Maryland Accident Law Blog

Weather Report Used By Appellate Judge in Premises Liability Case

May 7, 2014 | Lebowitz & Mzhen

In an interesting case out of New York State, an appellate judge reversed a lower court ruling that found against a slip-and-fall accident victim. The case was brought by Mr. Palazzo after he slipped and fell on some ice outside the defendant’s residence.

According to court documents, Mr. Palazzo was walking down the sidewalk outside the defendant’s residence at approximately 11:15 a.m. on December 15th when he slipped and fell. He testified that he noticed that the sidewalk was went and icy in some parts, but he didn’t notice any specific patches of ice. After he fell, he sued the property owner to cover his medical bills and his pain and suffering.

At Trial

The judge presiding over the trial made note of the fact that Mr. Palazzo didn’t see any specific patch of ice. The judge also looked at weather reports on the day of the accident that indicated that there was warm temperatures in the morning of the accident, and that it was unlikely that there was actually any snow or ice on the sidewalk. The most recent storm was on December 10th, when it snowed five inches.

Opera Singer Sues Over Career-Ending Injury Allegedly Sustained During Childbirth

April 29, 2014 | Lebowitz & Mzhen

An opera singer has filed suit against the U.S. government, alleging medical malpractice at a U.S. Army hospital. Herbst v. United States, No. 1:14-cv-00055, complaint (S.D. Oh., Jan. 16, 2014). She is claiming that a botched surgical procedure during childbirth has left her unable to work in her profession. Since the hospital is operated by the U.S. government, and the medical professionals working there were all government employees at the time, the lawsuit claims that the federal government is liable under the Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 2671, et seq. The doctrine of sovereign immunity generally bars lawsuits against the government, but statutes like the FTCA establish situations in which the government may be sued for injuries.

The plaintiff is a classically-trained opera singer, who was previously with the Nashville Opera Company. Her husband is a Staff Sergeant in the U.S. Army at Fort Campbell, Kentucky. She went to Blanchfield Army Community Hospital (BACH) at Fort Campbell, where she and her husband resided, on February 27, 2012. She was thirty-nine weeks pregnant at the time, and had experienced spontaneous rupture of membranes. This is commonly known as having one’s water break, meaning that labor has started.

She gave birth to a healthy baby boy. During delivery, a certified nurse-midwife (CNM) reportedly performed a midline episiotomy, a procedure that widens the vaginal opening by making an incision in the perineum. The plaintiff states that she did not consent to this procedure, nor was she told about the possible need for it. Risks associated with an episiotomy include further tearing during or after birth.

Investigation Finds Abuse, Neglect of Special-Needs Children in Nursing Homes

April 21, 2014 | Lebowitz & Mzhen

A federal investigation of nursing homes caring for children with disabilities led to a lawsuit against the Florida state government, with the U.S. Department of Justice (DOJ) alleging that the state’s social services department is violating the Americans with Disabilities Act (ADA). United States v. Florida, No. 0:13-cv-61576, complaint (S.D. Fla., Jul. 22, 2013). The DOJ alleges that almost two hundred children, who could be receiving home- or community-based care, are receiving unnecessary treatment in nursing facilities, and that the care is often inadequate to the children’s needs. The case was consolidated in December 2013 with a private putative class action lawsuit against the state, A.R., et al v. Dudek, et al, No. 0:12-cv-60460, which raises similar claims.

Title II of the ADA prohibits state and local governments from discriminating on the basis of disability. The U.S. Supreme Court has ruled that states must make reasonable efforts to eliminate or prevent unnecessary segregation of disabled individuals in institutions. Olmstead v. L.C., 527 U.S. 581 (1999). The DOJ’s Civil Rights Division (CRD) has been rather aggressive in enforcing the ADA as interpreted in Olmstead in recent years. Since 2009, the DOJ has filed lawsuits against at least eleven states regarding alleged discrimination and neglect of disabled individuals, and it has intervened in numerous private lawsuits.

