Defendants. PRELIMINARY LEGAL MALPRACTICE EXPERT REPORT OF BENNETT J. WASSERMAN, ESQ. ON BEHALF OF PLAINTIFF

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1 IN THE CIRCUIT COURT FOR BALTIMORE CITY Case No. : 24-C MAE F. GWYNN, Personal Representative of the Estate of Alfred Gwynn, deceased and Mae F. Gwynn, individually vs. Plaintiff Murphy & Falcon, PA (formerly Murphy P.A., William H. Murphy Jr. & Associates) dba Murphy, Falcon, & Murphy, aka The Murphy Firm, Jon Stefanuca and Nash & Associates, LLC. Defendants. PRELIMINARY LEGAL MALPRACTICE EXPERT REPORT OF BENNETT J. WASSERMAN, ESQ. ON BEHALF OF PLAINTIFF Prepared for: Law offices of Donald R. Huskey, LLC Ryan Preston Esq. Palmer & Associates Law Offices of Governor E. Jackson, III, LLC Co-Counsel for Plaintiff DATE: May 21, 2014

2 TABLE OF CONTENTS Preliminary Statement 3 Factual Summary 6 Legal Analysis and Opinions 11 Conclusion 16 Exhibit #1 Documents Reviewed 17 Exhibit #2 Expert s Curriculum Vitae 19 2

3 PRELIMINARY STATEMENT This lawsuit arises from an underlying medical malpractice action in which Plaintiff Alfred Gwynn, a former veteran and police officer, sued Johns Hopkins Bayview Medical Center (JHBMC) for the failure of its personnel to turn him while he was convalescing from spinal surgery in his hospital bed. The malpractice action alleged that as a result of JHBMC s negligence, Gwynn suffered debilitating and excruciating bed sores (decubitus ulcers). Gwynn retained the defendants in this action in order to prosecute the underlying medical malpractice case. Although counsel was able to negotiate a settlement that Gwynn approved at the time, Gwynn claims that certain failures by his attorneys and improper representations by them about the length of time an appeal from a dismissal attributable to their negligence would take, induced him into settling the matter for less than the full value of the case. Gwynn s theory is that although the prospects at trial are often uncertain, his likelihood of success was high because certain relevant documents favorable to the defense, such as evidence of JHBMC turning Gwynn during his month-long stay there, were never produced and thus likely would have resulted in an adverse inference charge against JHBMC. Unfortunately, Gwynn s case was dismissed when his counsel improperly and untimely filed a required Certification of Qualified Expert (CQE), a legally-mandated precondition to filing a medical malpractice action in Maryland. The uncertainty about whether or not the case would be reinstated induced Plaintiff to settle. This attorney malpractice action against Gwynn s former attorneys Murphy & Falcon PA, Nash and Associates LLC, and certain of their individual attorneys ensued. The Scope of Review Plaintiff s specific allegations as to the defendant attorneys appear to center on whether their representation fell below accepted standards of practice when they erred in filing a CQE in a proper and timely manner in his underlying medical malpractice case. Plaintiff claims that the errors in filing the CQE resulted in a dismissal of his malpractice action.. When counsel was able to effectuate a settlement, Gwynn claims that he was induced to settle for two reasons: (1) he was told by his counsel that an appeal would take twenty-five years, and (2) he was unaware that his health care costs paid by insurance were subject to a lien and would be taken from any settlement proceeds. At the request of counsel for Gwynn, I have reviewed all documents made available to me, which are listed in Exhibit #1 to this Report in order to determine whether the legal services provided to Gwynn in connection with his underlying medical malpractice action complied with or departed from accepted standards of care, as they apply to attorneys practicing in the State of Maryland. If they did not comply, I was then tasked with determining whether the legal services provided were a substantial factor in causing damages alleged by Plaintiff. 3

4 Toward these ends, all opinions expressed in this report are on the basis of reasonable certainty, as defined by Maryland law. The Methodology of Review In order to furnish my assessment, I have reviewed the documents that are listed in the Materials Reviewed section of this Report, Exhibit 1. Where necessary, I have also conducted independent legal and factual research, as indicated in the body of this Report and its footnotes. This document and material review was undertaken so as to provide a firm factual foundation for the opinions expressed herein. The opinions set forth in this report do not constitute my personal opinions but instead are the result of analysis of the factual record made available to me. Those facts are then viewed in the context of objectively ascertained accepted standards of care applicable to practicing attorneys who represent plaintiffs in medical malpractice cases brought in the State of Maryland. Typically, sources of applicable standards of care include materials such as the Rules of Professional Conduct, statutes, court decisions, procedural Rules of Court or administrative bodies, and/or opinions from ethics committees extant at the time the professional services under review were furnished. Secondary sources provide helpful discussions, interpretations, and illustrative applications of accepted professional standards. These secondary sources include, but are not limited to: the Restatement of the Law Governing Lawyers, scholarly treatises such as, for example, Mallen & Levitt LEGAL MALPRACTICE and the American Bar Association Professional Liability Committee s Fifty State Survey of the Law of Lawyer s Liability, and other such texts covering the law of legal malpractice in Maryland and other states, as well as peer review articles in law reviews and other professional journals. Secondary materials also include Continuing Legal Education (CLE) conferences sponsored by professional associations (such as, for example and without limitation, the Maryland Trial Lawyers Association, the Association of Trial Lawyers of America, (now know as the American Association of Justice) the American Bar Association s Center for Professional Responsibility, the Standing Committee on Lawyers Professional Responsibility and the Association of Professional Responsibility Lawyers (APRL), the American Board of Professional Liability Attorneys (ABPLA), and CLE conferences relating to professional liability and risk management. Further, I base my opinions expressed in this Report on my study, knowledge, experience, and research of the foregoing, along with other source materials in the areas of substantive and procedural law relating to the underlying matters, which I have acquired over nearly four decades as a practicing lawyer, consultant, and law professor. Since 1975, I have continuously engaged in a broad general law practice, the primary emphasis of which has been civil litigation and transactional matters, including medical malpractice claims on behalf of both plaintiffs and defendants. 4

