Maryland Accident Law Blog

Birth Injury Plaintiff’s Failure to Timely Serve Defendant Nearly Results in Dismissal

February 22, 2016 | Lebowitz & Mzhen

Earlier this month, one state’s supreme court issued a written opinion in a birth injury case that had been dismissed by the lower court because the plaintiff failed to serve the defendant with notice of the lawsuit in a timely manner. In the case, Collins v. Westbrook, the plaintiff was a mother suing the defendant doctor for the wrongful death of her still-born daughter. The court ultimately held that, although the defendant was never served, the plaintiff showed “good cause” justifying the failure, and the case should not be dismissed on that basis.

The Facts of the Case

The defendant was the plaintiff’s treating physician during her pregnancy, which resulted in a still birth. The plaintiff then filed suit against the defendant doctor, alleging that his negligence was the cause of her child’s still birth. As is required by the rules of procedure, the plaintiff set out to serve the defendant with notice of the lawsuit. The applicable rule requires notice to be provided within 120 days.

The plaintiff’s attorney charged his assistant with serving the defendant. However, shortly before the 120 days had elapsed, her attorney realized that the assistant had not effectuated service due to “great personal problems.” The attorney then hired a professional process server to track down and serve the defendant.

Medical Malpractice Case Dismissed for Failure to Comply with Medical Expert Requirements

February 15, 2016 | Lebowitz & Mzhen

Earlier this month, a state supreme court issued an opinion in a medical malpractice case, preventing a plaintiff’s case from moving forward based on the plaintiff’s failure to comply with the state’s medical expert requirement in medical malpractice lawsuits. In the case, Easterling v. Kendall, the court did not allow or consider the plaintiff’s medical expert’s testimony because it was not properly disclosed during pre-trial discovery.

The Facts of the Case

The plaintiff was a young girl who suffered a fall at a local YMCA. When emergency personnel arrived, she was vomiting, had numbness in her left arm, and suffered from a severe headache. She was taken to the hospital, where the defendant doctor determined that the girl had hit her head and that she had suffered a concussion. He provided her with anti-nausea medication and sent her home.

The next day, the girl was re-admitted to the hospital. She complained of a severe headache and uncontrollable twitching. The radiologist on duty performed an MRI and discovered that the girl had actually suffered from a dissection of the right internal carotid artery, rather than a concussion. The attending physician determined that the girl had suffered a stroke in the past six hours. She was transferred to a more specialized hospital, where she remained in the hospital for almost a month. The girl, through her parents, sued the treating physician, arguing that had the physician properly diagnosed the girl with a dissection of the right internal carotid artery in the first place, she would not have suffered the permanent neurological damage she did.

Appellate Court Determines Dog Attack Plaintiff’s Case Should Go Forward, Despite No Allegations of Physical Contact

February 8, 2016 | Lebowitz & Mzhen

Earlier last month, an appellate court in Nebraska heard an interesting personal injury case in which the plaintiff was injured by her own reaction to a dog’s aggressive approach, rather than any injury sustained by physical contact with the dog itself. In the case, Grammer v. Lucking, the plaintiff sustained injuries to her arm and elbow after she tripped and fell as she was backing away from an approaching dog owned by the defendant.

The Facts of the Case

The plaintiff and her husband were on a walk when, as they approached the defendant’s home, the couple attracted the attention of two of the defendant’s dogs. One of the dogs was on a chain and was unable to get close to the couple, but the other dog was free and was able to run up to the couple. As the dog approached the plaintiff, she stepped back and lost her footing, falling to the ground. She sustained injuries as a result of the fall and filed a lawsuit against the dogs’ owner.

At trial, the court granted summary judgment for the defendant, noting that the dog did not “chase” or “injure” the plaintiff, as is required by state statute.

