March 26, 2014

Cap on Noneconomic Damages Violates State Equal Protection Clause, According to Florida Supreme Court

by Lebowitz & Mzhen

Florida_Supreme_Court_Building_2011.jpgCaps on noneconomic damages, enacted in many states under the banner of “tort reform,” have brought uncertain results. While the stated purpose is to prevent litigation from driving up the cost of medical care, damage caps often lead in practice to injustice for victims of medical malpractice. A family in Florida challenged that state’s damage cap statute in federal court on constitutional grounds, after a court cut their judgment in half. The Eleventh Circuit Court of Appeals found no violation of the U.S. Constitution, but it asked the Florida Supreme Court to rule on the state constitution’s Equal Protection Clause. After nearly two years of review, the Florida court ruled that the state’s damage cap violates equal protection, finding that it “bears no rational relationship” to the goal of alleviating a “medical malpractice insurance crisis.”

More than half of all U.S. states, including Maryland, have laws capping noneconomic damages in medical malpractice and other personal injury cases. “Noneconomic damages” refer to intangible injuries like pain and suffering, mental anguish, loss of consortium, and disfigurement. Under Maryland law, the amount of the cap in medical malpractice cases increases by $15,000 every January 1. In 2014, the amount is $740,000, or $925,000 in wrongful death cases with two or more beneficiaries. Florida’s cap, which does not increase year-to-year, is $500,000 for medical injuries and $1 million for wrongful death.

The lawsuit challenging the Florida statute involves a woman who died due to complications after giving birth via caesarean section in February 2006. The birth was performed by U.S. Air Force medical personnel at a private hospital. Her parents, individually and on behalf of her estate and her infant son, sued the U.S. government under the Federal Tort Claims Act. A district judge ruled for the plaintiffs after a bench trial, awarding them over $980,000 in economic damages and $2 million in noneconomic damages. The noneconomic damage award was reduced to $1 million because of the damage cap.

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March 19, 2014

Family of Man with Down Syndrome Killed in Altercation with Off-Duty Police Files Amended Complaint in Wrongful Death, Survival Lawsuit

by Lebowitz & Mzhen

Cinemaaustralia.jpgThe family of a man who was killed in an altercation with off-duty sheriff’s deputies at a Maryland movie theater have filed an amended complaint in their wrongful death and survival lawsuit. Estate of Saylor, et al, v. Regal Cinemas, Inc., et al, No. 1:13-cv-03089, am. complaint (D. Md., Mar. 11, 2014). Several defendants moved to dismiss the lawsuit late last year, claiming that the lawsuit failed to state a claim on which the court could grant relief against them. The plaintiffs sought and received leave from the court to amend their complaint, dropping two defendants and adding the State of Maryland in March 2014.

The decedent, Robert Ethan Saylor, was twenty-six years old at the time of his death on January 12, 2013. He had Down Syndrome, with an I.Q. of 40 and physical features commonly associated with the condition. According to the amended complaint, he was about five-feet-six-inches tall and weighed 294 pounds. He went to a movie theater in Frederick on the evening of January 12 with an aide. After the movie, Saylor reportedly became angry when the aide asked if he wanted to go home. The aide called Saylor’s mother, who suggested she go get the car. She left Saylor outside the theater to get the car, which was permitted under his care plan, and when she returned found that he had gone back inside.

A manager approached the aide, and she explained Saylor’s condition, explained that he would “freak out” if touched, id. at 6, and recommended that no one speak to him. The manager then asked an off-duty sheriff’s deputy working as a security guard to remove Saylor. The guard called in two additional security guards, also off-duty deputies, to assist. When they attempted to physically remove Saylor, he resisted, and the guards used force against him. Saylor suffered a fractured larynx, and was pronounced dead at the hospital just before midnight. The medical examiner ruled it a homicide. The plaintiffs describe it as a “violent, terrifying, and painful death.” Id. at 7.

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March 12, 2014

Hospital Failed to Provide Adequate Supervision of Patient, According to Wrongful Death Lawsuit Brought by Family

by Lebowitz & Mzhen

BNSF_-_Afton_CO-OP_%284871972044%29.jpgA Texas hospital failed to supervise a man known to have mental health problems, resulting in the man’s death, according to a lawsuit filed by the man’s family. Martinez, et al v. Oak Bend Medical Group, et al, No. 14-DCV-212068, 2nd am. pet. (Tex. Dist. Ct., Ft. Bend Co., March 3, 2014). The lack of supervision allowed the man, who had already left the hospital unnoticed once, to leave the hospital and walk to nearby train tracks, where he was struck and killed by a train. The lawsuit assert causes of action for negligence against the hospital and the rail company, as well as claims under the state’s wrongful death and survival statutes.

