Posted on November 08, 2013 in Pediatric (child) Medical Malpractice

Being a parent – especially for the first time – often brings tremendous fear and the unknown. Many parents are overwhelmed, inexperienced and afraid that something might go wrong with their precious newborn. Parents rely heavily on their pediatrician to ease these fears and calm them down. On top of their counseling role, pediatricians certainly are responsible for monitoring and detecting the health of a newborn. For obvious reasons, choosing a pediatrician who they can trust is a special and serious task for parents. However, for one Maryland couple, their fears were falsely eased by the pediatrician they chose. A copy of the article regarding the case can be found here.

Shortly after birth, on two separate occasions, Robert and Kate Henry took their newborn baby girl, Madison, to Children’s Medical Group in Cumberland for examinations. On both occasions, a nurse recorded an abnormally high heart rate for Madison. However, Madison’s pediatrician did not diagnose a heart problem or refer the baby to a specialist. Several days later, Madison’s mother sought emergency help when she noticed Madison was not breathing well. The baby was transported to the hospital via ambulance and had to be revived after losing consciousness during the trip. At the hospital, doctors discovered a congenital heart defect called coarctation of the aorta. During the surgery to repair the aorta, the baby’s heart stopped. Tragically, Madison suffered brain damage as a result of her heart stopping. Five years later, Madison now is severely disabled.

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 Posted on November 05, 2013 in Personal Injury

Last month, a D.C. jury found that the District Lounge & Grille, a bar (now closed) formerly located in the Adams Morgan section of the District, was liable to the Estate of Julia Bachleitner under the D.C. Dram Shop Statute. The parties had previously agreed that, if the bar was found liable, the damages would be $1 million.

Last month, a D.C. jury found that the District Lounge & Grille, a bar (now closed) formerly located in the Adams Morgan section of the District, was liable to the Estate of Julia Bachleitner under the D.C. Dram Shop Statute. The parties had previously agreed that, if the bar was found liable, the damages would be $1 million.

The Accident
The case is as tragic as they come. Julia Bachleitner was a 24-year old, soon to be engaged graduate student at the Johns Hopkins’ SAIS School in D.C. Originally from Austria, she had studied and traveled around the globe and had just returned to D.C. in September 2010 for her final year of graduate school. On September 8, she and her friend, Melissa Basque, met up with their boyfriends, all of whom were SAIS students, to catch up after being apart all summer. While walking from the campus to a nearby restaurant, the group crossed Florida Avenue where it connected with 18th Street.

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 Posted on November 04, 2013 in Personal Injury

STSW is currently investigating potential criminal and civil claims arising out of the massacre of 13 Navy Yard employees on behalf of several of the victims’ families.

Aaron Alexis was employed by The Experts, a subcontractor of Hewlett-Packard Enterprise Services (HP), and was granted access to secure Navy Yard facilities in that capacity. Based on the widespread media reports of Alexis’ increasingly bizarre behavior, The Experts was potentially on notice of a dangerous mental illness. Alexis was living in a hotel with fellow employees who apparently witnessed his declining mental state, as did members of the hotel staff. Alexis was also involved in several encounters with police which either were or could have been discovered by The Experts. The Experts may be liable for, among other things, wrongful death, negligent hiring, negligent supervision and negligent retention. Depending on the precise relationship between The Experts and HP, HP faces potential liability.

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 Posted on November 01, 2013 in Dr. Nikita Levy and Johns Hopkins Hospital

Today, lawyers for victims of former Johns Hopkins obstetrician and gynecologist Dr. Nikita Levy announced that a class action has been conditionally certified to resolve the victims’ claims. As many will recall, this past February, patients of Dr. Nikita Levy learned through the media that Dr. Levy had admitted to filming patients during examinations. A subsequent search of his home by police revealed “computer servers” that contained photographs and videos of his patients. Within days, before he could be brought to justice, Dr. Levy took his own life.

Shortly after the news reports broke regarding Dr. Levy’s misconduct, patients of Dr. Levy began contacting attorneys to learn about their legal rights. When interviewed, patients also disclosed various sexual boundary violations that Dr. Levy had committed.

A total of approximately 3,800 women eventually retained attorneys. This firm represents more than a hundred of these women.

