Legal Opinions - U.S. District Court, Maryland: October 14, 2008

Daily Record, The (Baltimore), Oct 14, 2008

COMMENTARY: Additionally, the ALJ's factual determination that Dr. Rudman's conviction was related "to neglect or abuse of patients in connection with the delivery of a health care item or service" was supported by substantial evidence.

Dr. Rudman pleaded guilty to a second-degree assault charge based on evidence that he assaulted a patient during the course of medical treatment. Further, the ALJ's decision that assault constituted abuse was a correct application of the law.

The agency has long-held that assault committed during the course of a medical examination provided pursuant to a doctor-patient relationship constitutes abuse of a patient in connection with health care delivery. See Sushil Gupta, M.D., D.A.B. CR1561 (2007). Dr. Rudman's assertion that the acts underlying his conviction did not involve "moral turpitude," a criterion employed by the Maryland Board of Physicians in licensing determinations and in physician disciplinary proceedings, see HO [section]14-404(b) (2001), was beside the point.

Contracts

Choice of venue

BOTTOM LINE: District court granted motion to dismiss declaratory judgment action brought in federal court where contract language mandated that any dispute arising from contract be brought in "the Courts of the State of Maryland."

CASE: Silo Point II, LLC v. Suffolk Construction, Co., Inc., USDMD No. RDB-08-999 (filed Sept. 25, 2008) (Judge Bennett). RecordFax No. 08-0925-40, 9 pages.

FACTS: Silo Point II, LLC entered into a contract with Suffolk Construction Co., Inc. for the conversion of a 1920s-era grain elevator and silo into a high-end condominium building along Baltimore's Inner Harbor (the Project).

The contract specified a guaranteed maximum price (GMP) of $92,690,000 and a substantial completion date within 20 months from the commencement of construction. The contract provided that any costs exceeding the GMP would be borne by Suffolk without reimbursement by Silo Point, and contained a forum selection clause which provided that Maryland law would apply to any dispute, and that any suit was to be filed in Maryland State Court.

During the construction process, several unforeseen conditions and difficulties developed. As a result, Suffolk began to incur costs well above the GMP and the Project's projected completion date was extended.

When Suffolk petitioned Silo Point for both an upward adjustment to the GMP and for a time extension on the Project's completion date, a protracted dispute arose between the parties over the scope and nature of any adjustments and the determination of the GMP and construction schedule.

The parties were unable to resolve their disputes, and Silo Point filed a declaratory judgment action in federal court to determine the GMP, including the appropriate contract completion date and a declaration regarding Suffolk's claims contrary to the terms of the Contract.

Suffolk subsequently moved to dismiss the suit, arguing that venue was improper based upon the terms of the contract.

The district court granted Suffolk's motion, dismissing the declaratory judgment action for improper venue.