Maryland Accident Law Blog

Medical Malpractice: A Surgeon’s Perspective

February 6, 2012 | Lebowitz & Mzhen

An article in a recent issue of General Surgery News, a trade publication for surgeries, examines the impact of medical malpractice litigation on general surgeons and several specialty areas of surgery. The article looks at recent statistics and discusses the merits of fighting malpractice lawsuits versus settling them quickly. It concludes that doctors are usually better off, in the long run, fighting lawsuits. The analysis tends not to be favorable towards medical malpractice plaintiffs and their attorneys, but it does offer a good glimpse of how surgeons might approach a malpractice claim.

A recent survey by the American Medical Association reportedly found that five percent of respondents had faced a malpractice claim of some sort during the previous year. Another study published in the New England Journal of Medicine in 2011 found that, after neurosurgeons and thoracic surgeons, general surgeons have the next-highest rate of malpractice claims. The study reviewed twenty-four surgical specialties. In an average year, it found that 15.3% of general surgeons will have at least one claim brought against them.

Doctors rarely have the exclusive authority to decide whether to settle a case, as a doctor’s malpractice insurance carrier will typically handle the expense of legal representation. The author of the article advises surgeons against settling in most cases. He notes that, first and foremost, settlement can be interpreted as an admission of fault, even if the settlement’s purpose is to avoid even costlier litigation. Many settlement agreements include a clause specifying that the defendant does not admit liability, but settlement agreements do not get publicity beyond the parties to a dispute. Settling a lawsuit can also lead to problems further down the road, as the board of medicine of a doctor’s state may wish to review the matter itself, and the doctor’s name may appear in databases that catalog malpractice claims.

Of particular note to personal injury attorneys is the discussion of how surgeons can avoid lawsuits. There is little to no correlation, the article states, between the degree of risk in a surgical procedure and the rate of malpractice claims. In other words, riskier procedures are not necessarily at the greatest of a claim. Rather, it is a matter of the doctor’s relationship with the patients and the patient’s family. The better the communication between patient and doctor, the less likely the patient is to claim malpractice.

Dentist Pleads Guilty to Medicaid Fraud, Using Paper Clips Instead of Dental Supplies

January 30, 2012 | Lebowitz & Mzhen

A former Massachusetts dentist, Michael Clair, pleaded guilty to Medicaid fraud and a number of other charges stemming from allegations that he used paper clips while performing root canals instead of the stainless steel posts normally used. He will serve one year in jail. Medicaid reportedly suspended the 53 year-old dentist in 2002, but he continued to file claims under different names belonging to other dentists in his practice until 2005. Massachusetts suspended Clair’s dentistry license in 2006, and he is reportedly not currently licensed to practice in any state. He has resided in Maryland for several years.

Numerous patients also reported infections, pain, and other problems stemming from his treatments. One patient, a teenager, had to have his tooth removed after a root canal performed by Clair in 2005. The tooth turned black and caused him severe pain. The teen’s mother claimed that Clair also performed shoddy dental work on her other children.

Prosecutors accused him of defrauding Medicaid of around $130,000 for his claims made using other dentists’ names. They also charged him with assault and battery in connection with his root canal procedures and other practices, illegally prescribing medications, and witness intimidation. Clair reportedly pleaded guilty to all or most of the charges. Prosecutors had asked the court for a sentence of five to seven years. The judge sentenced him to one year in prison, citing Clair’s guilty plea and willingness to accept responsibility, his lack of a prior criminal history, and “certain mental health issues.” The judge did not elaborate on that last factor. Clair will serve his sentence at the Bristol County House of Correction in North Dartmouth, Massachusetts.

Clair’s use of paper clips in root canals is a particularly egregious breach of the trust placed in dentists by the law and by society in general. Dentists, just like medical doctors and other medical professionals, undergo a considerable amount of training and education. As a result, they are entrusted with a great deal of responsibility over their patients. A dentist has a duty to provide diligent and competent service to all his or her patients, and to obtain informed consent for all treatments and procedures. A root canal, known more formally as endodontic therapy, is a complicated procedure. Few laypeople understand how the procedure works, and tend to trust dentists to perform the work. Using common items like paper clips in the procedure in place of specially-designed materials intended for the procedure puts patients at unreasonable risk of infection and worse. This is a clear breach of a dentist’s duty of care.

