentially severe health risks. Residents near the Elk River have already complained of a strong licorice-type odor that has produced eye and skin irritations, headaches, difficulty breathing and other health issues and at least five people have been hospitalized for symptoms related to the leak.

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 Posted on January 09, 2014 in Hospital Malpractice

A family, whose daughter died as a result of an untreated brain aneurysm, recently has settled their wrongful death lawsuit against a medical group comprised of more than 400 doctors, prior to the case going to trial.
More details of the case can be found here.

For years, the woman suffered from frequent migraine headaches and had been receiving treatment from a particular medical group. In December 2006, the woman visited another medical center complaining of an unusually severe headache. She received a pain shot and was sent home from the medical center shortly after. Over the next several days, the woman visited doctors at both the medical group and the medical center and was treated with medication for a sinus infection and given additional pain shots. At no time during these visits did she receive any radiographic studies or undergo any further tests to determine if a more serious condition may have been involved. Several days later, the woman was rushed to the hospital where she was diagnosed with an untreated aneurysm. Tragically, six days later, she died as a result of bleeding in her brain.

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 Posted on January 08, 2014 in Police Brutality

A tragic national trend continued Sunday in the latest incident of police killing an unarmed individual suffering from mental illness or disability. After allegedly stating “I don’t have time for this,” a police officer shot unarmed North Carolina resident Keith Vidal, 18, in the chest, fatally wounding the 5’3″, 90-pound teen. Vidal, who suffered from schizophrenia, had been experiencing a psychotic episode and his family was unable to calm him down.

During the episode, Vidal’s stepfather, Mark Wilsey, called 911 for help and reported that Vidal had refused to take his medication and was attempting to fight his mother. Wilsey requested that police take Vidal somewhere he could receive help. According to the family, three officers from three different police departments then arrived on the scene.

The first two officers spoke with Vidal and apparently had some success in calming him down, when the third officer, from the Southport Police Department, arrived 14 minutes later. As stated in a police report obtained by a local news station, one of the officers informed the 911 dispatcher multiple times that that everything at the scene was okay. According to Wilsey, however, when the third officer arrived, he suggested that a Taser be used on Vidal, at which point Vidal attempted to run from the officers.

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 Posted on January 06, 2014 in Contracts

Companies and individuals who are weighing the “pros” and “cons” of entering into arbitration agreements consider a whole host of factors in making this complex, and significant decision. Arbitration is often a good choice for parties who have a strong desire to keep their disputes confidential. An arbitration is also typically resolved faster than a civil lawsuit, usually with streamlined discovery and motions practice, resulting in the added benefit of lower litigation costs. Parties who choose arbitration typically prioritize these anticipated benefits over what is typically more exhaustive collection of information and presentation of issues in a civil lawsuit.
When a party chooses arbitration, however, it is critical that counsel express that choice with absolute clarity in a written agreement. A new decision from Maryland’s top court holds that after a civil lawsuit is filed, and a responding party is unsuccessful in moving to compel the arbitration it thought was agreed to, there is no immediate appeal of the denial of the motion to compel arbitration. Instead, the party must add the denial of the motion to compel arbitration to issues raised on appeal after trial.

This decision is a turning of the tide in Maryland’s judiciary regarding arbitration clauses, and a retreat from prior pro-arbitration decisions. This retreat may stem, at least in part, from the growing chatter in legal circles about the perceived overuse of arbitration clauses, particularly in cases where one side imposes the clause on another who has lesser bargaining power.
In Am. Bank Holdings, Inc. v. Kavanagh, No. 21, Sept. Term 2013, two former employees of a mortgage company sued the company to recover sums they claimed they claimed to be owed after ending their employment. American Bank petitioned the Court to compel arbitration pursuant to clauses in their ex-employees’ employment agreements. When the motion to force arbitration was denied, the company appealed the ruling. The Court of Special Appeals refused to even consider the lower court’s refusal to order arbitration, finding that denial of a motion to force arbitration is not a final judgment that is ripe for appeal. Md. Code, Cts. & Jud. Proc. § 12-301.
Maryland’s highest court agreed to take a fresh look at the issue. The Court of Appeals notes that Maryland’s version of the Uniform Arbitration Act, as enacted in 1965, states that an appeal can be taken from the denial of a motion to compel arbitration “in the same manner and to the same extent as from orders or judgments in a civil action.” The American Bank Court interpreted this language as simply reaffirming the status quo that denials of motions to compel arbitration were not immediately appealable because they were not final judgments. As such, American Bank was required to incur the cost, expense and delay of litigating the underlying suit to a final judgment before it would even have the opportunity to argue for enforcement of its arbitration in the appellate Court – at which time, the efficiencies and cost saving benefits of arbitration would have been lost.
The practical effect of this decision is that a party who loses a motion to enforce arbitration typically loses the primary benefits, if not the legal right, to arbitrate. Parties who choose arbitration thus must be absolutely certain that their arbitration provisions are as ironclad as possible. For assistance with these issues, contact Bill Sinclair, head of STSW’s commercial litigation group, at 410-385-9116 or bsinclair@silvermanthompson.com.

