Articles Posted in Injuries to Minors

Proving that a certain act is legally negligent in a Maryland medical malpractice claim hinges on the testimony of an expert witness. This is because many medical decisions are difficult for nonmedical professionals to evaluate, and expert testimony helps the jurors understand the potentially complex issues involved in a case. In fact, lawmakers have determined that expert testimony is required to successfully bring a medical malpractice claim.

Under the Maryland Health Care Malpractice Act, a plaintiff has to file a Certificate of Qualified Expert within 90 days of the filling of the claim. A plaintiff has to prove that a health care professional failed to meet the standards of practice among members of the same health care profession with similar training and experience. The Certificate of Qualified Expert is an attestation from a qualified health care provider . . . that the care provided was “not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities” at the time of the acts in question. A court can review a certificate and determine whether it meets the requirements under the statute.

The expert health care provider must have had qualified experience in the defendant’s specialty, related health care field, or in the field that the defendant provided care or treatment within 5 years of the acts in question. Maryland also has a law that an expert may not devote more than 20 percent of the expert’s professional time to activities that involve providing testimony in personal injury claims. The following example shows the importance of understanding the standards required of health care providers to weigh a provider’s choices.

Maryland landowners owe a duty of care to those who are on their property. The extent of the duty that a landowner owes to a visitor depends on several factors: primarily, whether the visitor was welcomed onto the land by the landowner and the purpose of the visit.

In Maryland, there are three classes of visitors: trespassers, licensees, and invitees. A trespasser accesses another’s property without permission. A licensee is most commonly a social guest. And finally, an invitee is someone who is on a property for business purposes, such as a customer. Not surprisingly, a landowner owes a trespasser less of a duty than she owes a licensee or an invitee. In fact, in Maryland, a landowner owes a trespasser no affirmative duty of care, and must only refrain from willfully causing them injury.

When it comes to trespassing children, however, many courts across the United States apply the attractive nuisance doctrine. The attractive nuisance doctrine allows for a landowner to be held liable for injuries that are caused to a child by some aspect of the landowner’s property that attracted the child onto the land. Typically, the landowner must know the danger as well as the fact that children may have access to their property. In addition, courts require that the child’s age be such that it prevented them from fully understanding the risk of entering the property.

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Earlier this month, an appellate court in Kansas issued a written opinion in a personal injury case discussing when a plaintiff is permitted to pursue a claim of punitive damages against a defendant. The case is instructive to Maryland personal injury claimants considering a claim against a defendant because it provides insight into how courts view claims for punitive damages and when such claims may be appropriate.

The Facts of the Case

The plaintiff was a high-school student who was the manager of the school’s baseball team. The team was preparing to board a bus to a rival school when the defendant, a player on the team, decided he wanted to move his car closer to where the bus was planning on dropping the students off.

As the defendant was parking his car, he saw the plaintiff walking in the parking lot. He pulled up slowly behind the plaintiff as though he was going to hit her with his truck. The plaintiff attempted to move out of the way, but the truck ran over both of her feet. The plaintiff fell to the ground, and another student lifted the plaintiff into the defendant’s truck. The plaintiff claims that the defendant told her that he was sorry and that he only meant to lightly bump her with the truck. The defendant denied making the statement, claiming that he struck the plaintiff as he was trying to park.

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Earlier this month, an appellate court in Nevada issued an opinion in a personal injury case involving a student who was injured while playing floor hockey in gym class. The case presents important issues involving governmental immunity that may come into play in similar Maryland personal injury cases.

The Facts of the Case

The plaintiff was a student at the defendant middle school. A few years prior to the plaintiff’s injury, the school board approved the addition of floor hockey to the gym curriculum. As was the case with all sports played in gym class, participation was required.

During a game of floor hockey, the plaintiff was accidentally struck in the eye by another student’s stick. This resulted in the plaintiff needing subsequent eye surgery, as well as several follow-up visits. The plaintiff filed a personal injury case against the school.

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Earlier this month in a Maryland court, a 17-year-old Baltimore boy was awarded over $2 million by a jury after a case involving lead exposure. According to a report by WBALTV, the boy suffered permanent brain damage from lead exposure that occurred while he was living in a Baltimore house between the year of his birth in 1997 and 2001.

According to court documents, the owner of the house had not painted the house in many years, leaving a coat of lead paint exposed on the interior of the home on the 1600 block of East 25th Street in northeast Baltimore. The jury ended up finding the owner of the building as well as the property manager negligent for failing to keep the house up to code.

