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.”

BW&H Clients Receive $5.6 Million Verdict in Montgomery County Jury Trial

Published on Jun 18, 2010 at 3:51 pm in Medical Malpractice.

A Montgomery County jury Thursday afternoon reached a $5.6 million verdict after a nine day medical malpractice case against an osteopath for causing nerve and spinal injuries during a high velocity cervical manipulation performed upon his patient. The claims were brought by Nancy and James Marquez against Hadi M. Rassael, D.O. and Advanced Medical and Cosmetic Group, Inc. The jury deliberated 7 hours before reaching its verdict. Approximately $2.7 million of the award was for past and future lost earnings of Ms. Marquez who was a physical therapist at the time of the improper manipulation, and who was never able to return to her profession due to her nerve and back injuries. Ms. Marquez continues to suffer intractable pain and has undergone two surgeries to repair her damaged brachial plexus and to replace a disrupted disc at level C5-6 in her neck. Approximately $276,000 of the award was for past medical expenses. The remaining $2.5 million was awarded for noneconomic loss to Ms. Marquez and her husband. That award is subject to Maryland’s cap on noneconomic loss. Marquez, et ux, v. Rassael, et al, Case No. 298673-V (Circuit Court for Montgomery Co.).

In February 2005, Ms. Marquez presented to Dr. Rassael’s office for purposes of receiving a very light, non-twisting osteopathic manipulation to her hip joint know as “muscle energy technique.” Since her days as a Division One swimmer on the Michigan State swim team, and her participation in numerous triathalons, many of which she had won, she suffered from periodic hip pain which was resolved through use of the muscle energy technique. She presented to Defendant Rassael’s office after specifically asking whether he was familiar with that technique and was told he was. After arriving at the office, however, the doctor laid Ms. Marquez on an exam table and proceeded to examine her back. When his hands got to the back of her head, he suddenly and without warning twisted her neck in both directions in a forceful manner, causing injury to the nerves in her neck and a rupture of one of her vertebral disks at C5-6. Ms. Marquez, now age 33, has never recovered from her injuries which plague her with pain and muscle atrophy that prevents her from participating in competitive sports of any type. She underwent a brachial plexus decompression surgery and a disk replacement surgery in Germany.

Robert E. Cahill, Sr., Retired Baltimore County Circuit Judge, Dies

Published on Dec 15, 2009 at 2:46 pm in General Blogs.

Robert E. Cahill, Sr., retired Baltimore County Circuit Court judge, died on December 14th from a long standing illness. He was 77. Judge Cahill will be remembered as a no-nonsense trial judge with a great legal mind and lots of instinct and wit. His obituary appears in the Baltimore Sun.

The lawyers at Belsky, Weinberg & Horowitzhad the honor of trying a variety of cases before Judge Cahill. We learned a great deal from his handling of trials, motions and courtroom procedures. We knewhe always expected a great deal of us as advocates for our clients and we hope we lived up to his expectations. We learned a great deal from the judge and express our condolences to his family.

Pro Se Litigant Wins Big Over $377 Dispute Over Emachine Purchase at Best Buy

Published on Aug 31, 2009 at 1:50 pm in General Blogs.

There is a famous quote oft-repeated by judges that a client who serves as his own lawyer has a fool for a client. “Pro se litigants” as they are referred to by the bar rarely succeed in getting a fair day in court. In an opinion rendered today by the Maryland Court of Special Appeals, however, a well prepared and apparently legally shrewd pro se litigant won his battle against Gateway Computer Company of South Dakota over procedural squabbles arising from the small print contained in the agreements he was required to sign when he purchased his EMachine from Best Buy.

As the Court noted in its opinion, the dispute giving rise to the appeal had a “humble origin.” A Best Buy customer purchased a computer that didn’t work properly. In a scenario many are familiar with, after many hours on the phone with Gateway technical support and after presenting to Best Buy and being told they would not fix the machine without charging him several hundred dollars, he sued Gateway and Best Buy for his money back ($377.98), plus $30,000 in consequential damages. Sounds simple enough, right? Well, here’s where the fun began for the pro se plaintiff.

The plaintiff filed suit in the Circuit Court for St. Mary’s County-a Maryland state court, alleging breach of express and implied warranties and violation of certain state consumer protection and federal warranty laws. Inside the Emachine packing box, however, was a document entitled “One Year Limited Warranty” that provided, among other things, that all disputes were to be arbitrated, not litigated, and that South Dakota law would govern the resolution of all disputes. As a result, the circuit court dismissed the case even though the plaintiff had asked for more time to conduct prehearing discovery.