Maryland Traffic Cameras Seek to Deter Speeding, Promote Safe Driving

January 23, 2012 | Lebowitz & Mzhen

To combat decreases in revenue from the state and county, the town of Takoma Park, Maryland has turned to traffic cameras as a source of city funding. City officials maintain that their main purpose is to promote driving safety. The city has installed at least six cameras at major intersections. Locations were chosen, the city says, based on the prevalence of past speeding offenses. Between July 1, 2010 and June 30, 2011, the city reportedly collected almost $1.74 million in traffic fines from tickets issued through camera evidence. After administrative costs paid to the vendor that manages the system, the city’s net revenue was $898,018. Maryland law requires that money obtained from traffic camera citations go solely towards public safety projects.

The city issued 6,530 tickets for violations captured by the cameras between October 1 and November 22, 2011. Not all tickets are paid, of course, but the system has apparently given the city a much-needed boost in revenue.

Despite any possible concerns over enforcement of criminal issues, the effect of the cameras on public safety, according to city officials, has been profound. Takoma Park Police Chief Ronald Ricucci told Gazette.net that the city’s two main “target areas,” New Hampshire Avenue and University Boulevard, have seen reductions in auto and pedestrian accidents since the city began using the cameras. It is not entirely clear how the cameras could improve driving safety while also increasing revenue from speeding tickets, unless a reduction in auto accidents is not directly related to the amount of speeding in those locations.

The cameras may prove to be useful when traffic accidents do occur, as a source of evidence. Traffic cameras typically take a photograph of an intersection or stretch of road with a wide enough angle to capture a vehicle and its surroundings, but also with enough detail to see features like license plates numbers. Images from the cameras could assist in resolving disputes over whether a driver ran a red light, which driver had the right of way, whether a driver made an improper merge, and so forth. This is still a new technology, especially in our legal system, which is slow to adapt to many new technologies. As such, evidence rules and court procedures are still adapting to this new type of evidence.

Elderly Man Sued by Passengers of the Thief Who Stole His Car

January 9, 2012 | Lebowitz & Mzhen

George Hinnenkamp was probably not having a very good day. The 89 year-old left his house to travel to nearby Lorane Valley, Oregon one day in June 2009. When he returned home later the same day, he found that his 1991 Thunderbird was not where he left it. He reported it stolen to the police and, at 10:30 p.m., learned from them that the person who took his car had crashed it while under the influence of alcohol. The car thief, 35 year-old Joseph Dinwiddie, had done occasional odd jobs for Hinnenkamp in the past. As attorneys, people often ask us if they can be sued for one thing or another. As this case demonstrates, people can file lawsuits against almost anybody, but the case must have merit to survive.

Prosecutors charged Dinwiddie with unauthorized use of a motor vehicle, driving while intoxicated, reckless driving, reckless endangerment, and two counts of third-degree assault for injuries sustained by two passengers, Nicole Annette Cunningham and Delano Oscar. Dinwiddie’s defense largely relied on the fact that the elderly man had given him permission to drive the Thunderbird in the past when he was working for Hinnenkamp. He argued that he had Hinnenkamp’s permission to use the vehicle the night of the accident. He told police at the time of the accident, however, that he did not have permission from Hinnenkamp, and evidence indicated that the two passengers knew he was intoxicated, even drinking while driving. Dinwiddie was convicted and is now serving a 25-month prison sentence.

