The national general practice law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors, is "here to make a difference".
(1) Actor, director, political activist DANNY GLOVER has been in the country of Venezuela as an electoral monitor for the recent presidential election in which Venezuelan President Hugo Chavez won his fourth presidential election.
(2) British actor HUGH GRANT spoke this week at the Conservative Conference 2012 in Birmingham, England on the subject of British prime minister David Cameron and the issue of press regulation.
(2) Best-selling author DEEPAK CHOPRA will be signing his new book, "God: A Story of Revelation", in the Chicago O'Hare International Airport on Friday, October 12th, 2012, from 2:00 PM to 3:00 PM.
Wednesday, October 10, 2012
Tuesday, October 9, 2012
MARYLAND CRIMINAL LAW PRACTICE: State versus Daughtry (2011) and State versus Miller (2009): Key Cases By Defense Attorney Charles Jerome Ware
State versus Daughtry (2011) and State versus Miller (2009): Key Cases By Defense Attorney Charles Jerome Ware
Maryland criminal law is a body of rules and statutes that defines conduct which is prohibited by the state of Maryland because the conduct threatens and harms public safety and welfare. Maryland criminal law also establishes punishment to be imposed upon those who commit criminal acts and/or engage in criminal conduct.
State of Maryland v. Demetrius Daughtry, No. 81, September Term 2010, Maryland Court of Appeals (MCOA), Filed April 25, 2011:
Maryland criminal law is a body of rules and statutes that defines conduct which is prohibited by the state of Maryland because the conduct threatens and harms public safety and welfare. Maryland criminal law also establishes punishment to be imposed upon those who commit criminal acts and/or engage in criminal conduct.
State of Maryland v. Demetrius Daughtry, No. 81, September Term 2010, Maryland Court of Appeals (MCOA), Filed April 25, 2011:
CRIMINAL LAW – GUILTY PLEAS – VOLUNTARINESS – MARYLAND
ALLOWING A TRIAL COURT, IN ENSURING THAT A GUILTY PLEA
IS KNOWING, VOLUNTARY, AND ENTERED INTELLIGENTLY, TO RELY ON NOTHING MORE THAN
A PRESUMPTION THAT “IN MOST CASES DEFENSE COUNSEL ROUTINELY EXPLAIN THE NATURE
OF THE OFFENSE IN SUFFICIENT DETAIL TO GIVE THE ACCUSED NOTICE OF . . . WHAT HE
IS BEING ASKED TO ADMIT” RUNS CONTRARY TO MARYLAND RULE 4-242’s REQUIREMENT
THAT THERE BE AN ADEQUATE EXAMINATION “ON THE RECORD IN OPEN COURT.”
ACCORDINGLY, WHERE THE RECORD REFLECTS NOTHING MORE
THAN THE FACT THAT A DEFENDANT IS REPRESENTED BY COUNSEL AND THAT THE DEFENDANT
DISCUSSED GENERICALLY THE PLEA WITH HIS OR HER ATTORNEY, SUCH A PLEA COLLOQUY
IS DEFICIENT UNDER RULE 4-242(c), AND THE PLEA MUST BE VACATED.
Chad Everette Miller v. State of Maryland, No. 645, September Term 2007, Maryland Court of Special Appeals (MCOSA), Filed May 4, 2009:
On May 14, 2007, in the Circuit Court for Baltimore County , Chad
The appellant filed a timely notice of appeal to the
Maryland Court of Special Appeals (MCOSA). The appellant supplemented his appeal
with a written challenge to the “voluntariness” of his guilty plea.
THE MCOSA granted the appellant’s application and
ordered the parties
to brief the following question:
Did the guilty plea voir
dire establish that the [appellant] had the requisite understanding of the
nature and elements of the crime of first-degree burglary?
The MCOSA concluded that the answer was "no". The appellant's/defendant/s guilty plea voir dire did not establish that he had the requisite understanding of the nature and elements of the crime of first-degree burglary.
