Maryland Accident Law Blog

Court Finds Deceased Skateboarder Assumed the Risk of Injury, Preventing Family from Seeking Compensation

June 15, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in California issued an opinion in a case brought by the father of a boy who died after he sustained a traumatic brain injury when he fell off his skateboard after hitting a lip around a manhole cover. In the case, Bertsch v. Mammoth Community Water District, the court held that the doctrine of “assumption of the risk” prevented the boy’s father from successfully seeking compensation for his loss.

The Facts of the Case

The plaintiff took his two boys on a trip to Mammoth County to enjoy a friend’s condo for a few days. While there, the plaintiff’s sons were out skateboarding around the neighborhood before they were going to meet back up and all go rock climbing. The boys were not performing any tricks, but they did push themselves up a hill so that they could enjoy the long, fast ride down to meet their dad.

Tragically, on the way down the hill, one of the boys’ skateboards hit a lip surrounding a manhole cover, causing the skateboard to come to a complete stop. The young boy flew off the board, striking his head on the pavement as he landed. He suffered a traumatic brain injury and shortly afterward passed away.

Court Finds Park Not Liable for Injuries Caused by Broken Handrail

June 8, 2016 | Lebowitz & Mzhen

Earlier this month, a West Virginia court issued a written opinion in a premises liability case that arose when the plaintiff was injured after the handrail he leaned against broke, causing the man to fall down a hill. The decision in the case, Wheeling Park Commission v. Dattoli, reversed a lower court’s judgment in favor of the plaintiff and held that the lower court should have granted the defendant’s motion for a directed verdict.

The Facts of the Case

The Dattolis were attending an event at Wheeling Park. Due to the popularity of the event, there was no seating available, and the Dattolis opted to stand. Mr. Dattoli quickly inspected a nearby handrail before leaning up against it, but as he did, the handrail snapped. Mr. Dattoli fell past the rail and down a hill, injuring his shoulder as a result. He filed a negligence lawsuit against the park, claiming that the park was responsible for his injuries because it was the park’s duty to keep safe premises, including the handrail.

At trial, the Dattolis called the Director of Operations for the park, who testified that the fence was installed between 1970 and 1990, that there were no maintenance records for the fence, that the fence had a life expectancy, and that the park’s management was in a better place to ensure that the handrail was in good condition than was a guest. The Park called no witnesses but asked the court to enter a directed verdict in its favor, arguing that the Dattolis failed to show evidence that the Park was negligent.

Court Finds Post-Mortem Misconduct Falls under Medical Malpractice Umbrella and Must Comply with Applicable Procedural Requirements

June 1, 2016 | Lebowitz & Mzhen

Earlier this month, the Texas Supreme Court issued a written opinion broadly interpreting what constitutes a medical malpractice claim, holding that a hospital’s alleged fraud in obtaining consent to perform a private autopsy was subject to the additional procedural requirements of a medical malpractice action. In the case, Christus Health Gulf Coast v. Carswell, the court dismissed the plaintiffs’ claim because it was filed after the applicable two-year statute of limitations for medical malpractice lawsuits.

The Facts of the Case

The Carswells alleged that the defendant nursing home was negligent in the care it provided to their loved one, which ultimately led to his untimely death in 2004. These claims were filed about a year after the death of their loved one, in compliance with the state’s medical malpractice statute.

In addition, the family claimed that the nursing facility fraudulently obtained the family’s consent to conduct a private autopsy so that the facility could determine their loved one’s cause of death. However, these claims were only raised in the family’s third amended complaint, which was filed nearly three years after the death of their loved one.

Joan Rivers’ Family Reaches Confidential Settlement with Doctors and Medical Clinic

May 23, 2016 | Lebowitz & Mzhen

Back in 2014, actress and comedienne Joan Rivers died while undergoing a routine medical procedure in a New York clinic. The 81-year-old was suffering from some minor symptoms when she visited the defendant clinic for what was supposed to be a quick procedure. According to a recent New York Times article, the family of Rivers accepted a confidential settlement offer, and, as a result, the case against the doctors allegedly responsible for Rivers’ death will not go to trial.

