Posted on August 07, 2013 in Criminal Defense

I am often confronted with clients who want to change lawyers because for one reason or another they have lost confidence in their current attorney. I have blogged about this issue often and usually do so by positing the rhetorical question, "did you hire the right lawyer". I recently confronted this situation with a client who was charged with Second Degree Rape and related offenses. Obviously these are very serious charges that need to be handled by someone who knows what he or she is doing. In addition to facing serious jail time, anyone convicted of a sex offense faces the daunting prospect of being required to register as a sex offender for the rest of his life.

Unfortunately, there are many attorneys who will take on cases such as this one, who simply do not know what they are doing. Needless to say the results can be disastrous for the client depending upon at what point in the process the client determines that he is not be well represented. This particular client figured it out somewhere in the middle. That is, in time to prevent total disaster but not before suffering significant but unnecessary consequences. I have handled scores of sex offenses in my career but never one with facts quite like this one.

My client is a highly educated and successful man who was just north of 40 years old. He was separated from his wife and living alone in an apartment. He went out to have a few drinks one evening. He went first to a bar where he knew the bartender and consumed 2-3 drinks. He then went to a second bar where he met a friend and had a few more. Finally he went back to the first bar and had a final 2 drinks staying until last call. I was able to piece together proof of all of this through messages he sent and received on Facebook, text messages, credit card receipts and through interviews with the witnesses. Through these efforts I was able to prove that he had consumed at least 7 alcoholic beverages that night. This is a vital piece of evidence but I will get back to that shortly.

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 Posted on August 06, 2013 in Criminal Defense

I have often written about the perils of hiring unqualified. Perhaps it is due to the current economic conditions, but I am increasingly seeing attorneys whom I know are NOT criminal specialists handling criminal cases, including serious felonies in the Circuit Court. I think that people who are not experienced in dealing with attorneys think that a lawyer is a lawyer. Nothing could be further from the truth. Like doctors, many lawyers specialize in various areas of the law including criminal defense. It seems like a pretty obvious point that the lawyer specializes in one area is going to develop more expertise in that area than a so called "general practitioner" who often handle cases in as many as a dozen separate areas of the law.

I have in many instances throughout my career been hired by people who have belatedly figured out that their attorney simply did not know what he or she was doing. Sometimes that realization comes before any real damage has been done and sometime only after. Here is a specific case involving domestic violence and handgun offenses that I took over from another lawyer who was in over his head:

My client and his girlfriend got into a very heated argument while driving down the road one day. They pulled the car over and they both got out of the car to continue the argument. During the argument my client’s girlfriend hit him in the head with a hard object causing a laceration to his head and substantial bleeding. Shortly after this occurred, a Maryland State Police Officer pulled up behind the car to investigate why it was stopped on the side of a busy highway in Baltimore County. The police officer saw was my client bleeding rather profusely from the head wound but he did not witness the assault or any other illegal conduct.
In spite of the fact that he did not witness my client assault his girlfriend and the fact that it was he, and not she, that was bleeding, he trooper told my client to turn around and placed him in handcuffs for, as he noted in his report, "officer safety". He then searched the car and recovered a loaded handgun. Only then did he ask the alleged victim what had occurred and at that point she claimed that he had struck her in the face with an open hand. She did not have a red mark or other injury and there was no other evidence of this alleged assault. The Trooper charged my client with domestic violence assault and illegal possession of a regulated firearm. My client was facing a mandatory jail sentence of five years without the possibility of parole because he was previously convicted of a crime of violence, namely second degree assault. Obviously the stakes were very high for this particular client.

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 Posted on August 05, 2013 in Criminal Defense

As an Aggressive Criminal Attorney and former prosecutor with 20 years of experience, I have been involved in the prosecution of hundreds of cases involving the possession and distribution of Child Pornography, on both sides of the aisle. These are very serious offenses that almost invariably result in the incarceration of defendants who are convicted.

Because the Child Pornography is almost always distributed and downloaded from the internet, there is dual federal and state jurisdiction to prosecute these cases. Often the mere threat of a federal prosecution is enough to convince defendants charged in the state system to accept plea bargains because the penalties in the federal system are draconian and mandatory. Anyone charged with these very serious charges needs to immediately retain an experienced criminal defense attorney to represent them. As I said, I have handled many of these cases. Here are the specifics on one I handled recently.

