Injuries to Minors

Fourth Circuit Apportions Damages Pro Rata in Maryland Lead Poisoning Case

March 14, 2012 | Lebowitz & Mzhen

A Baltimore girl’s $2 million jury verdict for toxic exposure to lead paint suffered a setback last month, when the Fourth Circuit Court of Appeals ruled that the insurance company for the realty company that owned the house where she lived would only be obligated to pay forty percent of the total judgment. She still stands to receive a substantial sum of money, but the court’s ruling cuts the amount she may realistically expect to collect.

Lakia Roberts lived at a house in Baltimore from 1991 to 1998. When she was only twenty months old in 1992, doctors diagnosed her with lead poisoning. She continued to exhibit elevated levels of lead in her blood until 1995. Lead poisoning can have serious health effects on children, including learning disabilities and kidney damage, according to the National Institutes of Health. Roberts and her mother filed a state lawsuit against Attsgood Realty Company in 2005, claiming that the company’s negligent management of the property where they lived caused her lead poisoning.

As we previously reported in this Maryland Accident Law Blog, a jury awarded Robert $2 million in 2009, consisting of $500,000 in actual damages and $1.5 million in non-economic damages. Due to a Maryland law that caps non-economic damages at $350,000, her total judgment was reduced to $850,000.

Attsgood had sought defense and indemnification from its liability insurer, Pennsylvania National Mutual Casualty Insurance Company, commonly known as Penn National. The company had issued an insurance policy to Attsgood with one year of coverage beginning on January 13, 1992, later extended by another year. Attsgood did not have liability coverage on the property before this date. Attsgood sold the property on November 1, 1993. The policy with Penn National stated that it would pay damages for bodily injury and property damage occurring during the term of the policy.

After the jury verdict in 2009, Penn National sought a declaratory judgment in federal court holding that it was only obligated to pay at most $340,000, that being forty percent of the judgment against Attsgood. It argued that, since Roberts’ claim was for ongoing damages occurring from her birth on January 17, 1991 until August 1995, when the lead in her blood reached normal levels, it should only be obligated pay pay for the damages that occurred after its coverage began on January 13, 1992 and before Attsgood sold the property in November 1993. Roberts argued that Penn National should be obligated to pay the full amount of the judgment.

Maryland Teen Dies After Falling from Moving Vehicle, Mother Blames Alcoholic Beverage Manufacturer

March 5, 2012 | Lebowitz & Mzhen

A Maryland teenager died the evening of Saturday, February 18, 2012, when he fell from a moving car and was struck by another vehicle. Michael Truluck, age 13, had allegedly consumed an energy drink containing alcohol earlier in the evening with friends. He was reportedly feeling sick, and his friends said he had vomited twice when his mother’s fiance came to pick him up. During the ride home, he reportedly removed his seat belt and opened the car door, while the car was in motion, in order to vomit again. He fell out and was struck by a Ford Explorer. Police have said they will not file charges against the driver of the Explorer.

Initial news reports indicated that the boys were drinking Four Loko, an alcoholic beverage once marketed as an energy drink. Subsequent reports from the Associated Press said that it was not clear exactly what drink they were consuming. Police were also not sure who provided them with the drinks, although they suspect an adult in the neighborhood. Truluck’s mother has stated that she believes the drink caused her son’s death by making him so ill that he lost control of his actions. She told the Baltimore Sun that she believes he was so sick because of the drink that he was not aware of anything except the need to vomit. She is now speaking out against underage drinking.

The beverage marketed as “Four Loko” has already had a controversial history. The U.S. Food and Drug Administration (FDA) issued warnings that mixing caffeine or other chemicals often used in energy drinks with alcohol posed a number of health risks. It can prevent a person from full awareness of their own intoxication because the caffeine or other supplement masks the direct effect of the alcohol, but the person is nevertheless impaired. The FDA called this a “wide-awake drunk” effect. Four Loko’s manufacturer, Phusion Projects, reportedly reformulated the drink in 2010 to remove caffeine, but it continued to include alcohol in the formula. Some states banned the sale of the drinks when several college students died after allegedly consuming Four Loko.

