Maryland Accident Law Blog

Holding Cruise Ships Responsible in Maryland Premises Liability Lawsuits

May 5, 2020 | Lebowitz & Mzhen

Going on a cruise is supposed to be a fun, relaxing, and rejuvenating experience. Many Maryland residents choose to go on cruises to relax and spend time with family and loved ones. However, just as they can onshore, accidents can happen on cruise ships, leaving passengers seriously injured. When this happens because of a cruise line’s negligence, passengers may be able to bring a personal injury lawsuit against the cruise line to recover for the injuries they suffered. These types of suits are often referred to as premises liability, because they are a way of holding owners responsible for accidents that occur on their premises.

For example, take a recent federal appellate case. According to the court’s written opinion, the plaintiff was a passenger on a cruise ship and was walking with her husband to one of the restaurants on board the ship. To get to the restaurant, the passengers had to walk through a narrow opening between some lounge chairs on the deck and the ship’s railing. While walking, the plaintiff’s foot got caught on a leg of a lounge chair, causing her to slip and fall. She suffered serious injuries as a result of this incident, and so she sued the cruise ship line to recover for her medical bills and her pain and suffering. The plaintiff’s complaint alleged that the cruise line knew or should have known about the dangerous condition on the ship, and was negligent in not warning passengers about it. In response, the defendant cruise line moved for summary judgment, arguing in part that they did not know and should not have known about the condition. The trial court granted the motion for summary judgment, but the plaintiff appealed.

On appeal, the appellate court considered whether the defendant cruise line had notice or should have had notice of the condition, and determined that they did. Importantly, the plaintiff presented evidence that the cruise line took corrective action to make the situation less dangerous, by requiring the lounge chairs to be set up in the upright position, thus protruding less into the walkway. The cruise line also had employees monitor the area and put the chairs back upright if they were lowered by passengers. This evidence was sufficient to defeat summary judgment, as it is not clear that the cruise ship definitely did not know about the condition. The court reversed the grant of summary judgment and remanded the case back to the trial court. This ruling allowed the plaintiff to move forward with the case and, hopefully, to receive monetary compensation from the cruise line responsible for her injuries.

Maryland Product Liability Claims for Failing to Warn of a Product’s Risk

April 27, 2020 | Lebowitz & Mzhen

In highly regulated industries like the pharmaceutical industry, medicines typically undergo rigorous testing to ensure the safety of the drug before it goes on the market. But even drugs that have been on the market for years may later prove to be dangerous. Consumers that have been injured after taking a drug they believed to be safe may be entitled to compensation for their injuries through a Maryland product liability claim.

A “failure to warn” claim in Maryland is based on the contention that a defendant failed to adequately warn consumers of the risks involved with a product. In a claim involving a pharmaceutical drug, a manufacturer may be liable for failing to disclose the side effects of a drug or failing to disclose an unreasonably dangerous condition, for example. In general, a manufacturer is responsible for warning consumers of the risks of using a product, unless the risks are so obvious or well known that a warning is not required. Warnings must clear, direct, and easy to understand. Maryland courts will consider the knowledge and expertise of consumers in deciding whether a consumer can reasonably be expected to understand the risks of the product.

FDA Calls for Zantac to be Pulled From Market due to Probable Carcinogen

Proving Causation in Maryland Products Liability Cases

April 20, 2020 | Lebowitz & Mzhen

Proving causation in a Maryland negligence claim requires proving that the defendant’s negligent action was both a cause-in-fact on the plaintiff’s damages and a legally cognizable cause. This means that a plaintiff must show that the defendant’s actions were the actual cause and that the actions were sufficiently related and foreseeable. To prove the defendant’s actions were the cause-in-fact or “but-for” cause of the plaintiff’s damages, the defendant’s actions have to be proven to be the actual cause of the harm.

Maryland courts apply the “substantial factor test” when “two or more independent negligent acts bring about an injury.” Under the substantial factor test, the defendant’s conduct must be a substantial factor in bringing about the plaintiff’s damages. Therefore, there can be more than one cause of injury—but the defendant’s conduct has to be a substantial factor in causing the harm.