The MCOSA stated in its decision that the record in this case did not show that the appellant was informed during the plea hearing nor at any other time after being charged:
“Of course, there was no affirmative evidence that the
appellant was never advised of that crime before pleading guilty. We
have not uncovered any case decided post-Bradshaw, however, that has
applied a presumption that a defendant pleaded guilty with knowledge of the
nature and elements of the crime in the absence of any record evidence that he
did so. As we said, it appears that a “knowledge of the nature and elements of
the crime” presumption should not arise from legal representation alone. The
record in this case does not show that the appellant knew the nature and
elements of the charge of first-degree burglary when he entered his guilty
plea. Accordingly, the plea must be vacated.”
VIRGINIA MEDICAL MALPRACTICE: Fundamentals of Virginia Medical Negligence: PART 1
[This information is presented by the national law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors. Presentation of this information is intended to be helpful, but it does not establish, nor is it intended to establish, an attorney-client relationship. The reader is advised, urged and directed to contact a malpractice attorney with specific questions, and requests for advice and consultation. This information is general in nature, not intended to be complete or comprehensive, and may not reflect subsequent changes in the law. Specific questions should be directed to specific professionals for specific answers.]
Much of Virginia's law concerning medical malpractice is found in the state's Medical Malpractice Act, Va. Code Ann. §§8.01-581.1 to 8.01-581.20 (LEXIS 2003).
What is medical malpractice in Virginia?
Medical malpractice in Virginia, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury.
Medical malpractice in Virginia can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action.
Examples of medical malpractice include:
Statute of Limitations in Virginia
Medical malpractice actions in Virginia for injury (as opposed to death) should be brought within two years from the date the cause of action accrued, which is the date of injury. [Va. Code Ann. §§ 8.01-230 and 8.01-243(A) (LEXIS 2003)]. The Supreme Court has rejected the judicial adoption of a discovery rule, Nunnally v. Artis, 254 Va. 247, 492 S.E.2d 126, (1997), but holds that continuing treatment for the same conditions tolls the statute until treatment ends. Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683 (1988).
In foreign object cases and cases of fraud or concealment, the statute is extended to one year from the date the object or injury is discovered or reasonably should have been discovered, but this extension is subject to a ten-year limit from the time the cause of action accrued. Va. Code Ann. § 8.01-243(C) (LEXIS 2003). Wrongful death actions must be brought within two years of death. [Va. Code Ann. § 8.01-244 (LEXIS 2003)].
A parent’s action for medical expenses caused by injury to a minor should be brought within five years. [Va. Code Ann. § 8.01-243(B) (LEXIS 2003)]. A minor’s medical malpractice action for injury or death must be commenced within two years from the date of the last act of negligence, unless the child is less than eight years of age, in which case the action must be brought by the child’s tenth birthday. [Va. Code Ann. § 8.01-243.1 (LEXIS 2003)]. The Supreme Court has upheld the constitutionality of this statute. Willis v. Mullett, 263 Va. 653, 561 S.E.2d 705 (2002). Incapacity tolls the running of the statute of limitations. [Va. Code Ann. § 8.01-229(A) (LEXIS 2003)].
Virginia's Damage Caps.
Virginia imposes a cap on damages of all kinds in medical malpractice cases. For claims arising out of acts or omissions prior to August 1, 1999, the damage cap was $1 million. For acts or omissions on or after August 1, 1999, and before July 1, 2000, the cap was $1.5 million. The cap is increasing by $50,000 every July 1. Two final increases of $75,000 beginning in 2007 brought the damage cap to $2 million for acts or omissions on or after July 1, 2008. [Va. Code Ann. § 8.01-581.15 (LEXIS 2003)]. The Virginia Supreme Court has twice considered this legislation and held that it does not violate the U.S. or Virginia constitutions. Pulliam v. Coastal Emergency Services, Inc., 257 Va. 1, 509 S.E.2d 307 (1999); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989). A settlement with one defendant reduces the maximum liability of the others, because the cap limits the total amount recoverable for an injury to a patient, regardless of the number of theories or defendants. Fairfax Hospital System v. Nevitt, 249 Va. 591, 457 S.E.2d 10 (1995). This includes punitive damages. Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990). In cases arising prior to March 28, 1994, when the definition of “health care provider” was broadened in Va. Code Ann. § 8.01-581.1 (LEXIS 2003), a physician’s professional corporation may be subject to uncapped liability. Schwartz v. Brownlee, 253 Va. 159, 482 S.E.2d 827 (1997).