The Civil Rights Division began investigating Florida’s system for treating disabled children with “medically fragile” conditions in 2011. In a letter to the Florida Attorney General dated September 4, 2012, it reported its findings that the state was in violation of Title II of the ADA. Investigators reportedly visited the six nursing homes that house the majority of Florida’s disabled, institutionalized children. They found that many children who were residing in a nursing home would benefit more if they received care at home or in their own community. Many families stated that they wanted to bring their children home, but that state policies made it difficult or impossible to do so.

Maryland Legislature Overturns Court Ruling Regarding Pit Bulls, Applies Same Standard of Liability to All Dog Owners Regardless of Breed

April 14, 2014 | Lebowitz & Mzhen

Maryland Governor Martin O’Malley signed a bill into law that overturns a controversial 2012 Maryland Court of Appeals decision regarding pit bull-type dogs. In Tracey v. Solesky, 50 A.3d 1075 (Md. App. 2012), the court modified the standard of negligence applied to attacks by pit bulls against humans, applying strict liability to dog owners and landlords who allow the dogs on premises they own or control. The decision met with substantial criticism from animal welfare advocates, landlords and other property owners, and many others. In addition to causing multiple evictions and surrenders of dogs to animal shelters, the decision may have made it more difficult for people to assert claims for damages by dogs that were not pit bulls. The new law applies the same standard of liability to all dog owners, regardless of the dog’s breed.

The Solesky case involved injuries to a young boy by a dog named Clifford. The boy required five hours of surgery and spent seventeen days in the hospital. His family sued the dog’s owner and the landlord, claiming that the landlord knew or had reason to know of the dog’s dangerous tendencies. The landlord presented several questions to the Court of Appeals, including whether harboring American Staffordshire Terriers, or “pit bulls,” is an “inherently dangerous activity” that would support the common law strict liability standard for a landlord. Id. at 1078.

The court ruled that “pit bulls” are “aggressive and vicious” by nature and expressly modified the common law negligence rule to hold landlords strictly liable for injuries caused by such dogs. Id. at 1079-80. A strict liability standard would apply if the plaintiff could prove that the landlord knew of the presence of a pit bull or cross-breed pit bull. A dissenting opinion by Judge Clayton Greene, Jr. noted the lack of expert opinion regarding pit bull temperament. It also noted the lack of a clear definition of “pit bull,” and the opinion of many experts that the term is “a generic category encompassing the American Staffordshire Bull Terrier, the Staffordshire Bull Terrier, and the American Pit Bull Terrier.” Id. at 1096. See also Weigel v. Maryland, 950 F.Supp.2d 811, 822 (D. Md. 2013).

Several Thousand Lawsuits Still Pending Against Manufacturer of Oral Contraceptive Yaz

April 7, 2014 | Lebowitz & Mzhen

The Judicial Panel on Multidistrict Litigation (JPML) began consolidating claims against Bayer and other pharmaceutical companies related to the oral contraceptive Yaz in 2009. Since then, the multidistrict proceeding has grown to include more than 11,000 cases. In re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation, No. 3:09-md-02100 (S.D. Ill.). According to the JPML, 9,550 cases are still pending as of March 13, 2014, although Bayer has reportedly reached settlement agreements in many of those cases. Controversy over the drug began with claims about inaccurate information and insufficient warnings in television commercials for the drug, followed by products liability lawsuits.

Yaz and Yasmin were brand names for a synthetic hormone-based birth control medication containing a diuretic known as drospirenone,. It was approved by the U.S. Food and Drug Administration (FDA) for use as an oral contraceptive. Drospirenone has been associated with an increased risk of thromboembolism, a dangerous type of blood clot that blocks all blood flow in a vein or artery and can lead to heart attack or stroke.

Television ads for the drug in 2008 claimed that Yaz could treat mild acne and premenstrual dysphoric disorder (PMDD). The FDA and attorneys general in twenty-seven states required Bayer to run new ads beginning in early 2009, based on allegations that the company had overstated Yaz’s ability to treat acne and PMDD, and had understated the risks of the drug. In April 2012, the FDA ordered Bayer to change the label on Yaz and related medications to include warnings about the higher risk of blood clots associated with drugs containing drospirenone.