Well, the plaintiff did not give up after dismissal. He appealed his case to the Maryland Court of Special Appeals asserting eleven grounds upon which the circuit court erred. Today, the court issued its published opinion. After a significant investment of time and money way beyond the amount in dispute,the plaintiff won and he won big indeed because of the jurisprudence enuniciated by the Court in its decision!

The Court of Special Appeals, in a very interesting published opinion styled Henry v. Gateway, Inc., concluded that the plaintiff’s right to pre-hearing discovery was not enforced by the trial court and that he was entitled to learn of certain information from Gateway before the motions hearing that resulted in dismissal. The Court concluded that the trial court erred in dismissing the case.

As a second and more legally interesting basis for reversal, the Court analyzed its role in reconciling out of state federal law against clear and contrary law from our state supreme court, the Court of Appeals of Maryland. The federal issue before the court was whether federal warranty laws (Magnuson Moss Act) prevailed over federal arbitration laws so that a litigant claiming violation of federal warranty law could not be forced to arbitrate their claims under the Federal Arbitration Act. The Court concluded on several grounds that Maryland state law controlled despite the choice of law provision that South Dakota law controlled.

The Court concluded that despite a majority of federal courts that have ruled that federal arbitration laws prevail over federal warranty law so that the warranty claims must be arbitrated, Gateway cited not a single South Dakota case for that proposition and argued only that the South Dakota Supreme Court would side with the majority of federal trial court and appeals decisions from other circuits and would uphold the arbitration clause.

The Maryland appeals court disagreed, and refused to accept a “headcount” of federal cases by the defendant as conclusive proof of how the South Dakota court would rule. Maryland case law contains a different rule. “In Pope v. State, 284 Md. 309, 320 (1979), the Court of Appeals citing Article 2 of the Maryland Declaration of Rights, said that ‘unlike decisions of the Supreme Court of the United States, decisions of federal circuit courts of appeals construing the federal constitution and acts of the Congress pursuant thereto, are not binding upon us.’ See also Dregen v. State, 352 Md. 400, 414, n.8 (1999); Lone v. Montgomery County, 85 Md. App. 477, 494 (1991).”

The court continued as follows:

Embracing the rule set forth in the Restatement (Second), Maryland appellate courts have long recognized the ability of parties to specify in their contracts which state’s law will apply. Jackson v. Pasadena Receivables, Inc., 398 Md. 611, 617 (2007). The Court of Appeals has required the existence of a “strong” public policy to override a choice-of-law clause in a contract, id. at 621, and has not hesitated to apply out-of-state law, even where it would trump an act of the General Assembly. Id. at 627. However, it is difficult to think of a stronger or more fundamental public policy than one expressed in the State Constitution. Nor can we conceive of a more forceful statement of the duty of a state court than found in Article 2 of the Declaration of Rights. Unlike the oath for State office contained in Article I, §9 of the Maryland Constitution, which requires a judge to “support” the laws of the State, Article 2 expressly mandates that “judges of this State” are “bound” by federal law, notwithstanding “anything in the Constitution of Laws of this State to the contrary.”20 Moreover, in the absence of a controlling decision of the U.S. Supreme Court, Maryland courts are to “decide federal questions the way they believe theSupreme Court would decide them,” Donald Ziegler, Gazing at the Crystal Ball: Reflections on the Standards State Judges Should Use to Ascertain Federal Law, 40 Wm & Mary L. Rev.1143, 1177 (1999), not the way some federal courts have. Pope, supra, 284 Md. at 320. That is particularly true of a federal question like that presented in Koons Ford, which had divided courts around the country. To adopt appellees’ position that a decision of Maryland’s highest court on a federal question dissolves because of another state’s opposing interpretation of federal law, or because of a headcount of federal appellate or district court decisions on the subject, would require Maryland courts to decide a federal question contrary to the way they believe the Supreme Court would have decided it. This would fly in the face of Article 2 of the Declaration of Rights. Thus, we conclude that embracing a decision of another state or a federal court disagreeing with Koons Ford, would, in the words of §187(2)(b) of the Restatement (Second), “be contrary to a fundamental policy of [this] State.

Indeed, although the case is somewhat complicated procedurally, it is amazing that the plaintiff, a non-lawyer, mustered the law and arguments together to prevail before the Maryland Court of Special Appeals. More importantly, though, is the fact that the arbitration provisions in many credit card and loan agreements are controlled by out-of-state law. To the extent a warranty or choice of law provision is implicated in a dispute involving malfunctioning goods that come with warranties or have end user agreements with arbitration provisions, consumers should take a lesson from the plaintiff in Henry v. Gateway and do their homework before caving in to the legal arguments of big corporations and their attorneys.

