Posted on March 04, 2014 in Business Counseling, Litigation & Transactions

When an injured party has insurance coverage, it’s a tricky thing figuring out what a jury should know about that insurance during trial. It can be even trickier when the insurer is an actual party, standing there fully represented in the courtroom. At least in Maryland, however, where insurance isn’t an issue in the case, the jury doesn’t have to know why the insurer’s involved.

In the recent case of Keller v. Serio & GEICO Ins. Co., Court of Appeals of Maryland, Case No. 48, September Term 2013, the plaintiff, Ms. Keller, got into a fender-bender and then went home. After talking to her attorney, Ms. Keller decided to check herself into the hospital. Five years, and more than $27,000 in medical bills later, she sued the other driver, Mr. Serio, in the Circuit Court for Baltimore County and notified her insurer, GEICO of a claim for underinsured-motorist coverage ("UM" in common insurance parlance) under that policy. GEICO then intervened in the lawsuit on the chance that an award might trigger the UM coverage.

During opening statements, Ms. Keller’s attorney identified GEICO as her insurer and the provider of her UM coverage. The rest of the trial dealt solely with Ms. Keller’s injuries and whether the accident caused them; GEICO didn’t come up again. At the close of evidence, Ms. Keller asked for a jury instruction explaining UM coverage, but the Court didn’t go for it, ruling that the instruction wasn’t warranted because insurance hadn’t been an issue in the case.

Continue Reading ››

 Posted on March 03, 2014 in Business Counseling, Litigation & Transactions

Reinsurance is a great way for insurance companies to manage their risk. An insurer issues a policy with a million dollars in liability limits, and then cedes, by way of example, 75% of that risk, or $750,000 to a "reinsurer." The reinsurer charges a small premium based on its actuarial bet that most claims will never exceed $250,000. The insurer is likewise pleased to pass of the majority of the risk for a small portion of the premium it collected. It is critical to remember, however, that the fundamental tenet of all insurance transactions, including reinsurance transactions, is risk transfer. If no risk of loss is transferred from the insurer to the reinsurer, there is no reinsurance transaction.

This precise problem was addressed recently by a federal district court in Menichino v. Citibank, N.A., 2014 WL 462622 (W.D. Pa., Feb. 4, 2014). By this opinion, a claimant was found to have successfully articulated a RESPA ("Real Estate Settlement and Procedures Act ("RESPA," for short)) cause of action against Citibank by alleging that Citibank charged fees for reinsurance but did not accept any risk. Citibank is also facing claims for unjust enrichment. While these are merely allegations, and none of these facts have been proven, the claimant’s lawsuit survived the preliminary motions stage, and provided all reinsurers a reminder to carefully consider risk transfer in structuring its transactions.

Menichino shines a spotlight on a lending practice from the pre-bubble-burst halcyon days of real-estate financing, when banks dished out mortgages like hotcakes and homebuyers ate them up without thinking twice. The plaintiff mortgagors in the case claimed to have been issued Citibank residential mortgages between 2005 and 2008 in Maryland, Pennsylvania, New York, North Carolina, Illinois, and Georgia. These mortgagors did not have the typical 20-percent of the purchase price to put down, so Citibank required them to get mortgage insurance from a select group of providers. The plaintiffs would pay the mortgage insurance as part of their regular mortgage payment. That’s a fairly standard arrangement in the mortgage industry, so no big deal there.

Continue Reading ››

 Posted on February 28, 2014 in Medical Malpractice

Over the years, I have successfully handled a number of medical malpractice birth injury cases. The birth of a child should be an exciting and happy occasion for all parents. Especially for new parents, labor and delivery can be scary and intimidating, and that is why parents trust their doctors and nurses to perform to the best of their abilities and provide excellent medical care. This means putting their own lives and their child’s life in the hands of medical staff and trusting that everyone will be happy and healthy. Sadly, the doctors and nurses who are responsible for delivering babies sometimes can endanger the health and safety of both baby and mom through mistakes and inattention. These injuries happen far too often and can result in irreparable harm to the baby prior to and during delivery. Birth injuries can have significant consequences on a child’s health and future, and on a family who must cope with the financial hardships of raising a child with a severe disability or condition.

Continue Reading ››

 Posted on February 24, 2014 in Business Counseling, Litigation & Transactions

As governments get increasingly involved in regulating telecommunications advertising, it is more important than ever for companies to be legally savvy about their mass-marketing techniques. Insurers are well aware that violations of mass-marketing laws have the potential to result in huge class action verdicts, so carriers tend to be vigilant in defending against claims for insurance coverage for these suits. A recent case from Illinois provides insurers with additional ammunition to use in effectively disclaiming such coverage.