Today, attorneys for victims of Dr. Levy, including this firm, announced that a judge of the Circuit Court for Baltimore City has cleared the way for settlement discussions to begin between attorneys for victims of Dr. Levy and Johns Hopkins Hospital. Specifically, the judge certified a Mandatory Conditional Settlement Class consisting of all of Dr. Levy’s patients. The class allows members of a Steering Committee, which this firm is a part of, to begin settlement negotiations with Johns Hopkins in an effort to timely obtain a settlement on behalf of all claimants in a reasonable time.

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 Posted on October 31, 2013 in Emergency Room Malpractice

Patients expect that their doctors will take good care of them and do whatever necessary to stabilize or treat their condition. However, one doctor – an orthopedic surgeon – recently was found guilty of medical malpractice when his actions led to his patient becoming a paraplegic; the jury awarded the patient and his wife $2.85 million.

The patient presented to the emergency room in the spring of 2004 after he suffered numerous and severe injuries in an automobile accident. While being prepped for surgery to stop the bleeding in his forearm, the treating orthopedic surgeon ordered a CT scan of the patient’s knee, which he also injured in the accident. According to the trial testimony, when the physician ordered the CT scan, the patient’s blood pressure was at a dangerously low level. The CT scan caused a nearly 30-minute delay in the patient’s surgery. During this delay, the patient went into cardiac arrest and respiratory arrest. Although two physicians nearby – an emergency room doctor and an anesthesiologist – fortunately resuscitated the patient, the delay and resulting injuries led to the death of a portion of his spinal cord, also known as a spinal cord stroke. Tragically, he suffered permanent paralysis from just above the waist down.

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 Posted on October 25, 2013 in Contracts

In its early years, malpractice insurance coverage was often provided through “occurrence”-based policies that provide coverage for specific events, or “occurrences,” that happened during the policy’s effective period. When a professional malpractice claim was made under one of these policies, however, it was often difficult to define the boundaries of the “occurrence” of the negligent act, particularly when services were provided to the client long in the past or were part of a years-long relationship. If the “occurrence” extended over multiple policy periods, then multiple insurers were arguably responsible for covering the occurrence, unless a single insurer was unlucky enough to have issued multiple policies whose separate limits were arguably triggered by the single, years-long, occurrence. In order to minimize their exposure, exercise greater control over their exposure, and for other reasons, malpractice insurers have more recently begun issuing more “claims made” policies.
In contrast to “occurrence”-based policies, which typically cover insureds for any occurrence which takes place during the effective period regardless of when the claim is filed, “claims made” coverage protects the insured from claims made against it only during the effective period of the contract; in effect, the filing of the claim during the policy period is itself the coverage trigger.

