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Maryland Courts Rule on Qualified Expert Certificate Questions

Published on Nov 27, 2012 at 1:05 pm in General Blogs.

One of the threshold requirements for filing a medical malpractice lawsuit is that a “Certificate of Qualified Expert” must be filed with Maryland Health Care Alternative Dispute Resolution Office (HCADRO), an administrative agency that promotes arbitration of medical claims. The certificate must state that the injury was caused by a departure from the standard of care and that this departure caused the alleged injury. The certificate must be filed within 90 days after the filing of the complaint.

The lawsuit will be dismissed if the certificate is not filed on time, unless an extension has been granted. Extensions are granted by the HCADRO director only under a showing of “good cause.”

Maryland’s federal trial court and the state’s Court of Special Appeals recently issued two rulings dealing with different questions on certificates.

Doctor’s Testimony Ruled Not Scientifically Valid in Workers’ Compensation Lawsuit Involving Mold

Published on Nov 3, 2012 at 1:07 pm in Workers Compensation.

One of the scourges of the modern-day world is mold and the impact of exposure upon our health. In a recent court case, Maryland’s Court of Special Appeals decided that a doctor’s opinion that exposure to mold led to a raft of problems for workers in a water-damaged building was not scientifically valid under the standard presently used in the Maryland court system.

The lawsuit stemmed from complaints by several employees of the Baltimore Washington Conference of the United Methodist Church (BWCUMC) of an odor emanating from the walls. A maintenance crew investigated and discovered mold. As a result, several workers filed claims against BWCUMC and its insurer, Montgomery Mutual Insurance Company with the Maryland Workers’ Compensation Commission. The workers said they suffered from “sick building syndrome” as a result of the exposure. While some of the workers’ claims were disallowed, several were awarded partial compensation.

Alleged Loan Modification Scamsters Pressed by Prosecutors

Published on Oct 17, 2012 at 12:42 pm in General Blogs.

As the economy continues to remain weak, loan modification scams continue to make the news. A Maryland man has been charged with conducting a loan modification scheme with a particularly cruel twist, while the government’s new consumer finance watchdog has made its first move into enforcement of mortgage-related fraud.

An Owings Mills, Md. man has pleaded guilty to mortgage fraud after prosecutors alleged he took money from at least 48 homeowners to help them get loan modifications, then stole the monthly payments they thought were going to their lenders, according to a story in the Baltimore Sun.

 

Rodney Getlan’s scheme was worse than the usual method of taking a big upfront fee and then doing little or nothing to help, according to the newspaper account.

Appellate Court Rejects Legal Defense That Would Defeat Medical Malpractice Claims

Published on Sep 9, 2012 at 12:41 pm in General Blogs.

If one medical malpractice defense attorney had had his way,merely explaining the complications that can accompany a medical procedurewould be enough to defeat a medical malpractice claim. But, in H. Jeffrey Schwarz, et al v. Arvia Johnson, Maryland ‘s Court of Special Appeals sided with the trialcourt in soundly rejecting such a defense.

A Baltimore City jury found that Dr. H. Jeffrey Schwartz’s negligence caused Arvia Johnson’s injuries and awarded Johnson medical expenses of $23,791.19 and non-economic damages of $650,000.

Employer Not Responsible for Fatigued Worker’s Auto Accident, Court Says

Published on Sep 9, 2012 at 12:39 pm in General Blogs.

Does an employer bear responsibility for an auto accident that occurred after a worker’s 22-hour work shift? In a recently decided case, all three Maryland courts came down in favor of the employer.

In Barclay et ux v. Briscoe, et al, personal representative of the estate of Christopher Richardson v. Ports America Baltimore, Inc., Maryland’s top court ruled that an employer can not be held liable for the off-duty motor accident stemming from on-the-job fatigue committed by an employee in his or her personal vehicle.

Thousands of Debt Collection Cases Dismissed by Maryland District Court Pursuant to Settlement Agreement with Debt Collection Agencies

Published on Jul 17, 2012 at 12:08 pm in General Blogs.

The following announcementwas issued by the Maryland Judiciary in its Website which affects thousands ofconsumer debtors and is reproduced here in its entirety:

“(ANNAPOLIS, Md. – July 11, 2012)On July 10, Chief Judge Ben C. Clyburn of the District Court of Marylanddismissed 3,564 debt collection cases against Maryland residents. Judge Clyburn’s ordercomes after a settlement agreement with the debt collection agencies LVNV andResurgent Capital Services.

As part of the agreement reached with the Maryland State Collection Agency Licensing Board, LVNV and Resurgent will pay $1 million to the state and agreed to the dismissal of cases pending in Maryland District Court. Also, $3.8 million in credit will be applied to the accounts of 6,246 consumers whose cases have been adjudicated or settled. The settlement came after claims that LVNV and Resurgent violated state and federal laws about licensure and submitting false or misleading claims or affidavits in court.

Washington Redskins Loses to Former Football Players in Workers’ Compensation Decisions

Published on Sep 18, 2011 at 6:39 pm in Workers Compensation.

Pro footballers and workers’ compensation claims were on the mind of the Court of Appeals in August. The state’s top court released two decisions, two days apart, favoring claims made by two former Washington Redskins players.