Virginia limits punitive damages to $350,000. [Va. Code Ann. § 8.01-38.1 (LEXIS 2003)]. This cap is also constitutional. Wackenhut Applied Technologies Center, Inc. v. Sygnetron Protection Systems, Inc., 979 F.2d 980 (4th Cir. 1992).
PART 2 will be forthcoming.
Much of Virginia's law concerning medical malpractice is found in the state's Medical Malpractice Act, Va. Code Ann. §§8.01-581.1 to 8.01-581.20 (LEXIS 2003).
What is medical malpractice in Virginia?
Medical malpractice in Virginia, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury.
Medical malpractice in Virginia can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action.
Examples of medical malpractice include:
- Misdiagnosis of, or failure to diagnose , a disease or medical condition;
- Failure to provide appropriate treatment for a medical condition;
- Unreasonable delay in treating a diagnosed medical condition;
Statute of Limitations in Virginia
Medical malpractice actions in Virginia for injury (as opposed to death) should be brought within two years from the date the cause of action accrued, which is the date of injury. [Va. Code Ann. §§ 8.01-230 and 8.01-243(A) (LEXIS 2003)]. The Supreme Court has rejected the judicial adoption of a discovery rule, Nunnally v. Artis, 254 Va. 247, 492 S.E.2d 126, (1997), but holds that continuing treatment for the same conditions tolls the statute until treatment ends. Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683 (1988).
In foreign object cases and cases of fraud or concealment, the statute is extended to one year from the date the object or injury is discovered or reasonably should have been discovered, but this extension is subject to a ten-year limit from the time the cause of action accrued. Va. Code Ann. § 8.01-243(C) (LEXIS 2003). Wrongful death actions must be brought within two years of death. [Va. Code Ann. § 8.01-244 (LEXIS 2003)].
A parent’s action for medical expenses caused by injury to a minor should be brought within five years. [Va. Code Ann. § 8.01-243(B) (LEXIS 2003)]. A minor’s medical malpractice action for injury or death must be commenced within two years from the date of the last act of negligence, unless the child is less than eight years of age, in which case the action must be brought by the child’s tenth birthday. [Va. Code Ann. § 8.01-243.1 (LEXIS 2003)]. The Supreme Court has upheld the constitutionality of this statute. Willis v. Mullett, 263 Va. 653, 561 S.E.2d 705 (2002). Incapacity tolls the running of the statute of limitations. [Va. Code Ann. § 8.01-229(A) (LEXIS 2003)].
Virginia's Damage Caps.
Virginia imposes a cap on damages of all kinds in medical malpractice cases. For claims arising out of acts or omissions prior to August 1, 1999, the damage cap was $1 million. For acts or omissions on or after August 1, 1999, and before July 1, 2000, the cap was $1.5 million. The cap is increasing by $50,000 every July 1. Two final increases of $75,000 beginning in 2007 brought the damage cap to $2 million for acts or omissions on or after July 1, 2008. [Va. Code Ann. § 8.01-581.15 (LEXIS 2003)]. The Virginia Supreme Court has twice considered this legislation and held that it does not violate the U.S. or Virginia constitutions. Pulliam v. Coastal Emergency Services, Inc., 257 Va. 1, 509 S.E.2d 307 (1999); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989). A settlement with one defendant reduces the maximum liability of the others, because the cap limits the total amount recoverable for an injury to a patient, regardless of the number of theories or defendants. Fairfax Hospital System v. Nevitt, 249 Va. 591, 457 S.E.2d 10 (1995). This includes punitive damages. Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990). In cases arising prior to March 28, 1994, when the definition of “health care provider” was broadened in Va. Code Ann. § 8.01-581.1 (LEXIS 2003), a physician’s professional corporation may be subject to uncapped liability. Schwartz v. Brownlee, 253 Va. 159, 482 S.E.2d 827 (1997).
Virginia limits punitive damages to $350,000. [Va. Code Ann. § 8.01-38.1 (LEXIS 2003)]. This cap is also constitutional. Wackenhut Applied Technologies Center, Inc. v. Sygnetron Protection Systems, Inc., 979 F.2d 980 (4th Cir. 1992).