I represented a young man who was charged with various charges related to the possession of child pornography. At the time of the offense, he was 19 years old and had never been in any trouble in his life. He appeared in my office for a consultation after his house was raided by the police and his computer was confiscated. The basis for the warrant was that my client had visited a child pornography site that the police were watching and they traced the IP address from his computer to his residence. At the time of the execution of the search warrant, he was read his Miranda Rights and questioned about the case. He openly admitted that he searched many times for child pornography on the Internet using search terms typically used to search for young gay male pornography images. He admitted that he had used filing sharing programs such as Limewire to conduct the searches but denied that he had ever intended to distribute or share the images with anyone else. He further advised the police that he was only interested in images of post pubescent teenagers (in other words, his peers) and would immediately erase any images of young children captured by the Limewire search. He told the police that he utilized Limewire and other such programs because they allow a person to conduct multiple searches simultaneously, and not to distribute or share the images with other people. He advised that his computer is very old and very slow, so he would punch in the terms and then leave the computer for long periods while it conducted the search.

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 Posted on July 30, 2013 in Medical Malpractice

A recent study in the British Medical Journal Open, The Epidemiology of Malpractice Claims in Primary Care: a Systematic Review, has addressed how often medical malpractice and wrongful death claims filed against primary care physicians worldwide. Authors of the study conducted a systematic search of more than 7,000 medical articles to find data involving medical malpractice trends and studies. Articles were included in the review if they involved at least ten medical malpractice claims based in primary care. Of the 239,756 closed medical negligence claims in the U.S. filed between 1985 and 2008, primary care physicians represented 11% of all claims. Another review of 1,452 claims in the U.S. revealed that primary care ranked third, representing 16% of claims.

The researchers found that the most common medical malpractice and wrongful death claims against primary care physicians involved missed or delayed diagnoses, which accounted for 26% to 63% of all claims. In adults, the most common primary care medical malpractice claims typically involved failing to diagnose cancers of the breast, colon, skin, lung and female genital tract, and myocardial infarction (heart attack). Following these were appendicitis, ectopic pregnancy, and bone fractures. In children, the most frequent missed or delayed diagnoses concerned meningitis and cancer.
Several studies found that these diagnostic mistakes may result from faulty clinical reasoning, misinterpretation of diagnostic tests or system failures, and typically may be a combination of many factors. Overall, medication errors were the second most frequent cause for malpractice claims, totaling between 5.6% and 20% depending on the study reviewed. Several studies highlighted that drug errors often were multifactorial with prescriber, patient and system factors all being contributors.

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 Posted on July 09, 2013 in Personal Injury

The Maryland Court of Appeals just issued its decision in the Coleman v. Soccer Association of Columbia case regarding whether to abandon the doctrine of contributory negligence (if a plaintiff is the least bit negligent, the plaintiff loses) in favor of the doctrine of comparative negligence (if a plaintiff is negligent, the plaintiff’s recovery is reduced by the percentage of the plaintiff’s negligence). Those on the victims’ side will say that this decision is a refusal to move from an antiquated doctrine to a modern doctrine. Those on the corporate and insurance side will consider this a win.

As set forth in the decision, contributory negligence traces its roots to 1809 in England. Almost all states in the U.S. subsequently adopted the doctrine contributory negligence. But over the years, all but four states and the District of Columbia have adopted comparative negligence. Those states that have abandoned the doctrine of contributory negligence have done so on the basis that is not fair to prevent a plaintiff from recovering when the defendant is negligent and the plaintiff is only 1/10th of 1% negligent.

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 Posted on July 02, 2013 in Medical Malpractice

Despite the continued national focus on patient safety, medical malpractice (medical errors) and other adverse events occur too frequently in Maryland hospital admissions. Hospitals in Maryland are required to report serious adverse events that occur to the Maryland Office of Health Care Quality (MOHCQ). MOHCQ then issues a yearly report regarding those reported events. In its recently-released report for fiscal year 2012, the report revealed that major adverse events (medical malpractice) still occur at an alarming frequency in Maryland.

Level 1 adverse events, which are the unexpected incidents that cause death or serious disability, were the most serious reported adverse events. Maryland hospitals reported 286 level 1 adverse events, a figure that is down from 348 in 2011. As in previous years, ulcers and falls were the most common incidents, accounting for 75 percent of all the reports in 2012.

The findings of the MOHCQ report include:

• 98 falls
• 86 hospital-acquired Stage III or IV pressure ulcers
• 16 suicides or attempted suicides
• 13 events involving post-surgical retention of foreign body
• 10 medication errors
• 10 events involving treatment delays
• 8 events involving the wrong patient or the wrong body part
• 7 events involving airway management
• 5 events involving restraints seclusion
• 5 fetal deaths or injuries
• 4 physical or sexual assaults within or on hospital grounds
• 4 events involving complication of treatment
• 3 health care associated infections
• 3 intravascular air embolism
• 2 intra-op or post-op deaths in ASA 1 patients
• 2 misdiagnoses
• 2 events involving contaminated drugs, devices or biologics
• 2 burns,
• 1 maternal death or disability associated with labor/delivery
• 1 event involving anticoagulants
• 1 event involving a failure to act
• 1 hypoglycemia event
• 1 event involving a malfunctioning device

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 Posted on July 02, 2013 in Medical Malpractice

Unfortunately, some of the most common medical malpractice lawsuits involve a doctor of hospital’s failure to diagnose a patient properly. When a patient seeks medical help, he or she trusts that their doctor or hospital will perform the necessary steps to diagnose what is causing their symptoms ultimately provide the proper treatment.