5 Since 1985, I have specifically concentrated on the law governing lawyers, which is defined as that substantive area of law that embraces attorney malpractice and fiduciary duties, legal ethics, law firm billing, and attorney advertising. The law governing lawyers covers all areas of substantive and procedural law including those involved in the underlying litigation at issue in this case, namely, medical malpractice claims. Over the course of the past three decades, I have served in the role of either attorney of record or consulting/testifying witness in well over 1000 cases dealing with the law governing lawyers on behalf of both plaintiffs and defendants. Moreover, between 1990 and 2013, I served as Special Professor of Law on the faculty of Hofstra University School of Law where I designed the curriculum for and taught advanced law students a full semester course called Lawyer Malpractice. I have also taught a full semester law school level course entitled Medical Malpractice. I have engaged in regular research, writing, and publication in the area of legal malpractice and this experience also provides an additional foundation for my opinions expressed herein. My qualifications are more fully set forth in my curriculum vitae, a copy of which is attached to this Report as Exhibit 2. I have been engaged to provide my services as an expert witness at my usual hourly rate of $400, but in no manner does that affect my objectivity in reviewing the case or the opinions I have expressed herein. Summary of Findings After reviewing the materials and documents listed in Exhibit 1 and as otherwise noted in this Report, it is my professional opinion, based on reasonable certainty, that Defendants Murphy & Falcon PA, Nash and Associates LLC, and the individual attorneys named in this attorney malpractice action, deviated from the accepted standards of practice applicable to attorneys at law in Maryland in connection with Plaintiff s medical malpractice claim by failing to properly and timely file a CQE, resulting in the dismissal of Plaintiff s claim. Moreover, it is my opinion that as a result of this deviation from accepted standards of practice, Plaintiff suffered damages, a discussion of which is set forth more fully in the body of this Report. Lastly, it is my opinion that the damages Plaintiff sustained were proximately caused by the defendant attorneys breaches of fiduciary duty. I reserve the right to amend or supplement this Report or to otherwise modify my opinions if any additional evidence, discovery, or pertinent material is brought to my attention. Further, I reserve the right to testify on issues, which though not expressly stated in this Report, are nonetheless logically related to the topics under review. 5

6 FACTUAL SUMMARY Plaintiff Alfred Gwynn Alfred Gwynn was a decorated military veteran, former police officer, and bailiff in the District Court in Baltimore, Maryland. A civil war enthusiast, Gwynn had a nonspeaking part in the epic movie Glory. When Gwynn was approximately 64 years old, he began experiencing recurring back pain. After some time, he was admitted to JHBMC and an MRI revealed a metastatic lesion on his spine for which he underwent surgery. During his convalescence, Gwynn was left to lie on a hard bed with no special mattress for approximately two weeks. Recuperating from spinal surgery, he had very limited mobility. After two weeks, he had developed an extensive pressure sore (decubitus ulcer) which required him to undergo additional surgery that lasted approximately five hours to debride and repair the decubitus ulcer. 1 Decubitus ulceration is a known complication frequently suffered by the patient as a consequence of post-surgical immobility when confined to a hospital bed and is recognized as one of the signs of elder or dependent adult neglect. 2 During Gwynn s six-month stay at JHBMC from September 8, 2008 to March 2009, he appears to have been in excruciating pain. He claimed to have lost over 100 pounds and half of one buttock as a result of the decubitus ulcer. Likewise, his rehabilitation from the initial spinal surgery was prolonged and increasingly painful as a result of the decubitus ulcer in his back. 3 Gwynn was confined to a wheelchair after his discharge from the hospital, needed the care of an in-home aid, and he passed away on January 1, Alfred Gwynn was married to the Plaintiff, Mae F. Gwynn in March Although they had separated in or about 1996, their marriage was not terminated by divorce and they had reconciled in or about 2008, prior to Mr. Gwynn s surgery. 1 See Memorandum dated 4/29/10 from Sharon to Brian. 2 See, e.g., Attorneys Medical Deskbook, 4 th October :7.10. The World Health Organization defines elder abuse as follows: A single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust that causes harm or distress to an older person. The Elder Assessment Instrument (EAI) and Elder Abuse Suspicion Index (EASI) are widely used testing forms used to assist clinicians to identify elder abuse. Visible evidence of physical neglect such as skin ulcers (decubiti) is a recognized criteria of elder abuse. Id. 3 4/29/10 Memorandum. 6

