Maryland Accident Law Blog

Maryland Medical Malpractice Law Requires Plaintiff to Return to Arbitration Office After Dismissal for Deficient Expert Certificate, According to Court

February 21, 2014 | Lebowitz & Mzhen

A plaintiff alleging medical malpractice must submit a claim for arbitration to a state office before filing a lawsuit. A certificate and report from a qualified expert is also required. Any deficiency in these documents may be grounds for dismissal of the case, but the statute that requires dismissal does not specify whether a plaintiff may file a new lawsuit or must begin the arbitration process again. The Court of Special Appeals ruled in December 2013 in Puppolo v. Adventist Healthcare, Inc. that the plaintiff must go back to the arbitration office, adding yet another hurdle for medical malpractice claimants.

The Maryland Health Care Malpractice Claims Act (HCMCA) requires medical malpractice claimants to submit their claims to the Health Claims Arbitration Dispute Resolution Office (HCADRO). They must also file a certificate and report from a qualified expert with credentials in the same or a similar field as the defendant, identifying the relevant standard of care and explaining how the defendant breached it. A court must dismiss a petition without prejudice if the plaintiff does not submit a certificate and report, or if the documents are found to be deficient. A plaintiff may re-file within sixty days of dismissal, but the statute does not say if they must repeat the entire process or not.

The Puppolo case involved injuries allegedly suffered by a woman at Washington Adventist Hospital in 2006 and 2007. She was admitted in August 2006 after suffering a stroke. A hospitalist examined her the day of her admission and prescribed an anticoagulant to manage the risk of further blood clots. Another doctor took over her care the following day. A week later, she suffered an intracranial hemorrhage that put her in a coma for six weeks. She suffered further complications due to the coma, including bedsores and related infections requiring multiple surgeries, renal failure, and lung collapse, before her death in December 2008.

Hospital Technicians’ Lawsuits Allege Injuries from Radiation Exposure

February 14, 2014 | Lebowitz & Mzhen

A series of lawsuits brought by hospital technicians accuses the hospital where they worked of failing to maintain adequate shielding around its CT scan machine. The plaintiffs, in five individual lawsuits, allege that radiation exposure caused a variety of injuries and will require them to undergo cancer screenings for the rest of their lives. Two of the plaintiffs operated the CT scanner while pregnant and have brought claims on behalf of their children. The lawsuit names the company that operates the hospital, along with the engineering and architecture firms that built the addition housing the CT scanner, as defendants.

A computed tomography (CT) scanning machine rotates around a patient, using x-ray beams to create a cross-section image of the patient’s body. The process typically takes only a few minutes, so a patient’s exposure to dangerous radiation is minimal. Technicians who operate the scanners, however, could face prolonged exposure and associated health risks. Lead shielding in the walls surrounding a scanner is a standard method of protecting technicians from radiation. The technicians set up the scanner with the patient, then leave the room while the scanner is in operation.

Methodist Medical Center, located in Oak Ridge, Tennessee, opened a new emergency department building in 2006. This building included a facility for CT scanning. The plaintiffs claim that the room housing the CT scanner did not have sufficient lead shielding, resulting in dangerous levels of exposure to radiation over a seven-year period. All five plaintiffs claim that they are suffering from health problems related to radiation exposure, including thyroid problems, sleep issues, and headaches. They allege that they all face a significantly higher risk of cancer, and require regular cancer screening. Two of the plaintiffs worked while pregnant, and both have asserted claims for their children’s injuries. One of the children allegedly suffers from severe radiation-related health problems.

Medicare and Medicaid Regulations Assist in Preventing Nursing Home Abuse and Neglect

February 7, 2014 | Lebowitz & Mzhen

Nursing homes often rely on participation in Medicare and Medicaid. Without the assistance of these programs, fewer patients would be able to afford a stay in these facilities, and more of them would go out of business. Participation in Medicare and Medicaid, however, is contingent upon compliance with regulations and standards of care enforced by the federal government. As a case decided by the Fourth Circuit Court of Appeals several years ago shows, these regulations can help prevent abuse and neglect in nursing homes, or provide victims with evidence if abuse or neglect does occur.

