Maryland Accident Law Blog

Maryland Court of Special Appeals Dismisses Medical Malpractice Case Due to Lack of Qualified Expert

September 1, 2012 | Lebowitz & Mzhen

A trial court dismissed a man’s medical malpractice suit against three doctors, ruling that he did not file a certificate of qualified expert (“Certificate”) that comported with state law. The plaintiff in Hinebaugh v. Garrett County Memorial Hospital, et al appealed on both the substance of the dismissal and on the question of whether the court could dismiss the suit before the parties had conducted any discovery. The Maryland Court of Special Appeals affirmed the dismissal, finding that the plaintiff’s Certificate was inadequate, and that formal discovery was not necessary for the plaintiff to meet the statutory requirements for qualifying an expert witness.

The plaintiff sustained injuries to his left cheek and jaw on August 12, 2006 after being hit in the face when he was a 22 year-old inmate in a local jail. He was first seen by Dr. P. Daniel Miller, an osteopath practicing family medicine, who ordered simple x-rays of his facial bones. Dr. Miller and two radiologists, Drs. H. Stan Lambert and James K. Benjamin, examined the x-rays and reportedly found no “radiographic abnormalities.”

After the plaintiff was released from jail, he went to a different doctor on August 27. That doctor ordered a maxillofacial CT scan and found a “left supraorbital fracture with displacement.” He referred the plaintiff to an Oral and Maxillofacial Surgeon (OMS). The plaintiff eventually underwent surgery on his cheek and jaw.

The plaintiff filed a claim in the state’s Health Care ADR Office in August 2009 against Drs. Miller, Lambert, and Benjamin. He alleged various breaches of the doctors’ standards of care, including failure to order a CT scan or consult with specialists. He claimed that these breaches caused him to need “extensive intrusive surgical procedures” and sought compensation for medical expenses, past and future lost wages, and pain and suffering. The plaintiff filed a Certificate and a report by John Mitcherling, D.D.S., identifying him as an OMS specialist with at least five years’ clinical experience similar to that of the three respondent doctors. Dr. Mitcherling stated an opinion that the doctors had breached various standards of care by failing to perform certain diagnostic tests.

Maryland Court of Appeals Affirms Judgment Giving State Jurisdiction Over Football Player’s Workers’ Compensation Claim

August 27, 2012 | Lebowitz & Mzhen

In a suit brought by a professional football team and its insurer challenging a decision by the Maryland Workers’ Compensation Commission (the “Commission”), the Maryland Court of Appeals has ruled in favor of a former football player who sustained career-ending injuries during a game. The court ruled in Pro-Football, Inc. v. Tupa that the Commission has jurisdiction over the player’s claim, that his injuries were “accidental,” and that he is therefore eligible for compensation under the Maryland Workers’ Compensation Act.

Thomas Tupa entered into a four-year contract in March 2004 with Pro-Football, Inc., which operates the Washington Redskins professional football team. Tupa would play the punter position on the team. Pro-Football is a Maryland corporation that owns the stadium where the team plays its home games, FedEx Field in Landover, Maryland. The teams practice and warm-up facilities are located in Virginia. Tupa’s contract includes a clause that gives the Commonwealth of Virginia and the Virginia Workers’ Compensation Commission jurisdiction over disputes between the parties.

Two Wrong-Way Crashes on Maryland Highway Linked to Exit Ramp

August 20, 2012 | Lebowitz & Mzhen

Interstate 97 stretches just under eighteen miles between Annapolis and Baltimore. Exit 10B on the northbound side of the highway feeds onto Veterans Highway in Millersville. It is also the point where a driver entered the wrong side of the highway in January 2012, resulting in a head-on collision that killed four people. A second fatal wrong-way collision in the same area caused Maryland safety officials to consider whether the exit ramp poses a danger because it can be mistaken for an on-ramp. While they maintain that driver error caused both crashes, these cases demonstrate the role that road signs and highway markings can play in preventing accidents.

The first accident occurred in the early morning of January 28, 2012. A nineteen year-old driver turned off of Veterans Highway onto what she apparently thought was the ramp to the southbound lanes of I-97, but was actually the exit from the northbound lanes. She drove south for over nine miles before colliding head-first with a vehicle traveling north at about 3:30 a.m. She and the three occupants of the other vehicle died in the crash. Toxicology reports showed that both drivers were intoxicated. The Maryland State Highway Administration (SHA) concluded at the time that alcohol was the principal cause for the driver’s error.