PART 2 will be forthcoming.
Saturday, October 6, 2012
MCOA (MARYLAND COURT OF APPEALS) BLOG: Tracey v. Solesky (Reconsideration) and State v. Harris
Tracey v. Solesky (Reconsideration) and State v. Harris
Charles Ware is the publisher and regular contributor to the "MCOA Blog", which he founded. He is a principal in the national general practice law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors, which is headquartered in Columbia, Howard County, Maryland. Among other recognitions, Charles Ware has been recognized as one of the "best attorneys and counsellors in the United States", and original recipient of the prestigious "Charles Hamilton Houston Award for Outstanding Litigation", an original and genuine superlawyer, and a best-selling author.
Dorothy M. Tracey v. Anthony K. Solesky, et al.;
No. 53; September Term, 2011, Filed August 21, 2012, On Motion for Reconsideration; Opinion by Justice Wilner
_________________________________________________________________________________
On April 26, 2012, the Maryland Court of Appeals (MCOA) filed an Opinion in this case holding, by a four-to-three vote, that, “upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit
bull or a pit bull mix, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull mix, that person is strictly liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises” (bolding added).
On May 25, 2012, the petitioner, Dorothy Tracey filed a motion for reconsideration, complaining that the imposition of a “new duty” on landlords was fundamentally unfair and unconstitutional as applied to her. An answer to the motion was filed by the respondents.
Decision and Order: Because the so-called "cross-bred" issue was never raised in this case previously --- never asserted nor argued by either side --- it should not be included in this Court's decision. The MCOA, therefore, removes references in its April 26, 2012 Opinion to pit bull "mixes", "cross-breeds", "cross-breds", and "hybrids".
Owners and landlords remain responsible, however, for injuries caused by so-called pure-bred dogs.
State of Maryland v. Thomas B. Harris;
No. 22; September Term, 2012, Filed September 27, 2012; Opinion by Chief Judge Bell
________________________________________________________________________________
CRIMINAL LAW & PROCEDURE – JURIES & JURORS – COMMUNICATIONS
Any communication between a judge and the jury which pertains to the action constitutes a stage of trial at which a defendant, pursuant to Article 5 of the Maryland Declaration of Rights, the Fourteenth Amendment to the United States Constitution, and Maryland Rule 4-231, is entitled to be present. Accordingly, Maryland Rule 4-326 (d) requires a trial judge to notify the parties if he or she wishes to communicate with a juror or the jury, or receives a communication from a juror or the jury, regarding a matter that pertains to the action.
Thomas B. Harris was convicted by a jury in the Circuit Court for Baltimore County of second-degree depraved heart murder. He appealed his conviction to the Court of Special Appeals, where he argued, inter alia, that the trial court’s failure to disclose to him a communication between a juror and the judge’s secretary violated Maryland Rule 4-326 (d), requiring reversal of his conviction. The Court of Special Appeals agreed: it reversed the conviction, Harris v. State, 189 Md. App. 230, 255, 984 A.2d 314, 329 (2009), holding that the Circuit Court committed reversible error when it failed to disclose, in accordance with Rule 4-326 (d), the communication, and remanding the case to the Circuit Court for a new trial.
The State filed a petition (appeal) to the Maryland Court of Appeals (MCOA) for a writ of certiorari, which was granted. The issue on appeal for consideration was:
“Did the Court of Special Appeals err in finding that the trial court abused its
discretion in refusing to declare a mistrial after informing the defendant of an
innocuous communication between the judge’s secretary and a juror?”
The MCOA affirmed the judgment of the Court of Special Appeals, and held that the Circuit Court should have disclosed the communication between the judge’s secretary and the juror. Its failure to do so was error, in violation of Rule 4-326 (d), and prejudicial to the Defendant.
Charles Ware is the publisher and regular contributor to the "MCOA Blog", which he founded. He is a principal in the national general practice law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors, which is headquartered in Columbia, Howard County, Maryland. Among other recognitions, Charles Ware has been recognized as one of the "best attorneys and counsellors in the United States", and original recipient of the prestigious "Charles Hamilton Houston Award for Outstanding Litigation", an original and genuine superlawyer, and a best-selling author.