Maryland Court Allows Plaintiff to Recover Compensation After Accident with Police but Limits Damages Under Tort Claims Act

February 1, 2016 | Lebowitz & Mzhen

Earlier last month, a Maryland appellate court heard a case that was brought by the family of a man who was killed in a motorcycle accident involving a police officer. In the case of Beall v. Holloway-Johnson, the plaintiff who was the personal representative of a man who was killed when a police cruiser struck his motorcycle sought compensatory and punitive damages from the officer for his negligence.

Beall v. Holloway-Johnson: The Facts of the Case

According to the court’s written opinion, the deceased was involved in a fatal motorcycle accident when the defendant, an on-duty police officer, struck the deceased’s motorcycle with his police cruiser. Evidently, the police officer had previously received a radio call about a motorcycle and a Mercedes chasing each other.

The officer arrived in the vicinity and saw a motorcycle. Uncertain if this was the same motorcycle, he followed the motorcyclist. At some point, the motorcyclist sped up, and the officer followed. During the pursuit, the officer’s commanding officer told the officer to cease the pursuit. However, the officer continued to purse the motorcycle. Eventually, the motorcyclist exited the highway and began to slow down in order to do so. As the rider slowed down, the officer collided with the back of the bike, knocking the rider off and killing him instantly.

Court Dismisses Accident Victim’s Lawsuit Against University Based on “Absolute Immunity”

January 25, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court affirmed the dismissal of a plaintiff’s case against the University of California Santa Cruz based on the university’s absolute immunity in building and maintaining a bike path. In the case, Burgueno v. The Regents of the University of California, the court determined that a bike path used by students to get to school was a “trail” designed for recreational use, and therefore the university was entitled to immunity from lawsuits arising on the trail under state law.

Burgueno v. The Regents of the University of California: The Facts of the Case

The accident giving rise to the case occurred on the Great Meadow Bikeway, which is a bicycle-only path that runs through the university’s campus. On the day of the accident, the plaintiff, a full-time student at the university who lived in off-campus housing, was riding his bike on the Great Meadow Bikeway when he was fatally injured in a bicycle accident that occurred on a downhill portion of the trail. As a result, his family filed a wrongful death lawsuit against the university, alleging that the dangerous condition of the Bikeway resulted in the student’s death.

In a pre-trial motion, the university sought to dismiss the lawsuit based on governmental immunity. Government entities cannot always be held liable for injuries occurring on government land, and recreational use statutes grant immunity to governments when the land at issue is open for general recreation purposes. However, this would not apply if the bikeway’s main purpose was for transportation and not recreation. Thus, the issue in this case was whether the Great Meadow Bikeway was a “trail” under the recreational use statute, or whether its primary function was to transport people to and from campus.

Court Upholds “Release of Liability” Form in Whitewater Rafting Accident

January 18, 2016 | Lebowitz & Mzhen

Earlier this month, the Tenth Circuit Court of Appeals decided a case involving a wrongful death claim brought against a whitewater rafting tour company, alleging that the company’s negligence resulted in the death of the individual. Ultimately, however, the court affirmed the lower court’s dismissal of the claims based on a valid “release of liability” form signed by the deceased prior to embarking.

Espinoza v. Arkansas Valley Adventures: The Facts of the Case

The deceased contracted with the defendant tour guide company to take her and a group of family members on a whitewater rafting excursion down the Arkansas River in Colorado. The trip began as most do, with the proper preparation and planning. However, when the rafters approached a notorious rapid known as “Seidel’s Suck Hole,” the raft capsized.

Everyone aboard the raft was thrown into the water. Shortly afterward, everyone on the trip was retrieved by staff members of the defendant except the deceased. Tragically, she drowned before anyone could get to her. Her son brought a wrongful death action against the rafting company, claiming negligence per se and fraud.

Court Finds Government Immune to Design Defect Case Arising from Allegedly Dangerous Roadways

January 11, 2016 | Lebowitz & Mzhen

Earlier last month, a California court heard a case against the County of San Diego brought by an accident victim who was injured when he was struck by another motorist on a roadway he claimed was poorly designed. In the case, Hampton v. County of San Diego, the court ultimately determined that the government’s sovereign immunity was not waived, and as a result it was immune from the lawsuit.

