Posted on March 06, 2011 in Child Custody

There is currently legislation pending before the Maryland General Assembly that would create a rebuttable presumption that joint legal and physical custody to each parent for equal periods of time is in the best interest of the child in certain custody proceedings. You can find the pending legislation at the Maryland General Assembly’s website. This bill would require parties in custody proceedings to overcome the statutory presumption that joint custody is in the child’s best interest. This would mean parties would enter a custody hearing on equal footing with respect to having the child in their shared custody and the Judge would have to find that one of the parties met their burden of overcoming the presumption in order to award a party sole physical or legal custody. The presumption aligns with the rights of parents without a custody order, in that parents have equal rights to their children, without a custody order stating otherwise. However, there is currently a great debate among family law attorneys over this pending legislation. Those who propose the bill support fathers’ rights, believe that parents may fight less over custody if the presumption is in place, and believe this takes such an important decision out of the court’s hands. Those who oppose the bill believe that the parties who have to take their custody case to trial should not be the ones who have a presumption of joint custody because they can not get along. Further, they do not believe that this decision should be taken out of the court’s hands, that the other best interest factors will not be considered if the presumption is in place, that those who are awarded joint custody who can not communicate will be back in court again and again, and that the current system is working well.

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 Posted on March 04, 2011 in Hospital Malpractice

The surviving family of a 37 year old Alabama man has won a $3 million jury verdict from a local hospital. The man died a few days after surgery for a duodenal ulcer. The family claimed that the man bled to death after negligent surgery, and negligent follow-up care after discharge. Specifically, the family alleged that the man’s ulcer, a perforation in the first section of the small intestine, was large and not treatable by the standard surgical procedures. The family also alleged that the man was sent home after surgery with a very low blood count and was not adequately examined by his doctor before being discharged. A copy of an article regarding the case can be found here.

I have handled many negligent surgery cases. The key to success in such cases is obtaining all of the relevant medical records, reviewing them carefully, getting a good expert witness and backing the case up with medical literature where appropriate. Also important in such a case is reviewing the medical records to make sure the post-operative care is within the standard of care and not negligent. Usually, this is done by checking the patient’s vital signs (heart rate, breathing rate, blood pressure and temperature), and drainage.

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 Posted on March 02, 2011 in Heart Malpractice

A Montana woman and her four children have been awarded a $1.7 million verdict in a medical malpractice / wrongful death case arising from the death of her husband. The family alleged that a doctor failed to properly treat the woman’s husband for a known heart valve condition, commonly referred to as a leaky valve, and that the doctor should have referred the man to a heart specialist after he started having chest pain. Instead, the family alleged that the doctor misdiagnosed the chest pain as a torn muscle. The man died approximately one year later because he did not receive a replacement valve. A copy of an article regarding the case can be found here.

The failure to timely diagnose and treat a heart condition can be a catastrophic event. As an experienced Baltimore, Maryland medical malpractice lawyer, I have handled a number of medical malpractice cases involving failure to timely diagnose heart conditions. Some have involved malpractice in failing to timely diagnose heart attacks, and malpractice relating to the failure to timely diagnose congenital heart deformities. The key to cases like this is to obtain all of the medical records, and have the records reviewed by a competent cardiologist to determine whether the standard of care was met and, if not, whether any major injury resulted. To see some of the cases I have handled, click here.

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 Posted on March 02, 2011 in Hospital Malpractice

Nine Maryland hospitals face financial penalties for having far too many patients contracting preventable medical conditions such as infections, pneumonia and bed sores. Those hospitals committing medical malpractice are Prince George’s Hospital Center, Doctors Community Hospital, Laurel Regional Hospital, Union Hospital in Cecil County, Montgomery General Hospital, Civista Medical Center in Southern Maryland, Shady Grove Adventist Hospital, Washington Adventist Hospital and University of Maryland Medical Center. The penalties were handed down by the Maryland Health Services Cost Review Commission, which sets rates that hospitals can charge. The evaluation and penalties are designed to improve patient safety and lower health care costs by linking hospital performance with their payments.

