Maryland Legislation

Pending Bill Would Eliminate Maryland’s Mandatory Helmet Law

March 2, 2015 | Lebowitz & Mzhen

Senate Bill 612 is pending in the Maryland Legislature and, should it pass, would act to eliminate the state’s requirement that all motorcycle riders wear helmets when riding on public roads. According to a local news source, the bill would allow certain riders with adequate health insurance coverage to choose for themselves whether or not they would wear a helmet when riding.

The bill’s main sponsor is State Senator John Astle, who is a motorcycle enthusiast himself. He claims that responsible riders should have the choice whether to wear a helmet or not. He recalls his younger days riding across the county, explaining, “I had nothing on my head but a yellow rag, because it made me look really cool.” Those in support of the bill point to increased rider freedom as a key benefit. Additionally, they claim that the Bill would bring Maryland in line with the majority of other, more motorcycle-friendly states.

Of course, motorcycle riding is about more than looking “cool.” The opponents of the bill cite statistics that show non-helmet wearing riders are much more likely to be involved in a serious or fatal accident. In turn, hospital bills (many of which end up unpaid) would increase as a result of these increased injuries.

Maryland’s “Move Over” Law to Expand in Near Future

October 1, 2014 | Lebowitz & Mzhen

Currently, it is the law in Maryland that any driver passing an emergency vehicle on the side of the road must move over one lane in order to help prevent an accident. This legislation was passed in the wake of a nationwide trend of accidents involving emergency workers assisting (or ticketing) motorists on the side of the highway.

However, a new law that went into effect on October 1 will extend the category of protected individuals to tow-truck drivers as well as emergency personnel. As it turns out, a number of tow-truck drivers have lost their lives in accidents caused by passing motorists getting too close—much too close, in fact.

In one account, described in a recent article by CBS Baltimore, a tow-truck driver was on the side of the road on Route 100 helping a disabled motorist when he was hit by a car. The car didn’t stop and left him for dead. He left behind a wife and two young children.

Maryland Legislature Overturns Court Ruling Regarding Pit Bulls, Applies Same Standard of Liability to All Dog Owners Regardless of Breed

April 14, 2014 | Lebowitz & Mzhen

Maryland Governor Martin O’Malley signed a bill into law that overturns a controversial 2012 Maryland Court of Appeals decision regarding pit bull-type dogs. In Tracey v. Solesky, 50 A.3d 1075 (Md. App. 2012), the court modified the standard of negligence applied to attacks by pit bulls against humans, applying strict liability to dog owners and landlords who allow the dogs on premises they own or control. The decision met with substantial criticism from animal welfare advocates, landlords and other property owners, and many others. In addition to causing multiple evictions and surrenders of dogs to animal shelters, the decision may have made it more difficult for people to assert claims for damages by dogs that were not pit bulls. The new law applies the same standard of liability to all dog owners, regardless of the dog’s breed.

The Solesky case involved injuries to a young boy by a dog named Clifford. The boy required five hours of surgery and spent seventeen days in the hospital. His family sued the dog’s owner and the landlord, claiming that the landlord knew or had reason to know of the dog’s dangerous tendencies. The landlord presented several questions to the Court of Appeals, including whether harboring American Staffordshire Terriers, or “pit bulls,” is an “inherently dangerous activity” that would support the common law strict liability standard for a landlord. Id. at 1078.

The court ruled that “pit bulls” are “aggressive and vicious” by nature and expressly modified the common law negligence rule to hold landlords strictly liable for injuries caused by such dogs. Id. at 1079-80. A strict liability standard would apply if the plaintiff could prove that the landlord knew of the presence of a pit bull or cross-breed pit bull. A dissenting opinion by Judge Clayton Greene, Jr. noted the lack of expert opinion regarding pit bull temperament. It also noted the lack of a clear definition of “pit bull,” and the opinion of many experts that the term is “a generic category encompassing the American Staffordshire Bull Terrier, the Staffordshire Bull Terrier, and the American Pit Bull Terrier.” Id. at 1096. See also Weigel v. Maryland, 950 F.Supp.2d 811, 822 (D. Md. 2013).

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

March 26, 2014 | Lebowitz & Mzhen

Caps 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.

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

February 21, 2014 | Lebowitz & Mzhen

A 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.

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

January 7, 2014 | Lebowitz & Mzhen

Maryland 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.

Maryland High Court Upholds Contributory Negligence Rule

July 12, 2013 | Lebowitz & Mzhen

Maryland’s highest state court, the Court of Appeals, ruled earlier this month to uphold Maryland’s long standing, yet uncommon, manner of handling negligence cases.