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 Posted on December 23, 2013 in Contracts

Companies often develop complimentary services that can enhance the consumer experience and build customer loyalty to their brand. Shrewd businesses recognize that these freebie benefits should come attached with exculpatory and indemnification agreements, so a courtesy for customers doesn’t end up being a colossal burden of additional liability. Even when faced with heartbreaking injuries to a small child, Maryland’s highest court recently ruled that exculpatory agreements are binding on children in Maryland, creating new law on an issue of first impression in BJ’s Wholesale Club, Inc. v. Rosen, No. 99, Sept. Term 2012.

The stage for the case was set when the Rosens permitted their 5-year-old son, Ephraim, to play at a free “Incredible Kids Club” area at a BJ’s Wholesale Club in Owings Mills, Maryland. Before Ephriam was permitted to play, Mr. Rosen had to execute an agreement releasing and indemnifying BJ’s from any related injuries that might arise. Cut to 15 months later, when Ms. Rosen returned to BJ’s to do a little shopping. Mrs. Rosen again dropped Ephraim off at BJ’s Incredible Kids Club, which featured a large toy hippopotamus to climb on.

“Harry the Hippo” sat atop a thin layer of carpet, which, unbeknownst to Mrs. Rosen, sat atop a hard concrete floor, as opposed to foam padding that was under carpet elsewhere in the Club. When Ephraim tumbled off, he landed on his head, and developed a hematoma that required life-saving surgery to remove part of his skull. The Rosens filed suit against BJ’s in the Circuit Court for Baltimore County, alleging that BJ’s was negligent.

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 Posted on December 23, 2013 in Contracts

Many of you have seen the following disclaimer made in connection with films or books: “All characters in this book are fictitious, and any resemblance to real persons, living or dead, is coincidental.” The line between fact and fiction may not always be so clear, however, as Maryland’s Court of Special Appeals discovered in addressing the issues raised in Publish America, LLP v. Stern, No. 2965, September Term 2010.

Stern was a librarian at the Ludington Library in Ludington, Michigan. During her tenure at the Library, Stern developed a manuscript about some of the interesting people in her community. In 2008, Publish America offered to publish Stern’s manuscript. Publish America insisted that Stern either obtain waivers from the people appearing in the book or appropriately “fictionalize the work.” Publish America’s concern was that the book disparaged real-life people who were recognizable within Stern’s community. Publish America instructed Stern to “make sure that all names, places, and events have been changed” so as to truthfully comply with the disclaimer and to “take care that there are no real-life people that are in the least bit recognizable.” Stern agreed to fictionalize her characters, and she even confirmed via e-mail that she had done so.

When Publish America released Stern’s book, The Library Diaries, there was a nearly immediate flood of complaints from people who felt that the book had a little too much fact, and not quite enough fiction. The Director of the Library suspended Stern from work and her employment was terminated ten days later.

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 Posted on December 20, 2013 in Hospital Malpractice

It should go without saying that a person who enters a hospital has certain expectations of the level of care they will receive and how the medical staff will behave. Hospitals can be frightening and intimidating, and patients rely on their physicians to ease their apprehensions and concerns. Above all, patients expect to receive the highest level of care, both quickly and meticulously. In this same vein, doctors are expected, and even trained, to make the proper decisions when the time comes to make a diagnosis or recommend the appropriate treatment.

Unfortunately, this standard of care sometimes is taken for granted. Across the country, surgical errors, misdiagnoses and hospital negligence happen all too often. The consequences of such mistakes vary widely – from no injury to the patient to sometimes permanent injuries. When a doctor misses important information, or ignores crucial signs, the result can be a serious misdiagnosis, often leaving a patient in a worse condition. No matter how small the error or resulting injury may be, these medical mistakes cannot be overlooked.

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 Posted on December 17, 2013 in Internet Law

The technology questions and options surrounding cybersecurity and data storage in “The Cloud” can overwhelm even the savviest of CEOs. The legal issues, however, are often overlooked. Various federal and state laws govern certain types of data storage in the cloud and dictate what your business is required to do if your website or cloud storage is breached and customer data is lost. Failure to comply with breach notification laws can result in statutory damages of hundreds of thousands if not millions of dollars.

For these reasons, it is well worth the time and minor front end cost to review these laws and your online practices with a qualified attorney, but the brief checklist below provides common sense tools to make your employees, your online business activities and your cyber data practices more secure.

At SilverMcKenna, we recommend you turn to independent cyber-security experts to develop a secure infrastructure for your data and online practices, but we also urge our business clients to take the following SIX PRACTICAL STEPS to protect business data in the cloud, to secure customers’ data and sensitive information, and to make sure employees and management are working together to do so effectively and efficiently while preserving employee and customer privacy.

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