Maryland Accident Law Blog

Brachial Plexus Injuries in Maryland Birth Injury Cases

March 27, 2020 | Lebowitz & Mzhen

The brachial plexus is a network of nerves between a person’s neck and shoulders that control one’s chest, shoulders, arms, and hands. A brachial plexus injury occurs if the nerves are stretched, compressed, or torn. A brachial plexus injury can occur during a birth, and a brachial plexus birth injury occurs in about one to three of every one thousand births. An injury can cause a loss of muscle function and even paralysis of the upper arm. Brachial plexus injuries can be the basis for a negligence claim in some Maryland birth injury cases.

A state appellate court recently decided a case involving brachial plexus injury that occurred during the course of a delivery. In that case, the mother was being treated by an obstetrician for her pregnancy. The obstetrician advised inducing labor because the mother was diabetic, in order to minimize any possible issues. The mother went forward with the elective induction. During the delivery, the doctor found that the baby’s shoulder was lodged against the mother’s public bone, and that the umbilical cord was wrapped around the baby’s neck. The obstetrician performed maneuvers to dislodge the baby’s shoulder in order to deliver the child, and the baby suffered a permanent brachial plexus injury.

A claim of negligence was filed by the parents against the obstetrician. They argued that the obstetrician failed to exercise ordinary care while delivering the plaintiffs’ baby, thereby causing the baby’s brachial plexus injury. The jury found the obstetrician was negligent and awarded the family $2.7 million in damages. However, before and after the trial, the obstetrician argued that the parents had to prove the higher standard of willful and wanton negligence because the obstetrician was providing emergency medical care at the time. Under a state statute, in cases involving the provision of emergency medical care, a plaintiff is required to prove willful and wanton negligence.

The Importance of Strict Compliance with the Maryland Tort Claims Act

March 20, 2020 | Lebowitz & Mzhen

Typically, when the negligence of a person, business, or other entity results in injury to another, the injured party can pursue a Maryland personal injury claim against the at-fault party. However, when the at-fault party is a government entity, certain complications can arise.

Under the U.S. Constitution, as originally written, the state and federal governments were unable to be held liable for their actions. However, over time the inequities of this rule became apparent, as accident victims often found themselves with no means of recovery. Thus, the state and federal governments passed laws called “tort claims acts,” under which certain lawsuits against the government were allowed.

The Maryland Tort Claims Act is contained in Maryland Code sections 12-101 through 12-110 and broadly waives the state government’s immunity. Specifically, the Act waives immunity in any tort action but limits the amount of recovery to $400,000 to a single person for injuries arising from a single incident or occurrence. However, to successfully bring a case against a government entity, specific steps must be taken.

Who Can File Maryland Wrongful Death Claim?

March 13, 2020 | Lebowitz & Mzhen

In a recent case before a state appellate court, the court considered whether a spouse could be added to a wrongful death claim after the statute of limitations had expired. In that case, a man was transported to a hospital via ambulance after he began bleeding from the area where he was receiving dialysis treatment. He died three days later. The man’s wife initially did not want to participate in the lawsuit and the man’s children sued several medical providers for wrongful death. The defendants argued that the case should be dismissed because the spouse was not a plaintiff in the suit. Under the state’s wrongful death statute, children can only bring a wrongful death claim if the deceased person does not have a surviving spouse. After the statute of limitations had passed, the plaintiffs attempted to add the wife to the claim. The trial court dismissed the suit against certain defendants because the wife had not filed the claim, but allowed it to continue against the providers.

The appeals court ruled that the court should have allowed the wife to be added. The court held that in this case, the amendment adding the spouse to the lawsuit after the expiration of the statute of limitation related back to the original complaint because it arose out of the same occurrence and the defendant would not be prejudiced. The court stated that a delay in filing was not enough to deny the amendment of the spouse. Therefore, the trial court should have added the wife to the case, and the court reinstated the case.

Possible Plaintiffs Under Maryland’s Wrongful Death Statute

When Can Maryland Independent Contractors Be Held Personally Liable?

March 5, 2020 | Lebowitz & Mzhen

When filing a legal claim against an independent contractor after a Maryland accident, an independent contractor may claim that they cannot be held independently liable. Maryland courts have recognized that there are times in which independent contractors are also agents of another, often reliving them of independent liability. However, that is not always the case, and the party that claims there is a principal-agent relationship must prove the existence of such a relationship.

In a recent state appellate case, the court considered whether a personal trainer was an agent of a gym. In that case, the plaintiff was using a weight machine when she fractured a bone in her hand, requiring her to undergo two surgeries. She was under the direction of a personal trainer at the time she injured her hand, and she claimed the personal trainer improperly instructed her on how to use the machine, thereby causing her injury. The plaintiff brought a claim against the gym and the trainer, who had been contracted by the gym. The trainer argued that she was an agent of the gym, and could not be held independently liable because the gym had hired her to teach there. In contrast, the plaintiff argued the personal trainer was not an agent of the gym because she was an independent contractor there.

