Posted on October 09, 2013 in Medical Malpractice

Recently, in a medical malpractice wrongful death case in Harford County, Maryland, a jury awarded more than $958,000 to the family of a woman who died after receiving "excessive amounts" of pain medication during a hospital stay. According to the lawsuit, the woman’s death resulted from the hospital providing hospice care rather than standard treatment for her infected ulcers.

In February 2010, the decedent, Beverly Ann Gargiulo, was admitted to Upper Chesapeake Health Center seeking treatment for ulcers that reportedly had become infected. The hospital allegedly told Mrs. Gargiulo she would need hospice care but never communicated that information to her family. During her treatment, Mrs. Gargiulo reportedly received large amounts of narcotics, including morphine and oxycodone, in increasing amounts and with increasing frequency. The family claimed in their medical malpractice and wrongful lawsuit that this pain relief medication was more appropriate for a patient about to die than for a person who was expected to be discharged from the hospital. Gargiulo’s family filed suit against the hospital asserting multiple causes of action for medical malpractice. In August, a jury awarded the family $958,258 after it found that the hospital committed medical negligence in its treatment of Gargiulo, and that this negligence resulted in a wrongful death.

Continue Reading ››

 Posted on October 08, 2013 in Driving Under the Influence

Maryland DUI/DWI Attorneys with decades of experience often find and successfully pursue defenses that less experienced attorneys find or even bother looking for. Unfortunately, many inexperienced DUI attorneys or attorneys who really specialize in areas of the law other than criminal defense, never look beyond the breathalyzer result, particularly in first offense cases that don’t involve an accident or any injuries. The thinking is that the first offender will in most cases receive probation before judgment (PBJ) anyway so why bother? The person won’t go to jail and will not get points on his or her license so a PBJ is really as good as a not guilty or a dismissal. I beg to differ.

Aggressive and Experienced DUI Attorneys know that there is a world of difference between a PBJ and a not guilty verdict. First of all, even if the client does receive PBJ, he or she will almost certainly be required to pay fines, attend alcohol counseling and serve a period of supervised probation. There may be other time consuming and costly requirements placed upon the client as well such as community work service, AA meetings and shock trauma visits to name just a few. Moreover, the PBJ can NEVER be expunged from the person’s record so even though the defendant will not have points assessed by the MVA, a record of the PBJ will always be kept which means that if the person ever gets charged with DUI again – even many years later- the stakes will be much higher as he will be a repeat offender.

Continue Reading ››

 Posted on October 07, 2013 in Medical Malpractice

In 1999, the Institute of Medicine estimated that each year 98,000 Americans die as a result of medical malpractice. A recent study published in the Journal of Patient Safety says that number now is estimated to be between 210,000 and 440,000 patients. The new estimates, developed by John T. James, a toxicologist at NASA’s space center in Houston and leader of an advocacy organization called Patient Safety America, were based on the findings of four recent studies which examined records of more than 4,200 patients hospitalized between 2002 and 2008. A copy of the article can be found here.

What makes those numbers particularly appalling is that the causes of wrongful death were preventable medical mistakes, such as errors of commission and omission, errors of communication and context, and diagnostic errors. And, even more disheartening, this number would make medical malpractice errors the third-leading cause of death in America, behind heart disease and cancer, respectively.

Continue Reading ››

 Posted on October 01, 2013 in Real Estate

STSW lawyer Bill Sinclair recently convinced a Maryland state judge that he should strike an amended complaint that contained a RESPA claim against STSW’s client, Lakeview Title. The plaintiffs were home purchasers who originally brought suit in 2010 against Long & Foster, Creig Northrop, and various related entities and individuals for alleged fraud in the sale and purchase of their homes.

In February 2012, plaintiffs subpoenaed certain information from Lakeview Title, which provided settlement services to the purchasers. However, plaintiffs waited until March 2013, after the Court had already dismissed the other claims, to amend their complaint and add a RESPA claim against Lakeview and others. On behalf of Lakeview, STSW argued that the Court should strike the amended complaint because it violated the scheduling order in place and because plaintiffs were on notice of the RESPA claims in February 2012 but waited until March 2013 to file suit in violation of RESPA’s one year statute of limitations.