The family of a teenager in the D.C. area who died in a car accident after allegedly drinking Four Loko filed suit against Phusion in 2011 fro wrongful death, alleging that the company was negligent in producing a drink that “desensitizes users to the symptoms of intoxication,” thus increasing the risk of injury. His death occurred a few weeks before Phusion announced its reformulation.

Maryland Court Strikes Down State Lead Paint Law

December 12, 2011 | Lebowitz & Mzhen

Maryland’s Court of Appeals issued a ruling in late October that strikes down a state law shielding rental property owners from liability to their tenants for lead paint exposure if those owners could show they took precautions to protect children from such exposure. The unanimous ruling held that the statute violated the Maryland Constitution by denying victims of lead paint poisoning their day in court. The court left the regulatory portions of the law in place.

Maryland enacted the law in question, the Reduction of Lead Risk in Housing Act, in 1994 as a compromise after lengthy negotiations between public health advocates and property owners. Lead paint poisoning had once been a huge problem for children in Maryland, particularly in Baltimore, but advocates of the law claim the rate of lead poisoning has decreased by 98 percent since the law passed. The law requires owners of rental properties built prior to 1950 to register with the Maryland Department of the Environment and to take steps to remediate lead content in their properties, such as by removing known lead-painted surfaces and removing lead dust. The Department of the Environment states that around 73,000 rental units are registered, nearly all built before 1950. Baltimore banned lead inside homes in 1950, and the rest of the state followed in 1978.

The troublesome portion of the law involves the liability of rental property owners to their tenants when exposure does occur. If a property owner has complied with the regulatory provisions of the law, their liability is limited to $17,000, which might cover the costs of relocating to a lead-free residence but does not compensate for injuries that can last a lifetime. Exposure to lead-based paint can cause severe injuries, including brain damage.

The lawsuit, Jackson v. Dackman Co., et al, sought damages for brain damage allegedly suffered by ZiTashia Jackson when she ingested lead-based paint while residing at two different addresses in Baltimore, both owned by the Dackman Company. According to the complaint, the lease did not note chipping or flaking paint or other similar hazards, but both were rampant in both apartments. The tenants allegedly complained to the landlord, but no repairs occurred. Since the property owners had registered with the state and undertaken remediation efforts, its liability was limited by the statute, cutting off the plaintiffs’ claims for negligence and deceptive trade practices. The defendants obtained summary judgment, the plaintiffs appealed, and the case made its way to the Court of Appeals.

Maryland Teen Burned by Paint Can Thrown into Campfire

November 10, 2011 | Lebowitz & Mzhen

A can of spray paint allegedly thrown into a campfire has led to burn injuries for a Maryland teen and reckless endangerment charges for two minors accused of throwing the can. The Maryland State Fire Marshal’s office reports that, on the night of Tuesday, October 25, two male minors tossed the can into a campfire in a wooded area of Bel Air. This caused the can to explode. A 13 year-old female standing near the fire allegedly suffered first-degree burns to both of her hands and first- and second-degree burns to her face.

The victim’s mother took the girl to the hospital for treatment and reported the incident to police on Wednesday. The girl should recover fully, according to news reports. Police charged the two boys with reckless endangerment, defined in Maryland law as “conduct that creates a substantial risk of death or serious physical injury to another.” This offense, a misdemeanor, normally carries a penalty of up to five years’ imprisonment and a fine of up to $5,000, but in this case the defendants are minors. The criminal statute uses the mental state of “recklessness,” meaning that the prosecution would have to prove that the boys acted without regard to a known risk, in this case the risk of an exploding paint can.

From the point of view of a personal injury attorney, the question becomes one of negligence or intent. While reports of the incident give no indication of any civil claim relating to the injuries, the case offers a good thought experiment on how a claim for damages can develop. In this case, the injured girl could make a claim for negligence or for an intentional tort such as battery, depending on the circumstances. “Battery” as a civil claim is an intentional action that results in contact with another person without that person’s consent. It could be direct person-to-person contact, as in a punch, or contact through another object, such as a paint can. A claim for battery would require proof that the boys intended to throw the paint can into the fire and intended for it to affect the girl, although they do not necessarily need to have intended her specific injuries. To claim negligence, she would need to prove that the boys breached a duty of care, such as to not create explosions, and that this breach caused her injury. In either case, the extent of her injuries would determine the amount of damages she could claim.