Dorothy M. Tracey v. Anthony K. Solesky, et al.;
No. 53; September Term, 2011, Filed August 21, 2012, On Motion for Reconsideration; Opinion by Justice Wilner
_________________________________________________________________________________
On April 26, 2012, the Maryland Court of Appeals (MCOA) filed an Opinion in this case holding, by a four-to-three vote, that, “upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit
bull or a pit bull mix, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull mix, that person is strictly liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises” (bolding added).
On May 25, 2012, the petitioner, Dorothy Tracey filed a motion for reconsideration, complaining that the imposition of a “new duty” on landlords was fundamentally unfair and unconstitutional as applied to her. An answer to the motion was filed by the respondents.
Decision and Order: Because the so-called "cross-bred" issue was never raised in this case previously --- never asserted nor argued by either side --- it should not be included in this Court's decision. The MCOA, therefore, removes references in its April 26, 2012 Opinion to pit bull "mixes", "cross-breeds", "cross-breds", and "hybrids".
Owners and landlords remain responsible, however, for injuries caused by so-called pure-bred dogs.
State of Maryland v. Thomas B. Harris;
No. 22; September Term, 2012, Filed September 27, 2012; Opinion by Chief Judge Bell
________________________________________________________________________________
CRIMINAL LAW & PROCEDURE – JURIES & JURORS – COMMUNICATIONS
Any communication between a judge and the jury which pertains to the action constitutes a stage of trial at which a defendant, pursuant to Article 5 of the Maryland Declaration of Rights, the Fourteenth Amendment to the United States Constitution, and Maryland Rule 4-231, is entitled to be present. Accordingly, Maryland Rule 4-326 (d) requires a trial judge to notify the parties if he or she wishes to communicate with a juror or the jury, or receives a communication from a juror or the jury, regarding a matter that pertains to the action.
Thomas B. Harris was convicted by a jury in the Circuit Court for Baltimore County of second-degree depraved heart murder. He appealed his conviction to the Court of Special Appeals, where he argued, inter alia, that the trial court’s failure to disclose to him a communication between a juror and the judge’s secretary violated Maryland Rule 4-326 (d), requiring reversal of his conviction. The Court of Special Appeals agreed: it reversed the conviction, Harris v. State, 189 Md. App. 230, 255, 984 A.2d 314, 329 (2009), holding that the Circuit Court committed reversible error when it failed to disclose, in accordance with Rule 4-326 (d), the communication, and remanding the case to the Circuit Court for a new trial.
The State filed a petition (appeal) to the Maryland Court of Appeals (MCOA) for a writ of certiorari, which was granted. The issue on appeal for consideration was:
“Did the Court of Special Appeals err in finding that the trial court abused its
discretion in refusing to declare a mistrial after informing the defendant of an
innocuous communication between the judge’s secretary and a juror?”
The MCOA affirmed the judgment of the Court of Special Appeals, and held that the Circuit Court should have disclosed the communication between the judge’s secretary and the juror. Its failure to do so was error, in violation of Rule 4-326 (d), and prejudicial to the Defendant.
MCOA (MARYLAND COURT OF APPEALS) BLOG: October 2012 Schedule
From the national general law practice of Charles Jerome Ware, P.A., Attorneys and Counsellors: "Still working. Still committed. Still here to make a difference."
IN THE COURT OF APPEALS OF MARYLAND
ARGUMENT SCHEDULE
ARGUMENT SCHEDULE
Friday, October 5, 2012:
No. 14 State Department of Assessments and Taxation v. Baltimore Gas & Electric Company
Issue - Taxation - Did the MD Tax Court correctly
interpret Public Utilities Art. §§ 7-524 & 7-548 when it rejected an
adjustment to the taxable gross receipts of a public utility, where the
franchise tax is imposed on the statutorily-defined gross receipts from
the utility's electricity distribution charges, where the adjustment
sought by the utility was based on a credit that offset the increased
cost to consumers of electricity generation, & where the offset did
not alter the revenue received by the utility from its distribution
service?