The saga did not end there for either Hinnenkamp or Dinwiddie. Two years later, in the summer of 2011, both of them were sued by the two passengers, Cunningham and Oscar, for the injuries they claim to have sustained in the crash. Cunningham is seeking $145,000 and Oscar is asking for $75,000 in damages. Oscar alleges that he suffered various “sprains or strains” in his neck, back, and elsewhere. Cunningham alleges similar injuries, plus pelvic fractures, headaches, dizziness, and more. Their arguments appear to rely on the claim that, since Dinwiddie had driven Hinnenkamp’s car with Hinnenkamp’s permission while working for him in the past, Hinnenkamp could be held liable for Dinwiddie’s actions while driving the car. Hinnenkamp’s insurer stepped in on his behalf and asked the court to declare that he has no liability for the injuries claimed by the plaintiffs.

Legislator Awarded $50,000 in Suit for Damages Caused by Tight Handcuffs

January 2, 2012 | Lebowitz & Mzhen

A Pennsylvania state legislator from Philadelphia, Jewell Williams, has received an award of $50,000 from a jury in a lawsuit over injuries he sustained in 2009 when police unlawfully detained him. He claimed that “excessively tight handcuffs” caused nerve damage to his wrist and thumb. He further claimed that police violated his constitutional rights by detaining him after he questioned police officers about stopping two elderly men. A spokesperson for Williams said the jury agreed with Williams’ constitutional claim. An attorney for the City of Philadelphia told the media, however, that Williams had previously rejected a settlement offer of $65,000. Williams, for his part, may prefer the vindication in court to any specific dollar amount.

Williams has served as the Democratic representative for District 197 in Philadelphia since 2001. He previously worked as a Temple University police officer. He was elected sheriff of the city of Philadelphia in November 2011 and will take office shortly. The lawsuit arose from an incident in March 2009, when Williams says he tried to assist two “elderly constituents” during a traffic stop. Williams alleged that he saw police pull over a gray Volvo that police said resembled a car used in a drug buy several blocks away. Williams witnessed the stop from several car lengths back while driving home, and eventually got out of his vehicle to intervene.

Williams says he watched one police officer order the driver, whom Williams described as elderly and frail, out of the vehicle. The officer placed the man’s money on the hood of the car. When the man tried to grab at the money as it blew away, the officer alleged shoved him against the car and cuffed him. The man then complained that the cuffs were too tight, and the officer allegedly threatened something to the effect of taking the man to the hospital. A passenger in the Volvo, also described as elderly, was detained by the other officer. This is when Williams got out of his car and approached the officers.

Two more officers had arrived at the scene at this point. Williams says he identified himself as a state legislator, but that the officers yelled profanity at him when telling him to return to his vehicle. Police cuffed him and pushed him into the back of one of the cruisers, telling him he was under arrest for disorderly conduct. Police did not find any drugs in the Volvo or on either person from the Volvo. Police released Williams and the other two men shortly thereafter.

Woman Dies in Elevator Malfunction in New York Office Building

December 28, 2011 | Lebowitz & Mzhen

A tragic malfunction in an elevator in Midtown Manhattan has left one woman dead and a city in shock. On the morning of December 14, 2011, 41 year-old Suzanne Hart was entering the elevator on the way to her job at an advertising firm at 285 Madison Avenue. While she had one foot in the elevator, it suddenly lurched upward, dragging her with it. The elevator stopped between the first and second floors, with her trapped between the elevator and the wall. Two other passengers in the elevator were unhurt but trapped there for an hour. Rescuers pronounced Hart dead at the scene, but could not remove her body for several more hours.

No definitive explanation for what happened has appeared yet. Some sort of electrical malfunction may be the most likely culprit, but the incident has had a profound impact on a city dependent on elevators. According to the New York Times, New York City has over 60,000 elevators. There were fifty-three accidents involving elevators last year, but only three were fatal. Hart’s death turned a mundane, everyday activity into something terrifying. Other daily activities, such as driving a car, have known risks and well-publicized dangers, but an elevator ride seems to hold a particular resonance for many people.

