In personal injury trials, the judge acts as the gatekeeper to determine which evidence the jury should hear. In making these evidentiary decisions, the judge must apply the appropriate rule of evidence. While the rules of evidence present a good guideline to assist a judge in making these decisions, issues often arise in a legal “gray area,” requiring the judge to apply the law to the facts of the case and come up with a reasoned decision.

Cracked PavementMaryland Rule of Evidence 5-407 deals with subsequent remedial measures. A subsequent remedial measure is an action taken after an injury occurred, usually by a defendant, to remedy the hazard that allegedly caused the plaintiff’s injury. Generally speaking, evidence that a party took remedial action after an injury occurred cannot be used against that party. This encourages defendants who are facing allegations of negligence to fix potential hazards without fear of conceding liability in the pending lawsuit.

With that said, Rule 5-407 contains several exceptions. One exception is that evidence of a subsequent remedial measure may be introduced for purposes other than to show liability. A recent case illustrates how one plaintiff was able to introduce evidence of a subsequent remedial measure.

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Earlier this month, an appellate court in Georgia issued a written opinion in a premises liability case brought by a woman who was injured when she slipped and fell after stepping in a puddle on a train platform. The appellate court ultimately affirmed the lower court’s granting of summary judgment in favor of the defendant, finding that the accumulated rainwater was not a dangerous condition as defined under the law.

Train PlatformThe Facts of the Case

According to the court’s opinion, the plaintiff was attempting to catch a train that was operated by the defendant transportation agency. As the plaintiff approached the train, she walked on a covered concrete platform. Since it had been raining earlier that day, there was a puddle near the door to the platform.

The plaintiff told the court that she saw the puddle but did not think it would be slippery. However, as she stepped in it, she slipped and fell. The plaintiff was injured as a result and filed a premises liability lawsuit against the transportation agency, claiming that it was negligent in allowing the puddle of water to form.

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Being involved in a serious accident is a traumatic experience. Often, along with the weeks or months of physical recovery, there is a lengthy emotional recovery process as well. Many times, people may suffer from nervous episodes or may refrain from engaging in certain activities. These are understandable side effects of being involved in a serious accident.

Wet Floor SignThe law in Maryland allows for those who have been injured in a serious accident to file a personal injury lawsuit to seek financial compensation for all that they have been through. While each case is different, compensation packages may include amounts for past medical bills, future medical expenses, lost wages due to time away from work, and any pain and suffering that the accident victim endured as a result of the accident.

Unfortunately, however, the process of filing a personal injury claim can be a lengthy one as well. Thus, it is very important that an accident victim do everything possible to ensure a smooth process to reduce the risk of additional delays. A recent case illustrates how one plaintiff’s failure to name the correct defendant ended up delaying the case for months, possibly years.

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Carbon monoxide is a colorless and odorless gas that is emitted through chemical reactions that occur during the operation of certain machinery. For example, carbon monoxide is a byproduct that is emitted when running cars and trucks, gas ranges, furnaces, grills, stoves, and lanterns. Most homes and business contain at least one appliance that emits carbon monoxide.

Indoor PoolCarbon monoxide is toxic to humans, and if present in sufficient amounts, it can result in death. Carbon monoxide tends to build up in areas without sufficient ventilation. The side effects of carbon monoxide poisoning are headaches, dizziness, stomach aches, fatigue, weakness, and confusion. Often, those suffering from carbon monoxide poisoning feel as though they are intoxicated and want to go to sleep.

Carbon monoxide is responsible for more than 20,000 emergency room visits each year and an additional 400 deaths. The young and the elderly are most at risk for carbon monoxide poisoning, but all ages are at risk. While the gas is very dangerous, carbon monoxide detectors are very effective at detecting abnormally high levels of the gas in the air, and they can alert guests and residents that they need to evacuate when carbon monoxide levels get dangerously high. However, not all states require homes and businesses to install carbon monoxide detectors.

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Earlier this month, a Vermont appellate court issued a written opinion in a wrongful death by medical malpractice case, involving allegations that a doctor was negligent in prescribing multiple doses of opioid medications to a patient who later died from ingesting a lethal combination of prescription and non-prescription medication. However, the court did not reach the issue of whether the doctor was negligent because the plaintiff failed to file the required certificate of merit in a timely fashion. As a result of the plaintiff’s failure to file the certificate of merit, the case was dismissed.

Blister PacksThe Facts of the Case

The plaintiff was the surviving loved one of a woman who had died after she ingested a lethal combination of prescription and non-prescription medication. The prescription medication that the woman had taken was prescribed to her by the defendant physician. After learning about her loved one’s cause of death, the plaintiff filed this wrongful death lawsuit against the prescribing physician.

The case was filed three days before the statute of limitations was set to expire. However, when the plaintiff filed her case, she did not attach a certificate of merit, which is a document certified by another doctor or medical expert stating that, in the expert’s opinion, the plaintiff’s case has merit.

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Earlier this month, an appellate court in Georgia issued a written opinion in a medical malpractice lawsuit, affirming the dismissal of the plaintiff’s claims based on the plaintiff’s failure to establish that the defendants’ allegedly negligent actions caused the plaintiff’s injuries. Specifically, the court held that since the medical experts called by the plaintiff could not testify to a reasonable degree of medical certainty, their opinion failed to establish causation.