7 Retention of Counsel It appears that Gwynn first spoke with counsel about suing JHBMC for his injuries and resulting disabilities in April Gwynn retained the law firm of Nash & Associates on April 29, 2010 by signing a Contingent Fee Agreement (Agreement). 4 The Agreement stated that Legal Fees shall be one-third percent (33-1/3%) of the Gross Recovery, regardless of whether or not a lawsuit is filed. The Agreement also stated: [t]o the extent Medicare has paid for any of the Clients medical bills, it is likely to assert a lien for reimbursement for what it considers to have been condition payment of those expenses. The Clients understand that Federal Law mandates that any lien asserted by Medicare must be paid. The Clients understand that Medicare does not provide its final lien amount until after a settlement and/or verdict has been reached. 5 After the retainer was signed, on May 3, 2010, Nash & Associates opened the client file and assigned Client/Matter No to it. The Plaintiff Matter/Master memo characterizes the nature of the allegation to be made as follows: Failure to diagnose metastatic tumor resulting in bilateral lower extremity paralysis and sacral pressure ulcers. 6 The memo indicates that Mr. Gwynn came to the firm through the Yellow Pages. Attorneys Michael Sanders, next Jason Penn and then Jon Stefanuca, Esq. of Nash & Associates handled the matter on behalf of the firm. Notes in counsel s file show that early impressions of the case were that Plaintiff should be entitled to the entire statutory cap on non-economic damages. 7 An internal memorandum by counsel noted that because the cause of action accrued on October 7, 2008, the statute of limitations would run on October 7, On June 1, 2010, Sharon Stabile, a nurse legal specialist with Nash & Associates, wrote to JHBMC requesting permission to review the files relating to Plaintiff s care. Counsel for JHBMC advised Plaintiff s counsel that there were no documents regarding Plaintiff s turning while he was confined to bed during his stay at JHBMC. Such documents typically would be part of a patient s record. 4 A copy of the Contingent Fee Agreement is included in the materials reviewed. 5 Contingent Fee Agreement 6 The materials thus far furnished do not include any investigation by the defendants relating to the failure to diagnose the cancer. Thus, the scope of this report is preliminary and is focused on the issue of whether the defendants failed to properly furnish representation for the decubitus ulcers sustained by Plaintiff s decedent. Further investigation may well warrant a supplement to this report relating to the efforts of defendants to work up the failure to timely diagnose cancer allegation. 7 For medical malpractice actions that accrued after January 1, 2008, but before January 1, 2009, the maximum cap on pain and suffering non-economic damages was $650,000. 7

8 Medical Malpractice Claim Pursuant to the Maryland Annotated Statutes, ( 3-2A-04), before a complaint for medical malpractice is filed with the Circuit Court, a claim must first be filed with the Office of Health Care Alternative Dispute Resolution (HCAD). HCAD conducts nonbinding arbitration of medical malpractice claims in an effort to resolve them without litigation. When informed consent is not the only issue, within ninety days of filing the complaint with HCAD, a plaintiff must submit a Certificate of Qualified Expert (CQE) that attests to the following: (1) departure from the standards of care; (2) the departure from the standard of care proximately caused injury. Under 3-2A-02, a health care provider who attests in a CQE or testifies in a proceeding regarding a defendant s compliance with or departure from standards of care: shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action. Unless good cause is shown for needing an extension, failure to file a CQE properly and within the time frame set forth in the statute may result in dismissal of the claim. Dismissal and Re-filing Based on the documents made available for my review, it appears that Plaintiff s claims were filed with the Circuit Court for Baltimore City on or about April 13, The Complaint attached a transfer order from HCAD. However, only a nurse, and not a medical doctor, signed the CQE. Recognizing the deficiency, on or about August 4, 2011, Plaintiff voluntarily stipulated to dismissal of the first lawsuit, with the intention of immediately filing a second suit. In a memo dated August 9, 2011, Tracy Klima of the Nash firm noted that the CQE had to be filed and set a deadline for obtaining an expert certification of September 1, Despite this deadline, a memo dated December 16, 2011 to the file by Jason Penn, Esq. of the Nash law firm noted that the matter was voluntarily dismissed and re-filed before the expiration of the statute of limitations. We have the nursing COM in hand, but we need the causation COM (from Dr. Reddy) 8 (emphasis in original). He further noted that the CQE is due no later than January 3, 2012 (emphasis in original). Notwithstanding this, the lawsuit was not refiled with the Circuit Court for Baltimore City until on or about January 31, The complaint included an HCAD transfer order, and this time the CQE contained certifications from both a nurse and a medical doctor. However, the CQE filed was vague in that it stated only that the nursing staff and health care provider of JHBMC were responsible for the deficiencies in Gwynn s care. It did not identify specific caregivers that were allegedly responsible for failing to turn Gwynn. Because of the vagueness of 8 Jason Penn Memorandum dated December 16,