At trial, the boy’s attorneys submitted evidence that showed the following:

  • The loss of four to five IQ points, as well as cognitive deficits, attention problems, and learning and behavioral issues;
  • Last year, the boy had a 1.0 average GPA, was taking bridge classes, and was taking other measures to graduate on time, although it didn’t look likely; and
  • The boy was tested for lead exposure and had more than double the amount of lead in his blood that qualifies as “lead exposure.”

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In 2010, a young three-year old boy died when he climbed through a gate and into a swimming pool in his parents’ apartment complex. The family of the boy filed charges against the apartment complex, among others, alleging that they were negligent because they breached “a duty to maintain the Country Place pool in a reasonably safe condition for all residents of Country Place Apartments, and particularly children of all ages.”

At trial, the defendants claimed that they didn’t owe the boy any duty of care (and thus could not be held liable for the accident) because the boy was trespassing when he entered the closed pool. However, the boy’s family pointed to a Maryland law that required all pools be properly fenced in and argued that the defendants were negligent per se for their failure to comply with that law.

At trial, the court died with the defendants, finding that the law creating a duty only came into play once it was established that the person in question was not a trespasser. However, on appeal to the intermediate court, the decision was reversed. That court held that the statutory duty arose regardless of the injured person’s status.

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A federal investigation of nursing homes caring for children with disabilities led to a lawsuit against the Florida state government, with the U.S. Department of Justice (DOJ) alleging that the state’s social services department is violating the Americans with Disabilities Act (ADA). United States v. Florida, No. 0:13-cv-61576, complaint (S.D. Fla., Jul. 22, 2013). The DOJ alleges that almost two hundred children, who could be receiving home- or community-based care, are receiving unnecessary treatment in nursing facilities, and that the care is often inadequate to the children’s needs. The case was consolidated in December 2013 with a private putative class action lawsuit against the state, A.R., et al v. Dudek, et al, No. 0:12-cv-60460, which raises similar claims.

Title II of the ADA prohibits state and local governments from discriminating on the basis of disability. The U.S. Supreme Court has ruled that states must make reasonable efforts to eliminate or prevent unnecessary segregation of disabled individuals in institutions. Olmstead v. L.C., 527 U.S. 581 (1999). The DOJ’s Civil Rights Division (CRD) has been rather aggressive in enforcing the ADA as interpreted in Olmstead in recent years. Since 2009, the DOJ has filed lawsuits against at least eleven states regarding alleged discrimination and neglect of disabled individuals, and it has intervened in numerous private lawsuits.

The Civil Rights Division began investigating Florida’s system for treating disabled children with “medically fragile” conditions in 2011. In a letter to the Florida Attorney General dated September 4, 2012, it reported its findings that the state was in violation of Title II of the ADA. Investigators reportedly visited the six nursing homes that house the majority of Florida’s disabled, institutionalized children. They found that many children who were residing in a nursing home would benefit more if they received care at home or in their own community. Many families stated that they wanted to bring their children home, but that state policies made it difficult or impossible to do so.

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A 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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The U.S. United States District Court, W.D. Virginia, Danville Division reached a decision this year in a personal injury lawsuit arising out of the Federal Tort Claims Act, which involved a U.S. Postal Service employee allegedly running over a woman’s foot.

In the case, Pannell v. US, Dist. Ct., WD Va. (2013), the nine year old plaintiff had been sitting on the porch, when she noticed the civilian vehicle that the rural postal carrier drove approaching her grandmother’s house. The plaintiff and her cousin ran across the lawn toward the mailbox, making eye contact with the USPS employee, who also waved at them.

However, as the girls approached the mailbox, the plaintiff fell, and slid such that her legs were under the vehicle. The plaintiff’s cousin attempted unsuccessfully to pull her from under the vehicle, and as a result, as the car drove away, one of the tires ran over the Plaintiff’s right foot.

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The Charles County Sheriff’s Office said in a statement that a four year old boy accidentally shot himself with a gun in a car parked in a driveway in La Plata last week.

The incident occurred in the early evening. According to deputies, a woman was reportedly watching her grandson play outside, and then the boy went into a parked car. The woman said she heard a gunshot and that the boy then ran to her. She saw the boy had a head wound, and immediately called 911.

The Sheriff’s Office said that the boy was flown to a hospital for treatment of a graze wound, and is expected to recover. Following a search, the police found a 9mm handgun in the parked car, which officers say is registered to a relative of the child. The incident remains under investigation.

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