Operating RoomThe Facts of the Case

The defendant was scheduled to have a robotic-assisted laparoscopic prostatectomy (RALP), which was to be performed by the defendants. On the day of the surgery, the plaintiff was positioned with his hands placed behind his back. During the surgery, none of the defendants repositioned the plaintiff’s body, and the surgery was completed after about 9.5 hours.

After the surgery, the plaintiff complained of pain in both of his shoulders and arms. He was later diagnosed with compartment syndrome in his right arm. A subsequent surgery was performed to relieve the pressure, but the plaintiff never regained the full use of his right arm.

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Earlier this month, an appellate court in Georgia issued a written opinion in a premises liability case that was brought by a woman who slipped and fell on a “corn hole” game board as she was talking to a sales associate in a car dealership’s showroom. The court ultimately determined that because the evidence presented showed the plaintiff had successfully negotiated her way around the board several time before, and because it was open and obvious, the defendant was entitled to summary judgment.

Banana PeelThe Facts of the Case

The plaintiff went with a friend to the defendant’s car dealership to look at the selection of available pick-up trucks. Upon arrival, the plaintiff saw a sales associate in an office across the show room. She crossed the show room, passing a four-foot-long board that was part of a corn hole game. The plaintiff and her friend spoke to the associate, and then made their way out into the lot. A short time later the two came back into the show room and went back to the sales associate’s office, again making their way past the corn hole board.

The plaintiff and her friend had a brief conversation with the associate before leaving his office. On her way out of the associate’s office, he stopped her to ask her a question. She briefly responded and then continued her exit. However, as she did, she tripped and fell on the board, injuring her knee. The plaintiff then filed a premises liability lawsuit against the car dealership, claiming that it was negligent in the placement of the game board.

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Earlier this month, an appellate court in Oklahoma issued a written opinion in a car accident case brought by a passenger who was involved in an accident against the driver’s insurance company. Specifically, the court had to determine if the lower court was proper in granting the defendant’s motions for summary judgment based on the fact that it did not act in bad faith when it questioned the reasonableness of the medical care the plaintiff received.

PaperworkThe Facts of the Case

The plaintiff was injured in a car accident while a passenger in her mother’s car. According to the facts as described in the appellate opinion, a driver ran through a stop sign and struck the plaintiff’s mother’s vehicle. After the accident, the plaintiff was taken to the hospital. She was initially taken to the emergency room, and then was transferred to the “L2 trauma center.” She was discharged four hours later with a cervical collar, but was not provided a prescription for pain medication. The plaintiff continued to receive outpatient treatment for her injuries.

The plaintiff later filed a claim under the uninsured/underinsured motorist provision of her mother’s insurance policy. She requested a total of roughly $67,000. Of that sum, $24,420 was incurred from the treatment that the plaintiff received at the L2 trauma center. The insurance company denied coverage for any charges arising from treatment in the L2 trauma center, claiming that such treatment was unnecessary. In support of its position, the insurance company consulted with an expert who stated that the plaintiff did not need to be transferred to the L2 trauma center.

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All personal injury plaintiffs must follow strict procedural rules when filing their case. However, medical malpractice cases in particular are subject to a different set of rules that, if ignored, may result in the early dismissal of an otherwise meritorious case. For example, medical malpractice cases in Maryland must be accompanied by a “Certificate of Merit.” A certificate of merit is a document filled out by a medical professional in the field of the alleged negligence, stating that there is a valid basis for the plaintiff’s case.

Exam RoomIn addition, Maryland medical malpractice cases are required to be brought with a certain period of time. In most cases, this is within three years of the alleged act of negligence. However, if a patient does not discover their injury until a later date, the patient has up to five years to file their case. In any event, the procedural rules in Maryland medical malpractice cases can be burdensome for plaintiffs and may even result in the dismissal of cases.

Doctors and hospitals are aware of these strict rules, and they may try to characterize any case even tangentially involving a doctor or hospital as a medical malpractice case in hopes of creating additional difficulties for the plaintiff. A recent case illustrates how a slip-and-fall accident was characterized as a medical malpractice case by a state appellate court.

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In a recent case before a state appellate court, a plaintiff’s premises liability claim against a fast-food restaurant manager was dismissed based on the plaintiff’s failure to present sufficient evidence that the manager’s negligence resulted in her injuries. In rejecting the plaintiff’s claims, the court explained that a plaintiff must present evidence more than “mere speculation” as to how her injury occurred.

Water on FloorThe Facts of the Case

The plaintiff slipped and fell as she was entering a fast-food restaurant managed by the defendant. According to the court’s recitation of the facts, the restaurant’s entrance consists of a set of double doors. On her way into the restaurant, the plaintiff made it through the first set of doors without a problem, but she was unable to open the second set of doors. She testified that she was shaking the door, trying to get it to open, when she fell.

After her fall, she noticed that the ground around her was damp and that a rug in the foyer area where she fell was wet. However, when asked, she could not remember exactly what happened in the moments before her fall. Specifically, she stated that “it just happened so fast . . . I just remember pushing on the door, and the next thing I remember is just sitting there.”

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