Posted on March 02, 2011 in Medical 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 Medical 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 Federal Crimes & White Collar Crimes

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 Personal Injury

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 Family Law

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 Federal Crimes & White Collar Crimes

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 Personal Injury

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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 Posted on February 25, 2011 in Divorce

Maryland law defines dissipation as when “one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown.” Sharp v. Sharp, 58 Md. App. 386 (1984). At issue is also whether or not the party spent or depleted the marital funds or property with the principal purpose of reducing the amount of funds that would be available for equitable distribution at the time of divorce. In a recent opinion by Judge Murphy on behalf of the Court of Appeals the Court faced the question as to who has the burden of proving that the assets had been dissipated. The case, Omayaka v. Omayaka was originally heard by the Circuit Court for Prince George’s County for the final divorce hearing in July 2007. At this hearing the attorney for Mr. Omayaka attempted to prove that the wife had dissipated martial assets. Mr. Omayaka claimed that Mrs. Omayaka had opened up an account in her name only during their marriage and had withdrawn over $80,000.00 from the account since 2005. Mr. Omayaka’s attorney questioned Mrs. Omayaka on what the money was spent on and she stated clothing, food, insurance for the baby, rent, credit card debt, a car loan and the babysitter. At the conclusion of the case the Circuit Court found that there had not been a dissipation of assets because the attorney for Mr. Omayaka had not met the burden of proving that the money was spent for a purpose unrelated to the marriage during a time when the marriage is irretrievably broken. The attorney for Mr. Omayaka filed an appeal based on the contention that he had met his burden of proof showing dissipation of the assets. The Court of Appeals, in its’ opinion, clears up the burden of proof question with the following guide:

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 Posted on February 25, 2011 in Family Law

As the Baltimore Sun reports, the Maryland Senate approved the Civil Marriage Protection Act on Thursday, February 25, 2011, which would allow same-sex couples to wed. Although the House of Delegates still needs to pass the Act, the Senate’s passage is still "historic." We have previously blogged about the issues that surround the recognition of same-sex marriages in Maryland, specifically the Attorney General’s support of recognizing same sex marriages created validly in other states maryland and Maryland lawmakers attempt to block gay marriages. With this Act being passed by the Senate, it is time for us to prepare for changes we may see in our divorce and family law practice with the allowance of same-sex marriage.

The potential changes are vast but include the changes that we will see in custody and visitation law. Often same-sex couples adopt a child, however when couples are not married, only one partner is usually the legally recognized adopted parent. When these relationships end, the child is left with one legal parent and one who is presently recognized as a third party (not a parent) in the State of Maryland. For more information on the third party status that same sex parents currently face see our November 27, 2009 blog. With the passage of this legislation, same-sex couples who marry and adopt a child will both be the legal parents of the child and will be recognized as same should the marital relationship end in separation and/or divorce.

Additionally, same sex couples would be able to enter into pre-nuptial agreements just as heterosexual couples; would be considered a spouse in the event their partner dies, thus entitling them to protections and distribution under our estates and trusts article; will be able to be divorced in the state of Maryland regardless of whether married in Maryland of outside of the State; would able afforded the same protections as heterosexual married individuals in a divorce proceeding, specifically with respect to custody issues, child support issues, alimony issues, marital property awards, division of retirement assets, use and possession of family home and personal property if there is a child, and division of personal property; will be permitted to title their homes as tenants by the entireties, which is a titling only designated to married couples; depending on the employer, married same sex couples would be able to cover their spouse on their health insurance plans; and would be permitted to change their last names upon marriage rather than petitioning the court for a change of name.

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