According to the plaintiff’s second amended petition, police found the decedent, Arturo Martinez, unconscious outside of his father’s house in Richmond, Texas on December 2, 2013. They took Martinez, who had a history of mental illness, to Oak Bend Medical Center for treatment. Hospital staff allegedly knew about Martinez’s mental health issues. The following day, Martinez left the hospital unnoticed, having removed his own IV and catheter. Emergency personnel found him later the same day and brought him back to the hospital. The petition claims that Oak Bend was supposed to assign staff and security personnel to supervise Martinez.

Despite the presence of security personnel, Martinez managed to leave the hospital unobserved again on December 6. He left the building and walked onto nearby train tracks. An oncoming train, which allegedly failed to yield or give any warning of its approach, struck Martinez. He was brought back to Oak Bend with blunt force trauma injuries. The hospital performed surgery, allegedly without first obtaining the family’s permission, but Martinez died later that day.

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March 5, 2014

Prank Involving Portable Toilet Causes Paralysis, Leads to $5 Million Settlement

by Lebowitz & Mzhen

Portable_toilets_Schonach55.JPGA prank involving a portable toilet led to tragic consequences when the victim of the prank suffered permanent paralysis. His lawsuit named the two pranksters as defendants, as well as the company that provided the portable toilet and its manufacturer. While the claims against the pranksters, who are the plaintiff’s cousins-in-law, are most likely based on general negligence theories, the claims against the portable toilet companies are based on products liability. The plaintiff claimed that the companies failed to provide equipment to secure the unit to the ground, and installed it in an unsafe location. These made it more likely for the toilet to tip over. The defendants recently agreed to settle the claim for $5 million.

The plaintiff was on a fishing and camping trip with his two relatives in the area of Sullivan County, Pennsylvania. While the plaintiff was using a portable toilet, his relatives backed their truck up to its door, intending to lock him in as a prank. However, they accidentally knocked the toilet over by bumping into it with the truck. The toilet tipped over, causing the plaintiff to fall on his head and fracture his cervical spine in several places. He underwent surgery at a hospital in Philadelphia and spent several weeks at a rehabilitation hospital, but is now paralyzed from the shoulders down.

The plaintiff and his wife sued the two cousins-in-law, the company that provided the portable toilet, and the portable toilet manufacturer. They claimed that the two companies were liable for several acts of negligence. The toilet was installed on a slope with only some pieces of wood to keep it upright, making it more prone to tipping over and unsafe for use. They claimed the manufacturer failed to provide metal spikes used to anchor the toilet in the ground, even though that model of toilet had holes in the base specifically for that purpose. The parties reached a settlement in early February 2014, in which the plaintiff will receive $5 million. It is not clear how that amount will be apportioned between the defendants.

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February 28, 2014

Nationwide Recall of Strollers Cites Amputation Hazard

by Lebowitz & Mzhen

file0001642429976.jpgA company that manufactures strollers has issued a voluntary recall, according to the U.S. Consumer Product Safety Commission (CPSC), citing a risk of finger injuries. The company has received several reports of such injuries, including at least one partial amputation, due to consumers getting their fingers stuck in the stroller’s folding mechanism. The recall affects more than 200,000 units of several different stroller models. The company is offering a repair kit to consumers who have purchased recalled strollers.

The CPSC monitors reports of injuries caused by consumer products, as well as consumer products’ compliance with a range of federal safety standards. After a sufficient number of consumers report injuries caused by a product, a recall may occur. In the event of a voluntary recall by the manufacturer, distributor, or retailer of a dangerous or defective product, the CPSC may oversee the recall process. It also has the authority to order recalls on its own.

The stroller manufacturer, UK-based Britax, has received at least eight reports of injuries caused by three models of stroller. The stroller folds and unfolds, according to the CPSC’s description, using a folding mechanism with a release button and release strap. Consumers reported that fingers could get stuck in the hinge of the mechanism during the release and unfolding process. Injuries included partial fingertip amputation, broken fingers, and lacerations.