Barrington D. Henry v. Gateway, Inc., No. 0537, Sept. Term 2008.

For more information about this case or claims for breach of warranty or product defects, please contact the lawyers at Belsky,Weinberg & Horowitz.

Maryland’s Common Law Continues to Evolve: McQuitty v. Spangler Eliminates the Physical Invasion Requirement for Informed Consent Cases

Published on Aug 24, 2009 at 1:53 pm in General Blogs.

On July 24th, the Court of Appeals of Maryland issued McQuitty v. Spangler, No. 137, Sept. Term, 2008, in which the Court effectively abrogated its prior holding in Reed v. Campagnolo, 332 Md. 226 (1993) that an informed consent cause of action must involve a failure to communicate a material risk of a surgery, treatment or procedure which is invasive in nature, and may not arise from a failure to communicate medical information where no affirmative treatment or procedure is involved.

The Court’s decision in McQuitty is an interesting development in the common law of informed consent, and is another example of the Court’s willingness to review and reverse its prior decisions in the face of outdated and misunderstood rulings from the Court on important issues of our times. These events of reversal are both fascinating and encouraging and demonstrate the vitality and usefulness of our living common law. I am pleased to again have the opportunity to write on this new development in the law of torts.

Informed consent is common law cause of action wrought with conflict and confusion. A concept that would seem so simple from the words of the seminal Maryland case of Sard v. Hardy–that a person is entitled to all information that would be material to his or her decision to proceed with or forego a treatment or procedure– has created a host of unanswered questions for the bench and the bar. For example: “Is informed consent a separate cause of action or is it simply part and parcel of a pure negligence claim?” “Is expert testimony required to get an informed consent case to the jury?” “Why did the legislature in enacting the health claims arbitration procedures exclude informed consent cases from the requirement that an expert certify the merits of the claim before suit can be filed in a circuit court?” “Must the health care provider’s conduct involve physically invasive procedures for a breach of informed consent to occur, or may a claim arise simply by virtue of the withholding of information or simple inaction that would have been rejected by a reasonable person had they been given the opportunity?”

Although many of these questions remain unanswered, the Court of Appeals in its July 24th decision in McQuitty resolved that breaches of informed consent may arise in the absence of a physically invasive treatment or procedure and that a provider’s failure to communicate an appropriate course of care where no procedure has yet been performed but was merely contemplated is sufficient to constitute a breach of informed consent. Although a plain reading of the seminal Maryland case of Sard v. Hardywould bear out the holding in McQuitty, several cases that preceded McQuitty required a different outcome.

In Reed v. Campagnolo, 332 Md. 226 (1993), the Court of Appeals unanimously held that a cause of action for informed consent does not exist when the allegedly negligent conduct involves a failure to inform a patient of the availability, risks and benefits of testing for birth defects because it did not involve an affirmative treatment or act as opposed to advice or passive inaction. The Court was reluctant to leave to reasonable people the question as to whether certain testing and the options available if such tests revealed an abnormality would be desirable to a patient, or more specifically, whether they could decide on their own whether the information was “material.” The Reed Court concluded the issue of informed consent should be submitted to a jury only after expert testimony established the materiality of the information and thus was more a pure negligence action than an informed consent case that reasonable jurors could decide on their own.

Until the Court’s decision in McQuittyReed and the subsequent cases of Landon v. Zorn, 389 Md. 206, 230 (2005) and Arrabal v. Crew-Taylor, 159 Md. App. 668, 684 (2004) represented the law in this state as it relates to informed consent. Landon re-affirmed that the doctrine of informed consent was inapplicable when a doctor failed to recommend a diagnostic test. In Arrabal, the Court of Special Appeals rejected an informed consent claim grounded in the physician’s failure to offer an emergency Cesarean section after detecting fetal distress. Both cases (and others) are now effectively overruled by McQuitty.