9 the CQE, JHBMC moved to dismiss the action due to an insufficient CQE. From the materials I reviewed, there is appears that at no time did counsel assert a loss of consortium claim on behalf of Plaintiff s wife. Moreover, I see nothing in the materials reviewed that demonstrate that counsel communicated with the Plaintiff or his family, as required by RPC 1.4, about any of these complications in the handling of the matter. Murphy, PA In or around May 2012, while the second (re-filed) action remained pending, Jon Stefanuca, the attorney at the Nash firm responsible for prosecuting Plaintiff s medical malpractice matter, moved from the Nash firm to Murphy PA (now known as Murphy Falcon & Murphy). On May 4, 2012, Plaintiff signed an Acknowledgement and Consent to Fee-Sharing Arrangement which allowed legal fees to be split between Nash and Associates and Murphy PA based on the anticipated division of services theretofore and to be rendered in the case. 9 The Hearing on Defendant s Motion to Dismiss At a hearing on defendant s motion to dismiss and the cross-motion by Plaintiff s counsel to file an amended CQE before the Circuit Court on November 26, 2012, Mr. Stefanuca explained that the CQE had been filed even though it was vague, because counsel was unable to read the records provided in order to specify the caregivers responsible for Plaintiff s injuries. Moreover, because the documents about turning Plaintiff during his stay were nonexistent, counsel could not properly identify who had been in contact with Plaintiff during his hospitalization and therefore, who was responsible for his injuries. The Circuit Court dismissed the action by determining there was no good cause for the vague CQE and for the more than eleven month delay in seeking leave to file the amended CQE. 10 Plaintiff appealed the dismissal. Contemporaneously, on or about December 20, 2012, counsel also filed another action on behalf of Plaintiff with the HCAD with the intent to file a new lawsuit arising out of the same operative facts with the Circuit Court. The complaint did not include an HCAD transfer order, but counsel advised the clerk of the court that the matter arose out of the same facts as the case pending on appeal and which had been dismissed. 9 Maryland Lawyer s Rules of Professional Conduct R.1.5 (Fees), (e) permits the division of a fee between lawyers not in the same firm on the proviso that all assume responsibility for the representation as a whole and the client agrees to the joint representation in writing. See, comment [7]. Thus a successor lawyer cannot point to the negligence of the predecessor lawyer to be absolved of his own deviations from the standards of care. 10 The court noted that the case was filed with the HCAD in October 2011, and in the Circuit Court in January 2012, but the motion was not filed until September

10 Settlement Ultimately, in or around September 2013, counsel agreed on a settlement figure of $800,000 with JHBMC. Of that amount, $193, was paid to Murphy and Falcon for its share of the costs and legal fees, Nash and Associates collected $15,846.11, and Plaintiff received a check for $350, Escrow The remaining amount of settlement proceeds, $240, was placed in escrow by counsel in order to pay the outstanding liens by health insurance providers. These lien amounts were negotiated by counsel during the pendency of the medical malpractice action. During the time relevant to the medical malpractice action, Gwynn s veteran benefits were administered through the Veterans Administration and provided by Tricare, and additional insurance was provided by Aetna. In all, the VA claimed it was owed $665,188, Tricare claimed it was owed $132,874, Medicare claimed it had paid $582.92, and Aetna claimed to be owed $ In total, claims made as against Plaintiff s health care costs equaled approximately $799,087. Through various negotiations, counsel was able to reduce the claims by health insurance providers to $172,780 for the VA, and $40,000 for Tricare. No claims for reimbursement were made by either Aetna or Medicare. Thus, the total amount of the health care liens to be repaid, after negotiation by counsel, was approximately $212,780. In a letter to Gwynn from counsel dated August 19, 2013, Brian J. Nash of Nash and Associates advised that after many months of negotiations with both Tricare and the Veterans Administration, these entities have agreed to reduce their claims to $40,000 and $172,780.44, respectively. A subsequent letter dated October 10, 2013 responds to a voic message from Plaintiff and indicates that the primary purpose of your call was to advise me that I am not to pay the liens of Tricare and the Veteran s Administration, and that I am to turn over the money being held in my account to you, and that you and your brother, Alvin, will deal with these lienholders directly. Counsel urged Plaintiff to consent to release of the escrowed funds, but Plaintiff would not, claiming that he was not aware of the liens or that they would be applied as against his settlement proceeds. Aware that he was now in the crosshairs of a potential conflict of interest, Nash retained counsel to represent him in communications with Gwynn, and to commence an interpleader case so that the rightful owner of the proceeds could be determined. It is my understanding that the interpleader case was removed to United States Court for the District of Maryland and remains pending. 11 According to Nash in a letter dated October 10, 2013, his firm took no fee for the medical malpractice case so that Plaintiff would net $350,000. The check issued to Nash covered only costs and expenses. 10