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February 21, 2014

Maryland Medical Malpractice Law Requires Plaintiff to Return to Arbitration Office After Dismissal for Deficient Expert Certificate, According to Court

by Lebowitz & Mzhen

Brooklyn_Museum_-_A_Defense_Lawyer_at_the_Court_of_Arbitration_Discussing_Business_at_his_Usual_Office_Premises_-_Honor%C3%A9_Daumier.jpgA plaintiff alleging medical malpractice must submit a claim for arbitration to a state office before filing a lawsuit. A certificate and report from a qualified expert is also required. Any deficiency in these documents may be grounds for dismissal of the case, but the statute that requires dismissal does not specify whether a plaintiff may file a new lawsuit or must begin the arbitration process again. The Court of Special Appeals ruled in December 2013 in Puppolo v. Adventist Healthcare, Inc. that the plaintiff must go back to the arbitration office, adding yet another hurdle for medical malpractice claimants.

The Maryland Health Care Malpractice Claims Act (HCMCA) requires medical malpractice claimants to submit their claims to the Health Claims Arbitration Dispute Resolution Office (HCADRO). They must also file a certificate and report from a qualified expert with credentials in the same or a similar field as the defendant, identifying the relevant standard of care and explaining how the defendant breached it. A court must dismiss a petition without prejudice if the plaintiff does not submit a certificate and report, or if the documents are found to be deficient. A plaintiff may re-file within sixty days of dismissal, but the statute does not say if they must repeat the entire process or not.

The Puppolo case involved injuries allegedly suffered by a woman at Washington Adventist Hospital in 2006 and 2007. She was admitted in August 2006 after suffering a stroke. A hospitalist examined her the day of her admission and prescribed an anticoagulant to manage the risk of further blood clots. Another doctor took over her care the following day. A week later, she suffered an intracranial hemorrhage that put her in a coma for six weeks. She suffered further complications due to the coma, including bedsores and related infections requiring multiple surgeries, renal failure, and lung collapse, before her death in December 2008.

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February 14, 2014

Hospital Technicians' Lawsuits Allege Injuries from Radiation Exposure

by Lebowitz & Mzhen

Ct-scan.jpgA series of lawsuits brought by hospital technicians accuses the hospital where they worked of failing to maintain adequate shielding around its CT scan machine. The plaintiffs, in five individual lawsuits, allege that radiation exposure caused a variety of injuries and will require them to undergo cancer screenings for the rest of their lives. Two of the plaintiffs operated the CT scanner while pregnant and have brought claims on behalf of their children. The lawsuit names the company that operates the hospital, along with the engineering and architecture firms that built the addition housing the CT scanner, as defendants.

A computed tomography (CT) scanning machine rotates around a patient, using x-ray beams to create a cross-section image of the patient’s body. The process typically takes only a few minutes, so a patient’s exposure to dangerous radiation is minimal. Technicians who operate the scanners, however, could face prolonged exposure and associated health risks. Lead shielding in the walls surrounding a scanner is a standard method of protecting technicians from radiation. The technicians set up the scanner with the patient, then leave the room while the scanner is in operation.

Methodist Medical Center, located in Oak Ridge, Tennessee, opened a new emergency department building in 2006. This building included a facility for CT scanning. The plaintiffs claim that the room housing the CT scanner did not have sufficient lead shielding, resulting in dangerous levels of exposure to radiation over a seven-year period. All five plaintiffs claim that they are suffering from health problems related to radiation exposure, including thyroid problems, sleep issues, and headaches. They allege that they all face a significantly higher risk of cancer, and require regular cancer screening. Two of the plaintiffs worked while pregnant, and both have asserted claims for their children’s injuries. One of the children allegedly suffers from severe radiation-related health problems.

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February 7, 2014

Medicare and Medicaid Regulations Assist in Preventing Nursing Home Abuse and Neglect

by Lebowitz & Mzhen

DSCF1803.JPGNursing homes often rely on participation in Medicare and Medicaid. Without the assistance of these programs, fewer patients would be able to afford a stay in these facilities, and more of them would go out of business. Participation in Medicare and Medicaid, however, is contingent upon compliance with regulations and standards of care enforced by the federal government. As a case decided by the Fourth Circuit Court of Appeals several years ago shows, these regulations can help prevent abuse and neglect in nursing homes, or provide victims with evidence if abuse or neglect does occur.