Continue Reading ››

 Posted on September 29, 2013 in Business Counseling, Litigation & Transactions

There is a critical federal statute that all insurance litigators should be aware of when their case is "removed" from a State trial court to a federal court. Insurance companies often remove State court cases to the federal system to take advantage of what they apparently believe is a strategic advantage. Although this perceived advantage may or may not exist, all aggressive insurance attorneys should know how to fight back.

First, you should know that there is a presumption against federal court jurisdiction. By statute, a federal district court must send any case that lacks subject-matter jurisdiction back to State court. 28 U.S.C. §1447(c). And although a plaintiff usually has only thirty days to object to a defendant’s "removal" of a State case to federal court, an objection based on the federal Court’s lack of subject matter jurisdiction can be raised at any time before final judgment, even in the middle of a trial. 28 U.S.C. §1447(c). Federal courts routinely make thorough examinations of subject matter jurisdiction early in a case in order to avoid wasting resources on a case that ultimately needs to be sent back to State court.

Insurance companies "remove" many insurance cases from the State system to the federal system by alleging that federal "diversity jurisdiction" supports the removal. "Diversity jurisdiction" generally means that the opposing parties are from different States (and that a minimum amount in dispute has been met). A federal district court lacks diversity subject matter jurisdiction when only partial, but not complete, diversity exists. See, e.g., Fekyibelu v. Tolen, 2012 WL 6679452 (D.Md., Dec. 20, 2012).

Continue Reading ››

 Posted on September 28, 2013 in Complex Civil Litigation

Silverman Thompson lawyers Bill Sinclair and Anna Skelton recently convinced a New Jersey federal judge that he should compel arbitration of their suit, effectively dismissing a federal complaint. The plaintiff, Precision Funding Group, sued its competitor, National Fidelity Mortgage, for alleged interference with contracts and business opportunities (among other business torts). PFG based its complaint in large part on the actions of two former employees who left PFG to work for NFM. In addition to its suit against NFM, PFG initiated arbitrations against its former employees pursuant to a clause in their employment agreement, drafted by PFG, that required mandatory arbitration.

On behalf of NFM, Sinclair and Skelton argued that the federal suit against NFM was essentially the same suit that PFG brought in arbitration against its former employees and the Court should therefore "equitably estop" PFG from proceeding with its Federal claims. After extensive briefing and a lengthy hearing, the Court agreed, finding that even though NFM wasn’t a party to the employment agreements that provided for the mandatory arbitration, it had standing to compel arbitration because its claims were "inextricably intertwined" with those in arbitration.

Continue Reading ››

 Posted on September 27, 2013 in Business Counseling, Litigation & Transactions

For users of the popular Pandora Internet Radio website, the day the music dies has been delayed for at least a few more years. That’s thanks to U.S. District Court Judge Denise Cote of the Southern District of New York, who earlier this month saved the music service from being stripped of its rights to play songs owned by major record companies Sony/EMI, Warner, Universal, and BMG. It’s a case showing that the ever-shifting legal landscape regarding online music consumption is still in many ways tied to the Golden Age of Radio.

For those who aren’t familiar (and if you’re a music fan, definitely check it out), Pandora works by playing songs that correspond to a general type of music or artist that the user selects. The listener can give positive or negative feedback for each song that plays, allowing the site to narrow its selections to songs that the listener is more likely to enjoy. Along the way, links are provided so that users can easily buy the songs or albums from online retailers. Combined with its popular streaming service and mobile app, this nifty little audio experiment has turned into big business: Pandora reportedly has more than 150 million registered users and is valued at $2.6 billion, having pulled in $427.1 million in revenue is Fiscal Year 2013.

Not surprisingly, the music-publisher bigwigs want to grab that cash with both hands and make a stash. Pandora gets a bunch of their tunes through a five-year blanket license, attained in 2011, with the American Society of Composers, Authors, and Publishers (ASCAP), a performing rights organization. So later that year, Sony/EMI took away ASCAP’s right to license its music to "new media," i.e., money-making Internet innovators such as Pandora. That brought Pandora crawling into the negotiation room, and last year an separate licensing agreement was reached with Sony/EMI. Smelling the blood in the water, Warner, Universal, and BMG then announced that they, too, were yanking ASCAP’s new-media licensing rights. Same old song and dance.