A Routine Endoscopy Gone Wrong

Back in August 2014, Rivers visited Yorkville Endoscopy, complaining of a hoarse voice and a sore throat. The medical staff on duty suggested Rivers undergo a laryngoscopy and an endoscopy so that doctors could see what was causing her discomfort.

During the procedure, several doctors were present. One doctor in particular was concerned that Rivers’ vocal cords were extremely swollen and alerted senior doctors of her observation. Other doctors dismissed this doctor as “paranoid” and continued with the procedure. Fearful that she might be blamed for anything that went wrong during the procedure, that doctor then began taking copious notes that were later passed to the plaintiffs during the discovery phase of the case.

Court Reads Insurance Policy to Limit Total Recovery in Accident Involving Underinsured Motorist

May 16, 2016 | Lebowitz & Mzhen

Earlier this year, a federal court of appeals issued a written opinion interpreting the language of a contested insurance policy in favor of the insurance company, thus limiting the total amount of recovery among the three injured parties to $500,000. In the case, Trotter v. Harleysville Insurance Company, the court determined that the insurance company that carried an underinsured motorist policy for one of the victims involved in the accident was not required to pay out on the claim, since the at-fault party’s insurance policy provided the same limit.

The Facts of the Case

This case involves a single accident between two vehicles. Powers was the at-fault party, and he had an insurance policy that covered damages up to $250,000 per person or $500,000 per accident. The driver of the other car, Trotter, as well as his two passengers, Jackson and Petrie, were all injured as a result of the accident. All the injured parties filed claims against Powers’ insurance company.

The injured parties all entered into a settlement agreement with Powers’ insurance company, whereby Trotter would receive $250,000, Jackson would receive $238,000, and Petrie would receive $12,000. However, after the settlement, the parties asserted that the recovered sum failed to make them whole. So they filed a claim under Trotter’s insurance company, the defendant in the case.

Doctors Must Obtain Informed Consent Before Performing Any Operation or Procedure

May 9, 2016 | Lebowitz & Mzhen

Doctors hold a very trusted position in society. In part, this is because they have tremendous power to cure diseases and ailments through a variety of means, one of which is surgery. However, surgery also presents a significant amount of risk in many situations. And before a doctor can perform any kind of surgery, operation, or procedure on a patient, that doctor needs to obtain informed consent from the patient after explaining to the patient all the risks involved with having the procedure done. If informed consent is not obtained by a doctor, and a procedure does not cure the patient’s condition or makes it worse, the doctor may be liable under a theory of medical malpractice, specifically medical battery.

One Recent Example of a Medical Battery Claim

Earlier this month, a Hawaii appellate court issued an opinion allowing a plaintiff’s medical battery case to proceed against a defendant surgeon on the basis of the surgeon’s failure to obtain informed consent to perform the surgery. In the case, Garcia v. Robinson, the plaintiff underwent a back surgery at the advice of the defendant surgeon. However, the surgery did not go as planned.

According to the court’s written opinion, the plaintiff had suffered a back injury at work and was seeking treatment. He consulted with the defendant doctor, who, according to the plaintiff, told him that if he elected to have a specific surgery he would no longer experience pain in his back and would be “up and dancing” within three days. The doctor denied telling the plaintiff that he would be pain-free after the surgery, explaining that such an assessment would be preposterous, since back surgery is some of the most painful surgery to undergo. The surgeon also presented the court with a form he claimed to have provided to the plaintiff, explaining that the surgery may not be successful and that it could actually worsen his condition.

City Admits Liability in Bus Accident but Contests Damages

May 2, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Nebraska issued an opinion in a case arising out of a bus accident in which the city government named as the defendant admitted liability but argued that the damages ordered by the court were too high. In the case, Moreno v. City of Gering, the appellate court ultimately determined that the lower court was correct in its ruling, and it affirmed the verdict in favor of the plaintiff.