“Claims made” policies permit insurers to exercise greater control over their risk exposure because a “claims made” insurer knows, if it has not received notice of a claim during the effective period of a policy, or typically for a month or two after expiration, the risk of a claim under that policy has likely passed. By contrast, an insurer who has issued an “occurrence”-based policy may learn that it has liability to cover an “occurrence” which happened during its long-expired policy period years after the “occurrence” allegedly took place.
The notice provisions in “claims made” policies set a time limit by which the insured has to give the insurer heads-up about claims filed against it. As with some other states, however, Maryland has a statute limiting insurers’ reliance on such provisions to deny claims. Section §19-110 in Maryland’s insurance statutes prohibits an insurer from denying coverage based on a failure to timely notify unless the insurer proves that it was prejudiced by the delay. While courts in other jurisdictions have opted not to apply such “notice-prejudice” laws to claims-made policies, in McDowell Bldg. v. Zurich Am. Ins. Co., 2013 WL 5234250 (D.Md. Sept. 17, 2013), Judge Bennett recently went in the other direction, at least in the motion to dismiss stage.
Zurich Insurance Company sold the malpractice liability policy at issue in McDowell to an architectural firm. The Zurich policy’s notice provision required that notice of all claims be given to Zurich no later than 60 days after the expiration or termination of the policy. A potentially covered malpractice claim was made during the effective period of the policy, but the architectural firm waited more than three years – well past the expiration of the policy – to tell Zurich about it. Zurich denied coverage based on late notice, and McDowell marched into court, asserting that Zurich hadn’t proved it was prejudiced under § 19-110.
Zurich argued that Section 19-110 does not apply to malpractice cases. McDowell maintained that Section 19-110 applies to all types of policies, and that in the few cases where courts refused to apply § 19-110, the claim or lawsuit itself, and not just the notice of the claim, occurred after expiration of the subject insurance policy.
Judge Bennett took a close look at a recent decisions to determine how Section 19-110 should be applied. These decisions were only moderately helpful, however, as “the state of § 19-110 jurisprudence in the Fourth Circuit is still very much in flux.” McDowell, 2013 WL 5234250, at *8. Judge Bennett also distinguished two prior opinions of Maryland’s federal district court on the basis that they found § 19-110 to be inapplicable in the summary judgment context, whereas McDowell concerns a motion to dismiss.
Judge Bennett noted that the application of this statute is intrinsically bound up with the facts of each case, and the precise language of the subject policy. Based on the language of the notice provision, Judge Bennett treated the notice provision as a covenant, rather than a condition precedent to coverage under Maryland law. The failure to provide timely notice of a claim was thus found to be a breach of the insurance policy, not the failure to satisfy a condition precedent to coverage. The alleged breach of the policy was held to trigger application of § 19-110, and require that Zurich prove prejudice to support its denial of coverage (whereas a failure to satisfy a condition precedent would presumably have defeated coverage altogether). Zurich’s motion to dismiss the breach of contract claims for failure to provide timely notice was denied. Given the McDowell court’s heavy reliance on the specific facts of the case, the opinion is likely only one piece of a § 19-110 puzzle that is still very much under construction.
If this post is the “occurrence” that triggers your concerns or questions about claims-made policies and notice-prejudice statutes, contact Bill Sinclair, head of STSW’s commercial litigation group, at 410-385-9116 or bsinclair@silvermanthompson.com.

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 Posted on October 23, 2013 in Doctor Malpactice

A New York jury in a medical malpractice recently found that a pediatric endocrinologist was guilty of medical negligence that caused the wrongful death of a six-year-old girl, and awarded the mother an $8 million verdict. Sadly, the girl died shortly after a non-board certified pediatric endocrinologist misdiagnosed her diabetes.

This defendant doctor was recommended by the girl’s pediatrician, who thought she may have had diabetes. After administering a blood test, the specialist jumped to the conclusion that the girl had pre-Type 2 diabetes; she prescribed a regimen of weight loss and exercise. Following this initial misdiagnosis, the specialist failed to order a blood test at a second visit, and the girl became gravely ill about a month later. When the girl’s blood sugar eventually was tested at the ER, it was found to be five times higher than the normal limits. Unfortunately, all she really needed was insulin, but because her doctor misdiagnosed her with Type 2 diabetes, instead of Type 1 diabetes, she ended up not getting the insulin she needed and died.

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 Posted on October 15, 2013 in Contracts

Maryland law requires that property and casualty insurers who are investigating an insurance claim must send the insureds a written update on the status of the claim every forty-five (45) days. COMAR 31.15.07.04. Specifically, the Maryland regulation provides that if an insurer has not completed its investigation of a first-party claim (this generally means that you made the claim under your own policy) within 45 days of notification, the insurer must promptly notify the first-party claimant, in writing, of the actual reason that additional time is necessary to complete the investigation.

Notice must also be sent to the first-party claimant after each additional 45-day period until the insurer either affirms or denies coverage and damages.

If you have made a “first-party” home, auto, or liability insurance claim, and you think your insurance company has not kept you updated in accordance with Maryland law, please contact Bill Sinclair, head of STSW’s commercial litigation group, at 410-385-9116 or bsinclair@silvermanthompson.com, to discuss. Statutes of limitations may apply, so do not delay.

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 Posted on October 15, 2013 in Contracts

When the relationship between an insurance company and a managing general agent terminates in Maryland, it is typically the agent that owns the “expirations” (or “book of business”) – i.e., the policyholders’ contact information that may be used to solicit further business upon expiration of those policies. Maryland’s rule is consistent with the general weight of authority in the country that under the “American agency system,” the agent is the owner of expirations upon termination of the insurance agency relationship, particularly when such ownership is provided for by contract.