Reduction in Car Accident Fatalities Among 16 Year-Olds Matched by Rise Among 18 Year-Olds

September 16, 2011 | Lebowitz & Mzhen

Restrictions placed on teenagers’ driving privileges has led to a decrease in the number of fatal automobile accidents among 16-year-olds. Research suggests, however, that the risk may simply have shifted to older teens, as a corresponding rise in traffic fatalities has occurred among 18-year-olds. A study published in the September 14 issue of the Journal of the American Medical Association reviewed data from crashes nationwide covering the years 1986 to 2007 and found an increase in fatal car accidents as teens get older. 16-year-olds average 28.2 fatal crashes per 100,000 person-years, compared to 36.9 for 27-year-olds and 46.2 for 18-year-olds.

Graduated driver licensing laws, known as GDLs, limit driving privileges of 16-year-olds until they gain experience in lower-risk driving situations. Most GDL’s establish three stages: a “learner’s” period requiring supervised driving, an intermediate period with limited unsupervised driving, and a full privilege period identical to an adult driver’s license. Some states add restrictions on nighttime driving, use of cell phones while driving, and number of passengers allowed in cars operated by teenagers. New Jersey requires drivers without full privileges to display a “new driver” decal on their vehicles.

Maryland’s GDL allows entry into the learner’s stage at 15 years, 9 months, and requires a minimum of 9 months in that stage with a minimum of 60 hours of supervised driving. Young drivers may enter the intermediate stage at age 16 years, 6 months and after completing the learner’s stage. Intermediate drivers cannot drive unsupervised between midnight and 5:00 a.m. and cannot have passengers under the age of 18 for the first five months. All restrictions may be lifted at age 18.

By limiting new drivers’ exposure to high-risk, dangerous situations, GDLs appear to have successfully reduced the total number of fatal car accidents among 16- and 17-year-old teens. Researchers suspect, however, that at least part of the higher rate of fatalities among 18-year-olds may be due to teens deferring obtaining a driver’s license until age 18, thus skipping the GDL process entirely. This results in 18-year-old new drivers who have not gone through the training process encompassed by GDL’s.

“[Older teens] are saying, ‘The heck with your more complicated process,'” says Justin McNaull, director of state relations for the American Automobile Association. At 18, teenagers can, in many cases, get their license in a matter of weeks.

No national database exists to show the total number of 16-year-old drivers compared to older new drivers. The hypothesis is therefore largely anecdotal, as it is not clear if there are fewer 16-year-old drivers nationwide. The study’s finding suggest that there is no net change in the total number of traffic fatalities, at least as related to GDL’s, but rather that the risk has shifted to slightly older drivers.

Harford County, Maryland Car Accident Kills 14-Year-old Pylesville Pedestrian

July 31, 2011 | Lebowitz & Mzhen

Heather Greer, 14, died on Thursday after she was injured in a Harford County pedestrian accident. The Pylesville teenager was crossing Route 136 when she was hit by a motor vehicle.

According to Maryland State Police, Greer died from injuries she sustained from the impact of being hit by a 2009 Toyota Highlander. She was pronounced dead at the R. Adams Cowley, University of Maryland Shock Trauma Center where she was flown by helicopter after the Pylesville car crash.

Child Pedestrians

Maryland Birthing Malpractice: Brachial Plexus Injuries During Delivery Can Cause Permanent Damage

July 26, 2011 | Lebowitz & Mzhen

Our Baltimore medical malpractice lawyers represent families whose babies were injured before, during, or right after delivery. We know how devastating it can be to have an occasion as joyful as the birth of a child to be marred because an obstetrician, gynecologist, anesthesiologist, or another medical professional was negligent.

One of the more common injuries that can occur during delivery as a result of Maryland medical malpractice is the brachial plexus injury, which is also known as Erb’s Palsy. This type of injury can happen if traumatic stretching of the infant’s brachial plexus (this area runs from the spine to the muscles in the arms and shoulders and can also impact the arms and hands) occurs when trying to get him/her out. For example, if labor has gone too long or the baby is in breech or if his/her shoulder is stuck under the mother’s pubic bone or in the birth canal, his/her head may have to be pushed away from the shoulder while the arm is forced upward or the shoulder is pushed downward to get the baby out. If too much force is exerted, stretching or tearing of the baby’s nerve can occur and permanent and serious injuries (including partial or total paralysis) can result.