The Facts of the Case

The plaintiff, Moreno, was injured in an accident involving a county-owned bus and a city-owned fire truck. Evidently, Moreno was riding on the bus when it was struck by a fire truck being operated by a volunteer fire-fighter. As a result of the collision, Moreno, who had a pre-existing medical condition affecting her back, suffered serious injuries. A few months after the accident, she had a cervical fusion surgery performed.

At the trial, the city and county admitted that they were each liable to Moreno, but they argued that the surgery was not necessary. To support their claim, they pointed to recent news articles that the doctor who had recently performed the surgery performed a record number of similar surgeries. The defendants presented a medical expert who testified that the surgery was unnecessary given Moreno’s injuries, and that the surgeon who performed it was “a criminal.” There was also evidence presented that the surgeon had been suspended due to the number of medical malpractice cases brought against him.

Personal Injury Plaintiff’s Case against Government Dismissed for Failure to Comply with Tort Claims Act Requirements

April 22, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Maine issued a written opinion in a case filed by a man against a local government, alleging negligence for failing to maintain a safe property near the city hall. In the case, Deschenes v. City of Sanford, the court ultimately dismissed the case because the plaintiff failed to comply with the state’s Tort Claims Act. Specifically, the plaintiff failed to provide written notice to the city within 180 days of his injury.

The Facts of the Case

The plaintiff, Deschenes, was injured when he slipped and fell down the steps at the city hall after he went to obtain a copy of his daughter’s birth certificate. According to Deschenes, he tripped on a piece of tread that was uneven, fell to the bottom of the stairs, and then slid into some nearby glass doors.

After his injury, he contacted the nearest city employee, who provided some basic first-aid until emergency medical responders arrived. Once they arrived, Deschenes was transported to the hospital. It was determined that he has suffered some “abrasions.”

Maryland Court Allows Lead-Based Paint Lawsuit to Proceed on Circumstantial Evidence of Causation

April 15, 2016 | Lebowitz & Mzhen

Earlier this month, the Maryland Court of Appeals issued a written decision in a case brought by a woman who claimed that she suffered exposure to lead while living in the defendant’s property over 20 years ago. Since the plaintiff moved out of the defendant’s property, it had been torn down. Moreover, there was no testing completed prior to the building’s demolition to determine if there was a presence of lead in the building. The main issue in the case was whether the plaintiff submitted sufficient evidence to survive the pre-trial motion for summary judgment filed by the defendant.

The Evidence Submitted to the Court

The plaintiff acknowledged from the outset that there would be no direct evidence proving that the defendant’s property contained lead. Instead, the plaintiff proceeded with circumstantial evidence in the form of expert testimony. The plaintiff’s experts reviewed the plaintiff’s medical records, as well as a sworn statement from the plaintiff averring that she had not come into contact with alternative sources of lead, and came to the conclusion that it was “more likely than not” that the defendant’s property did contain lead and that living in that property was the cause of the plaintiff’s current lead poisoning.

The defendant also presented expert testimony to the court. The defense experts opined that there was no way to tell whether the defendant’s property contained lead, and even if it did, if such exposure was the cause of the plaintiff’s current condition. The defense argued that, in the absence of any direct evidence of causation, the case should be dismissed.

Premises Liability Cases and the “Recreational Use” Exception

April 8, 2016 | Lebowitz & Mzhen

Whenever a landowner invites others onto their land, the landowner assumes a duty of care to that person. Most commonly, this duty requires that the landowner take reasonable precautions to ensure that there are no dangerous conditions on their property that could result in injury to their guest. However, as is the case with most laws, there are exceptions when a landowner may be absolved from responsibility when someone injures themselves on the landowner’s property.

The Recreational Use Statute in Maryland

Maryland, like many other states, wants to encourage landowners to open their land for the general public to use and enjoy. In order to encourage this, the law grants landowners immunity from some lawsuits that may arise when someone comes onto their land and hurts themselves.

Generally speaking, the land must be open for free use by any member of the general public in order for the recreational use statute to apply. If it does not apply, the landowner may be held liable for injuries that occur on his or her land, even if the landowner was not aware of the condition himself.