This is an important study because it shows that there is significant malpractice at many of Maryland’s hospitals. It also shows that even some of the best hospitals in the state, such as the University of Maryland Medical Center, still have far to go to improve quality of care and reduce the incidence of medical malpractice and wrongful death. In fact, it is interesting to note that, at the same time that this study came out, members of Congress were trying to further limit the rights of victims of medical malpractice by trying to limit damages to $25,000.

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 Posted on March 01, 2011 in Uncategorized

I recently had a criminal case in federal court where the Assistant US Attorney was arguing that the bouncing of checks by the defendant constituted federal bank fraud.

The Law:

18 U.S.C. § 1344 states that a person commits bank fraud when she knowingly executes, or attempts to execute, a scheme or artifice:

1. To defraud a financial institution; or
2. To obtain any of the moneys, funds, credits, assets, securities or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.

Federal Case Law:

To obtain a conviction for bank fraud, the government must prove the following elements:

1. Defendant knowingly executed or attempted to execute a scheme or artifice to defraud a financial institution,
2. Defendant had the intent to defraud a financial institution, and
3. The bank involved was federally insured.

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 Posted on March 01, 2011 in Wrongful Death

Although we are based in Maryland, our attorneys are often retained to handle wrongful death cases all over the United States. Below is a detailed discussion on the status of the wrongful death law in Massachusetts:

Questions Presented: (1) Who can bring, and benefit from, a wrongful death action under Massachusetts law? (2) What damages can be recovered for wrongful death? (3) Is there a cap on non-economic damages?

Discussion:

(1) Who can bring, and benefit from, a wrongful death action under Massachusetts law?

The entire statutory scheme for wrongful death recovery in Massachusetts is contained in G.L. c. 229. The basic principles for liability for wrongful death are set forth in G.L. c. 229, § 2, which provides:

A person who (1) by his negligence causes the death of a person , or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had no resulted, or (3) operates a common carrier of passengers and by his negligence causes the death of a passenger, or (4) operates a common carrier of passengers and by his willful, wanton or reckless act causes the death of a passenger under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (5) is responsible for a breach of warranty . . . which results in injury to a person that causes death, shall be liable [for] damages. . . .

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 Posted on March 01, 2011 in Personal Injury

Lawyers who practice personal injury and accident law in Maryland and across the United States are often surprised to learn that the United States has a right to recover from third parties the reasonable value of medical care and pay that has been furnished or will be furnished in the future to accident victims. See Army Regulation 27-20
42 U.S.C. §§ 2651-53
In any case where the United States is authorized or required to pay for hospital, medical, surgical, or dental care and treatment under circumstances creating tort liability on a third person, the United States has an independent right to recover from the third person, or his insurer, the reasonable value of care and treatment furnished. The United States has a right to be subrogated to any claim that the injured person has against a third person to the extent of the reasonable care and treatment furnished. The United States may also require that the injured party assign his claim or cause of action against the third person to the extent of that right or claim.

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 Posted on February 28, 2011 in Child Custody

We discussed the pending same-sex marriage legislation in our February 25, 2011 blog. In our blog we touched briefly on the rights of same sex unwed couples with children and thought the topic could use a little further explanation because there are consequences to not having a legal tie to your child(ren).

Typically, when a same sex couple adopts a child, only one of them actually adopts the child from the agency, country, service, because two people without a legal tie to one another are generally not permitted to adopt a child together. Therefore, only one parent in a same sex unwed relationship is deemed to be the legally recognized parent of the child. This means only that “legal parent” can authorize medical treatments, make medical decisions, consult with therapists, obtain emergency care for the child, obtain school records for the child, make decisions regarding the child’s 504 or IEP plan, meet with teachers, etc. For example, the parent who is not legally recognized as the child’s parent cannot authorize the pediatrician to administer inoculations, tests, draw blood, or prescribe medication. This is obviously a challenge for same sex unwed parents who otherwise share in the day to day parenting responsibilities of the child and are working together as a family unit to raise the child. Some of the difficulties can be cured by subsequent adoption proceedings, powers of attorney, and adding names to birth certificates. However, the costs, time and emotion involved are substantial.