Just recently, a jury awarded a family $1.3 million against the doctor who delivered their child in 2006. In their birthing malpractice lawsuit, the couple claimed that their doctor could have performed a C-section or applied techniques other than excessive traction to free their daughter’s shoulder during birth. Because of her brachial plexus injury, she still isn’t fully able to use her left arm.

Brachial plexus injuries can be avoided. Common reasons why they occur:
• Failure to properly estimate the baby’s weight and size
• Applying too much traction to the baby’s neck during labor
• Failure to properly monitor for fetal distress
• Failure to properly gauge whether/not baby’s shoulder can easily move through the birth canal
Jury awards $1.3 million in childbirth lawsuit against doctor, WCF Courier, July 20, 2011

Related Web Resources:
Brachial plexus injury, MayoClinic
What are Brachial Plexus Injuries?, National Institute of Neurological Disorders and Stroke

More Blog Posts:
Maryland Birthing Malpractice Leaves Devastating Consequences for Parents and Child, Maryland Accident Law Blog, May 30, 2011
Can Maryland Birthing Malpractice Cause Autism?, Maryland Accident Law Blog, July 16, 2011
Maryland Birthing Malpractice: Expansion of Consent Doctrine Restores $13 Million Cerebral Palsy Verdict, Maryland Accident Law Blog, July 31, 2009

Can Maryland Birthing Malpractice Cause Autism?

July 16, 2011 | Lebowitz & Mzhen

According to researchers from Brown University and Harvard School of Public Health, complications and problems during and after birth might increase the chances of a child developing autism. While the authors acknowledged that the causes of autism are not known, they were able to narrow down the factors that could be linked to autism, including:

• Birth injury
• Birth trauma
• Low 5-minute Apgar score
• Meconium aspiration
• Maternal hemorrhage
• Abnormal presentation
• Multiple births
• Umbilical cord complications
• A birth that occurs during the summer
• RH or AB incompatibility
• Small for gestational age
• Congenital malformation
• Hyperbilirubinemia
• Fetal distress
• Low birth weight
• Neonatal anemia
• Low oxygen during delivery
• Fetal distress

While some of these factors are out of an obstetrician’s hands, there are ways to prevent certain birth injuries from happening. For example, monitoring the fetus’s vital statistics, as well as that of the mother, making sure that the baby gets enough oxygen, and not making any medical mistakes that could cause Maryland birth injury or trauma.

To have your child diagnosed with autism can be a severe blow for the entire family. Not only might your child never be able to live a “normal” life, but he/she will likely require costly therapies and other services to help them deal with their special needs. Some autistic children may never be able to support themselves or live independently. Your child may have to contend with bullying and emotional isolation while growing up. Autism takes a toll on the entire family.

If you believe that a medical mistake before, during, or after birth caused your son/daughter to develop autism, you may have grounds for a Baltimore birthing malpractice lawsuit.

Perinatal and Neonatal Risk Factors for Autism: A Comprehensive Meta-Analysis, Pediatrics, July 11, 2011
Low oxygen during birth may contribute to autism, Barchester, July 13, 2011
Environmental factors for autism: Low oxygen during delivery, summer births, The Imperfect Parent, July 12, 2011

Related Web Resources:

Autism Speaks

Autism Fact Sheet, National Institute of Neurological Disorders and Stroke

More Blog Posts:
Maryland Medical Malpractice?: Doctor and His Son Accused of Putting Autism Patients at Risk, Maryland Accident Law Blog, May 19, 2011
Baltimore Couple Files $20 Million Medical Malpractice Lawsuit Alleging Wrongful Birth, Maryland Accident Law Blog, July 6, 2010
$3,991,000 Million Maryland Cerebral Palsy Verdict Awarded to Family, Maryland Accident Law Blog, June 3, 2009

4-Year-Old Shot and 1 Man Fatally Stabbed During 4th of July Baltimore Fireworks Festivities

July 5, 2011 | Lebowitz & Mzhen

4th of July festivities in downtown Baltimore turned violent yesterday when one man was fatally stabbed and a 4-year-old was shot during the event. Thousands attended the celebration—almost twice as many attendees as last year—that was manned by almost 600 state and city officers. On Monday, Mayor Stephanie Rawlings-Blake condemned the violence.