The court explained that there are circumstances in which a person may be an independent contractor and an agent of the principal. It explained that these circumstances exist where a contractor is a fiduciary that owes the principal loyalty and obedience. Examples of this include attorneys, brokers, and collection agencies. But in cases in which an independent contractor claims to be an agent, the independent contractor must establish the characteristics of the principal-agent relationship, including the principal’s right to control the physical conduct of the agent. In this case, there was not sufficient evidence that the trainer was an agent of the gym to dismiss the case against the trainer. Therefore, the court held that the case should continue against the trainer and that a jury would be required to resolve the issue.

Expert Witness Testimony in Maryland Medical Malpractice

February 25, 2020 | Lebowitz & Mzhen

When Maryland or Virginia residents are injured because of medical malpractice, the laws of the states allow them to file suit to recover against negligent medical professionals. This process can be incredibly complicated, and virtually all plaintiffs must rely on expert witnesses to make their case. Expert witnesses can testify to the court about how the injuries happened, what the defendant should or should not have done, the appropriate industry standards in a particular area, or the extent of the resulting injuries.

Recently, a Virginia appellate court considered a case involving a question of whether a plaintiff’s expert witness testimony survived a defendant’s motion to strike. After the plaintiff presents their evidence, the defendant may file a motion to strike the evidence from the record (or vice versa). If granted, it means that the court or jury cannot consider that evidence in their final decision.

In the recently decided case, the court began by describing the tragic facts. The patient, during her first pregnancy, had an incompetent cervix and had a cervical cerclage surgically placed. About a week after placement, the patient reported discomfort and pain in her abdomen, legs, and lower back to her doctor, who dismissed her concerns. Two days later, she called back about her pain and a new fever, and her doctor prescribed her some medicine via the phone, with no physical examination. Unfortunately, the patient continued to experience symptoms and called again, getting a different doctor who again prescribed her medicine via the phone, without a physical examination. Several hours later, the patient called back, and was finally directed to the hospital, where it was discovered that she had a severe infection. Her condition worsened in the hospital, and unfortunately, she passed away in the intensive care unit several days later.

Holding Companies Accountable for Their Defective Products Through a Maryland Product Liability Lawsuit

February 19, 2020 | Lebowitz & Mzhen

Anyone who has been injured by a defective product knows that holding the company accountable is an important step to make sure that other people do not suffer the same harm. In fact, filing a Maryland product liability case against the manufacturer is one of the most effective ways to hold the company responsible for manufacturing a defective product.

In a products liability case, there are generally three theories of recovery: negligence, breach of warranty, and strict liability. Under a strict liability theory of recovery, a plaintiff does not need to prove that the company acted carelessly in creating the product. A Maryland products liability claim requires that a plaintiff show, 1.) that the product was defective when it left the company’s control; 2.) that there was no substantial change in the product’s condition prior to its reaching the consumer; 3.) that the product was unreasonably dangerous; and 4.) that the product’s defect caused the victim’s injuries.

Even products that are not defective must also contain an adequate warning about the potential dangers of the product. A manufacturer must adequately disclose the risks and instruct consumers on the correct use of the product. Warnings and instructions about the product’s dangers and the correct use of the product must be clear, direct, and easy to understand. Courts will take into consideration the knowledge and expertise of the consumers that are reasonably expected to use the product. Damages available to plaintiffs in product liability cases include medical bills, the costs of future treatment, loss of income, mental anguish, and pain and suffering.

Summary Judgment in Maryland Personal Injury Cases

February 11, 2020 | Lebowitz & Mzhen

Movies and television may have people believe that most civil lawsuits end in a dramatic trial. While this does sometimes happen, most Maryland personal injury lawsuits actually do not make it this far. Sometimes the parties settle with each other prior to trial, or sometimes a judge will find that there is no need to go to trial because one party cannot win. Many cases are decided at what is called “summary judgment.” Before trial, both parties can file a motion for summary judgment, which is basically asking a judge to rule in their favor. Summary judgment is proper if there is no genuine issue of material fact, such that there is nothing for a jury to decide and a trial is inappropriate.

For an illustration of how summary judgment can work, take a recent state appellate case. According to the court’s written opinion, the accident occurred while the plaintiff was cleaning out her daughter’s car in a cleaning area of their apartment complex. As the plaintiff stepped from the paved parking lot up to a landscaped area that had a car vacuum, she slipped and fell backward, resulting in substantial injuries. The plaintiff filed a negligence action against the apartment complex, alleging that she had slipped on a foreign substance. During her deposition for the case, she testified that she did not know what caused her to fall, and that there was no water on the ground, but that the rocks were smooth and slippery.

