Maryland Accident Law Blog

Vicarious Liability in Maryland Medical Malpractice Cases

June 11, 2020 | Lebowitz & Mzhen

In a Maryland malpractice case, a plaintiff may be able to bring a suit against a provider’s employer under the doctrine of respondeat superior, or vicarious liability. Vicarious liability allows an employer to be held liable for the acts of its employees, even without any fault on the part of the employer. Rather, the employer may be held liable based solely only on the employer-employee relationship. Generally, an employer may be held liable for the wrongful acts of an employee if the employee is acting in the scope of their employment. The doctrine is intended to hold employers accountable and because many times they can bear the financial burden better than an individual employee.

A state court recently heard a medical malpractice case involving the alleged vicarious liability of two different employers. In that case, the plaintiff underwent laparoscopic abdominal surgery at a hospital. She was admitted to the hospital after the surgery and her condition deteriorated. A second surgery was conducted, during which time they discovered a perforation in the plaintiff’s small bowel. She suffered catastrophic injuries that required her to undergo multiple surgeries and to be hospitalized for five months.

The plaintiff filed a medical malpractice lawsuit against the surgeon, the hospital, and the university that employed the surgeon. The plaintiff argued that the surgeon had perforated her small bowel during the first surgery, and that the staff failed to timely diagnose her condition and begin treatment. The university argued that the surgeon did not deviate from the standard of care during the surgery. It also argued that even if the surgeon did deviate from the standard of care, the plaintiff’s injuries were a result of the hospital staff’s failure to timely administer antibiotics.

Limitations on a Maryland Landowners’ Liability During Recreational or Educational Activities

June 5, 2020 | Lebowitz & Mzhen

Generally, landowners owe a duty of care to people who come on their land, the extent of which depends on the relationship between the parties and the circumstances of the incident. Maryland’s Recreational Use Statute is an exception in that, when the statute applies, a landowner owes no duty of care to others, allowing them to escape liability in a Maryland premises liability case.

A recent case is an example of how landowners may avoid liability in such cases. In that case, a woman was injured while she was attending a free concert at a university. As she had been leaving the concert, she fell on a staircase with no handrails. She sustained serious injuries and died as a result. Her estate and her children filed a wrongful death claim against the university.

The university claimed that it was immune from suit under the state’s Recreational Property Act. Under the state’s law, a landowner does not have a duty to keep premises safe if others are using the land for recreational purposes. The concert took place at a county park, but the university had a permit to use it for the concert series. The woman’s family agreed that attending the free concert was a recreational activity. However, the family argued that the purpose of the concert series was mostly commercial. They noted that there were food and drinks available for purchase, that sponsors had tents and logos, and that it provided the university with a branding opportunity.

Recovering Against Negligent Landowners in Maryland Slip and Fall Cases

May 25, 2020 | Lebowitz & Mzhen

Most Maryland residents know that when someone else causes them to be injured, the state’s law protects them by allowing them to file a personal injury lawsuit. For instance, if Driver A runs a red light and hits Driver B, Driver B can sue Driver A to recover for their injuries. If a manufacturer sells a defective product to a customer that causes them to get hurt, the customer can sue the manufacturer. Most of these cases have a clear cause and effect — the defendant (negligent party) takes some action that causes the plaintiff to get hurt. Recovering may be complicated, however, for those who are injured in a Maryland slip and fall accident. Unlike many other personal injury lawsuits, these are often caused by a defendant failing to do something, rather than some action that they took.

Take, for example, the facts of a recent state appellate case. According to the court’s written opinion, the plaintiff, a grandmother, was staying at the defendant’s hotel with her four grandchildren, whom she took to the hotel pool one evening. At some point, she left the pool to escort her youngest grandson to the bathroom, walking along the sidewalk from the pool to the hotel room. According to the plaintiff’s testimony, the sidewalk was shiny, wet, and looked slick. The plaintiff told her grandson, who was dripping wet and walking in front of her, to slow down. While walking, she slipped and fell, suffering multiple injuries to the left side of her body.

Under Maryland premises liability law, the injured plaintiff, in this case, may be able to hold the hotel owner responsible. State law requires hotel owners, and other landowners, to take reasonable care in maintaining their property, and to warn guests of any known dangers. For instance, if the plaintiff could show that the hotel knew that the area in question was prone to getting very slippery and dangerous, and yet decided not to put up a sign warning of said fact, they may be successful in their personal injury suit.

The Use of Interrogatories in Maryland Accident Cases

May 19, 2020 | Lebowitz & Mzhen

Interrogatories are part of the discovery process in a civil case. An interrogatory is a series of written questions asked by one party to another, which must be answered in writing. In Maryland motor vehicle accident cases, any party may serve written interrogatories to another party. The receiving party must answer interrogatories within 30 days after service or within 15 days after the date after the date when the party’s initial pleading or motion is required, whichever is later. Responses must be made under oath.

A recent case before a federal appeals court shows how failing to answer interrogatories completely and honestly can lead to much bigger problems down the road. In that case, a van had slipped off the edge of a roadway while carrying six family members—all were injured, and one family member died. The crash took place in a construction zone, where a guardrail had been removed and had not been replaced. The lines on the road also had not been repainted where it had been repaved, and there were pieces of asphalt on the shoulder.

The family sued the two construction companies that had repaved the road. The defense attorney for the companies told the plaintiffs that the two companies had a joint venture with a $1 million insurance policy. The defense attorney sent initial disclosures under Federal Rule of Civil Procedure 26. In the disclosures, concerning the defendants’ insurance coverage, they listed the joint venture’s $1 million policy as their only insurance coverage. The parties settled for $1 million and signed a release stating that they were not relying on any statements by any parties’ attorneys.

What Do Maryland Slip and Fall Accident Victims Need to Prove to Recover for Their Injuries?

May 13, 2020 | Lebowitz & Mzhen

When someone slips and falls in public in Maryland, they may feel embarrassed and try to pretend that it never happened. Often, they will just assume that it was their fault, and go about their day. Even if injured, they might think that it is their fault because no one pushed them or tripped them, and they were the only ones around when they fell. While sometimes people fall or trip for no reason, oftentimes, falls are the result of a hazardous or dangerous condition. For example, people may fall because of a sticky or slippery substance on the floor, the floor not being even, or different heights between steps. In these cases, it may not be their fault at all, but rather the fault of those who own or maintain the property.

Maryland law allows those injured in such cases to file a certain type of negligence lawsuit against the owner of the property: premises liability. To be held responsible, a court must find that property owners either knew or should have known about the dangerous condition, but yet did not fix it or warn you about it. Additionally, a court must find that the plaintiff was not a trespasser on the property—a property owner does not owe a duty of care to those who are on their property illegally.

For an example of a premises liability claim, take a recent appellate case concerning a plasma donation center. According to the court’s written opinion, the plaintiff was a donor at the center and was walking into the bathroom when he fell, hit his head on a sink, and suffered severe injuries. According to the plaintiff, when he was laying on the floor he noticed that there was liquid on it, and some of that liquid got onto his shirt. He also stated that he noticed dirty footprints in the liquid. He filed a premises liability suit against the plasma donation center, alleging that they either knew or should have known about the liquid on the floor, and that it created a dangerous condition. Evidence presented in this suit included testimony that the employees of the center used separate bathrooms, and that the bathrooms were generally not cleaned by the center until after 7 p.m. each night, meaning the center would not have known about the liquid.

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.

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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.”