As for Maryland, Md. Code, Ins. Art. § 27-503 prevents insurance purchasers from losing their insurance when their agency relationship is terminated between their agents and the insurers. Upon the termination of that relationship, the statute grants ownership of expirations to the insurer, but requires the insurer to renew the agent’s policies through the agent for at least two years or until the policies are placed elsewhere. See Md. Code, Ins. Art. (“IN”) §27-503(b)(3). This is known as the “renewal rule.”

As to the larger question of, in the absence of a statute, whether the agent or the insurer owns expirations, expirations are generally “owned” by the insurance agent that wrote the policy (provided that the agent is not in default in remitting premiums to the insurer). See Charles Maggard Agency, Inc. v. Mo. Pub. Entity Risk Mgmt. Fund, 974 S.W.2d 671 (Mo. St. App. W.D. 1998); Spier v. Home Ins. Co., 404 F.2d 896 (7th Cir. 1968); Heyl v. Emery & Kaufman, Ltd., 204 F.2d 137 (5th Cir. 1953); F.B. Miller Agency, Inc. v. Home Ins. Co., 276 Ill. App. 418 (1934) (where ownership of expirations not provided in contract and insufficient evidence of industry custom, ownership granted to agent); Nat’l Fire Ins. Co. v. Sullard, 97 N.Y. App. Div. 233 (1904); Stein v. Nat’l Life Ass’n, 105 Ga. 821 (1898) (business owned by agent and was not a trade secret produced through a confidential relationship with insurer). There appears to be at least a few cases to the contrary, see State Farm Mut. Ins. Co. v. Dempster, 174 Cal. App. 2d 418 (1959) (expirations are owned by insurer as trade secrets); Fid. & Cas. Co. v. Downing & Downing, 88 Pa. Super. 133 (1926); Arrant v. Ga. Cas. Co., 212 Ala. 309 (1924) (agent not entitled to ownership of expirations under general principles of agency law), particularly where contractual provisions between the insurers and agents are construed to grant ownership of expirations to the insurers, see Arrant, 212 Ala. 309; Liberty Mut. Ins. Co. v. Outerbridge, 249 N.Y.S.2d 147 (1963). Some courts have also held that agents of mutual insurance companies or direct writing companies, as opposed to stock insurance companies, do not own their expirations. See State Farm Mut. Auto Ins. Co. v. Hedburg, 236 F. Supp. 797 (D. Minn. 1964) (mutual insurance companies); Hardin Cnty. Farm Bureau v. Farm Bureau Mut. Ins. Co., 341 S.W.2d 62 (Ky. 1960) (direct writing company). However, where the terms of a contract expressly assign expiration rights to the agent, courts have (where the agent has fully accounted for premiums owed to the insurer) enforced those rights. See, e.g., Nelson v. Farmers Mut. Auto Ins. Co., 4 Wis. 2d 36 (1958) (upholding jury finding that contract between insurer and agent granted expirations to agent).

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 Posted on October 14, 2013 in Birth Trauma Malpractice / Cerebral Palsy Malpractice

For a parent, one of the greatest fears is that something bad will happen to their child. Mothers take special care when pregnant to ensure that their child is born healthy and will develop correctly. However, one thing that mothers cannot avoid is the risk of complications during the birthing process.

Last month, a Pennsylvania jury awarded $4 million when it found an obstetrician’s medical negligence caused permanent injuries to a child. The child, now four years old, suffers cerebral palsy and neurological injuries as a result of the obstetrician’s negligent failure to perform a cesarean section after the mother’s labor stalled for nearly eight hours. An expert witness testified that the doctor should have recognized that when the child’s labor stopped progressing, a cesarean delivery was safer. Instead, the doctor proceeded with a vaginal delivery and used forceps to assist in the delivery. During the delivery, the baby’s shoulder became stuck in her mother’s pelvis, causing a crucial three-and-a-half minute delay when the baby was deprived of oxygen. As a result, the baby had to be resuscitated by the neonatal intensive care unit at the hospital and later underwent a procedure to cool her brain to minimize damage from the lack of oxygen. The verdict came after a four-day trial and is among the largest medical malpractice awards in the county’s history.

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