A North Carolina nursing home appealed several monetary fines imposed by the Centers for Medicare and Medicaid Services (CMS), arguing in part that the evidence did not support CMS’s findings. Universal Healthcare v. U.S. Dept. of Health & Human Services, No. 09-1093, slip op. (4th Cir., Jan. 29, 2010). CMS imposed fines against the nursing home on two occasions, in November and December 2005, for violations relating to patient care. The Fourth Circuit Court of Appeals affirmed the lower courts’ rulings.

The first set of fines involved a patient identified by the court as G.J., who was to receive a dose of a pain medication, Cafergot, every morning. The CMS investigators found that the duty nurse was unable to give G.J. that medication one morning, because the on-site pharmacy had run out. Instead, they substituted the pain medication Darvocet. The pharmacy did not obtain a new supply of Cafergot until later in the day. CMS found the facility in violation of two regulations: failing to provide adequate pharmaceutical services, 42 C.F.R. § 483.60(a); and failing to provide a “quality of care” matching a patient’s comprehensive assessment, 42 C.F.R. § 483.25.

Jury Awards Over $5 Million to Man Injured in Storage Unit Collapse

January 30, 2014 | Lebowitz & Mzhen

A jury awarded more than $5 million to a man who suffered severe injuries when the ceiling of a rented storage unit collapsed on top of him, trapping him inside. The plaintiff in Wolkoff v. Sunshine Storage, Inc., et al, No. CACE09014543 (Fla. 17th Cir.), claimed that the defendants failed to construct the building correctly or to maintain it in good repair. The initial defendant, which owned and managed the building, claimed that the plaintiff was partly at fault for his injuries, as well as third-party defendants like the building contractor and the engineer. The jury apportioned fault among the parties, finding the plaintiff to be ten percent at fault. Unlike Maryland, which still follows the contributory negligence doctrine, this only meant a ten percent reduction of the damage award.

The plaintiff, a retired contractor living in Boca Raton, Florida, rented a storage unit in Deerfield Beach. He switched the lease to a larger unit, and on January 3, 2009, he was moving the contents out of the smaller unit and into the larger one. While he was standing in the smaller unit, the metal roof collapsed, trapping the then-66 year-old under about 3,000 pounds of debris.

The plaintiff was an avid bodybuilder, but the accident put an end to that. His injuries included a fractured pelvis, ruptured urethra, and nerve damage in both of his legs. He sought treatment at Johns Hopkins in Baltimore, Maryland to repair his pelvis and his urethra. Because of the damage to his pelvis, he had to use a colostomy bag for about three years. He lost his sight in one eye and became partially blind in the other. He developed multiple infections in his legs and feet, and is now vulnerable to additional infection. After extensive rehabilitation, he still requires the use of a walker or wheelchair. Many of these conditions are irreversible.

Settlement Reached Between Baltimore Households and Exxon in Gas Station Leak Case Involving Claims for Medical Monitoring

January 21, 2014 | Lebowitz & Mzhen

A group of households in Baltimore County, Maryland recently settled their lawsuit against Exxon Mobil Corp. for property damage and other injuries allegedly resulting from a massive gasoline leak near their homes in 2006. Jury verdicts against the oil company totaled more than $1.6 billion, but the Maryland Court of Appeals reversed the awards. In addition to property damage, the plaintiffs asserted causes of action for emotional distress due to fear of developing a disease and “medical monitoring.” This refers to the ongoing costs of monitoring for the onset of illness after exposure to toxic materials. Maryland courts have never recognized medical monitoring as a claim or remedy before, but the orders reversing the verdicts included explicit recognition of such a remedy.

