Maryland Accident Law Blog

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.

Lawsuits Seek to Hold Maryland Company Liable for Death at West Virginia Festival

November 17, 2011 | Lebowitz & Mzhen

After a summer music festival in West Virginia turned tragic, a South Carolina man filed a lawsuit in federal court against the festival’s organizer, Maryland-based Walther Productions, and others. The man’s daughter, 20 year-old Nicole Miller, was killed while sleeping in a tent at the festival when a pickup truck rolled down a steep hill and crashed into her tent. Two friends with her suffered serious injuries. The two survivors, Yon Ten and Elizabeth Doran, each filed very similar lawsuits.

The lawsuit filed by Miller’s father names twelve defendants, including Walther, Virginia-based security provider Event Staffing, Inc., the owners of the festival venue, and the driver of the pickup truck. The suits claim that the defendants were negligent in failing to take “reasonable care” to prevent the accident that caused Miller’s death and Ten’s and Doran’s injuries. Miller’s suit also requests punitive damages.

The accident happened at the All Good Music Festival in Masontown, West Virginia on July 17, 2011. The driver of the pickup truck had parked at the top of a hill and allegedly lost control of the vehicle, causing it to roll down the hill and into a campsite. Conditions at the festival were allegedly muddy, and the plaintiffs contend that festival organizers and vendors knew or should have known of the danger of parking vehicles uphill from concert attendees because of the lack of traction in the mud.

Walther filed a response last week denying liability, as well as a cross-claim against several co-defendants. Walther asks to be dismissed from the lawsuit and argues that Event Staffing should be held liable for the accident, as it had direct responsibility for controlling dangerous situations, including parking. Event Staffing also asks for dismissal, and argues that Walther should contribute to any damage awards the court may impose on it. Other defendants have not yet answered the suit.

Maryland Teen Burned by Paint Can Thrown into Campfire

November 10, 2011 | Lebowitz & Mzhen

A can of spray paint allegedly thrown into a campfire has led to burn injuries for a Maryland teen and reckless endangerment charges for two minors accused of throwing the can. The Maryland State Fire Marshal’s office reports that, on the night of Tuesday, October 25, two male minors tossed the can into a campfire in a wooded area of Bel Air. This caused the can to explode. A 13 year-old female standing near the fire allegedly suffered first-degree burns to both of her hands and first- and second-degree burns to her face.

The victim’s mother took the girl to the hospital for treatment and reported the incident to police on Wednesday. The girl should recover fully, according to news reports. Police charged the two boys with reckless endangerment, defined in Maryland law as “conduct that creates a substantial risk of death or serious physical injury to another.” This offense, a misdemeanor, normally carries a penalty of up to five years’ imprisonment and a fine of up to $5,000, but in this case the defendants are minors. The criminal statute uses the mental state of “recklessness,” meaning that the prosecution would have to prove that the boys acted without regard to a known risk, in this case the risk of an exploding paint can.

From the point of view of a personal injury attorney, the question becomes one of negligence or intent. While reports of the incident give no indication of any civil claim relating to the injuries, the case offers a good thought experiment on how a claim for damages can develop. In this case, the injured girl could make a claim for negligence or for an intentional tort such as battery, depending on the circumstances. “Battery” as a civil claim is an intentional action that results in contact with another person without that person’s consent. It could be direct person-to-person contact, as in a punch, or contact through another object, such as a paint can. A claim for battery would require proof that the boys intended to throw the paint can into the fire and intended for it to affect the girl, although they do not necessarily need to have intended her specific injuries. To claim negligence, she would need to prove that the boys breached a duty of care, such as to not create explosions, and that this breach caused her injury. In either case, the extent of her injuries would determine the amount of damages she could claim.

Outsourcing of Radiology Raises Concerns About Quality of Care

November 3, 2011 | Lebowitz & Mzhen

The word “x-ray” may still conjure images of doctors standing before backlit panels reviewing transparent x-ray scans and arguing over diagnoses. This bears little resemblance to the reality of modern x-rays. In a practice known as teleradiology, doctors and hospitals outsource x-rays and similar procedures to companies who may be located on the other side of town or the other side of the world. Doctors and technicians employed by these companies review the x-rays and issue a report. This practice, while perhaps increasing efficiency, also increases risks of misdiagnosis or even simple miscommunication, with potentially serious consequences.

