Belsky Weinberg & Horowitz, LLC A Personal Injury & Workers’ Compensation Law Firm

July 2010 Archives

Rite Aid Agrees to Pay $1 Million for Patient Privacy Violations

As announced last week by the U.S. Department of Health and Human Services, Rite Aid Corporation entered into a consent order with the Federal Trade Commission (FTC) to pay $1 million in fines to teh FTC for its' failure to protect the privacy of pharmacy customers as is required by the Health Insurance and Portability Accountability Act (HIPAA). Rite Aid was accused of disposing of prescription bottles which contained patient's names and other identifying personal information into trash recepticles accessible to the public, rather than destroying or otherwise taking sufficient steps to safeguard their customers' privacy.

Automobile Negligence Settlement--Pedestrian on Shoulder Killed

Robert L. Weinberg of Belsky, Weinberg & Horowitz, LLC successfully won a settlement for policy limits in a
wrongful death claim involving multiple fatalities. The firm represented the
mother of a decedent driver who had pulled onto the shoulder of I-95 in Howard
County at the suggestion of his passenger who believed the driver "looked
tired". After pulling onto the shoulder to switch drivers, a Ford Explorer left
the travel portion of the roadway, striking and killing the two occupants of the
vehicle, who at the time were standing next to their vehicle. An argument was
made that the driver was negligent for stopping ina no stopping area, however,
Mr Weinberg successfully argued at mediation that the case law stood in
contradiction to this argument. Clearly, the proximate cause of the accident was
the defendant's bad driving and not the passive conduct of the plaintiff in
standing next to his vehicle.

Not All Medical Providers are Subject to Mandatory Health Claims Arbitration in Maryland

The Maryland Health Care Malpractice Claims Act, codified at § 3-2A-01, et. seq. of the Courts & Judicial Proceedings Article of the Maryland Annotated Code sets forth onerous rules and requirements plaintiffs must comply with before filing suit against a "health care provider" for medical negligence in any state or federal court. Among other requirements, the Act requires that within 180 days after the claim is filed with the Health Claims Dispute Resolution Office--the state administrative body that receives all medical malpractice suits and which serves more like a clearinghouse than an actual arbitration tribunal-the claimant/plaintiff must file a "Certificate of Qualified Expert" wherein an expert, trained in the same or similar field as the defendant/health care provider, must certify there was a breach of care which proximately caused the claimant/plaintiff's injuries. Once that certificate and an accompanying comprehensive report are filed, the plaintiff (or the defendant) may waive out of the arbitration process and refile the action in any state or federal court where venue and jurisdiction are proper.

Many Malpractice Settlements Go Unreported Due to Confidentiality Agreements

Some medical malpractice cases are resolved by settlements reached before, during or after trial. A common quid pro quo for settlement of these claims is a confidentiality agreement with terms and conditions which are typically incorporated into the "Release" the settling medical provider requires the plaintiff to sign before payment is made. There are pros and cons to agreeing to confidentiality.

Punctures, Perforations and Injuries During Surgery: When is it a Known Risk and When is it Malpractice?

We receive a fair number of calls from prospective clients inquiring about whether an internal injury to an organ, nerve or vessel during a surgery on an unrelated area constitutes malpractice. The issue is typically not whether the injury occurred, since insult to "adjacent structures" is a known risk or complication of any surgery and is covered by the typical informed consent form signed by the patient before surgery.

Washington Supreme Court Deems 90 Day Notice of Intent to Sue Unconstitutional

In 2006, the Washington State Legislature passed two laws restricting the rights of persons injured byhealth care providermalpractice. Thefirst provision required a plaintiff to send a written "90 day notice of intent to sue" toeveryhealth care provider he or she intended to sue. A medical malpractice case could not be filed until the 90 days lapsed. Besides the extra expense and time associated with this requirement, ifa person sent the90 day notice within 90 days of the running of thestatute of limitations,he or shewould practically have to sleep on the court house steps to file the complaintafter the required90 days passed. The second provision required that a certificate of merit be includedwith any complaint for health care provider malpractice. For the certificate of merit to be valid, the health care provider signing it had to practice within the same specialty as the health care provider being sued. Several months ago, the Washington Supreme Court held that the certificate or merit requirement was unconstitutional. On July 1, 2010, the Supreme Court determined that the 90 days notice requirement is also unconstitutional. Waples v. Yi,Nos 82973-0 & 82124-9. http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=821429MAJ

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