Posted on February 19, 2009 in Wrongful Birth / Wrongful Life

As a Maryland medical malpracitce lawyer / attorney, many people ask me what is a wrongful birth case. In Maryland, a wrongful birth case is a case in which parents of a child born with birth defects allege that the negligence of prenatal health care providers deprived them of the opportunity to terminate the pregnancy due to the likelihood of the child being born in an impaired state. These type of cases are brought by parents in an effort to recover the economic expenses that will accrue in raising a child with extraordinary needs.

A. The Maryland Seminal Case Recognizing “Wrongful Birth” Claims in Maryland – Jones v. Malinowski
The first case in Maryland to recognize that Maryland permits a wrongful birth claim is Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984). Jones is an action for damages based on negligent sterilization resulting in the birth of a healthy child. The Court of Appeals in Jones clearly stated that Maryland has not established an independent cause of action for wrongful birth cases; instead, it held that wrongful birth cases in Maryland are embraced within the tort of negligence: “there is a cause of action in tort based upon traditional medical malpractice principles for negligence in the performance of a sterilization procedure is well accepted.” Id.

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 Posted on February 19, 2009 in Medical Malpractice Law in Maryland

Many peole ask what type of damages they can get in a medical malpractice / medical negligenc cases. One type is lost wages. Maryland courts have repeatedly acknowledged the legitimacy of lost wage claims in negligence cases. For instance, in Adams v. Benson, 208 Md. 261, 270-271, 117 A.2d 881, 885 (1955), the Court of Appeals recognized: “That in an action for personal injuries caused by the negligence of the defendant, the plaintiff may recover not only for the consequences which have actually and naturally resulted from the tort, but also for those which may certainly or reasonably and probably result therefrom as proximate consequences, but not for consequences which are speculative or conjectural.” The Court then recognized that in a personal injury action, a plaintiff may claim: “damages for (1) resulting loss of time and loss of earnings; (2) loss or diminution of earning capacity sustained by being temporarily deprived of her capacity to perform her ordinary labor, and (3) loss of future earnings, if shown with reasonable certainty and not merely speculative in character”. Id., 208 Md. at 271, 117 A.2d at 885.

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 Posted on February 17, 2009 in Birth Trauma Malpractice / Cerebral Palsy Malpractice

A South Carolina jury has awarded $4.4 million to the parents of a 4-year-old girl who died after suffering brain injury at birth at a hospital there. The jury found that the hospital was at fault in 2003 when it assigned a nurse trainee to monitor the mother, who had come to the hospital three days before her scheduled induction, complaining of nausea and vomiting. Lawyers for the family argued the nurse trainee misread fetal heart monitoring information showing the baby was in severe distress and needed emergency intervention. The infant subsequently was born with a severe brain injury caused by oxygen deprivation, and died of complications from cerebral palsy more than four years later. While the child was alive, the family endured constant challenges, including giving medication to battle seizures, taking her to therapy several times a week and relying on a feeding tube to keep her nourished.

I have successfully handled a number of medical malpractice / medical negligence / medical error cases in Maryland involving birth injuries. These cases are always tragic.

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 Posted on February 17, 2009 in Infection Malpractice

A Texas man who lost both of his arms and legs to a hospital acquired infection infection, called methicillin-resistant Staphylococcus aureus also known as MRSA, has been awarded $17.5 million by a Texas jury. After medical malpractice caps are applied, the plaintiff could collect up to $7.5 million from the doctor, an infectious-disease specialist who treated the infection in 2003. The doctor had treated the plaintiff six years ago when he developed an infection following ulcer surgery at a hospital in Texas. The doctor administered eight antibiotics to Fitzgerald but not the one drug that would have treated MRSA. The hospital-acquired infection is resistant to several common antibiotics and can become deadly if it spreads and is not treated quickly.
As a result of the malpractice, the patient went into septic shock, which caused irreparable damage to his limbs. By the time the infection was diagnosed and treated, gangrene had set in, requiring the removal of both arms below his elbows and both legs below his knees.

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 Posted on February 17, 2009 in Maryland DUI Penalties

A number of bills intended to curb drunk driving are being proposed today to a Maryland Senate Committee. Backed by Governor O’Malley, police, prosecutors and highway safety advocates, a number of these bills-if passed-will change the landscape of drunk driving prosecutions in Maryland.

The most significant bill is one that imposes criminal penalties on adults who provide alcohol to minors. If passed, the teen drinking bill would elevate the penalty for supplying alcohol to minors from a civil offense to a criminal offense. Parents, siblings and religious exemptions will apply.

Additional laws being proposed include probation before judgement eligibility. Currently, a convicted drunk driver is not eligible for a PBJ for a second offense if the first DUI conviction occurred within 5 years. The new proposed law would raise the PBJ eligibility requirements to ten years.

Drunk driving defense attorneys may also have to tangle with a proposal that will impose a mandatory one-year driver’s license suspense if any part of the drunk driving article is violated for a second time. Currently, lessor included offenses such as driving while impaired (DWI), when grouped with a DUI conviction, do not trigger the one year suspension.