The facts of McQuitty are not much different than those of Reedand Landon. The plaintiff suffered from partial placental abruption at an early stage in her pregnancy. The defendant, her ob-gyn, decided that because of the seriousness of the condition and the extended distance between the plaintiff’s home and the hospital, it would be best for her to remain hospitalized until the baby was delivered. The plan at the time was to delivery the child at thirty-five weeks. During the course of Ms. McQuitty’s six week stay at the hospital, her fetus’ condition worsened, the abruption became more pronounced, and there were signs of fetal distress. The defendant was aware of the worsening condition but did not offer the plaintiff a choice to deliver early to avoid catastrophic consequences. According to plaintiff’s experts, even though the baby was not full term at that time, he would have been born and remained healthy. Ultimately, the fetus went into full blown distress due to oxygen and nutrient deprivation, was delivered emergently, and suffered from profound health conditions that could have been avoided, according to plaintiffs’ experts, had the fetus been delivered earlier when the signs of fetal compromise were or should have been known.

The case was tried twice. In the first case, the jury returned a verdict in favor of the defendant physician on the issue of negligence but was deadlocked on the issue of breach of informed consent. A new trial on that claim was ordered on the informed consent case and the second jury returned a $13 million verdict. The trial judge granted defendant’s motion NOV. That decision was affirmed by the Court of Special Appeals in an unreported opinion. The Court of Appeals reversed and remanded the case for consideration of a remittitur motion filed by the defendant.

The decision by plaintiffs’ counsel to challenge the settled common law was clearly motivated in part by the needs of the profoundly handicapped child, the outcome of the two trials, and by glimmers of hope emanating from a several cases that appeared not to require a physical invasion despite the holdings in Reed and Landon.

In Faya v. Almaraz, 329 Md. 435 (1993), for example, the Court affirmed a claim of informed consent based upon a physician’s failure to disclose to his patient that he was infected with the AIDS virus. And in Goldberg v. Boone, 396 Md. 94 (2006), the Court held that it was correct for the trial judge to submit an informed consent claim to the jury where the evidence reveled that a physician did not inform his patient that he had limited experience in performing a surgery and that other surgeons were more experienced with the surgery.

Clearly, the Court could have preserved the precedent of Reed by rejecting the McQuittys’ allegations of breach, which fit neatly into the cast of physician inaction with no attendant physically invasive treatment. Or it could have focused on the accompanying physical intrusions which occurred during the treatment process to distinguish the case from Reed. Indeed, although plaintiffs’ counsel argued in the alternative that they had satisfied the physical invasion requirement by evidence of the insertion of intravenous lines, serial injections of certain medications, the insertion of a foley catheter and serial extraction of blood for analysis, they also pressed for an outright change in the common law. In the end, the Court ultimately refused to indulge in a disingenuous attempt to preserve the holding in Reedand unequivocally ended twenty-five years of confusion and inconsistency by eliminating the physical intrusion requirement:

“What has confused the understanding of the doctrine of informed consent, nevertheless, is the apparent introduction of a physical invasion requirement in Reed. . . . In that case, when attempting to distinguish a failure to recommend or instruct about a diagnostic procedure from a failure to obtained informed consent, we cited the New York case of Karlsons v. Guerinot, 57 A.D.2d 73 (Ny.App.Div. 1997). In so doing, we shifted the focus of the doctrine of informed consent from a healthcare provider’s duty to divulge material information to a patient to the act undertaken by the provider.”

* ** *

Viewed with the benefit of hindsight, our reference to Karlsons deviated from our common law roots, as well as from cases in which we have explicitly stated that an allegation of lack of informed consent sounds in negligence, as opposed to battery or assault, in direct contravention to Karlsons.

In the present case, we are reviewing the grant of judgment notwithstanding the verdict premised upon the requirement of a physical invasion. We hold today that this is not a requirement to sustain an informed consent claim.

The influence of public policy, sometimes referred to as the fifth element in tort, drives the evolution of the common law as typified in McQuitty. As of late, issues of health care predominate the national agenda. Medical treatment and the availability of more accurate and specific medical information are certainly becoming increasingly important in medical decision making. The internet has helped to educate patients about their medical conditions. According to the President’s Council of Economic Advisors who are pressing for health care reform, many Americans are receiving too much treatment with little overall net benefit. Today, decisions to forego medical treatments are as important as decisions to undergo them. The McQuitty decision appears to embrace all of these concepts and brings much needed clarification to the law of informed consent while giving patients greater autonomy over their own health care decisions.

The lawyers at Belsky, Weinberg & Horowitz have litigated successfully informed consent cases of a variety of sorts. The most recent victory came in the case of Mahler v. Johns Hopkins Hospital, which was tried twice in Baltimore City. That case was ultimately settled for a confidential amount and had a very complicated procedural history. Should you have a question or concern as to whether you or a family member received adequate informed consent before undergoing a procedure, please contact Alan J.Belsky who will provide a consultation free-of-charge.



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