Federal Lawsuit Alleges Police Brutality; Local DA Declines to Prosecute Officers

August 13, 2012 | Lebowitz & Mzhen

A federal lawsuit claims that multiple Pennsylvania State Police officers physically and verbally assaulted a man, both during a traffic stop and while he was in police custody. Video from a police cruiser dashboard camera reportedly shows both verbal and physical abuse by troopers, and the man says that police continued to assault him for hours afterwards. The lawsuit claims various violations of constitutional rights and intentional torts against the state police department and certain individual officers.

Police pulled over 31 year-old Robert Leone, a resident of Vestal, New York, on March 8, 2010, on Route 6 in Bradford County, Pennsylvania. Police allege that Leone was involved in a hit and run, that he led them on a chase, and that he was acting “out of control.” Leone denies any involvement in a hit and run accident. Prosecutors later claimed he had high levels of the drug Adderall, a stimulant used to treat attention-deficit disorders, in his system at the time. Dashboard camera footage of the arrest reportedly shows state troopers beating Leone, and Leone says that officers moved him to an area out of the view of the camera to continue the beatings.

Lawsuit Alleges Prison Nurse Denied Emergency Medical Care to Inmate.

August 7, 2012 | Lebowitz & Mzhen

A woman in Minnesota is suing several registered nurses (RNs) over the death of her son, who died while in the custody of the Minnesota Department of Corrections (MDOC). The lawsuit alleges that a nurse employed by the prison withheld emergency medical care from her son, who had a history of seizures, because of “protocols” established by the private contractor hired to provide medical care for the state’s inmates.

Xavius Scullark-Johnson, age 27, was an inmate at the state prison in Rush City, Minnesota with only three months left on his sentence. According to the Minneapolis Star Tribune, the prison has not had 24-hour medical staff since 2002. Doctors, all of whom are employed by health contractor Corizon, Inc., only work Monday through Friday until 4:00 p.m. Nurses at the prison are state employees who work seven days a week, but their shifts end at 10:30 p.m. Corizon and MDOC closely monitor all medical-related expenses, including ambulance trips.

Scullark-Johnson reportedly suffered multiple seizures during the evening of June 28. An on-duty nurse, Linda Andrews, found him on the floor of his cell, “soaked in urine” and “in an altered state of consciousness.” She covered him and left orders to the guards to check on him regularly. Several hours later, a guard called the on-call doctor, Sharyn Barney, informing her that Scullark-Johnson had a seizure the previous evening, and that his cellmate could not wake him. She reportedly advised the guard to monitor him overnight and report his condition to the medical staff in the morning. No one had access to Scullark-Johnson’s medical records at the time because the prison health center was closed for the night. The guard called Barney again several hours later, and the doctor agreed that the guard should call for an ambulance.

Federal Court Denies Class Certification in Medical Products Liability Claim

July 25, 2012 | Lebowitz & Mzhen

A U.S. District Judge in Pittsburgh has denied a plaintiff’s motion to certify a class in a products liability lawsuit. In Haggart v. Endogastric Solutions, Inc., the plaintiff claimed that a medical device manufacturer failed to warn of certain risks associated with a device used to treat his gastroesophageal condition. The court ruled that he failed to demonstrate the prerequisites for class certification, finding that the potential class members did not have the common experiences or interests that would make a class action an efficient way to resolve their claims.

The plaintiff, Daniel Haggard, suffers from gastroesophageal reflux disease (GERD), a condition where stomach contents, including stomach acid, flow back into the esophagus. It causes irritation to the esophagus and conditions like heartburn. He declined a common device used to treat GERD, known as a Nissen Fundoplication, because it required permanent implantation. He opted for a device known a an EsophyX, allegedly based on representations from the manufacturer, defendant Endogastric Solutions, that the procedure is “reversible.”
He had the device implanted in June 2009, but he learned three months later that the device had failed to properly implant. On his doctor’s advice, he went ahead with the Nissen Fundoplication, and he learned that the EsophyX was not “reversible,” but rather “revisable.” The fasteners for the EsophyX were not removable, because tissue had grown around them. This allegedly foreclosed other medical options that might have otherwise been available. After the Nissen Fundoplication, he alleged that his GERD symptoms grew worse.

Woman Sues Police Department and Town Over Shooting of Armed Assailant

July 19, 2012 | Lebowitz & Mzhen

A standoff involving a suspected criminal, his hostage, and a police officer in March 2012 ended with the suspect dead, the hostage rescued, and the officer hailed as a hero. In an unusual twist, the woman who was held hostage that evening has indicated that she plans to sue the New Jersey township where the incident occurred. In a tort claim notice filed in June, she stated that she intends to claim negligence and various breaches of duty against both the township and the police officer involved in the shooting, and to seek monetary damages for injuries she allegedly sustained as a result. Because the township is a government entity, she is legally required to submit a notice of claim to the township before she may file a lawsuit.