An underground storage tank at a gas station in Jacksonville, Maryland allegedly leaked for about five weeks in 2006, pouring over 26,000 gallons of gasoline into the ground and contaminating the groundwater. Many of the homes in the area rely on wells for their water supply. Maryland’s Department of the Environment commenced monitoring about 248 private wells in the area. Exxon settled with the state for $4 million for cleanup costs in 2008.

Several hundred people and businesses filed suit against Exxon Mobil, claiming more than $1 billion in damages. A jury awarded about $150 million in damages to about ninety households in 2009 for property damage, emotional distress, and medical monitoring. Another jury trial in 2011 resulted in a $1.5 billion award to about 160 households and businesses, including about $495 million in compensatory damages for fraud, property damage, emotional distress, and medical monitoring; and $1 billion in punitive damages.

Lawsuit Accuses Sheriff’s Deputies of Negligently Putting Locksmith in Harm’s Way, Resulting in His Death, During Attempted Eviction of Tenant with Violent History

January 14, 2014 | Lebowitz & Mzhen

A lawsuit alleges that sheriff’s deputies negligently placed a locksmith in an unreasonably dangerous situation by bringing him along on an eviction without warning him of specific known risks, resulting in his death. Engert, et al v. Stanislaus County, et al, No. 1:13-cv-00126, 2nd am. complaint (E.D. Ca., Oct. 23, 2013). The individual subject to eviction was reportedly known to be both heavily armed and violent, but the sheriff’s deputies allegedly did not warn the locksmith of the danger, nor did they provide any safeguards for him. The locksmith’s widow sued the county and various county officials for violations of her late husband’s civil and constitutional rights, negligence, and wrongful death.

Two deputies of the Stanislaus County Sheriff’s Department, Robert Paris and Michael Glinskas, were assigned on April 12, 2012 to perform an eviction at an apartment in Modesto, California. According to the plaintiff’s most recent amended complaint, the apartment’s occupant, James Ferrario, was known to the sheriff’s department as a “dangerous, mentally unstable individual, with weapons in his home,” and with a history of threats and assaults. The deputies brought a locksmith, Glendon Engert, along to open the apartment door.

The deputies allegedly did not warn Engert of the possible threat posed by Ferrario. Engert’s position in front of a doorway, with a possibly armed individual inside, is reportedly known as a “vertical coffin.” Ferrario opened fire from inside the apartment with armor-piercing bullets, killing Engert and Paris. After an eleven-hour standoff, Ferrario committed suicide. A search of his apartment yielded twenty-two firearms, including an M16 and an SKS rifle, and about five hundred rounds of ammunition.

Data Suggest That Noneconomic Damage Caps Do Not Reduce the Cost of Healthcare, While Maryland Courts Continue to Affirm Their Constitutionality

January 7, 2014 | Lebowitz & Mzhen

Maryland state law imposes a cap on noneconomic damages in all personal injury and wrongful death cases. This applies to “nonpecuniary” damages like pain and suffering, mental anguish, disfigurement, physical impairment, and loss of consortium. MD Cts & Jud Pro Code §§ 3-2A-01(h), 11-108(a)(2). Advocates of damage caps, commonly known as “tort reform,” claim that they are necessary to keep insurance costs under control, particularly in the medical field, and therefore to keep costs down for the public. Opponents of tort reform, including advocates for patients’ rights and others, say that after more than a decade, caps on damages in personal injury litigation have not stopped an increase in healthcare and other costs. Maryland courts, meanwhile, have repeatedly affirmed noneconomic damages caps against constitutional challenges.