11 The Legal Malpractice Complaint Plaintiff filed a multi-count action against Murphy & Falcon PA (formerly Murphy PA and William H. Murphy Jr. and Associates) dba Murphy Falcon & Murphy, Richard Murphy and Jon Stefanuca, Nash and Associates, and Brian Nash asserting claims for legal malpractice, constructive fraud, and breach of fiduciary duty. The crux of the legal malpractice claims appear to arise from certain specific aspects of the Defendant-lawyers representation of Gwynn, such as: (1) the failure to file the CQE properly and on time; (2) the failure to pursue a loss of consortium claim on behalf of Gwynn s wife; (3) the failure to effectively communicate to the client about the existence of medical provider liens on the proceeds of the settlement asserted by Mr. Gwynn s health insurance providers and that those liens had to be repaid from any proceeds realized by Mr. Gwynn; and (4) a misrepresentation that an appeal of the dismissed medical malpractice claim would take up to 25 years, and therefore it made sense to settle. LEGAL ANALYSIS AND OPINION The determination to be made as to the Defendants is whether or not they departed from accepted standards of legal practice while serving as Plaintiff s counsel, in the underlying medical malpractice claim. As a preliminary matter, it is helpful to state that in order to prevail in a legal malpractice action, the following elements of the cause of action must be proved by a preponderance of the credible evidence: (1) the client employed the lawyer, (2) the lawyer neglected a duty, and (3) the client was damaged as a result of the lawyer s neglect of a duty (i.e. proximate causation). See Berringer v. Steele, 758 A.2d 574, 591 (Md. Ct. Spec. App. 2000); Supik v. Bodie, Nagle, Dolina, Smith & Hobbs PA, 834 A.2d 703, 712 (Md. Ct. Spec. App. 2003). In Maryland, experts are permitted to give their opinions based on the evidential facts of the record, and establish their theories of liability accordingly. Franch v. Ankney, 670 A.2d 951 (Md. Ct. of App. 1996) (expert testimony of attorney admissible to show breach of duty of care) (citations omitted); Homa v. Friendly Mobile Manor, 612 A.2d 322 (Md. Ct. Spec. App. 1992). Based upon my review of the evidence and of Maryland law, I arrive at the conclusion, within a degree of reasonable certainty, that Defendants deviated from accepted standards of practice and their deviation proximately caused damages to Plaintiff. The Attorney-Client Relationship Plaintiff signed a written Contingent Fee Agreement. There is no dispute that both Plaintiff and Defendants considered Mr. Gwynn to be their client for the purposes of bringing and prosecuting the claims against JHBMC for medical malpractice. Plaintiff s representation moved from Nash and Associates to Murphy PA (and subsequently Murphy Falcon & Murphy) when Jon Stefanuca joined the latter firm in Plaintiff acknowledged and consented to Murphy s taking over representation by signing the Acknowledgement and Consent to Fee-Sharing Arrangement on May 4,

12 The Scope of the Attorney-Client Relationship Defendants agreed to represent Plaintiff before the HCAD and in the Circuit Court by filing all appropriate pleadings and moving the medical malpractice case forward to trial or settlement. Although counsel ultimately achieved a settlement of all claims, as set forth below in this Report, their failure to comply with procedures required by the Maryland statutes resulted in dismissal without prejudice of the complaint. 12 This, as well as the deficient and untimely filings of the CQE, placed Plaintiff s action in a precarious position in that it created a risk that Plaintiff would never have his day in court. These actions on the part of his lawyers endangered the viability of his case and thus induced him to settle the case for less than he would likely have received if he had proceeded to trial or settlement absent the professional negligence. Breach of Duty An essential element of a legal malpractice claim is a breach of duty by the attorney. See Bland v. Hammond, 935 A.2d 457, 463 (Md. Ct. Spec App. 2007). The question of whether an attorney breached a duty of care is determined by whether that attorney either lacked or failed to exercise the requisite professional diligence, knowledge and skill required for the particular case. Kendall v. Rogers, 31 A.2d 606, 611 (Md. 1943); Felger v. Nichols, 370 A.2d 141, 184 (Md. Ct. Spec. App. 1977); Md. State Bar Ass n, Inc. v. Phoebus, 347 A.2d 556, (Md. 1975). Medical malpractice litigation has clear procedural rules that can be traps for the unwary practitioner. One example is the CQE requirement which is a condition precedent for filing a medical malpractice claim. However, an attorney or law firm that presents itself as expert in handling medical malpractice claims is expected to be familiar with the rules and procedural requirements of bringing such claims and the appropriate steps required to comply with those technical requirements. Plaintiff claims that an overriding reason for his having retained the Nash law firm to represent him in the medical malpractice case against JHBMC was the firm s marketing materials holding out it attorneys as experts in medical malpractice. The Complaint cites at length from the Nash law firm s website, including language that because of the complexity of medical issues and the required expert testimony, medical malpractice cases are often intricate and costly cases to bring to trial. The firm boasted its tenacious investigation and work up of the cases, exemplary litigation skills and successful track record Plaintiff claims that such representations were a motivating factor for his retaining the Nash firm. The CQE (Certification of Qualified Expert) is a condition precedent for bringing medical malpractice claims. Carroll v. Konits, 929 A.2d 19 (Md. 2007); Kearney v. Berger, 957 A.2d 682 (2008). It is an indispensible step in the arbitration procedure which is, in turn, a condition precedent to bringing a medical malpractice action. 12 See, Ruling of Judge Murdock, Transcript, November 26, 2012, at pages

