Monthly Archives: April 2009

Maryland’s Physician Discipline System Ranked 5th Worst in the U.S.

Today the Maryland Daily Record reports that the consumer watchdog group Public Citizen has rated Maryland’s physician discipline system as one of the worst in the country.

Public Citizen’s spokesman (who is also an M.D.) states that this “is troubling because it indicates many states are not living up to their obligations to protect patients from bad doctors.” Maryland is ranked 45th and has been one of the ten worst states for the past six rankings.

In rebuttal, Irving Pinder (Executive Director of the Maryland Board of Physicians) called Public Citizen’s findings flawed.

“I’ve always argued that Public Citizen’s statistics are very misleading because … they assume the pool of doctors is the same in every state,” Pinder said. “Maryland has some of the best doctors … in the country. If you need to go in for major surgery, would you want to be in Alaska or Maryland?”
Gee, Irv, I don’t know. Is taking out a kidney major surgery? Let me find out if Alaska lets doctors remove the wrong kidney, lie about it, and then keep practicing medicine. I’ll get back to you.

Does Maryland Physician Discipline Protect the Public?

In Maryland, the conduct of licensed physicians is governed by the Maryland Board of Physicians. This entity essentially determines who is licensed to practice medicine in Maryland, and is responsible for disciplining doctors when they don’t follow the rules.

The conduct of licensed attorneys is governed by the Court of Appeals of Maryland. The Court sets the standards for admission to the Maryland bar, and handles disciplinary issues regarding attorney misconduct. The Attorney Grievance Commission acts as “prosecutor” of attorneys accused of misconduct.

I would like to contrast two cases to illustrate how this process works.
First: the case of attorney Jill Johnson Pennington. This lawyer was hired to handle a personal injury case. She failed to competently represent her clients by missing the statute of limitations. This effectively ended any chance the clients had to recover in court. OK. That isn’t good. It only gets worse. Compounding the problem, the lawyer lied to the clients about whether their case had been filed. Then she presented them with false settlement paperwork making it look like the party responsible was settling. In reality, the lawyer was paying her own funds to make the faux “settlement”. She never told the clients what had happened or about the possible malpractice claim they had against her.

It is black-letter law that attorney discipline proceedings are conducted for the protection of the public. The lawyer was disbarred. It’s a no-brainer.

If you lie to clients to cover up your own malpractice, and fail to advise them of their rights as a result of your misconduct, you deserve to be disbarred. Clients need to know that their attorney has a duty to them that will be enforced. The system cannot work if there is no trust that attorneys are acting in clients’ best interest, or if they may fail to do so without any threat of repercussions.

Second: The case of a urologistwho was treating a patient with a cancerous tumor on the left kidney. The doctor mistakenly removed the (healthy, except for a benign growth) right kidney instead. Then, he never told the patient he took out the wrong kidney, even when the patient and other doctors called him about the mistake. He never informed the hospital of his mistake or documented it in the operative note.

The Maryland Board of Physicians found the doctor violated the standard of adequate care, engaged in unprofessional conduct, made a false report in the practice of medicine, and made a willful misrepresentation in treatment. Now, for the sanction imposed- a public REPRIMAND. Dr. Levin also had to write a letter of apology, undergo counseling, monitoring, and continuing education.
Lawyer commits malpractice and lies to cover it up. Sanction- Disbarment.

Doctor commits malpractice and lies to cover it up. Sanction- told not to do it again and must say he is sorry.
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It Is A Cold Spring for Injury Victims

On April 10, 2009 the Court of Appeals of Maryland denied certiorari in the case of Allen v. Marriott. You can read the opinion of the Court of Special Appeals here.

This is a bad case for injury victims and personal injury attorneys. My reading of the opinion is that it greatly broadens the scope of the doctrine of assumption of the risk in slip and fall on ice cases. Now, a Plaintiff cannot avoid the assumption of risk defense merely because they fell on ice they never saw.

Essentially, if it is February, and wet, you assume the risk of falling on ice because it is common knowledge that the temperature goes below 32 degrees in February and that water turns to ice when it is that cold. I think this is ridiculous. Using this analysis, shouldn’t those factors mean that property owners are on inquiry notice of a dangerous condition (ice) under those facts? I doubt we will see an apellate court in Maryland make such a holding.

With this coming so close to the Court of Appeals’ opinion in Grady v. Brown, this is not shaping up as a good spring.

I am starting to believe that whatever can go wrong will. I also just learned that the proposal to raise the amount for jury trial prayers to $20,000.00 died in the General Assembly’s House Judiciary Committee.

It seems like the burden of proof is a burden that just gets heavier. This all underscores the need for injury claimants to secure experienced trial attorneys to guide them through these legal minefields.
Also, we are extending a big M&Z welcome to John Cord. John is an attorney who will be working with us on mass torts, medical malpractice and auto negligence cases. He hasn’t made it to the profiles page yet, so remember you heard it here first.

Baltimore City Boulevard Rule Case

Today the Court of Appeals of Maryland issued its opinion in Grady v. Brown. This is a case involving the application of the Boulevard Rule. The Boulevard Rule is the traffic rule that states that traffic traveling on the favored roadway (or boulevard) has the right-of-way over traffic entering the boulevard from a side street.

I have written about this before. This case happened in Baltimore City. The plaintiff was driving his motorcycle down Falkirk Road, when the defendant emerged from an intersecting alleyway. There were cars parked along both sides of Falkirk Road, and the defendant testified at trial that he exited the alleyway only to the edge of the parked cars, so he could see if there was oncoming traffic. The jury found the defendant not to be negligent.

The Plaintiff moved for a directed verdict that the defendant was negligent as a matter of law due to the application of the boulevard rule. This motion was denied, and that denial was the basis of the appeal.

It looks like the Court of Appeals is holding that the defendant produced enough evidence to generate a jury issue as to his negligence, despite the boulevard rule. I haven’t had a chance to read the full opinion, but I will. So hold your breath to see what I think of it.

Disclaimer: I am not objective. I wrote the Amicus Curiae brief in Grady on behalf of the Maryland Association for Justice. The plaintiff was represented on appeal by Irwin I. Weiss, who is a smart guy and presented a well done brief and oral argument.

The defendant was represented on appeal by Sara Deriu and Mark Brown of H. Barritt Peterson & Associates (State Farm Staff Counsel). I read their brief, and watched their argument. Sara and Mark did a good job.

This opinion surprises me though. I thought this should have been a dead-bang win for the plaintiff on appeal. Instead, it was a close 4-3 vote where the plaintiff lost. Judges Raker, Murphy, Battaglia and Greene were the majority, with the opinion written by Judge Raker. Chief Judge Bell, and Judges Wilner and Harrell dissented.
I will check back in after a thorough reading of the opinion.