The city’s Department of Buildings is conducting an investigation of the incident. The building has remained closed since the day of the accident, but is expected to reopen in January 2012. A spokesperson for the Department said that the accident had raised “structural concerns” for the entire building, an indicator of the force of the elevator’s movement. Transel Elevator, Inc., which services elevators all over the city and acknowledges doing electrical maintenance work on that particular elevator several hours before the accident, is a focus of the investigation. The biggest mystery for investigators, according to CBS News, is why all of the elevator’s safeguards seem to have failed at once. Elevators have safety mechanisms that should prevent them from moving while the doors are open. These mechanisms have several backups, but none of them worked that morning.

Alleged DUI Driver Hits Maryland School Bus

December 20, 2011 | Lebowitz & Mzhen

A pickup truck, whose driver was allegedly driving under the influence, caused an accident with a school bus on the evening of November 22, 2011. Twenty people, including fifteen students from Great Mills High School, were treated at a nearby hospital for injuries. Fortunately, no fatalities or serious injuries were reported. The bus driver sustained back injuries.

At about 9:23 p.m. that night, 45 year-old John Patrick Kravats allegedly ran a stop sign while another car, a Ford Fusion, was in the intersection. Kravats’ truck hit the Fusion, sending it into the school bus’ lane. The school bus, carrying members and coaches of the Great Hills High School Girls’ Basketball team, struck either the pickup truck or the Fusion and went off the road and into the woods. Local news coverage showed the bus wedged between trees in a wooded area just off the road.

Witnesses credited the school bus driver with heroic driving maneuvers that prevented the bus from tipping over and prevented serious injuries. The bus driver, another adult, and fifteen students were taken to the hospital. The driver of the Fusion and a 13 year-old passenger were also taken to the hospital.

Police at the scene arrested Kravats for driving under the influence. Local news discovered that Kravats is listed on the Maryland sex offender registry because of a conviction for sexual abuse of a minor. While this is of little to no relevance in determining Kravats’ liability for the accident, it will not help him in the criminal case for DUI.

Based on news reports of the accident scene, it appears that Kravats’ truck did not directly strike the school bus. The school bus may have hit the truck, and it was the efforts of the school bus driver to avoid tipping over that took the bus off the road and into the woods. A personal injury attorney would therefore need to examine causation, to see if Kravats would be legally liable for injuries to school bus passengers. It seems that he should be liable for injuries in both the Fusion and the school bus.

Maryland Court Strikes Down State Lead Paint Law

December 12, 2011 | Lebowitz & Mzhen

Maryland’s Court of Appeals issued a ruling in late October that strikes down a state law shielding rental property owners from liability to their tenants for lead paint exposure if those owners could show they took precautions to protect children from such exposure. The unanimous ruling held that the statute violated the Maryland Constitution by denying victims of lead paint poisoning their day in court. The court left the regulatory portions of the law in place.

Maryland enacted the law in question, the Reduction of Lead Risk in Housing Act, in 1994 as a compromise after lengthy negotiations between public health advocates and property owners. Lead paint poisoning had once been a huge problem for children in Maryland, particularly in Baltimore, but advocates of the law claim the rate of lead poisoning has decreased by 98 percent since the law passed. The law requires owners of rental properties built prior to 1950 to register with the Maryland Department of the Environment and to take steps to remediate lead content in their properties, such as by removing known lead-painted surfaces and removing lead dust. The Department of the Environment states that around 73,000 rental units are registered, nearly all built before 1950. Baltimore banned lead inside homes in 1950, and the rest of the state followed in 1978.

The troublesome portion of the law involves the liability of rental property owners to their tenants when exposure does occur. If a property owner has complied with the regulatory provisions of the law, their liability is limited to $17,000, which might cover the costs of relocating to a lead-free residence but does not compensate for injuries that can last a lifetime. Exposure to lead-based paint can cause severe injuries, including brain damage.