From my perspective as a family law practitioner, one of the greatest problems for the same sex unwed parents versus married parents arises if the parents separate and a custody determination needs to be made by a court. As we discussed in our November 27, 2009 and August 11, 2009 blogs the same sex parent that was not the parent to adopt the child is viewed as a third party in the eyes of the law. Third parties would also carry over to children born by surrogacy or otherwise born to one of the parties. If both parents are not on the Order of Adoption and/or birth certificate, one will deemed a third party in the eyes of the Court. Accordingly, in order to obtain any type of custody and/or visitation with the child they must overcome the third party standard, which is currently very difficult in Maryland. The “third party” must prove that the legal parent is unfit or that other exceptional circumstances exist. As explained in our July 1, 2010 blog, a finding of exceptional circumstances requires a court to make a finding that without visitation there will be actual harm to the child. In my opinion and experience the exceptional circumstances burden is a difficult standard to meet and prove.

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 Posted on February 28, 2011 in White-Collar Crime

Generally, regulation of the U.S. financial markets is divided between the Securities and Exchange Commission (“SEC”), with authority over securities, and the Commodity and Futures Trading Commission (“CFTC”), with authority over futures/derivatives. See Gary Rubin, CFTC Regulation 1.59 Fails to Adequately Regulate Insider Trading, Note, 53 N.Y.L. SCH. L. REV. 599, 606 (2008-09). The Commodity Exchange Act (“CEA”) of 1936 was the first major congressional initiative aimed at regulating derivatives. See Commodity Exchange Act of 1936, ch. 545, 49 Stat. 1491 (1936) (codified as amended at 7 U.S.C. § 1 (2006)); see also id. at 604. Generally, the CEA expanded upon prior acts by increasing the Secretary of Agriculture’s authority and making it “unlawful to engage in commodity brokering without first registering with the secretary.” Rubin, supra, 53 N.Y.L. SCH. L. REV. at 605 (citing CEA § 5, 49 Stat. at 1492-97).

The CFTC was established by the Commodity Futures Trading Commission Act (“CFTCA”) of 1974, which granted the CFTC the exclusive authority to regulate futures contracts. See 7 U.S.C. § 2(a)(2). The CFTC is a federal regulatory body that regulates the entire commodities futures industry. In its mission statement, the CFTC describes its main purposes as preventing fraud and promoting competition, stating, “[t]he CFTC’s mission is to protect market users and the public from fraud, manipulation, and abusive practices related to the sale of commodity and financial futures and options, and to foster open, competitive, and financially sound futures and option markets.” CFTC, About the CFTC, http://www.cftc.gov/About/MissionResponsibilities/index.htm.

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 Posted on February 28, 2011 in Bicyclists

Over the weekend, 20-year-old Johns Hopkins University student Nathan Krasnopoler was critically injured while riding his bicycle. According to the Baltimore Sun, Krasnopoler was riding in a designated bike lane on West University Parkway and W. 39Th Street when he was hit by a vehicle turning right. Krasnopoler is in a comma and the Baltimore City police have issued no charges or citations.

These facts are disturbingly similar to the John Yates wrongful death case I litigated last year. In that matter, Mr. Yates was riding on the far right when he was struck by a truck which left the scene. The police blamed Mr. Yates, but we were able to overturn that finding. The Yates case brought legislative change and a focus on cyclist rights in Baltimore City. This change included new designated bike lanes. Unfortunately, the Baltimore City Police Department is still demonstrating an apparent bias against cyclists by failing to even issue a citation in an instance of clear negligence.

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