In Windmill Nursing Pavilion v. Cincinnati Ins. Co., 2013 IL App (1st) 122431, Unitherm, Inc., a company selling a garment-labeling system, sent nearly 75,000 unsolicited faxed advertisements that allegedly violated the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. Because the TCPA provides for $500 in liquidated damages for each unsolicited faxed advertisement, Unitherm faced more than $37 million in liability for its ill-advised marketing strategy.

Unitherm’s faxes triggered coverage under two commercial general liability policies with Cincinnati – an original policy and a renewal policy. Both policies offered $1 million in general aggregate limits and $2 million in commercial umbrella liability coverage. The renewal policy, however, specifically excluded bodily injury, property damage, or personal or advertising injury arising from a violation of the TCPA.

Continue Reading ››

 Posted on February 21, 2014 in Medical Malpractice

As a medical malpractice lawyer, I have successfully handled a number of cases involving failure to timely diagnose and treat heart attacks. As more of America’s baby boomers are reaching the retirement age, more are suffering from medical conditions that require adequate treatment and care by competent physicians and medical staff. Individuals rely on these medical professionals to act properly and render the appropriate care to reduce the chances that a significant medical problem occurs.

A physician’s first and most crucial step in helping a patient suffering from any type of medical problem is a proper diagnosis. Once a proper diagnosis is made, the physician and medical staff can determine the appropriate steps to take to ensure the patient receives the necessary and adequate treatment and care for their condition. Unfortunately, when a doctor fails to diagnose and treat a patient properly, the patient can suffer serious and sometimes permanent injuries.

Recently, this was the case for a Louisiana man who has filed a medical malpractice suit against his doctor. The patient’s medical malpractice claim alleges that his physician’s failure to take the proper steps following discovery of severe heart conditions led to the patient suffering a heart attack and, as a result, becoming permanently disabled.
In the fall of 2009, the patient began experiencing problems with angina and numbness in his hands. He subsequently sought treatment from his physician, who recommended an angiogram and heart catheterization. The physician also advised the patient that if he determined stents would be necessary those procedures would occur at this time. On November 6, 2009, the patient underwent the heart catheterization procedure for two blockages in his arteries.

Continue Reading ››

 Posted on February 19, 2014 in Medical Malpractice

Over the years, I have represented a number of families who have suffered catastrophic consequences of childbirth. A recent news report discusses two cases that very similar to cases that I have successful handled.

In the recent matters, a Massachusetts hospital launched an internal review following the tragic deaths of two young mothers during childbirth. One mother died in mid-January, leaving four children, including her newborn baby girl, after suffering an amniotic fluid embolism. The other mother died just one month earlier after giving birth to her first child, a healthy baby boy, due to complications from a Caesarean section. The Massachusetts Department of Health also is investigating these deaths as part of a standard protocol. A copy of the article regarding the investigation can be found here.

Amniotic fluid embolism is a terrible complication of pregnancy and childbirth. When an amniotic fluid embolism occurs, fluid from the mother’s amniotic sac enters the mother’s circulatory system carrying fetal debris which can migrate throughout the mother’s organs, sending the mother into serious bodily shock. When this occurs, the results can be extreme for both the mother and the unborn baby. Several risk factors may help to predict amniotic fluid embolisms before they occur, including sudden and traumatic labor, advanced maternal age, placental abruption, and delivery using forceps or vacuum extraction. The failure to anticipate and protect a patient who may have one or more of these risk factors may constitute medical malpractice.

Continue Reading ››

 Posted on February 03, 2014 in Medical Malpractice

Nearly twenty years ago, a patient in Missouri underwent a hysterectomy with lymph node dissection. Shortly after this procedure, she developed lymphedema, or swelling of the legs. This condition required her to undergo physical therapy and medical monitoring for more than a decade. Several years after she was released from monitoring, the patient began experiencing pain in her left leg and foot again. She proceeded to consult several doctors about the pain, and eventually saw an orthopedic surgeon. The patient described her symptoms as numbness, tingling and redness in her foot. The orthopedic surgeon diagnosed her with lymphedema again and other related neurological issues, and recommended she follow up with her neurologist.