Hampton v. County of San Diego: The Facts of the Case

The plaintiff was a man who was seriously injured when he was involved in a collision with another motorist on a rural intersection. The man filed suit against the other driver in an unrelated case, in which he admitted he could not remember if he stopped at the stop sign prior to entering the intersection. The other driver testified in that case that the plaintiff pulled out “right in front of him, leaving too little time to stop before the collision.” The Highway Patrol conducted an investigation and determined that the accident was caused by the plaintiff’s failure to stop at the stop sign.

After that lawsuit, the plaintiff filed this case against the County, claiming that it designed and maintained a dangerous roadway. Essentially, the plaintiff claimed that the design and construction of the road provided inadequate visibility of oncoming traffic due to a high embankment that was covered with vegetation.

Court Holds Hospital Slip-and-Fall Accident Does Not Trigger Medical Malpractice Requirements

January 4, 2016 | Lebowitz & Mzhen

Earlier last month, one state supreme court handed down an opinion distinguishing accidents that occur at a hospital but do not involve a breach of a professional medical duty from actions brought under a theory of medical malpractice. In the case, Galvan v. Memorial Hermann Hospital System, the plaintiff was a woman who was injured when she slipped and fell while visiting a loved one in the defendant’s hospital.

According to the court’s written opinion, the plaintiff was walking from the hospital’s pharmacy to her loved one’s room when she slipped and fell after stepping in a puddle of water that had formed outside the door to a restroom. The plaintiff filed suit against the hospital under a premises liability theory.

The Pre-Trial Motion for Summary Judgment

The hospital claimed that, since the injury occurred at a hospital, the heightened requirements of a medical malpractice lawsuit applied. Specifically, the plaintiff in this case did not submit an expert’s affidavit supporting her position. Thus, in a pre-trial motion, the hospital asked the court to dismiss the lawsuit because the plaintiff failed to comply with a necessary procedural requirement that applies to all medical malpractice lawsuits.

Insurance Company Escapes Liability for Non-Covered Driver

December 22, 2015 | Lebowitz & Mzhen

Earlier this month, a California appellate court issued an opinion in a case between accident victims and the insurance company of the at-fault driver. In the case, Nationwide National Insurance Company v. Shimon, the at-fault party’s insurance company was determined not to be liable for the injuries sustained by the accident victims because the policy did not cover “non-owed” automobiles that were “furnished or available” for the driver’s regular use.

The Facts of the Case

The Shinons (“the Plaintiffs”) were injured as a result of the negligence of a 17-year-old girl, Lionudakis. At the time of the accident, Lionudakis was driving a GMC that was owned by and registered to her father. However, to save money, her father did not list her on the insurance policy.

Lionudakis’ mother, who was separated from Lionudakis’ father, maintained a separate insurance policy that covered her own vehicles, but not the GMC. The policy did, however, cover family members’ use of “non-owned” vehicles, as long as they were not furnished for the family members’ regular use. This restriction was contained in the insurance agreement.

How to Tell Whether You Have Been the Victim of Medical Malpractice

December 15, 2015 | Lebowitz & Mzhen

Doctors, nurses, and other medical professionals are charged with the venerable duty to keep their patients healthy to the best of their ability. Of course, sometimes there is nothing that a medical professional can do to prevent illness or death, since it is the inevitable course of the human existence. However, sometimes the treatment that a medical professional provides raises questions, such as did the doctor do everything he could to diagnose the condition in time for effective treatment? Or was the patient adequately informed of the risks of the procedure prior to agreeing to go through with it?

In these cases, there may be a viable medical malpractice action against the medical professional. However, it is well known that these cases are complex and often involve expert testimony. For that reason, it is best to get an experienced medical malpractice attorney involved early in the process, preferably as soon as the patient notices that there may be something wrong.

A successful medical malpractice case requires, among other things, that the patient prove that the care provided by the medical professional fell below the accepted professional standards in the industry. Often, this is where the bulk of litigation occurs.