Posted on June 28, 2011 in Divorce

As we had previously reported in our March 1, 2010 blog the Maryland Attorney General issued an opinion in February 2010 that states Maryland should recognize same sex marriages performed legally in other states as valid marriages in Maryland. However, the bill to allow same sex couples to marry in Maryland did not pass in the legislature this term. This has left Maryland Courts in limbo with how to handle same sex couples who file for divorce. Local news station, WTOP, reported on Friday, June 24, 2011 that a local Prince Georges County same sex couple was recently denied a divorce based on “the unnatural circumstances of their marriage.” The Judge specifically stated in his opinion “to recognize the alleged marriage would be contrary to the public policy of Maryland.” The Prince Georges County couple has filed an appeal with the Maryland Court of Special Appeals.

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 Posted on June 25, 2011 in Child Support

Most family law matters, such as divorce proceedings, and custody proceedings, do not involve the Maryland criminal system, or involve any imminent punishment such as jail time. However, when a non-paying child support obligor (parent who is supposed to be paying child support) is brought to court after the child support obligee (parent who is supposed to be receiving child support) files a Petition for Contempt, that obligor may be sentenced to jail time. Because this obligor faces jail time at this contempt proceeding, the proceeding, while civil in nature borderlines a criminal proceeding because of the punishment that can be imposed. While criminal defendants who cannot afford an attorney have the option of obtaining a public defender, civil defendants in most cases do not. Therefore, it has often been a question whether these non paying child support obligors are entitled to an attorney due to the threat and/or possibility of incarceration?

On Monday, June 20, 2011 the Supreme Court of the United States issued an Opinion on this very question. As the New York Times reports, “The Supreme Court on Monday gave a complicated answer to the simple question of whether poor people facing jail time for failing to pay child support are entitled to court-appointed lawyers.” The Supreme Court case, Turner v. Rogers, involved in a man who had been sent to jail numerous times after civil contempt proceedings for his failure to pay child support. He was not represented by an attorney at these hearings. The Supreme Court ruled that there is not an automatic right to counsel in these civil contempt proceedings, however cautioned that if the opposing side (the obligee) has an attorney then it may be a different story. The Court cautioned that courts should warn those facing civil contempt that their non payment is a “critical issue.”

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 Posted on June 24, 2011 in Cancer Malpractice

In August 2000, a Maryland patient visited her gynecologist and informed her that she was experiencing abnormal bleeding. The gynecologist, Dr. Moen, ordered an ultrasound to help her determine the cause of the bleeding, but did not perform an endometrial biopsy. The ultrasound was performed and subsequently interpreted by a radiologist, Dr. DeCandido. When interpreting the ultrasound, Dr. DeCandido did not notice and report a mass located on the patient’s right ovary that measured 1.5 centimeters.

Following these procedures, the patient continued to experience physical problems, specifically pelvic symptoms and irregular bleeding, and complained to Dr. Moen of the same. Approximately a year and half later, Dr. Moen performed an endometrial biopsy of the patient’s uterus and discovered that the patient had endometrial cancer. After being diagnosed with cancer, the patient began treatment with a gynecological oncologist at the Johns Hopkins Hospital. Despite an operation and other treatment, the patient ultimately died approximately five and a half years after she first complained of her symptoms to Dr. Moen.

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 Posted on June 23, 2011 in Divorce

Many clients come to me unclear as to their rights to their marital home. If your home is owned and was purchased during your marriage, it is a marital home. Martial property is defined as “the property, however titled, acquired by 1 or both parties during the marriage.” Maryland Code, Family Law § 8-201(3). Therefore, absent a protective order, discussed in our August 2009 blog, no one has the authority to make their spouse leave the home. If your home is rented and both names are on the lease then no one has superior rights over the other and therefore, no one has the authority to make their spouse leave the rented home.

If the parties come to an agreement that one spouse will leave, that is a different story. However, many individuals are “kicked out” of their marital home by their spouse because they are not aware of their rights. If you feel it is better that you leave the marital home, then you should do so, however, you are not barred from re-entering your home and may do so at any time. If your spouse changes the locks to your home then I would advise you contact the police to assist in re-entry.

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 Posted on June 23, 2011 in Divorce

As a follow up on our June 10, 2011 blog more regarding adultery and introducing a new relationship to your child(ren), we thought it may be best to touch on dating during your divorce proceedings. Typically, we advise clients to refrain from dating while their divorce is pending and we do so for several reasons.

First, as explained in the previous blog, it could be considered adultery to be dating while married if your spouse can prove the elements necessary to establish adultery. Although parties may be separated while waiting for a divorce, they are still technically married and therefore, it is still considered adultery, which is both a ground for divorce and a crime in the State of Maryland.

Second, it may not be what is in the best interest of your child(ren) and if you are not putting your child(ren)’s best interest first then you may be facing an uphill battle if custody is an issue in your matter. While dating may not offend a Judge, it will not be helpful to your case if the Judge feels that your children are being negatively affected by your dating life and you have still chosen to partake in it. Even if the individual you are dating is wonderful and wonderful to your child(ren), your children are still going through a major adjustment period and to have one or possibly two new individuals then become a part of their homes and time with their parents may not be what is best. Additionally, while your children may not overtly be exhibiting problems as a result of your pending divorce, it is best to be able to focus all of your attention on them during your time with them to be aware of any issues they may be experiencing.

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 Posted on June 21, 2011 in Domestic Violence

As an Aggressive Maryland Criminal Defense Attorney, I have represented hundreds of people over the last 15 years who were charged with domestic violence assaults. Before that, I prosecuted hundreds more as an Assistant State’s Attorney. These cases are among the most difficult cases criminal defense lawyershandle because prosecutors are under tremendous pressure to prosecute these cases aggressively. There is simply no quicker way for a prosecutor to find him or herself out of a job than failing to prosecute one of cases only to have the defendant assault the victim again.

For this reason, even seemingly minor cases resulting in little or no injury are often prioritized by Assistant State’s Attorneys for aggressive prosecution. I had a case falling into this category last week in the District Court in Baltimore County. Here are the facts:

My client was estranged from his wife of only one year when the alleged incident occurred. My client and his wife had shared a house when they were together but my client had moved in with his father when they separated but he left some of his possession in the marital home including a big screen television. On the date of the incident, he returned to the home with his father to retrieve the TV. When he arrived he knocked on the door and his estranged wife let him in. He and his father advised her why they were there at which point she told him that she wasn’t going to let him take the TV. He advised her that he purchased the TV prior to the marriage and that it was therefore obviously his and that he wasn’t leaving without it.

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 Posted on June 21, 2011 in Cancer 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 Hospital 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 Self-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 Evidence

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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