A missed or wrong diagnosis can lead a patient down the wrong treatment plan, or without any treatment plan at all. A missed diagnosis or a failure to diagnose occurs when a doctor or hospital does not diagnose a medical condition in a timely matter. Failing to properly diagnose a patient prevents doctors and medical staff from providing the proper treatment, which often can lead to further injury or sometimes even death.

Such was the situation in a recent case study involving a twenty-nine-year-old patient who delivered a child by cesarean section. One month after her delivery, the mother went to the hospital complaining of a painful migraine, blurred vision, nausea, and vomiting. The results from her CT scan were interpreted as normal, and the patient was discharged from the hospital with no medication or treatment provided. Two days later, she returned to the hospital with slurred speech, drooling and weakness in her upper and lower limbs. An additional CT scan was ordered immediately, which revealed an intracranial hemorrhage. Ultimately, she died of an intraparenchymal hemorrhage in her left cerebral hemisphere.

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 Posted on July 01, 2013 in Medical Malpractice

Surgery sometimes is necessary for patients who have an injury or medical condition that less invasive treatments cannot help. However, surgery is not always the appropriate measure in every situation, and if a doctor performs unnecessary surgery, patients may suffer a number of medical problems as a result.

A recent USA Today review of government records and medical databases found that tens of thousands of times each year patients are wheeled into the nation’s operating rooms for surgery that is not necessary. The study found that some providers do so just to take advantage of insurers or Medicare to drain them of funds, and some surgeons and doctors lack the competence and training to know when procedures are not necessary. Other times the facts don’t call for a surgery, or alternative treatments would have remedied the problem just as effectively.

A largely hidden problem, the study reported that unnecessary surgeries might account for ten to twenty percent of all operations in some specialties, particularly cardiac and spinal procedures. Knee replacements, hysterectomies, and cesarean sections were among the other surgical procedures performed more often than needed, according to the review. The study also analyzed the U.S. government’s National Practitioner Data Bank public use filed, which tracks medical malpractice suits. Since 2005, the newspaper found, more than 1,000 doctors have made payments to settle or close malpractice claims in surgical cases that involved allegations of unnecessary or inappropriate procedures. About half of these payments involved allegations of serious permanent injury or death, and many of the cases involved multiple plaintiffs, suggesting hundreds, if not thousands, of victims.

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 Posted on July 01, 2013 in Medical Malpractice

The Food and Drug Administration (FDA) regulates prescription drugs and medical devices to ensure that these products are safe and effective for their intended use. Frequently, medical professionals see clinical uses for medical devises that lie outside of the FDA-approved labeling. This is a practice known as "off label use."

While off label use of a medical device may be legal, a prescription drug or medical device should not be used "off label" without a patient’s consent. In Maryland, and in most states, the medical malpractice doctrine of "informed consent" requires that doctors (in a non-emergency setting) present the patient with important information about the nature of their ailment, the nature of the proposed treatment, the probability of success of contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment. This information allows the patient to decide which course of action to pursue.

In the recent Maryland case of Fusco v Shannon, the Court of Special Appeals held that a pharmacist was qualified to testify regarding off label use of a prescription drug in an medical malpractice informed consent case. The case involved an 82-year old man, Mafalda Fusco, who was diagnosed with prostate cancer and elected to undergo radiotherapy treatment. The physician to whom he was referred for this treatment explained the nature of radiation, including the need for a commonly used radiation protectant, Amifostine. Mr. Fusco underwent 23 injections of Amifostine and later suffered from a serious reaction, which causally contributed to his death.

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 Posted on June 28, 2013 in Business Counseling, Litigation & Transactions

Section 230 of the Communications Decency Act of 1996, 47 U.S.C.A. § 230, (CDA) provides online businesses a refuge from civil liability that could otherwise arise from content posted to a website, online blog or other social media platform by a third party. Specifically, § 230(c) of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties, stating: "No provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c).

Many businesses seek shelter under this provision of the CDA for legitimate business purposes, such as a commentary section for product or service reviews, but other businesses exploit this immunity, such as revenge porn sites like yougotposted.com.

It is essential, however, that all businesses that conduct business online or that operate an online website understand that the CDA’s immunity provision is not always a safe harbor. Why? Because the CDA’s grant of immunity applies only if the interactive computer service provider is not also an "information content provider," (ICP) which is defined as someone who is "responsible, in whole or in part, for the creation or development of" the offending content. 47 U.S.C.A. § 230(f)(3), emphasis added.

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