This theory can be applied in Maryland products liability cases. In asbestos cases, Maryland courts consider whether the plaintiff’s exposure to an asbestos-containing product was a substantial factor in the development of the plaintiff’s injury. Courts generally consider the frequency, proximity, and regularity of a plaintiff’s exposure to a product to determine causation in such cases.

Establishing the Required Elements in Maryland Medical Malpractice Cases

April 13, 2020 | Lebowitz & Mzhen

When someone is injured or hurting in some way and needs surgery to fix it, it is important that they can trust their doctor to perform the surgery safely and skillfully. For the most part, surgeries in Maryland go off without a hitch. However, doctors are people just like everyone else, and sometimes they may be careless and make mistakes while performing the surgery, which can lead to serious injuries or even death. In these cases, Maryland state law allows the individuals injured, or their family if the victim dies or is otherwise incapacitated, to file a medical malpractice suit against the negligent doctor.

Like other personal injury cases, medical malpractice suits require the plaintiff to prove four main elements. First, that the defendant doctor or medical professional being sued owed the plaintiff a duty of care. In many cases, this is easily established because doctors generally owe their patients a duty of care. Second, that the defendant breached that duty of care, which typically is more difficult to prove and requires expert testimony. Third, that the breach was the proximate cause of the victim’s injuries. Lastly, that real damage occurred as a result, usually proved through medical bills and expert testimony. Failure to prove even just one of these four elements will typically result in the plaintiff’s suit being dismissed, leaving the plaintiff unable to recover for the harm they suffered.

A recent state appellate case provides an example of when a suit may be dismissed. The plaintiff suffered from temporomandibular joint syndrome, commonly referred to as TMJ, and visited the defendant oral surgeon. After several treatments did not work, the defendant performed intraoral surgery on the plaintiff. Part of the operation required using an oscillating saw, which could in some cases overheat and burn patients. Immediately after the surgery, the defendant noticed that the plaintiff’s face and lips were bruised and swollen, but assumed it was the normal swelling that occurs after surgery. However, when the plaintiff’s condition did not improve, it was discovered that she was suffering from second to third-degree burns.

Meeting the “Dangerous Condition” Element in Maryland Premises Liability Case

April 7, 2020 | Lebowitz & Mzhen

In a Maryland premises liability case based on a dangerous condition, a plaintiff must establish certain elements. Specifically, a plaintiff must prove 1.) that a dangerous condition existed on the defendant’s premises; 2.) the defendant had actual or constructive knowledge of the dangerous condition; 3.) the defendant owed a duty to the plaintiff; 4.) the defendant knew about the dangerous condition for long enough remove the condition or to warn the plaintiff; 5.) the plaintiff suffered an injury; and 6.) the defendant’s conduct caused the plaintiff’s injury. A recent case before a state appeals court is an example of a situation in which the plaintiff failed to sufficiently show the existence of a dangerous condition.

In that case, the plaintiff went to a Dollar General store one morning. After completing her purchase, and on her way back to her car, she became distracted by a display rack on the sidewalk and by other customers walking in and out of the store, and stepped off of the sidewalk onto the parking lot, hitting a concrete parking abutment. She tripped over the parking abutment, fell forward, and suffered injuries to her knee, head, and elbow, which required her to undergo surgery and physical therapy. The plaintiff claimed that the store owner breached its duty to keep the premises safe. She claimed that the parking abutment was a hazardous condition because it was unpainted and slanted and because the display rack was a distraction.

The court dismissed the plaintiff’s case, reasoning that even if the parking abutment was a hazardous condition, the plaintiff was aware of the hazard and failed to exercise ordinary care to protect herself. First, the plaintiff testified in her deposition that she had been to the store 20 or 25 times before and knew that there were parking abutments in the parking lot. She knew that they looked like and was aware of them. Second, she testified that she had crossed the same area about ten minutes before the fall when she had entered the store. She failed to exercise ordinary care in failing to pay attention to the display rack instead of looking where she was walking. Third, the display rack did not block her view of the area where the parking abutment was situated. She had also seen the display rack and had walked around it on her way into the store. Therefore, the parking abutment was open and obvious, and “any hazard presented by it could have been avoided by [the plaintiff] in the exercise of reasonable care.”

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.