The lawsuit, Jackson v. Dackman Co., et al, sought damages for brain damage allegedly suffered by ZiTashia Jackson when she ingested lead-based paint while residing at two different addresses in Baltimore, both owned by the Dackman Company. According to the complaint, the lease did not note chipping or flaking paint or other similar hazards, but both were rampant in both apartments. The tenants allegedly complained to the landlord, but no repairs occurred. Since the property owners had registered with the state and undertaken remediation efforts, its liability was limited by the statute, cutting off the plaintiffs’ claims for negligence and deceptive trade practices. The defendants obtained summary judgment, the plaintiffs appealed, and the case made its way to the Court of Appeals.

When a “Never Event” Occurs at a Hospital, It Frequently Goes Unreported

December 5, 2011 | Lebowitz & Mzhen

Hospitals often refer to tragedies that should not happen in a medical setting as “never events.” These may include patients dying during routine procedures or major medication errors. Saying that they should not happen does not mean that they do not, unfortunately, and few resources are available to track just how frequently “never events” occur.

Any effort to track this type of event is dependent upon reporting by hospitals and other medical providers, who often have both legal and business reasons to prefer not reporting. Hospitals may wish to keep such information private for fear that it could be used against them in litigation. While this may not be an unreasonable worry, it does nothing to alleviate concerns about public safety. Furthermore, any such information that directly pertains to a claim for medical malpractice should be relevant information available through discovery. It turns out that the discovery process may remain the main method for medical malpractice attorneys to obtain information on specific errors.

Hospitals may also cite fear of losing business as a reason to keep “never event” information private, as people would take their business elsewhere, or they might avoid care entirely. The argument that a patient might forgo care rather than risk seems reasonable to an extent, but the interest in having accurate information seems greater.

Finally, patient privacy laws may prevent reporting of specific information on errors. Privacy protections are available, through which hospitals can submit reports with redacted patient information.

Congress passed the Patient Safety and Quality Improvement Act of 2005 (PSQIA) in order to address some of these concerns, but the law does not directly address the issue of public availability of information. The law encourages hospitals to report dangerous conditions, adverse events, and near misses to a system of patient safety organizations (PSO), also created by this law. It also provides for confidentiality of what it defines as “Patient Safety Work Product.” The definition of Patient Safety Work Product is quite broad, encompassing almost all features of an error report, and disclosure is only permitted in strictly-defined circumstances. These circumstances do not seem to include litigation, except after an extensive process of “nonidentification.” The PSQIA also created a national database that allows information to be shared among the PSO’s, obviously subject to the strict disclosure requirements. However, the PSQIA does not require hospitals to report adverse events to the nearest PSO. All reporting under this law is strictly voluntary

Workers Severely Burned in Worksite Accidents

November 30, 2011 | Lebowitz & Mzhen

Two recent worksite accidents on November 2, 2011 resulted in serious burn injuries to a welder in one instance and a laundry worker in the other. At a granite quarry operated by Vulcan Materials in Kennesaw, Georgia, a welder was shocked by a high-voltage power line, receiving critical, but not life-threatening, burns. He was using a bucket truck to lift materials when the truck boom made contact with a 4,160-volt power line. Another man was apparently trapped on the crane during the incident, but was not injured. The burn victim was taken to an Augusta hospital’s burn center for treatment. The company that operates the power lines, along with the federal Mine Safety and Health Administration, is reportedly investigating the incident.

A laundry worker at a commercial laundry plant near Rome in northwest Georgia was severely burned in a steam pipe explosion. A pipe allegedly ruptured in the early evening, with sufficient force to blow out a wall nearby. Only two employees and one contractor were present in the plant at the time, according to news reports, and only one injury was reported. The Rome Fire Department and Floyd County EMS responded to the incident, and the Rome Fire Marshal is reportedly conducting an investigation.

Fortunately, no one was killed in either incident. Cases such as these demonstrate the risks present at construction and industrial worksites and the difficulty in determining liability for individual injuries. The workers’ compensation system provides a mechanism for workers injured on the job to recover damages from their employers. The system has many legal restrictions, and the process of making and recovering on a claim can be cumbersome and time-consuming. Workers’ compensation is also generally only available in situations where a worker can make a claim directly against an employer. Worksites often involve multiple contractors ands employers with a tangled web of relationships.