A North Carolina nursing home appealed several monetary fines imposed by the Centers for Medicare and Medicaid Services (CMS), arguing in part that the evidence did not support CMS’s findings. Universal Healthcare v. U.S. Dept. of Health & Human Services, No. 09-1093, slip op. (4th Cir., Jan. 29, 2010). CMS imposed fines against the nursing home on two occasions, in November and December 2005, for violations relating to patient care. The Fourth Circuit Court of Appeals affirmed the lower courts’ rulings.

The first set of fines involved a patient identified by the court as G.J., who was to receive a dose of a pain medication, Cafergot, every morning. The CMS investigators found that the duty nurse was unable to give G.J. that medication one morning, because the on-site pharmacy had run out. Instead, they substituted the pain medication Darvocet. The pharmacy did not obtain a new supply of Cafergot until later in the day. CMS found the facility in violation of two regulations: failing to provide adequate pharmaceutical services, 42 C.F.R. § 483.60(a); and failing to provide a "quality of care" matching a patient’s comprehensive assessment, 42 C.F.R. § 483.25.

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January 30, 2014

Jury Awards Over $5 Million to Man Injured in Storage Unit Collapse

by Lebowitz & Mzhen

Self_storage_units.jpgA jury awarded more than $5 million to a man who suffered severe injuries when the ceiling of a rented storage unit collapsed on top of him, trapping him inside. The plaintiff in Wolkoff v. Sunshine Storage, Inc., et al, No. CACE09014543 (Fla. 17th Cir.), claimed that the defendants failed to construct the building correctly or to maintain it in good repair. The initial defendant, which owned and managed the building, claimed that the plaintiff was partly at fault for his injuries, as well as third-party defendants like the building contractor and the engineer. The jury apportioned fault among the parties, finding the plaintiff to be ten percent at fault. Unlike Maryland, which still follows the contributory negligence doctrine, this only meant a ten percent reduction of the damage award.

The plaintiff, a retired contractor living in Boca Raton, Florida, rented a storage unit in Deerfield Beach. He switched the lease to a larger unit, and on January 3, 2009, he was moving the contents out of the smaller unit and into the larger one. While he was standing in the smaller unit, the metal roof collapsed, trapping the then-66 year-old under about 3,000 pounds of debris.

The plaintiff was an avid bodybuilder, but the accident put an end to that. His injuries included a fractured pelvis, ruptured urethra, and nerve damage in both of his legs. He sought treatment at Johns Hopkins in Baltimore, Maryland to repair his pelvis and his urethra. Because of the damage to his pelvis, he had to use a colostomy bag for about three years. He lost his sight in one eye and became partially blind in the other. He developed multiple infections in his legs and feet, and is now vulnerable to additional infection. After extensive rehabilitation, he still requires the use of a walker or wheelchair. Many of these conditions are irreversible.

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January 21, 2014

Settlement Reached Between Baltimore Households and Exxon in Gas Station Leak Case Involving Claims for Medical Monitoring

by Lebowitz & Mzhen

Gasstation_tank_removal.jpgA group of households in Baltimore County, Maryland recently settled their lawsuit against Exxon Mobil Corp. for property damage and other injuries allegedly resulting from a massive gasoline leak near their homes in 2006. Jury verdicts against the oil company totaled more than $1.6 billion, but the Maryland Court of Appeals reversed the awards. In addition to property damage, the plaintiffs asserted causes of action for emotional distress due to fear of developing a disease and “medical monitoring.” This refers to the ongoing costs of monitoring for the onset of illness after exposure to toxic materials. Maryland courts have never recognized medical monitoring as a claim or remedy before, but the orders reversing the verdicts included explicit recognition of such a remedy.

An underground storage tank at a gas station in Jacksonville, Maryland allegedly leaked for about five weeks in 2006, pouring over 26,000 gallons of gasoline into the ground and contaminating the groundwater. Many of the homes in the area rely on wells for their water supply. Maryland’s Department of the Environment commenced monitoring about 248 private wells in the area. Exxon settled with the state for $4 million for cleanup costs in 2008.

Several hundred people and businesses filed suit against Exxon Mobil, claiming more than $1 billion in damages. A jury awarded about $150 million in damages to about ninety households in 2009 for property damage, emotional distress, and medical monitoring. Another jury trial in 2011 resulted in a $1.5 billion award to about 160 households and businesses, including about $495 million in compensatory damages for fraud, property damage, emotional distress, and medical monitoring; and $1 billion in punitive damages.