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 Posted on February 14, 2009 in Automobile Accident

Very sad news coming out of Anne Arundel County , Maryland this morning. The Baltimore Sun is reporting that Ashley Nicole Meyers was “attempting to cross Ritchie Highway near Hamburg Street in Pasadena when she was struck by a northbound 1999 Nissan Sentra about 5:47 p.m.” yesterday. Police are reporting that the child was wearing dark clothing at dusk and crossed the busy highway at a place not designated for pedestrian crossings. The girl was pronounced dead at Baltimore Washington Medical Center an hour later.

Our hearts go out to the family and friends of both the child and the unnamed driver of the vehicle that struck her. There is no report-at this time-that drugs or alcohol played a part in this motor vehicle accident.

For more information, or a free consultation, please contact the Maryland personal injury lawyers of Silverman, Thompson, Slutkin & White, LLC. or call Steve Silverman at 410-385-2226.

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 Posted on February 13, 2009 in Armed Robbery

One of the most difficult areas of the law facing criminal trial lawyers is handling eyewitness identifications, both in and out of the courtroom. There is no doubt that eyewitness identifications are often one of the most powerful pieces of evidence against a criminal defendant. They are also extremely unreliable, especially when the identification is the result of a police “show-up” — a procedure where a single criminal suspect is paraded before a witness who is then asked to make an identification. More often than not, the witness is brought by police to see the single criminal suspect being held by the police and under circumstances suggesting that the police have captured the right man. There is often a palpable pressure on the victim to identify the suspect simply because it will please the police.

Unfortunately, Maryland courts have made it extremely difficult for defendants to suppress bad eyewitness identifications. In 2006, the Maryland Court of Appeals in Jones v. State, 395 Md. 97 (2006) ruled that judges must evaluate eyewitness identifications in two stages. The first is whether the police procedures used in the identification were “impermissibly suggestive.” If it is not, then judges must end the inquiry and cannot consider whether the identification itself was reliable. The burden lies with the defendant to establish a “prima facie” case that the procedures were police procedures were fatally flawed. If the defense can show that the police procedures were inappropriate, then the burden shifts to the prosecutor to show by clear and convincing evidence that the identification was reliable.

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 Posted on February 13, 2009 in Trials

Motions in limine are filled by a party to prevent the jury from hearing any mention of potentially prejudicial information that the moving party believes is not admissible at trial. Because juries often decide cases like beauty pageants and award damages on like-ability issues, a good trial lawyer will recognize these issues and attack them in a Motion in Limine.

In such a motion, the party must argue that the evidence should be excluded because it is incompetent, irrelevant, immaterial, privileged, or otherwise inadmissible.

We often file such a motion before trial to keep out unfavorable facts we believe defense counsel will raise. Such examples may include our client’s prior injury, criminal record, or other prejudicial matters.

The most common way to attack the introduction of unfavorable evidence before trial is the relevance argument. Maryland Rule 5-401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

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 Posted on February 13, 2009 in Minors

When a minor (under 18 years of age) brings suit in Maryland for a personal injury, the lawyer will bring the suit under the “next friend”. This person is either the parent or the guardian of the minor.

Specifically, Md. Rule 2-202 (2006) provides that a parent has the exclusive authority to sue on behalf of his/her minor child for the period of one year of the accrual of the cause of action. After the period of one year and person “interested in the minor” shall have the right to institute suit on behalf of the minor.

While the parent as “next friend” is often the named Plaintiff in the case they are considered a non-party in the eyes of the court. Parker v. Housing Authority of Baltimore City, 129 Md. App. 482 (1999) (“The [next friend] is, in contemplation of law, admitted by the court to prosecute for the infant; though, according to the practice of our courts, never by any actual order passed for that purpose….Maryland Rule 2-423 does not authorize the circuit court to order an examination of a non-party next friend.”).

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 Posted on February 13, 2009 in Uncategorized

As a Former Maryland DUI/DWI Prosecutor, I represent people charged with DUI/DWI at their bail review hearings on a regular basis. Many people don’t realize that at a bail review hearing the judge can raise the bail, not just lower it. This is why it is so important for a person who is charged with DUI/DWI to immediately contact an aggressive and experienced DUI/DWI Attorney.
Case in point: I was hired by a man who was charged in Baltimore City with his first DUI/DWI offense. After being arrested and charged he was taken to the Court Commissioner for his initial appearance. In spite of the fact that this arrest constituted his first DUI/DWI offense and that he had strong ties to the community, to include having a family, a steady job and owning his home, the Court Commissioner set his bail at a very high $27,000. The client rightly believed that this was an abnormally high bail and decided not to post the bail and instead to attend his bail review hearing the next day. The client chose not to consult an attorney at this point believing that the worst thing that could possibly happen at the bail review would be that the judge would refuse to reduce the bail, and that in all likelihood would substantially reduce it if not release him on his personal recognizance. Under most circumstances the client would have been correct; in this situation his decision turned out to be a very costly mistake that could have been avoided had he or one of his family members contacted an attorney immediately upon being arrested.

The client attended the bail review the next morning at the Central Booking Intake Facility courtroom. He was represented by the Public Defender who explained the client’s substantial ties to the community and lack of prior DUI’s. Unfortunately for him, the judge who was handling the bail reviews that day is known to be basically irrational when it comes to DUI’s. This judge routinely sets ridiculously high bails or even holds DUI defendants without bail. (I blogged last year about a case that I handled in which this judge held a second DUI offender without bail.)

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