No. 17 Graylin Bernard Spence v. State of Maryland
Issues - Criminal Law - 1) Did CSA properly
decline to address the legality of a sentence when that court vacated
the conviction upon which the allegedly illegal sentence was based? 2)
Was the evidence sufficient to establish that petitioner was subject to
enhanced penalty as a subsequent offender? 3) Did CSA err in finding the
trial court was obligated to conduct a MD Rule 4-215(e) hearing where
the trial court was never apprised that Petitioner had a desire to
discharge his assigned public defender?
No. 22 WSG Holdings v. Larry Bowie, et al.
Issues - Administrative Law - 1) Did CSA err
when it found that objections to the site visit were preserved for
appellate review & that there was no recorded vote or any
recognition that the exclusion of some members of the public were
subject to the procedural requirements of the state Open Meetings Act?
2) Did CSA err when it found that the March 17, 2009 site visit violated
the open meeting requirement? 3) Did CSA err in reversing the judgment
& remanding the matter to the Board for another hearing &
decision without further instructions to the trial court and Board?
Tuesday, October 9, 2012:
No. 23 State of Maryland v. John Wesley Ray
Issue - Criminal Law - Did CSA err in reversing
the lower court's proper denial of Respondent's motion to dismiss those
re-instituted charges in light of Ray v. State, 410 Md. 385 (2009)?
No. 12 Maryland Insurance Commissioner v. Leon Kaplan
Issues - Insurance Law - 1) Did the Insurance
Commissioner correctly find that ERISA does not preempt Md. Code Ann.,
Ins. §14-139, where there is no indication that Congress intended to
preempt or supplant State efforts to protect assets of non-profit health
insurers from depletion and where ERISA and §14-139 serve altogether
different purposes? 2) Did the trial court err in holding that ERISA
preempts any State regulatory action pursuant to §14-139 that affects
the amount of any payment from an ERISA plan, even where the payment
would be made out of corporate assets of the non-profit insurer? 3) Did
the trial court err in failing to recognize that §14-139 regulates
insurance & therefore is not preempted by ERISA?
No. 19 100 Investment Limited Partnership, et al. v. Columbia Town Center Title Company, et al.
Issues - Torts - 1) Did CSA err by holding that
title companies do not owe a tort duty of care when conducting a title
search? 2) Did CSA err by holding that the title insurer was not
vicariously liable for the negligence of the title companies who were
its agents?
Attorney for Petitioner: James E. Carbine
Attorney for Respondent: Richard E. Hagerty
Attorney for Respondent: Richard E. Hagerty
Wednesday, October 10, 2012:
No. 21 Benn Ray, et al. v. Mayor and City Council of Baltimore, et al.
No. 18 Reginald McCracken v. State of Maryland
Issue - Real Property - Did CSA err when it ruled
that Petitioners lacked standing because they were neither prima facie
aggrieved nor specially aggrieved by the City's land use decision?
Issues - Criminal Law - 1) Does the plain-feel
doctrine allow police to seize evidence when they have only reasonable
suspicion, but not probable cause, to associate that evidence with
criminal activity? 2) Did CSA err in concluding the officer could seize a
set of keys & a car remote because he had probable cause to believe
they were evidence of "hacking"?
[www.courts.state.md.us/coappeals/schedule/10/2schedule]
NURSING HOME NEGLIGENCE: $200,000,000 VERDICT!!! And More...
This update is sponsored by the national general law firm of Charles
Jerome Ware, P.A., Attorneys and Counsellors: "Still working. Still
committed. Still here to make a difference."
(1) $200,000,000.00 VERDICT: Nursing Home Malpractice - Estate Of Woman Sues After She Falls Down A Stairwell While Strapped To A Wheelchair - Wrongful Death.
In this case, a man sued after his elderly mother died at the nursing home after falling down the stairs while strapped to a wheelchair. The woman suffered from dementia and was a resident at a Florida nursing home and rehabilitation center. She showed a tendency to wander off.
The facts revealed in this case that the elderly woman wandered to the emergency exit stairwell of the facility through a door with a disabled (disconnected) alarm. Apparently the alarm to the fire-door had been disconnected to enable the staff to smoke outside. She fell down ten flights of stairs while strapped to a 45 pound wheelchair, and she was found over an hour later at the bottom of the stairs --- drowning in her own blood. The woman, Elvira N., died from her injuries shortly after the paramedics arrived at the scene [Circuit Court for Pinellas County, Florida].