Cap on Noneconomic Damages Violates State Equal Protection Clause, According to Florida Supreme Court

March 26, 2014 | Lebowitz & Mzhen

Caps on noneconomic damages, enacted in many states under the banner of “tort reform,” have brought uncertain results. While the stated purpose is to prevent litigation from driving up the cost of medical care, damage caps often lead in practice to injustice for victims of medical malpractice. A family in Florida challenged that state’s damage cap statute in federal court on constitutional grounds, after a court cut their judgment in half. The Eleventh Circuit Court of Appeals found no violation of the U.S. Constitution, but it asked the Florida Supreme Court to rule on the state constitution’s Equal Protection Clause. After nearly two years of review, the Florida court ruled that the state’s damage cap violates equal protection, finding that it “bears no rational relationship” to the goal of alleviating a “medical malpractice insurance crisis.”

More than half of all U.S. states, including Maryland, have laws capping noneconomic damages in medical malpractice and other personal injury cases. “Noneconomic damages” refer to intangible injuries like pain and suffering, mental anguish, loss of consortium, and disfigurement. Under Maryland law, the amount of the cap in medical malpractice cases increases by $15,000 every January 1. In 2014, the amount is $740,000, or $925,000 in wrongful death cases with two or more beneficiaries. Florida’s cap, which does not increase year-to-year, is $500,000 for medical injuries and $1 million for wrongful death.

The lawsuit challenging the Florida statute involves a woman who died due to complications after giving birth via caesarean section in February 2006. The birth was performed by U.S. Air Force medical personnel at a private hospital. Her parents, individually and on behalf of her estate and her infant son, sued the U.S. government under the Federal Tort Claims Act. A district judge ruled for the plaintiffs after a bench trial, awarding them over $980,000 in economic damages and $2 million in noneconomic damages. The noneconomic damage award was reduced to $1 million because of the damage cap.

Family of Man with Down Syndrome Killed in Altercation with Off-Duty Police Files Amended Complaint in Wrongful Death, Survival Lawsuit

March 19, 2014 | Lebowitz & Mzhen

The family of a man who was killed in an altercation with off-duty sheriff’s deputies at a Maryland movie theater have filed an amended complaint in their wrongful death and survival lawsuit. Estate of Saylor, et al, v. Regal Cinemas, Inc., et al, No. 1:13-cv-03089, am. complaint (D. Md., Mar. 11, 2014). Several defendants moved to dismiss the lawsuit late last year, claiming that the lawsuit failed to state a claim on which the court could grant relief against them. The plaintiffs sought and received leave from the court to amend their complaint, dropping two defendants and adding the State of Maryland in March 2014.

The decedent, Robert Ethan Saylor, was twenty-six years old at the time of his death on January 12, 2013. He had Down Syndrome, with an I.Q. of 40 and physical features commonly associated with the condition. According to the amended complaint, he was about five-feet-six-inches tall and weighed 294 pounds. He went to a movie theater in Frederick on the evening of January 12 with an aide. After the movie, Saylor reportedly became angry when the aide asked if he wanted to go home. The aide called Saylor’s mother, who suggested she go get the car. She left Saylor outside the theater to get the car, which was permitted under his care plan, and when she returned found that he had gone back inside.

A manager approached the aide, and she explained Saylor’s condition, explained that he would “freak out” if touched, id. at 6, and recommended that no one speak to him. The manager then asked an off-duty sheriff’s deputy working as a security guard to remove Saylor. The guard called in two additional security guards, also off-duty deputies, to assist. When they attempted to physically remove Saylor, he resisted, and the guards used force against him. Saylor suffered a fractured larynx, and was pronounced dead at the hospital just before midnight. The medical examiner ruled it a homicide. The plaintiffs describe it as a “violent, terrifying, and painful death.” Id. at 7.

Hospital Failed to Provide Adequate Supervision of Patient, According to Wrongful Death Lawsuit Brought by Family

March 12, 2014 | Lebowitz & Mzhen

A Texas hospital failed to supervise a man known to have mental health problems, resulting in the man’s death, according to a lawsuit filed by the man’s family. Martinez, et al v. Oak Bend Medical Group, et al, No. 14-DCV-212068, 2nd am. pet. (Tex. Dist. Ct., Ft. Bend Co., March 3, 2014). The lack of supervision allowed the man, who had already left the hospital unnoticed once, to leave the hospital and walk to nearby train tracks, where he was struck and killed by a train. The lawsuit assert causes of action for negligence against the hospital and the rail company, as well as claims under the state’s wrongful death and survival statutes.

