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Articles Posted in Maryland Courts

Defense lawyers are often obsessed with getting the victim’s mental health records.  They rarely bear the juicy fruit they seek.  But this does not deter them.

In St. Luke Institute Inc. v. Jones (No. 62, Sept. Term 2019), the Maryland Court of Appeals laid out a step-by-step roadmap for when and how litigants can get confidential mental health records in civil discovery.

The process for getting confidential mental health records in civil discovery are now as follows:

States are split on whether tort liability may be imposed on local governments for police brutality/excessive force/misconduct cases.  Some states permit the imposition of tort liability for their police officers’ intentional actions while on the job.   Some refuse to impose tort liability, arguing that such conduct is not within the scope of employment.  The Maryland Court of Appeals issued a new opinion that stakes out Maryland’s position on this issue with newfound clarity.

At issue in Baltimore City Police Dept. v. Potts, 468 Md. 265 (2020) was criminal misconduct by Baltimore City police officers could be considered actions within the scope of their employment under the Local Government Tort Claims Act (“LGTCA”).  The misconduct here was next level.  Stopping suspects without probable cause, assaulting them, and planting handguns on suspects to give them grounds for arrest.

Maryland’s Court of Appeals held that these actions were within the scope of the officer’s employment because they were done in furtherance of police business and incidental to authorized police conduct. Therefore, the Police Department could be held liable under the LGTCA.

In its final decision of the Term, Maryland’s Court of Appeals gave us an (arguably) game-changing decision Rochkind v. Stevenson. The court announced that it was discarding the old Frye-Reed rule and formally adopting the Daubert test for the admissibility of expert testimony.  We all knew we would get here one day. And here we finally are.

Factual Background of Rochkind v. Stevenson

The case that gave rise to this appellate decision began back in 2011 when the plaintiff brought a lead paint case against her former landlord, Stanley Rochkind.  The Rochkind name has been ubiquitous in the lead paint world, having been the defendant in hundreds of claims over the last 25 years that were covered by multiple insurers.

Just before the coronavirus shut the world down, the Maryland Court of Special Appeals issued an interesting unreported opinion in a premises liability case in Montogmery Counrty that looks at voir dire in Maryland, an issue that has always interested me in Smith v. Rollins Real Estate.  

Case Facts

The case itself is pretty boring. It is slip and fall on the way to a restaurant case.  A woman gets dropped off at the door.  She rolls her foot getting out and blames a separation in the sidewalk.  It is not a case I would ever take.

Getting records and bills from medical providers is a lot harder than it should be. The Maryland Court of Special Appeals has a new opinion that makes the collection of records even harder.   Yes, thankfully, it is an unreported opinion.  But it is still a message that health care providers can kick the can down the road on medical records requests with impunity.

The sad part is I agree with the opinion. It was the right call.  For sure.  But it is not helpful for medical malpractice and personal injury lawyers trying to collect medical records.

What Is the Maryland Record Collection Statute?

Besides begging and pleading, the only sword lawyers have in collecting medical records is § 4-309(a) of the Health-General Article of the Maryland Code. This statute requires health care providers to produce the records with a HIPAA authorization. This statute provides that: If a health care provider knowingly refuses to disclose a medical record within a reasonable time but no more than 21 working days after the date a person in interest requests the disclosure, the health care provider is liable for actual damages.

In Stracke v. Butler the Maryland Court of Appeals ruled that a pair of ambulance paramedics from the Baltimore City Fire Department were immune from liability because their actions in transporting a man to the hospital were not “grossly negligent.”

This case involves the scope of immunity provided by the Maryland Fire & Rescue Company Act, Maryland Code, Courts & Judicial Proceedings § 5-604 and its applicability to employees Baltimore City Fire Department employees who treated the patient that ultimately died.

I don’t like the gross negligence law we have in Maryland. I think § 5-604 is well-intended but ultimately foolish.  But I have a hard time arguing that the court did not follow Maryland law.

Last month, Maryland’s Court of Appeals upheld a $7 million verdict to the plaintiff in an asbestos case even though there was no direct evidence that the defendants had installed the asbestos products at issue. In Wallace & Gale Asbestos Settlement Trust v. Busch, a 6-1 majority held that direct evidence of exposure to a specific defendant’s asbestos products is unnecessary. Rather, a defendant’s liability for asbestos exposure can be based on circumstantial evidence and reasonable inferences.

Facts of the Case

appellate decision asbestosThe underlying facts are fairly typical of most asbestos cases these days. The plaintiff (70-years-old at the time of trial) worked for 30 years as an HVAC technician. He primarily installed thermostats, sensors, and temperature control systems. The plaintiff himself never directly worked with asbestos, but he was sometimes around other people who were using asbestos.

Breaking up with a client is something all personal injury attorneys do on a fairly regular basis. A lot of cases look promising.  But an investigation and review of the medical records can sometimes paint a very different picture.  This is particularly true in medical malpractice cases where the medical records read differently from what the patient remembers or believes.

For the most part, lawyers are free, as the client is, to sever the attorney-client relationship.  If you have already filed a lawsuit for the client, things are a bit more complicated because you will need to get court permission before withdrawing from the case.  Before a case is actually filed, however, breaking up is a lot easier.

Maryland Ethical Rules

appellate court decision reversalI’m also fired up for a new year of appellate opinions.  Something about having a new year on a case that just seems exciting to me.  (In an unrelated note, I have four kids and few hobbies.)  But there have been few tort related appellate opinions this year to get me fired up.

Anyway, the Maryland Court of Appeals recently decided a Sutton-Witherspoon v. S.A.F.E Management, a case that is factually interesting to almost all of us in Baltimore.

Facts of Case: An Out-of-Control Victory Parade

The Maryland Court of Special Appeals took an interesting look at the scope of settlement releases in Harvey v. City Homes, Inc last week.  The case has some important reminders for Maryland plaintiffs’ attorneys that the case is not over after a settlement or verdict because the language of the release may be critical if the victim has future potential claims.  Continue reading

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