$60,000,000.00 of the jury award was for compensatory damages, and $140,000,000.00 was for punitive damages for gross negligence of the defendant nursing home.
(2) $100,000 RECOVERY:
Medical Malpractice – Nursing Home Negligence – Failure to report sexual assault on resident by another resident – 82-year-old female resident is sexually assaulted without any action by nursing home staff who suspected inappropriate conduct.
In this nursing home negligence matter, the plaintiff alleged that the defendant nursing home was negligent in failing to report sexual assault by one resident upon another and were told to "keep their eyes shut". The defendant denied the allegations and disputed any liability to the plaintiff [Massachusetts].
(3) $100,000 RECOVERY:
Medical Malpractice – Nursing Home Negligence – Plaintiff’s decedent falls out of bed and suffers a subdural hematoma which goes undiagnosed and untreated – Wrongful death of 79-year-old male.
In this nursing home negligence action, the estate of the decedent alleged that the defendant nursing facility failed to properly care for and treat the decedent leading to the decedent’s death from an undiagnosed and untreated subdural hematoma. The defendant nursing facility denied all liability [Pennsylvania].
(4) $200,000 VERDICT:
MEDICAL MALPRACTICE – NURSING HOME NEGLIGENCE – FAILURE TO PROPERLY TREAT PRESSURE WOUNDS – WRONGFUL DEATH – SURVIVAL ACTION.
This medical malpractice/wrongful death action was filed against eight defendants, in relation to five nursing home facilities in which the 68-year-old decedent resided prior to his death. The plaintiff alleged that the defendants failed to provide adequate medical care and neglected the decedent, resulting in a dramatic increase in the severity of the decedent’s pressure wounds and a downward spiral in his condition [Pennsylvania].
(5) $150,000 RECOVERY:
Medical Malpractice – Nursing Home Negligence – Failure to properly care for pressure ulcers – Infection – Wrongful death.
In this nursing home negligence matter, the plaintiff alleged that the defendant nursing homes were negligent in their care and treatment of the plaintiff which resulted in pressure ulcers that became infected and resulted in the death of the plaintiff’s decedent. The defendants denied the allegations and disputed liability and causation.
Contact an attorney directly for further information and with specific questions.
[www.jvra.com/Verdict/10-3-2012]
(1) $200,000,000.00 VERDICT: Nursing Home Malpractice - Estate Of Woman Sues After She Falls Down A Stairwell While Strapped To A Wheelchair - Wrongful Death.
In this case, a man sued after his elderly mother died at the nursing home after falling down the stairs while strapped to a wheelchair. The woman suffered from dementia and was a resident at a Florida nursing home and rehabilitation center. She showed a tendency to wander off.
The facts revealed in this case that the elderly woman wandered to the emergency exit stairwell of the facility through a door with a disabled (disconnected) alarm. Apparently the alarm to the fire-door had been disconnected to enable the staff to smoke outside. She fell down ten flights of stairs while strapped to a 45 pound wheelchair, and she was found over an hour later at the bottom of the stairs --- drowning in her own blood. The woman, Elvira N., died from her injuries shortly after the paramedics arrived at the scene [Circuit Court for Pinellas County, Florida].
$60,000,000.00 of the jury award was for compensatory damages, and $140,000,000.00 was for punitive damages for gross negligence of the defendant nursing home.
(2) $100,000 RECOVERY:
Medical Malpractice – Nursing Home Negligence – Failure to report sexual assault on resident by another resident – 82-year-old female resident is sexually assaulted without any action by nursing home staff who suspected inappropriate conduct.
In this nursing home negligence matter, the plaintiff alleged that the defendant nursing home was negligent in failing to report sexual assault by one resident upon another and were told to "keep their eyes shut". The defendant denied the allegations and disputed any liability to the plaintiff [Massachusetts].
(3) $100,000 RECOVERY:
Medical Malpractice – Nursing Home Negligence – Plaintiff’s decedent falls out of bed and suffers a subdural hematoma which goes undiagnosed and untreated – Wrongful death of 79-year-old male.