13 Kearney, 957 A.2d at 687. The CQE must be certified by a health care professional that is experienced in the same or a related specialty, 13 and attached to it should be the medical professional s certification as well as relevant medical records. Hinebaugh v. Garrett Cty. Memorial Hosp., 51 A.3d 673 (Md. Ct. Spec. App. 2012); Walzer v. Osborne, 911 A.2d 427 (Md. 2006). An extension of time to file the CQE may be granted upon a showing of good cause, even outside the statutory period for filing the CQE. Kearney, 957 A.2d at 690. Failing to file a proper CQE, or filing it past the statutory deadline without good cause, is grounds for dismissing the complaint. Based on my review of the facts of this case, counsel s errors in filing the CQE caused the medical malpractice case to be dismissed. Although the dismissal was without prejudice and counsel made several efforts to reinstate the case, it set in motion a string of events that prejudiced the Plaintiff and induced him to accept a settlement under less than voluntary circumstances that was less than the full value of the claim that the plaintiff, in all probability, would have received, but for the negligence of the attorneys. Once the case had been voluntarily dismissed, and the errors in the CQE became apparent, it was incumbent on counsel to ensure that the case was properly and timely filed with a proper CQE. Yet this was not done. First, counsel delayed in reinstating the case even though the deadline for filing the CQE had been documented in the file. Then, counsel filed only a vague CQE that failed to identify the specific caregivers that neglected their duties of care to Gwynn thus causing him further injury. Moreover, because records were missing from Mr. Gwynn s HBMC chart that would have documented that the health care personnel caring for Mr. Gwynn during his post-surgical convalescence failed to periodically turn him so as to prevent the pressure sores he developed, as required by standards of care applicable to them, it was likely that the medical malpractice defendants would have been subject to an adverse inference charge, making a finding of liability against them highly likely at any prospective trial. Once the case was dismissed, however, liability became speculative, at best, because Plaintiff could not be assured that his dismissed case would be reinstated and allowed to proceed. By failing to file the CQE properly and in a timely manner, counsel s conduct fell below the proper standard of care for an attorney representing medical malpractice plaintiffs in Maryland. Defendants contend that they were able to settle the case for $800,000, the Nash firm did not take a fee, and they were able to negotiate down the Tricare and VA liens significantly. All of this is true. But the $800,000 settlement represented a figure that was not commensurate with the value of Plaintiff s underlying medical malpractice claim, and that diminution in value is directly attributable to the negligence of the Defendant attorneys. The only reason that the value of Plaintiff s claim was so seriously compromised was that the defendant attorneys had so weakened the case because the 13 This does not require that the certifying physician be certified in the same type of medicine as the defendant doctor. Rather, there must be some reasonable overlap or relationship of knowledge of the course of treatments at issue in the underlying malpractice case. See Hinebaugh, 51 A.3d at

14 CQE was improperly filed and the case was dismissed as a result of the attorneys negligence. Likewise, as set forth below in my discussion of Damages, the entirety of liens asserted by the VA and Tricare i.e. the total value of medical care rendered to Plaintiff would have been included in his total damages awarded by a jury after trial. Then, after the verdict, the health care liens are substantially reduced. Thus, but for counsel s failure to comply with the procedural rules applicable to medical malpractice cases, which constituted a breach of duty, Plaintiff was caused to suffer actual damages. Settlement of the underlying action does not preclude the plaintiff from pursuing this legal malpractice action. The client is permitted to pursue the legal malpractice claim, even if he is aware of the attorney s negligence, if the client was essentially forced to accept the settlement because the attorney s negligence prejudiced the presentation of the case or the settlement value of the case. Thomas v. Behtea, 718 A.2d 1187,1198 (Md.1998). In a case such as this one, that arises out of counsel s negligent handling of the matter, the proper measure of damages is the amount that the client would have received had the matter gone to trial, using the case-within-a-case approach, less the amount the client actually received from the settlement. Id. at Lastly, Plaintiff alleges in the attorney malpractice Complaint and Amended Complaint that he was not told about a potential loss of consortium claim, which could have resulted in a recovery in excess of the jurisdictional minimum, $75,000. By failing even to assert this claim, counsel eviscerated any chance Plaintiff (i.e.,, his wife) had of recovering on such a claim. The loss of consortium claim is a derivative claim, dependent on the claim of the injured plaintiff. In failing to assert the loss of consortium claim on behalf of the wife, the defendant attorneys deviated from the standard of care. Typically, unless the attorneys are specifically instructed not to file a loss of consortium claim, they are expected to include it in the medical malpractice action. But such instructions must come only after the attorney have conferred with the client and spouse and have communicated material information to them as to the risks of excluding a derivative claim from the main action. I see nothing in the records that I reviewed that evidences such discussions with either Mr. or Mrs. Gwynn. As set forth above, Plaintiff was a sympathetic plaintiff who was wholly incapacitated by his decubitus ulcer. He had a meritorious claim and in all likelihood would have prevailed in the underlying case. It is therefore evident to me, and I conclude within a reasonable degree of certainty that Plaintiff would have recovered at least an additional $75,000 had a loss of consortium claim on behalf of Mrs. Gwynn been properly asserted in the underlying medical malpractice action. 14 The damages calculated in this Report refer only to the value of the claim as to the negligently inflicted decubitus ulcers. It does not include any evaluation or assessment of value with respect to the failure to timely diagnose the cancer claim, as set forth in the Nash defendants intake memo. In this regard, I reserve the right to supplement this Report accordingly upon review of any additional materials. 14