The rule it upheld, referred to as the Contributory Negligence Rule, prevents plaintiffs from recovering anything in a negligence cause of action, if they are shown to be even one percent at fault for the incident.

The judge who penned the 5-2 majority decision stated that it is the court’s opinion that the legislature should decide the question of whether another model of determining liability would be more appropriate.

For example, an alternative model could require juries to allocate blame based on potential responsibility, and calculate damages according to that ratio.

While the Maryland legislature has reportedly considered changing the law several times since the 1960s, it has never done so.

Maryland first adopted contributory negligence in 1847 by way of a court ruling. It was once a widely used way of evaluating negligence cases, but has largely become the minority approach. Forty six states have switched to alternative views of fault, some of which allow juries to allocate fault according to responsibility.

The dissenting judges in the case referred to the rule as a “dinosaur” that should be rendered extinct.

Baltimore Sun Reader Suggests Penalties for Negligent Drivers at Railroad Crossings

June 6, 2013 | Lebowitz & Mzhen

Following last week’s train derailment and the resulting damage that it caused, the safety of trains and railroad crossings has been on the nation’s mind, but especially for those living within Maryland.

One such response followed when a woman from Abingdon wrote in to the Baltimore Sun to express her opinion regarding safety concerns at railroad crossings. The woman stated that she was writing in response to an article published on June 5, entitled “High risks at railroad crossings”.

In her letter, the woman laments that she feels as though the article was placing the blame for these sorts of accidents primarily on either the railroad, or state governmental authorities. In her view, the blame is more properly placed upon individuals driving negligently.

Specifically, she suggests Maryland adopting a law that would require drivers to stop and look before crossing railroad tracks. In order to enforce this, she further suggests video cameras at un-gated crossings, with accompanying steep fines for drivers who fail to observe the requirements.

Controversy Surrounds Proposed Legislation in Maryland Requiring Warnings for Old Tires

March 19, 2013 | Lebowitz & Mzhen

The Maryland House Committee on Economic Matters held a hearing March 13 in order to discuss a proposed tire aging bill. The proposed Maryland House Bill 1110 is controversial because it would require businesses that sell tires to provide customers with pamphlets or other printed handouts containing statements regarding the potential dangers that can occur as tires age.

The new law would require merchants to provide this information whenever they sell a tire that is:

used;
recycled;
retreaded; or
more than three years past its manufacture date

Failure to do so could result in fines of up to $250 per violation. The currently proposed legislation would additionally make violations of the law inadmissible in personal injury lawsuits. The extent of this limitation is not clear, but probably means that a mere violation is not conclusive evidence of fault.

A more inclusive version of the bill was introduced by the same sponsor, Benjamin F. Kramer, last year. The prior version would have required all tire manufacturers and retailers within Maryland to inform customers of the age of every tire that they sold.

That version of the law never made it out of the committee, due to unanimous opposition from the Rubber Manufacturers Association (RMA), the Tire Industry Association (TIA), and the Chesapeake Automotive Business Association (CABA).

Death of Maryland Family in Auto Accident Leads to First Lawsuit Based on Fetal Death Statute: Baumann et al v. Slezak et al

November 23, 2012 | Lebowitz & Mzhen

An accident on a Nebraska highway took the lives of a Maryland family. The resulting lawsuit, Baumann v. Slezak, et al, is reportedly the first to invoke that state’s law allowing causes of action for the wrongful death of unborn children. Nebraska’s law, enacted in 2003, differs from Maryland’s wrongful death statute, in that it allows causes of action for prenatal deaths “at any stage of gestation.” Maryland only allows causes of action for the death of viable fetuses.

In the early morning of September 9, 2012, the Schmidt family was stuck in a traffic jam on westbound Interstate 80. The family, which consisted of Christopher and Diana Schmidt and their two children, was driving through western Nebraska on their way from Maryland to California. Diana Schmidt was seven-and-a-half months pregnant with a child they had named Ethan. The couple was driving in separate cars: Diana Schmidt and the two children were in a Toyota Corolla, and Christopher Schmidt was directly behind them in a Ford Mustang. The traffic jam was the result of a deadly collision between two semi-trailers about a mile further up the highway. One semi had become disabled, and although the driver pulled the rig to the side of the road, he allegedly left the trailer blocking traffic. Another semi crashed into the trailer at about 4:30 a.m., killing its driver.

While the Schmidts were stopped at the rear of the long line of traffic, a semi trailer driven by Josef Slezak collided with the back of the Mustang. Slezak was allegedly driving seventy-five miles per hour, and did not make an effort to slow or stop his rig. The collision caused the Mustang to collide with the Corolla, pushing the Corolla under another trailer. All four members of the Schmidt family, as well as their unborn child, died in the collision.