According to the plaintiff’s second amended petition, police found the decedent, Arturo Martinez, unconscious outside of his father’s house in Richmond, Texas on December 2, 2013. They took Martinez, who had a history of mental illness, to Oak Bend Medical Center for treatment. Hospital staff allegedly knew about Martinez’s mental health issues. The following day, Martinez left the hospital unnoticed, having removed his own IV and catheter. Emergency personnel found him later the same day and brought him back to the hospital. The petition claims that Oak Bend was supposed to assign staff and security personnel to supervise Martinez.

Despite the presence of security personnel, Martinez managed to leave the hospital unobserved again on December 6. He left the building and walked onto nearby train tracks. An oncoming train, which allegedly failed to yield or give any warning of its approach, struck Martinez. He was brought back to Oak Bend with blunt force trauma injuries. The hospital performed surgery, allegedly without first obtaining the family’s permission, but Martinez died later that day.

Prank Involving Portable Toilet Causes Paralysis, Leads to $5 Million Settlement

March 5, 2014 | Lebowitz & Mzhen

A prank involving a portable toilet led to tragic consequences when the victim of the prank suffered permanent paralysis. His lawsuit named the two pranksters as defendants, as well as the company that provided the portable toilet and its manufacturer. While the claims against the pranksters, who are the plaintiff’s cousins-in-law, are most likely based on general negligence theories, the claims against the portable toilet companies are based on products liability. The plaintiff claimed that the companies failed to provide equipment to secure the unit to the ground, and installed it in an unsafe location. These made it more likely for the toilet to tip over. The defendants recently agreed to settle the claim for $5 million.

The plaintiff was on a fishing and camping trip with his two relatives in the area of Sullivan County, Pennsylvania. While the plaintiff was using a portable toilet, his relatives backed their truck up to its door, intending to lock him in as a prank. However, they accidentally knocked the toilet over by bumping into it with the truck. The toilet tipped over, causing the plaintiff to fall on his head and fracture his cervical spine in several places. He underwent surgery at a hospital in Philadelphia and spent several weeks at a rehabilitation hospital, but is now paralyzed from the shoulders down.

The plaintiff and his wife sued the two cousins-in-law, the company that provided the portable toilet, and the portable toilet manufacturer. They claimed that the two companies were liable for several acts of negligence. The toilet was installed on a slope with only some pieces of wood to keep it upright, making it more prone to tipping over and unsafe for use. They claimed the manufacturer failed to provide metal spikes used to anchor the toilet in the ground, even though that model of toilet had holes in the base specifically for that purpose. The parties reached a settlement in early February 2014, in which the plaintiff will receive $5 million. It is not clear how that amount will be apportioned between the defendants.

Nationwide Recall of Strollers Cites Amputation Hazard

February 28, 2014 | Lebowitz & Mzhen

A company that manufactures strollers has issued a voluntary recall, according to the U.S. Consumer Product Safety Commission (CPSC), citing a risk of finger injuries. The company has received several reports of such injuries, including at least one partial amputation, due to consumers getting their fingers stuck in the stroller’s folding mechanism. The recall affects more than 200,000 units of several different stroller models. The company is offering a repair kit to consumers who have purchased recalled strollers.

The CPSC monitors reports of injuries caused by consumer products, as well as consumer products’ compliance with a range of federal safety standards. After a sufficient number of consumers report injuries caused by a product, a recall may occur. In the event of a voluntary recall by the manufacturer, distributor, or retailer of a dangerous or defective product, the CPSC may oversee the recall process. It also has the authority to order recalls on its own.

The stroller manufacturer, UK-based Britax, has received at least eight reports of injuries caused by three models of stroller. The stroller folds and unfolds, according to the CPSC’s description, using a folding mechanism with a release button and release strap. Consumers reported that fingers could get stuck in the hinge of the mechanism during the release and unfolding process. Injuries included partial fingertip amputation, broken fingers, and lacerations.