15 Damages In a legal malpractice action, the Plaintiff s damages are generally equal to the value of the underlying case, had it been properly handled by the defendant attorneys. Plaintiff was a model plaintiff. He was a decorated military veteran and former police officer. He was a dedicated public servant, who was employed in the courthouse. When he was hospitalized for surgery on his spine, JHBMC s medical and nursing personnel negligently failed to periodically turn him so as to prevent pressure sores, as was required by applicable standards. This negligent care resulted in his developing serious and painful decubitus ulcer that required extensive surgery and skin grafting, and resulted in an additional month-long hospitalization. Curiously, evidence that could have exonerated JHBMC for its failure to properly attend to and care for Plaintiff was missing from their records, so the jury would have received an adverse inference charge against JHBMC by the trial judge.. Notes in counsel s file indicate that based on all the facts of the case notwithstanding that the original ailment that necessitated his hospitalization at JHBMC was a spinal tumor Plaintiff likely would have recovered the statutory maximum for pain and suffering which appears to have been, at that time, $650, Assuming counsel s own assessment of the value of the case to be true, Plaintiff also could have reasonably expected to recover for all past and future medical expenses. See Lawson v. United States, 454 F. Supp. 2d 373, 417 (D. Md. 2006) (citing Walston v. Dobbins, 271 A.2d 367, 371 (Md. App. 1970)). As set forth above, setting aside any lien discount negotiated by counsel, past medical expenses totaled $799, Under Maryland law, this amount would not have been reduced pursuant to the collateral source rule, which would have permitted Mr. Gwynn to recover the full measure of provable damages, regardless of the amounts received from any collateral sources. See Lawson, 454 F. Supp. 2d at 414 (citing Motor Vehicle Admin. of the Md. Dept. of Transportation v. Seidel Chevrolet Inc., 604 A.2d 473 (1992)). Thus the evidence supports that Mr. Gwynn would have recovered solely for pain and suffering ($650,000) and past medical expenses ($799,088.) for a total of $1,449,088. Plaintiff also was entitled to recover for future medical expenses resulting from his protracted post-spinal surgery recovery attributable to the decubitus ulcer. Notes in the file show that Plaintiff s home nurse aid cost $2400 per month. From the time of his discharge from JHBMC until his death in January 2014, Plaintiff lived approximately 58 months. Assuming a recovery for only in-home nursing expenses, and discounting entirely all other potential future medical costs relating to the decubitus ulcer, Plaintiff could have expected to recover an additional $139,200, for a total recovery of $1,588,287. If we include a $75,000 minimum jurisdictional recovery for the loss of consortium claim that was the attorneys filed to fail, the total recovery to which Plaintiff 15 Article on Courts and Judicial Proceedings, Sec (b). This statute sets the limit for noneconomic loss damage awards beginning in 1986, and increase the maximum amount by $15,000 each year. 16 See Gwynn, Alfred Liens to date Plaintiff s Exhibit

16 would have been entitled is $1,663,287. Subtracting the $800,000 actually received by way of settlement, Plaintiff has lost at least an additional $863,287 in damages as a result of his counsel s negligence. CONCLUSION I am of the opinion, based on reasonable certainty, that in representing Plaintiff in his underlying medical malpractice action, Defendant attorneys failed to comply with accepted standards of practice and breached their professional duties to Plaintiff by inter alia, failing to file the required CQE on time and in proper fashion. The resulting dismissal of the case set the matter on a road toward a settlement that significantly jeopardized Plaintiff s likelihood of success at trial. Thus, the breach of duty by Defendant attorneys proximately caused damage to Plaintiff who as a result of the damage caused by the professional negligence of the defendant attorneys induced him to agree to settle his medical malpractice action for substantially less than he likely would have recovered either by way of settlement in the absence of such negligence or at trial. Moreover, the plaintiff in her individual capacity, as spouse of the decedent Mr. Gwynn, was damaged due to the defendants failure to file a claim for her derivative loss of consortium claim. The measure of Plaintiff s damages what Plaintiffs would have been likely to recover after a trial, less the amount actually received via settlement reached as a result of the negligence of defendants calculates to $863,288. As indicated in the body and notes of this Report, this calculation does not include the value of the claim for failure to timely diagnose plaintiff s cancer. In this regard, I reserve the right to amend my opinions upon receipt of additional evidence. Thank you for permitting me the opportunity to review this very interesting matter. I shall make myself available to testify on behalf of your client should that be necessary. Should there be any additional materials that you would like me to consider, please forward them to me. Very truly yours, Bennett J. Wasserman, Esq. Vice President & General Counsel, inc. 16

17 Exhibit #1 Underlying Case (No. 24-C ) MATERIALS REVIEWED 1. Contingent Fee Agreement between Alfred P. Gwynn and Nash & Associates, LLC signed by client on 4/29/10 and by attorney on 4/29/10, witnessed by Sharon M. Stabile; 2. Spreadsheet (Ledger) of attorney disbursements and expenses 3. Notice of Appeal (December 12, 2012; Consent Orders to Stay; 4. Motion for Expedited Scheduling Order (on re-filing); 5. Waiver of Arbitration 6. Plaintiffs Notice of Deposition Duces Tecum of Defendant JHBMC, Inc.;(January 16, 2013) 7. Memo from Jason Penn cc to Brian Nash, Tracy Klima, Stephanie Crandall, Jon Stefanuca dated December 16, 2011; Memo fro Jon Stefanuca dated 4/13/13; Memo of 4/29/10; 10/14/2010; 8/9/2011; 7/22/2013 (re liens); Website page of Murphy Falcon & Murphy including Web bio of Jon Stefanuca 8. Correspondence from Nash & Associates to Mr. Gwynn 9. Plaintiff s Answers to Interrogatories 4/20/2012; 10. Defendant s Responses to Plaintiff s First and Second Requests for Production of Documents 11. Intake memo of Nash & Associates, Nash internal docket sheet (file no ); Draft of Plaintiff s preliminary expert designations (untitled); 12. Various s from underlying defendants file. 13. Settlement distribution documents, correspondence, checks. 14. Garretson Firm Resolution Agreement; 15. Transcript of Official Proceedings before The Honorable M. Brooke Murdock, Judge, November 26, Correspondence establishing medical bills and liens; 17. Johns Hopkins Bayview Medical Center Inpatient Chart of Alfred Gwynn, Date of Admission 10/08/08. Legal Malpractice Case 1. Second Amended Complaint, Jury Trial Prayer, 2. Defendant Nash & Associates LLC and Brian Nash s Answer to Plaintiffs Second Amended Complaint; (General Denial and Affirmative Defenses) 3. Case Information Report 4. Complaint for Interpleader by Nash & Associates (24-C );Notice of Dismissal as to Aetna Life Ins Co., Defendant United States Answer US District Court D., MD, WDQ ); Gwynn Motion to Dismiss Interpleader Acton; Memorandum of Law in Support; Proposed Order; Nash Response in Opposition to Defendant Gwynn s Motion to Dismiss; 17