In Pro-Football, Inc., t/a the Washington Redskins, et al. v. Thomas J. Tupa, Jr., the state’s top court ruled that former Washington Redskins punter Tom Tupa can collect workers’ compensation benefits in Maryland for a back injury that occurred at FedEx Field during warm-ups before a pre-season game in August 2005.

There were two questions before the court: (1) whether the Maryland Workers’ Compensation Commission should have exercised jurisdiction over the claim when the employment agreement contained a clause providing, among other things, that claims for workers’ compensation benefits should be governed by Virginia law and that the Virginia Workers’ Compensation Commission should have exclusive jurisdiction to resolve such claims and (2) whether injuries occurring while playing and practicing professional football are “accidental injuries” and, as a result, compensable under the Maryland Workers’ Compensation Act.

More Commonly Asked Questions About Chapter 7 Bankruptcy

Published on Mar 2, 2011 at 6:14 pm in General Blogs.

Continuing on in our series, Mr. Aquia answers more commonly asked questions about Chapter 7 Bankruptcy

11. When should a chapter 7 case be filed ?

The answer depends on the status o the debtor’s dischargeable debts, the nature and status of the debtor’s nonexempt assets, and the actions taken or threatened to be taken by the debtor’s creditors. The following rules apply :

Court Holds Dismissal Without Prejudice and Not Summary Judgment is Appropriate Remedy for Deficient Certificate of Qualified Expert

Published on Oct 5, 2010 at 6:03 pm in General Blogs.

The Maryland Court of Special appeals on Tuesday reversed a Baltimore City trial judge’s entry of summary judgment against several medical malpractice plaintiffs after determining the appropriate remedy for a defective certificate of qualified expert is dismissal and not summary judgment. In Powell v. Breslin (No. 181, Sept. Term 2009), the appellate court ruled that the intent of the legislature was to require dismissal without prejudice in such circumstances, even though the specific statutory provision setting forth the criteria for a valid expert certificate did not expressly provide the remedy of dismissal for certificate deficiencies.

The case involved wrongful death and survival claims brought against a vascular surgeon, an anesthesiologist, the physicians’ groups, and Good Samaritan Hospital. The lawsuit alleged the anesthesiologist was negligent in either improperly administering an epidural anesthetic or that the anesthesiologist and vascular surgeon were negligent in failing to take action to avoid the progression of a spinal hematoma which ultimately lead to the patient’s death. The Statement of Claims was amended twice, the second of which added as a defendant the vascular surgeon who performed the surgery for which the epidural anesthesia was administered. At that time, plaintiffs’ counsel refiled a Certificate of Qualified Expert signed by an anesthesiologist attesting that the vascular surgeon deviated from standards of care and proximately caused the decedent’s injury and death.

The anesthesiology expert was deposed and testified that he wasn’t familiar with the standards of care applicable to vascular surgeons, and that he was not familiar with what training or experience vascular surgeons would have to allow them to diagnose and treat epidural hematomas. The vascular surgeon and his group filed a motion for summary judgment, which the trial court granted, finding that because the motion was based on facts not contained in the record, the court believed it was required to treat it as a motion for summary judgment in accordance with Maryland Rule 2-501. The remaining defendants ultimately settled their cases with the plaintiffs before trial, but an appeal was taken on the grant of summary judgment in favor of the surgeon and his group because the entry of judgment as opposed to dismissal precluded the plaintiffs from refiling their case and correcting the certificate deficiencies.

The court considered various sections of the Maryland Malpractice Claims Act, which sets forth the statutory scheme for health claims arbitration. It concluded that when reading the various sections in harmony, dismissal was clearly the appropriate remedy. It also reviewed the most recent appellate decisions involving allegedly defective certificates and found unanimity in those opinions that dismissal was the appropriate sanction for inadequate expert certification. In the end, the appeals court ruled that despite the Maryland Rule that states that the motion must be treated as one for summary judgment,the Act superceded the rule under the circumstances.

The plaintiffs had also challenged the constitutionality of the Act, claiming it was void for vagueness. The court avoided that issue by stating that since the case resolved on nonconstitutional grounds, the constitutional issue would not be addressed.

Once Prominent Montgomery Co. Malpractice Lawyer Gets 5 Year Sentence for Misappropriating Client Funds

Published on Aug 23, 2010 at 5:38 pm in General Blogs.

On Monday, Bradley Schwartz, a well-known Montgomery County civil litigation practitioner, received a 5 year sentence issued by Circuit Court Judge Steven G. Salant for misappropriation of more than $1 million in client funds. The sentence marks the end of a tumultuous story that involves gambling addiction, Chinese email/collection fraud well-known to the legal community, and overall poor judgment. As reported in today’s Washington Post, Judge Salant called the case “a tragedy of Shakespearean proportions” and issued a sentence longer than recommended by the state guidelines. “I want to make it very clear that most of the 35,000 some-odd attorneys in the state of Maryland are very hard working men and women who are honest and ethical. . . . It hurts me to think that when the community, when the public, looks at us, they’re going to be looking at what the defendant did here.”

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