During the early evening of Thursday, March 8, 2012, mall security guards and an off-duty police officer working security approached 44 year-old Andres Garcia in the Woodbridge Center shopping mall in Woodbridge, New Jersey. They suspected Garcia of shoplifting. Garcia was also wanted for violating his parole on a robbery conviction. He reportedly fled from the security guards through the mall. At the entrance of the Sears store, Garcia grabbed 62 year-old Ellen Shane, who was shopping with her husband, Ronald Shane. Holding a knife to her throat, Garcia dragged Shane into the store while her husband tried to hold onto her. According to the county prosecutor, the police officer, Edward Barrett, Jr., warned Garcia several times to drop the knife. Garcia reportedly told Barrett he would hurt Shane if Barrett did not allow him to leave. Barrett fired a single shot that struck Garcia in the head. Garcia was pronounced dead at 5:32 p.m. at the scene, with the gunshot later ruled as the cause of death.

Maryland Appeals Court Rules on Issue Preclusion and Contributory Negligence in Auto Accident Case

July 12, 2012 | Lebowitz & Mzhen

An interesting decision by the Maryland Court of Special Appeals addressed the applicability of an out-of-state jury verdict in a Maryland lawsuit concerning issue preclusion. In Bryan v. State Farm Mutual Automobile Insurance Co., the court found that a New York verdict finding a driver negligent precluded the driver from claiming on his insurance policy in Maryland. The court applied the doctrine of contributory negligence, which is still on the books in only a handful of states, including Maryland.

Brenton Bryan was driving in Freeport, New York on May 29, 2006, with his wife and two children in the car. According to Bryan, a “phantom vehicle” cut him off by changing lanes unexpectedly. This caused Bryan’s car to strike two other vehicles. The driver of one of those cars was Juan Chevez. Chevez and his wife, Ines Chevez, who was a passenger in the vehicle, sued Bryan in Queens County, New York, alleging that he was negligent and therefore responsible for the accident.

A jury trial in December 2010 focused exclusively on the question of Bryan’s liability. The jury found that Bryan operated his vehicle negligently that night, and that this was a “substantial factor in bringing about the accident.” Bryan and the Chevezes subsequently agreed to settle the matter for $30,000 in exchange for a general release.

Samsonite Recalls 250,000 Pieces of Luggage After Positive Carcinogen Tests

July 5, 2012 | Lebowitz & Mzhen

Samsonite, the world’s largest luggage manufacturer, has voluntarily recalled its “Tokyo Chic” line of luggage after tests on several samples found high levels of carcinogenic compounds in the handles. The tests, conducted by the Hong Kong Consumer Council (HKCC), led to a recommendation by the government of Hong Kong to stop selling the allegedly defective luggage models. Samsonite, despite maintaining that the luggage is safe, says that it is recalling the line of luggage to “allay any concerns that consumers may have.” The luggage line is primarily sold in Hong Kong and elsewhere in Asia, but it is not clear if the line is also available in the United States. The recall process is similar to that used in Maryland and elsewhere in the country.

The HKCC tested several samples of the Tokyo Chic luggage. It announced in mid-June that the handles on four of the samples tested positive for high levels of polycyclic aromatic hydrocarbons (PAHs). PAHs are a byproduct of incomplete hydrocarbon combustion, resulting from the burning of oil or coal and found in auto exhaust and other emissions. They may also be found in grilled food. Extended exposure to PAHs has been shown to increase the likelihood of cancer in humans.

Penn State Prepares for Sexual Abuse Lawsuits After Sandusky Verdict

June 28, 2012 | Lebowitz & Mzhen

Penn State University is reportedly seeking to settle the civil lawsuits filed by victims of former assistant football coach Jerry Sandusky after a Pennsylvania jury convicted Sandusky on forty-five counts of sexual abuse. This reported intent includes lawsuits that were already filed against the university, and those that are sure to follow. Penn State proposed a process to “address the victims’ concerns and compensate them for claims” related to allegations of abuse by Sandusky and both inaction and concealment by the university. In all likelihood, the university wants to resolve all potential claims quickly. Several lawsuits are already pending in Pennsylvania courts.

Sandusky worked in the Penn State football program for decades, retiring in 1999 but staying on with an “emeritus” title. He founded The Second Mile, a charity intended to help at-risk youth, in 1977. Prosecutors alleged that he used the charity to find his victims. They also alleged that the university knew about allegations of abuse going back years but failed to follow up on reports and investigations. In addition to the charges against Sandusky, prosecutors charged several Penn State administrators with perjury and obstruction of justice. After a trial lasting about a week, a jury convicted Sandusky on all but three charges of sexual abuse, forty-five in total.