In this nursing home negligence action, the estate of the decedent alleged that the defendant nursing facility failed to properly care for and treat the decedent leading to the decedent’s death from an undiagnosed and untreated subdural hematoma. The defendant nursing facility denied all liability [Pennsylvania].
(4) $200,000 VERDICT:
MEDICAL MALPRACTICE – NURSING HOME NEGLIGENCE – FAILURE TO PROPERLY TREAT PRESSURE WOUNDS – WRONGFUL DEATH – SURVIVAL ACTION.
This medical malpractice/wrongful death action was filed against eight defendants, in relation to five nursing home facilities in which the 68-year-old decedent resided prior to his death. The plaintiff alleged that the defendants failed to provide adequate medical care and neglected the decedent, resulting in a dramatic increase in the severity of the decedent’s pressure wounds and a downward spiral in his condition [Pennsylvania].
(5) $150,000 RECOVERY:
Medical Malpractice – Nursing Home Negligence – Failure to properly care for pressure ulcers – Infection – Wrongful death.
In this nursing home negligence matter, the plaintiff alleged that the defendant nursing homes were negligent in their care and treatment of the plaintiff which resulted in pressure ulcers that became infected and resulted in the death of the plaintiff’s decedent. The defendants denied the allegations and disputed liability and causation.
Contact an attorney directly for further information and with specific questions.
[www.jvra.com/Verdict/10-3-2012]
Friday, October 5, 2012
THE "TERRY" STOP --- CRIMINAL TRIALS UPDATE BLOG: Defense Attorney Charles Jerome Ware
This information is provided as a courtesy by the national general law practice of Charles Jerome Ware, P.A., Attorneys and Counsellors: "Still working. Still committed. Still here to make a difference".
Contact an attorney for specific answers to your specific questions.
Contact an attorney for specific answers to your specific questions.
THE "TERRY" STOP
A "Terry stop" is a brief detention of a person by police based upon reasonable suspicion of the person's involvement in criminal activity. A "Terry stop" is not an arrest. The name "Terry stop" comes from the case of Terry v. Ohio, 392 U.S.1 (1968), in which the United States Supreme Court held that police may briefly detain a person who they reasonably suspect is involved in criminal activity [and see, Hiibel v. Sixth Judicial District, 542 U.S.177 (2004)].
(1) "Terry" Stop in Maryland. On 2/14/2011, the Maryland Court of Special Appeals (MCSA) ruled that a lower (circuit) court erred by denying the defendant's motion to suppress a gun found in the defendant's car during the police officer's "Terry" stop. The appellate court's reasoning was that the officer, who patted down the defendant based on "furtive" (stealthy or surreptitious) hand movements, failed to articulate in court sufficient grounds for the intrusion.
[In re Jeremy P., No. 1820, September Term, 2009]
(2) "Terry" Stop in the 11th Federal Circuit. On October 2nd 2012, the 11th Circuit U.S. Court of Appeals ruled that brief questioning by a police officer of a driver for reasons unrelated to the stop did not exceed the scope of a "constitutional stop and frisk". Therefore, the defendant's suppression in the trial court was reversed.
[United States v. Griffin, 2012 U.S. App. LEXIS 20543 (11th Circuit, October 2nd, 2012); and see, United States v. Digiovanni, 650 F. 3d 298, 507 (4th Cir. 2011)]
(3) "Terry" Stop and Police Officer's "Incredible" Testimony. On October 3rd, 2012, the 11th Circuit U.S. Court of Appeals refused to overturn the conviction of a man who appealed, inter alia, because of the "incredibility" of the officer's testimony in making the "Terry" stop. According to the Court, the officer's testimony may well have been incredible, and consequently unreliable, but it was not "contrary to the laws of nature or so inconsistent or improbable on its face that no fact finder could accept it".
[United States v. Dixon, 2012 U.S. App. LEXIS 20617 (11th Circuit, October 3rd, 2012); an unpublished opinion out of the Middle District of Florida]
[thedailyrecord.com/ 2011-02-13/Opinions/Maryland Court of Special Appeals; see, Maryland v. Shatzer, __U.S., 130 S. Ct. 1213 (2010); www.fourthamendment.com/blog; lawyersusaonline.com/blog/2012/10/04]
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