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January 14, 2014

Lawsuit Accuses Sheriff's Deputies of Negligently Putting Locksmith in Harm's Way, Resulting in His Death, During Attempted Eviction of Tenant with Violent History

by Lebowitz & Mzhen

HPD_SWAT_Team.jpgA lawsuit alleges that sheriff’s deputies negligently placed a locksmith in an unreasonably dangerous situation by bringing him along on an eviction without warning him of specific known risks, resulting in his death. Engert, et al v. Stanislaus County, et al, No. 1:13-cv-00126, 2nd am. complaint (E.D. Ca., Oct. 23, 2013). The individual subject to eviction was reportedly known to be both heavily armed and violent, but the sheriff’s deputies allegedly did not warn the locksmith of the danger, nor did they provide any safeguards for him. The locksmith’s widow sued the county and various county officials for violations of her late husband’s civil and constitutional rights, negligence, and wrongful death.

Two deputies of the Stanislaus County Sheriff’s Department, Robert Paris and Michael Glinskas, were assigned on April 12, 2012 to perform an eviction at an apartment in Modesto, California. According to the plaintiff’s most recent amended complaint, the apartment’s occupant, James Ferrario, was known to the sheriff’s department as a “dangerous, mentally unstable individual, with weapons in his home,” and with a history of threats and assaults. The deputies brought a locksmith, Glendon Engert, along to open the apartment door.

The deputies allegedly did not warn Engert of the possible threat posed by Ferrario. Engert’s position in front of a doorway, with a possibly armed individual inside, is reportedly known as a “vertical coffin.” Ferrario opened fire from inside the apartment with armor-piercing bullets, killing Engert and Paris. After an eleven-hour standoff, Ferrario committed suicide. A search of his apartment yielded twenty-two firearms, including an M16 and an SKS rifle, and about five hundred rounds of ammunition.

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January 7, 2014

Data Suggest That Noneconomic Damage Caps Do Not Reduce the Cost of Healthcare, While Maryland Courts Continue to Affirm Their Constitutionality

by Lebowitz & Mzhen

Restatement_Second_of_Torts.jpgMaryland state law imposes a cap on noneconomic damages in all personal injury and wrongful death cases. This applies to “nonpecuniary” damages like pain and suffering, mental anguish, disfigurement, physical impairment, and loss of consortium. MD Cts & Jud Pro Code §§ 3-2A-01(h), 11-108(a)(2). Advocates of damage caps, commonly known as “tort reform,” claim that they are necessary to keep insurance costs under control, particularly in the medical field, and therefore to keep costs down for the public. Opponents of tort reform, including advocates for patients’ rights and others, say that after more than a decade, caps on damages in personal injury litigation have not stopped an increase in healthcare and other costs. Maryland courts, meanwhile, have repeatedly affirmed noneconomic damages caps against constitutional challenges.

The law prohibits informing the jury about the noneconomic damage cap in personal injury, wrongful death, or medical malpractice trials. If a jury enters an award that exceeds the cap, the court is directed to reduce the amount accordingly. As of October 1, 2013, noneconomic damages in personal injury and wrongful death claims, other than medical malpractice claims, are capped at $785,000 for all claims arising from a single incident. The only exception to this is a wrongful death claim with multiple beneficiaries, in which case state law increases the maximum amount by fifty percent. The cap increases by $15,000 every October 1. MD Cts & Jud Pro Code § 11-108(b)(2). For medical malpractice claims, the cap is $740,000 as of January 1, 2014, increased by twenty-five percent for a wrongful death claim with more than one beneficiary. This cap also increases by $15,000 every year. MD Cts & Jud Pro Code § 3-2A-09(b). The for medical malpractice.

The advocacy group Public Citizen has criticized the idea that damage caps are necessary to control costs. Its data show that malpractice payouts in 2010 were the lowest at any point in the previous twenty years when adjusting for inflation, and the lowest since 1998 in absolute dollars. Annual malpractice payments reportedly decreased by nearly twelve percent between 2000 and 2010, and accounted for only 0.0013% of total health care costs nationwide in 2010. During the same ten-year period, national spending on health care rose by ninety percent.

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