The patient followed instructions and underwent several neurological studies and continued to see numerous physicians regarding her condition. However, after about one year, the pain did not subside and she visited the hospital again. At this time, she was diagnosed with phlegmasia cerulean dolens, a severe form of deep vein thrombosis – commonly known as a severe blood clot in her leg. Due to this condition, and the length of time that had passed without treatment, the patient’s left leg required amputation from above the knee down several days after this diagnosis.

Continue Reading ››

 Posted on January 31, 2014 in Medical Malpractice

The parents of a child born with severe brain damage at a military hospital in Fort Hood, Texas recently settled their medical malpractice lawsuit against the United States government for $6.5 million. The medical malpractice lawsuit, filed in the U.S. District Court for the Western District of Texas, Austin, alleged physicians ignored evidence that the mother’s contractions were over-stimulated by the excessive use of oxytocin, which caused severe distress in the baby and forced the mother to deliver by emergency Cesarean-section.

According to allegations made in the medical malpractice suit, the mother’s pregnancy had been normal until near the end of her term. At about 37 weeks, the baby’s growth slowed down, and the obstetricians opted to induce labor on September 11. While in labor, hospital staff frequently turned off the oxytocin after fetal monitoring showed decelerations in the baby’s heart rate. However, hospital doctors continued to resume the oxytocin doses, even after monitoring showed the baby was in distress. After being forced through a long labor, the baby suffered hypoxia, or oxygen deprivation to the brain, during the delivery process. As a result, the newborn suffered severe brain damage, which caused cerebral palsy and other lasting physical injuries.

Continue Reading ››

 Posted on January 22, 2014 in Medical Malpractice

When you hear the words "medical malpractice," what is the first thought that comes to mind? For most people, it probably is that a hospital or physician made a serious medical mistake. However, medical malpractice does not just cover physicians and their medical team, but dentists, too. And sometimes dentists can make tragic mistakes.

Just a few weeks ago, the family of a three-year-old girl filed a medical malpractice suit against their daughter’s dentist after a routine root canal procedure caused her to sustain permanent and severe brain damage and eventually die in hospice a month later. A copy of the article regarding the case can be found here.

Last November, the mother took her daughter to a pediatric dentist in their native town of Kailua, Hawaii. Although only three years old, the young girl needed several fillings and root canals. On December 3rd, the young girl returned for her procedure. At that time, her dentist administered a strong mix of five different sedatives and anesthesia. However, the girl’s vitals were not monitored afterward; rather she was left unattended for more than 25 minutes. This medical negligence caused the young girl to go into cardiac arrest and ultimately lapse into a non-responsive state. Additionally, because the dental staff was not prepared for it, the young girl did not receive immediate CPR and had to be rushed to a neighboring pediatric practice for emergency assistance.

Continue Reading ››

 Posted on January 17, 2014 in Business Counseling, Litigation & Transactions

Plaintiffs rarely enjoy having their case jettisoned from court and onto the arbitration table – whether right or wrong, arbitration has a decidedly pro-defense rep that makes plaintiffs’ attorneys do just about anything to avoid it. But as shown in the recent Court of Special Appeals of Maryland case of Gordon v. Lewis, No. 1505, Sept. Term 2011, arbitration isn’t always a graveyard for meritorious claims, and plaintiffs can even score punitive damages that are quite hard to overturn. Simply put, courts are loath to revise an arbitrator’s decision, even when it involves an exemplary award.

In Gordon, appellant Kathy Gordon, a financial advisor, advised the appellees, her clients, to invest a quarter of a million dollars in a Somerset County real-estate venture that, coincidentally, just happened to be owned by her son. The clients received supposedly secured promissory notes that assured repayment, but that never actually happened, even while Gordon repeatedly stated that high rates of interest were being earned. Meanwhile, unbeknownst to the investors, the development company had actually gone belly-up into bankruptcy. When the clients eventually discovered this important little detail, they weren’t too pleased that their notes were – despite what they had been told – completely unsecured. In other words, it was nice knowing you, 250 grand.

The investors sought relief in court, but, over their objection, the case was kicked to the Financial Industry Regulatory Authority (an independent nonprofit authorized by the U.S. Congress to oversee the securities industry and resolve disputes) for arbitration. The alternate venue didn’t much help our wayward wealth (mis)manager, however, as the panel found that she and other defendants owed her clients a full refund of their investment, plus interest, plus filing fees, plus another $25,000 in punitive damages. But before the plaintiffs could let loose a celebratory "boo-yah!" Gordon ran back into court to try to get the award tossed, particularly the punitives.

Continue Reading ››