Continue Reading ››

 Posted on September 23, 2013 in Criminal Defense

Assault Cases are among the most common cases Aggressive Maryland Criminal Defense Attorneys handle. These are among the most serious cases that we see, particularly when the case involves significant injury or a vulnerable victim. The maximum penalty for just misdemeanor Assault, known as Second Degree Assault is a whopping 10 years! Of course people do not often the maximum penalty for this crime, but people are regularly incarcerated for assault cases in Maryland.

I had a case in Baltimore County last week involving a fight between two women. Prison was a distinct possibility for my client in the event of a conviction as the so called victim in the case was both seriously injured and at least claimed to be a vulnerable victim. Here are the facts of the case.

My client is a 35 year old mother of six. She went to a Subway shop last summer to purchase food for her children and herself. According to her version of the events, as she was getting back into her car, an empty soda can fell out onto the pavement. As she got back out of her car to pick it up and throw it away the alleged victim pulled into the parking lot with her 14 year old son in the car. According to my client, the alleged victim called her a white trash littering piece of sh*# and other choice names before she even had as chance to pick the can up to throw it in the trash. The women then got out of the car and a fight commenced.

Continue Reading ››

 Posted on September 19, 2013 in Medical Malpractice

A recent USA Today investigation has revealed that thousands of doctors who have been banned by hospitals or other medical facilities are not punished by their state medical boards. Many of these sanctions were due to medical malpractice. A copy of the report can be found here.

For the investigation, reporters looked at data from the National Practitioner Data Bank, which is a federal repository that helps medical boards track physicians’ license records, malpractice payments and disciplinary actions imposed by hospitals, HMOs and other institutions that manage doctors. By law, reports must be filed with the Data Bank when any one of the nation’s doctors faces "adverse actions" and the reports are intended to be monitored closely by medical boards.

The research showed:

• From 2001 to 2011, nearly 6,000 doctors had their clinical privileges restricted or taken away for misconduct involving patient care – but more than 3,000 either were not fined or never saw their medical license affected.
• Nearly 250 of the doctors sanctioned by health care institutions were cited as an "immediate threat to health and safety," yet their licenses were not restricted or taken away.
• About 900 doctors were cited for substandard care, negligence, incompetence, or malpractice, yet they kept practicing with no impact to their license.
• About 800 of the nearly 100,000 doctors who made payments toward malpractice claims from 2001 to 2011 accounted for 10% of the total malpractice payouts; this means that each of them averaged about $5.2 million payout. Even with this, fewer than one in five faced any sort of license action by a state medical board.

Continue Reading ››

 Posted on August 08, 2013 in Criminal Defense

It seems that Maryland Criminal Attorneys represent people charged in Domestic Violence Assaults with ever increasing frequency these days. As I have noted in the past, police and prosecutors seem to get more and more aggressive in charging and prosecuting these case by the day. In many of these Domestic Violence Assault cases, the alleged victim refuses to cooperate with the prosecution. Alleged victims will often recant the allegations that they made on the date of the incident, refuse to come to court, even when they have be summonsed or, if the couple is married, invoke the marital privilege and refuse to testify.

There are many reasons why alleged victims do this including that the couple has reconciled their relationship, the defendant is the primary breadwinner in the family which often means if he goes to jail his family is devastated financially, or that the charges were fabricated in the first place. It is hard for some to believe that someone would fabricate charges against another person but unfortunately it happens all the time. And I believe that that is exactly what happened in a case I recently had had in the District Court for Baltimore County. Here are the facts:

In this case my client and his girlfriend got into an argument that, according to the her, became physical. At the time of the offense she claimed, both to the 911 operator and the police who responded, that the defendant had thrown her to the ground, strangled her and hit her several times in the face. The police noted only slight redness to her cheek and a very small amount of dried blood in one side of her nose. She stated that after the assault she left the location with their 3 year old son. She made the 911 call about 15 minutes after that and met the police miles from the scene (and away from the defendant) in a parking lot. She was heard to be crying on the 911 tape but was not hysterical or unable to carry on an intelligible conversation. The officer noted in his report that she was crying, shaking and visibly upset. My client was later arrested and charged with second degree assault. A charge, which while classified as a misdemeanor, carries a maximum penalty of 10 years in prison. Shortly after my client was arrested, the alleged victim had a change of heart and decided not to cooperate with the prosecution. She ignored all attempts by the State to contact her and on the trial date did not show up in court.

Continue Reading ››