According to Police Commissioner Frederick H. Bealefeld III, 26-year-old Joseph Lorenzo Calo was stabbed in the neck with a broken bottle by someone that he’d gotten into a shoving match with outside McCormick & Schmick’s Seafood Restaurant. Baltimore police are confident they can find the assailant.

Meantime, 4-year-old Kavin Benson was shot in the leg while walking with his father and the dad’s pregnant fiancé on Pratt Street. The boy, who was treated at Johns Hopkins Children’s Center, had a small-caliber bullet lodged near his knee. Police are not sure how he was shot.

If you or someone you love was injured while at a public event and you believe that the Maryland accident could (or should) have been prevented, you may have grounds for a Baltimore injury case. Premise owners and those in charge of running an event must exercise the necessary precautions to make sure that visitors, participants, and others don’t get hurt. This includes making sure that there is adequate security, proper lighting, crowd control, proper supervision, and if the venue is one where there is traffic that vehicles are redirected so that no one ends up injured in a Maryland pedestrian accident.

Boy’s Family Reacts To July Fourth Shooting, WBALTV, July 5, 2011
Baltimore fireworks violence: Shooting, stabbing in spite of heavy police presence, Baltimore Sun, July 5, 2011

Related Web Resources:
Baltimore Fourth of July Celebration 2011 Fireworks, Baltimore.biz
Premises Liability, Justia
More Blog Posts:
Transgender Woman Attacked at McDonald’s in Baltimore Says She Was Victim of “Hate Crime”, Maryland Accident Law Blog, April 27, 2011
Montgomery County Premises Liability: Nordstrom Ordered to Pay Nearly $1.6M to Two Women Injured in 2005 Bethesda Mall Stabbing, Maryland Accident Law Blog, April 21, 2011
Recent Shootings at Safeway and Walmart Raises the Question of How Liable Premises are for Violent Crimes, Washington DC Injury Lawyer Blog, January 23, 2011

New Crib Safety Standards Aim to Protect Infants and Toddlers from Injury and Death

June 28, 2011 | Lebowitz & Mzhen

Beginning today, the federal government’s new crib safety standards are in effect, which means that drop-side cribs can no longer be sold, manufactured, or distributed. Manufacturers, retailers, and distributors must also adhere to the other new requirements, including:

• Stronger crib slats
• Tougher mattress support
• More durable crib hardware
• More rigorous testing

Our Baltimore products liability law firm is pleased to hear about the tougher measures that are now in effect and hopefully decrease the chances of child injuries or deaths in a crib, which is supposed to be one of the few safe places a parent or guardian can leave their child unsupervised. However, this has not been the case in recent years. The CPSC has had to recall over 11 million cribs since 2007 because of possible safety hazards and over the last decade, defective cribs and faulty crib hardware have caused at least 32 deaths involving suffocation or strangulation.

Drop-side cribs have proven especially dangerous, with their sides that risk of becoming detached or collapsing. Fall accidents resulting in head injuries, entrapment from a baby getting stuck between the side of the crib and the mattress, and other serious injuries have also occurred.

Even with these new standards now in effect, it is important to note that hotels, day care providers, and crib rental companies still have until December 28, 2012 to comply with them, which means that your child could end up in a defective crib if you don’t double check to make sure that the crib does in fact meet the new safety standards.

Safer Cribs for Babies Available Starting Today, CPSC, June 28, 2011

Consumer Product Safety Improvement Act of 2008 (CPSIA)

Crib safety tips, Consumer Reports

Juvenile Products Manufacturers Association

More Blog Posts:
Nearly 800,000 Dorel Child Safety Seats Recalled, Washington DC Injury Lawyers Blog, February 16, 2011
Preventing Maryland Injuries to Children: Latest CPSC Baby Product Recalls Include Recliners, Pacifiers, Playards and Drop-Side Cribs, Maryland Accident Law Blog, July 26, 2010
Simplicity Drop-Side Cribs Linked to Eleventh Infant Death, Maryland Accident Law Blog, December 21, 2009