The law prohibits informing the jury about the noneconomic damage cap in personal injury, wrongful death, or medical malpractice trials. If a jury enters an award that exceeds the cap, the court is directed to reduce the amount accordingly. As of October 1, 2013, noneconomic damages in personal injury and wrongful death claims, other than medical malpractice claims, are capped at $785,000 for all claims arising from a single incident. The only exception to this is a wrongful death claim with multiple beneficiaries, in which case state law increases the maximum amount by fifty percent. The cap increases by $15,000 every October 1. MD Cts & Jud Pro Code § 11-108(b)(2). For medical malpractice claims, the cap is $740,000 as of January 1, 2014, increased by twenty-five percent for a wrongful death claim with more than one beneficiary. This cap also increases by $15,000 every year. MD Cts & Jud Pro Code § 3-2A-09(b). The for medical malpractice.

The advocacy group Public Citizen has criticized the idea that damage caps are necessary to control costs. Its data show that malpractice payouts in 2010 were the lowest at any point in the previous twenty years when adjusting for inflation, and the lowest since 1998 in absolute dollars. Annual malpractice payments reportedly decreased by nearly twelve percent between 2000 and 2010, and accounted for only 0.0013% of total health care costs nationwide in 2010. During the same ten-year period, national spending on health care rose by ninety percent.

Complicated Web of Potential Liability in Undetected Carbon Monoxide Deaths at Hotel

December 26, 2013 | Lebowitz & Mzhen

A series of two separate occasions of death by carbon monoxide poisoning in a hotel room provides an overview of a complicated web of potential liability.

While it appears as though lawsuits have yet to be filed on behalf of an older couple and young boy who both died on two separate occasions due to severe carbon monoxide poisoning in a hotel room, the potential for liability of the various parties responsible seems apparent.

The first incident occurred in April, when a couple in their 70s died in their hotel room of unknown causes. Apparently, the fire department did not test the room for any potential gas issues, citing that it was not their responsibility, and also that their vehicles were not at that time equipped with testing equipment.

District Court Dismisses Personal Injury Action under FTCA for Failure to Prove Negligence

December 17, 2013 | Lebowitz & Mzhen

The U.S. United States District Court, W.D. Virginia, Danville Division reached a decision this year in a personal injury lawsuit arising out of the Federal Tort Claims Act, which involved a U.S. Postal Service employee allegedly running over a woman’s foot.

In the case, Pannell v. US, Dist. Ct., WD Va. (2013), the nine year old plaintiff had been sitting on the porch, when she noticed the civilian vehicle that the rural postal carrier drove approaching her grandmother’s house. The plaintiff and her cousin ran across the lawn toward the mailbox, making eye contact with the USPS employee, who also waved at them.

However, as the girls approached the mailbox, the plaintiff fell, and slid such that her legs were under the vehicle. The plaintiff’s cousin attempted unsuccessfully to pull her from under the vehicle, and as a result, as the car drove away, one of the tires ran over the Plaintiff’s right foot.

D.C. District Court Ruling Upholds Assumption of Risk Defense to In-Home Construction Accident Lawsuit

December 10, 2013 | Lebowitz & Mzhen

A recent District of Columbia federal district court case, Bell v. BUILDERS, Dist. Ct., Dist. Col. (2013), gives a helpful overview of the concept of Assumption of Risk as it relates to personal injury claims.

Construction had begun in February of 2009, and plaintiff elected to remain in her house during the construction. One morning in May of 2009, the plaintiff went down stairs in order to investigate a loud sound she had heard. She turned on the lights and walked through her kitchen to look out the sliding glass door into her backyard. Seeing several possums in the backyard, she decided to retrieve her camera from the living room to take some pictures. When she returned with her camera and opened the sliding glass door, she leaned out to take a picture of the animals, when her left ankle became twisted up in the drop cloth on the floor, causing her to fall out the door, and to suffer, “severe, painful, and permanent injuries.”

The plaintiff’s lawsuit stemmed from her assertion that by covering her kitchen floor with a drop cloth, the defendant construction company created a “dangerous and defective condition” that caused her to slip and fall and sustain her injuries. The defendants motioned for summary judgment, asserting the defenses of contributory negligence and assumption of the risk.