18 5. Plaintiff Gwynn First Set of Interrogatories to Murphy & Falcon PA, Frist Set of Requests for Production of Documents to Murphy & Falcon, PA.; First Set of Requests for Admission to Murphy & Falco, PA 6. Plaintiffs First Set of Requests for Admission to Defendant Jon Stefanuca; 7. Legal Research re CQE: Annotated Code of Maryland, Courts & Judicial Proceedings Article, Subtitle 2A. Health care Malpractice Claims, 3-2A-01, et seq. 8. Defendant Murphy & Falcon, PA s and Jon Stefanuca s Answers to Plaintiff s Interrogatories served May 12, Pre-Trial Scheduling Order 18

19 EXHIBIT #2 BENNETT J. WASSERMAN COUNSELOR AT LAW CONSULTING OFFICES: LAW OFFICES:, Inc. 3 University Plaza Hackensack, New Jersey Tel: (201) Cell: (201) Cedar Lane Teaneck, New Jersey Tel. (201) Cell: (201) Direct Fax: (973) WEB BIOS: Consulting offices: Law Offices: EXPERIENCE: BAR ADMISSIONS: Active participation in well over 1,000 legal malpractice cases as counsel for litigants or as consulting or testifying expert witness in transactional and litigation based matters; teaching of advanced law students a full semester course entitled Lawyer Malpractice at Hofstra University Law School, since Founder and Editor-in- Chief, Legal Malpractice Law Review. New York (1975), New Jersey (1976) and Pennsylvania (1983) State and Federal Courts; Supreme Court of the United States. CERTIFICATIONS: Supreme Court of New Jersey: Certified Civil Trial Attorney (1985); American Board of Professional Liability Attorneys, Diplomate in Legal Malpractice (2012). (Member, Board of Governors) RATINGS/HONORS: Member, Supreme Court of New Jersey, Ad Hoc Committee on Attorney Malpractice Insurance AV - Martindale-Hubbell; Bar Register of Preeminent Lawyers (Lexis/Nexis Martindale Hubbell); 19

20 Best Lawyers in America 2010, 2011, 2012, 2013, 2014 (Legal Ethics and Professional Responsibility Law and Legal Malpractice Law); The Best Lawyers in the United States (1985); SuperLawyers New Jersey 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014 (Professional Liability) (Thomson Reuters) Lawyer of the Year, New Jersey Law Journal (Dec. 24, 2008) with co-counsel on In re Opinion 39 of the Committee on Attorney Advertising. (10 out of 10, legal malpractice) OCCUPATION:, Inc. V.P. and General Counsel, Consultant to lawyers, law firms, and liability insurance companies on legal malpractice (plaintiff and defendant); qualified as expert witness by courts in the field of legal malpractice, legal ethics and law firm billing. Davis Saperstein & Salomon, PC (Teaneck, NJ and NYC), Of Counsel and Chair, Legal Malpractice Law Section (January 2011 to date) Special Professor of Law (in Lawyer Malpractice). Hofstra University, Maurice A. Dean School of Law, Hempstead, New York (since 1990). Editor-in-Chief, Legal Malpractice Law Review: Research, Resources and Expertise in the Law Governing Lawyers (Oct to date). PRIOR EMPLOYMENT: Of counsel to Stryker, Tams & Dill, L.L.P., (Newark, NJ and New York, NY) ( ). Bennett J. Wasserman, A Professional Corporation, Hackensack, New Jersey (1983 to 2002) Moderator, National Legal Malpractice Forum; Co-Moderator, N.J. Professional Liability Law Forum, Counsel Connect (on-line computer discussion groups for lawyers on professional liability.) Partner and New Jersey counsel to Harry H. Lipsig, Esq., (Lipsig, Sullivan & Liapakis, P.C. New York, New York.) ( ) Associate to Arnold B. Elkind, Esq., (Elkind, Lampson & Sable, Esqs., New York, New York), former Chairman of the National Commission on Product Safety ( ) Merck & Co. (Merck Sharp & Dohme Div.); Professional Representative (pharmaceutical marketing) (l969-l97l.) Areas of Practice. Civil Litigation; Advocacy and Counseling in the law governing lawyers (legal malpractice, legal ethics; attorney advertising, attorney billing practices,) commercial transactions and 20

BENNETT J. WASSERMAN COUNSELOR AT LAW

BENNETT J. WASSERMAN COUNSELOR AT LAW EXHIBIT #2 BENNETT J. WASSERMAN COUNSELOR AT LAW CONSULTING OFFICES: LAW OFFICES: ACADEMIC OFFICES: legalmalpractice.com 3 University Plaza Hackensack, New Jersey 07601 Tel: (201) 488-1222 Cell: (201)803-6464

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