According to the plaintiff, the defendant apartment complex was negligent in maintaining the complex’s premises. However, the defendants filed for summary judgment, arguing that the suit had to be dropped because there was insufficient evidence of any hazardous condition. While the lower court denied the motion, on appeal the court found that the defendants were correct. The court reasoned that summary judgment was proper in the case because the plaintiff had not offered evidence that the area she slipped on was actually wet or otherwise hazardous, and in fact testified that there was no liquid in the area and that she did not know what made her slip.

Statutes of Limitations in Maryland Tort Claims Act Cases

February 4, 2020 | Lebowitz & Mzhen

The Maryland Tort Claims Act (MTCA) was enacted in 1981. Under the Maryland Tort Claims Act, immunity is generally afforded to the state, and to state employees for their actions that are carried out without malice or gross negligence. Because it may apply in Maryland accident cases, understanding the statute, its limits, and its requirements, is extremely important.

Under the MTCA, a written claim against the state must be filed with the State Treasurer within one year of the cause of action arising. The claim must include a statement of facts and specific damages. If the Treasurer denies the claim, the case can be filed in court. However, it still must be filed within three years of when the cause of action arises. There are some exceptions to the rule, including if the State already had notice of the injury within the year after the cause of action accrued. In addition, filing a claim with the State Treasurer tolls the statute of limitations for 60 days after a final denial is made by the State Treasurer.

In a recent state appellate decision, the court considered whether another statute acted as an exception to the state’s tort claims act. Under the state’s act, there is a two-year statute of limitations for submitting claims to a state agency and also to file suit under the Act. If the state makes a final decision and denies the claim, the claimant has an additional six months from the date of mailing of the notice to file suit if the statute of limitations would expire before the end of that period.

Watch Out Maryland! Around 200,000 Pounds of Eggs Recalled Due to Listeria Outbreak

January 28, 2020 | Lebowitz & Mzhen

When individuals eat, they expect the food to be healthy and safe for consumption. Unfortunately, contaminated food can make its way into grocery stores and restaurants without anyone realizing it until it is too late. For example, last month a large food company voluntarily recalled around 200,000 pounds of hard-boiled and peeled eggs after they were linked to a listeria outbreak. According to a prominent news source covering the recall, the outbreak affected five states, including Pennsylvania which borders Maryland. As a result, one individual died and four were hospitalized.

Officials from the Food and Drug Administration discovered listeria during a routine inspection of the food company’s facility. Listeria causes fever, diarrhea, nausea, headache, and stiffness, and typically those who eat contaminated food show symptoms one to four weeks afterward. The resulting illness can be severe, and sometimes deadly: about 260 people die from it each year, according to The Centers for Disease Control and Prevention.

When individuals get ill or suffer premature death as a result of eating contaminated food, a voluntary recall of the product is too little, too late. While the recall may prevent others from being harmed from the product, it does not help the victims and their families, who may have accumulated large medical expenses. However, Maryland law provides an avenue for these individuals to recover against the food company through civil suits. Those directly harmed and/or their families may be able to bring a negligence claim against the food manufacturer. To be successful in these claims, the plaintiff typically must show that the manufacturer had a duty to ensure that the food was safe, that the manufacturer breached their duty either through an act or an omission, that the manufacturer’s breach caused the plaintiff’s illness, and that the plaintiff suffered real damages as a result.

Is Expert Testimony Necessary in Maryland Accident Claims?

January 21, 2020 | Lebowitz & Mzhen

Expert testimony can be helpful in certain claims to explain evidence to the fact finder. In Maryland accident cases, expert testimony may be admitted if the court decides that the testimony will help the trier of fact to understand the evidence or decide a fact at issue. Yet, expert testimony is required only if the issue is beyond the knowledge of a layperson. Expert testimony is not required “on matters of which the jurors would be aware by virtue of common knowledge.” A recent decision from a state supreme court is an example of a case in which the court found expert testimony was not required.

In that case, a child was allegedly assaulted on the playground during recess at her elementary school. The student and her mother filed a claim against the city and the Board of Education alleging negligence. The trial court found in favor of the plaintiffs, holding that the school provided inadequate supervision at the time. The trial court found there were 3 or 4 staff members and 1 student intern, which was insufficient to supervise over as many as 400 students. An appellate court reversed the decision, stating that the court should not have found the defendants breached their duty without expert testimony on the issue.

However, the state’s supreme court reversed again. The court held that expert testimony was not necessary in that case. The court explained that expert testimony is required generally in cases amounting to professional malpractice. Expert testimony is not required in cases where the negligence is so extreme that it is clear to a layperson and it is not required where the alleged error is within the common knowledge of a layperson.