A recent article published by MSNBC tells the story of a Pennsylvania woman who went to the hospital on a Friday night in 2005 complaining of a severe headache. The emergency room doctor thought it might be a cerebral hemorrhage, a potentially fatal condition, so he ordered a CT scan. The hospital electronically sent the CT scan data to a radiologist located across the state. The radiologist diagnosed a possible tumor rather than a hemorrhage. Since a tumor was not immediately life-threatening, the hospital sent her home with painkillers.

The woman returned to the hospital by ambulance about seven hours later, in even worse pain. The ER doctor ordered a more detailed CT scan, which was sent to a different radiologist. While the radiologist had a Pennsylvania medical license, his office was in Hong Kong. The radiologist identified an abscess around the mass in the woman’s brain, a condition that is very frequently fatal if not caught in time. The radiologist did not note the significance of his finding, i.e. its likelihood to be fatal, in his report to the hospital. Another radiologist at the Pennsylvania company also noted the abscess but did not report its significance.

The woman went home again, and later collapsed when the abscess ruptured. She spent eleven weeks in a coma while doctors tried to drain the fluids from her brain. She survived with permanent brain damage affecting memory and daily functions. The hospital settled a lawsuit with her family for a confidential amount.

Reliability of Federal Product Safety Database Questioned in Lawsuit

October 27, 2011 | Lebowitz & Mzhen

A lawsuit filed by an anonymous “Company Doe” seeks to block “baseless allegations” on a new website that allows consumers to post information on hazardous products. The website, SaferProducts.gov, represents an effort to “crowdsource” reporting of dangerous and defective products in the marketplace. The Consumer Products Safety Commission (CPSC) created the site and lunched it about six months ago. The lawsuit brings to light concerns raised by business groups that the website creates the potential for consumers to defame companies by posting false, misleading, or inaccurate information. One side of this dispute involves the right of manufacturers to do business without false disparagement. On the other side is the public’s interest in freely available information on hazardous products.

The CPSC is an independent agency of the federal government with a mandate to protect the public “against unreasonable risks of injuries associated with consumer products.” It regulates over 15,000 different consumer products by investigating claims of faulty, defective, or hazardous products. It can then issue recalls of products already released into the market or ban products yet to be released. In addition to SaferProducts.gov, the agency operates the National Electronic Injury Surveillance System (NEISS) which collects data on injuries caused by dangerous products from emergency rooms. Congress passed the Consumer Product Safety Improvement Act in 2008, which authorized the creation of a public database to collect information on product concerns.

In its first four months, according to the Government Accountability Office, the website received 5,464 consumer complaints. Of those, the CPSC found 383 of them to be “materially inaccurate.” In 204 of those reports, consumers had incorrectly identified the manufacturers of the allegedly hazardous products. The total number of reports received, while possibly low because of lack of widespread knowledge of the system yet, may be considerably lower than the number of reports received by the CPSC through its other programs. Annually, it collects over 360,000 reports through NEISS, 23,000 reports directly from manufacturers, and around 15,000 reports through the agency’s website and hotline.

SaferProducts.gov is the first service that gives members of the public the opportunity to directly report problems, and to access information reported by others. The CPSC clearly disclaims that it “does not guarantee the accuracy, completeness, or adequacy of the contents” of the website’s database. This potentially presents a problem both for manufacturers who may find themselves unfairly maligned, and for a public needing accurate and up-to-date information on hazardous products.

Family Files Wrongful Death Lawsuit Against California School Over Death of 12 Year-Old

October 19, 2011 | Lebowitz & Mzhen

The parents of a 12 year-old boy who died in September 2010 from acute cardiac arrest have filed suit against the school district where the child was enrolled, the child’s P.E. teacher, and two doctors who treated him. The lawsuit alleges negligence against the school district and teacher for failing to exercise reasonable care in the child’s physical education, and it alleges that the doctors were negligent in their prescribed restrictions on the child’s physical activities.

The child suffered from hypertrophic cardiomyopathy, a condition that causes thickening of the heart muscle, according to court documents. This makes it more difficult for the heart to pump blood efficiently. The congenital condition can result in sudden cardiac arrest and death, and is a leading cause of heart-related death among young athletes. The lawsuit alleges that, while temperatures in Los Angeles were at a record high of 107 degrees in September 2010, the school and P.E. teacher required the child to participate in physical education classes. The school and teacher allegedly knew about the child’s heart condition. The child allegedly suffered cardiac arrest on the morning of September 28, 2010 during his physical education, while under the teacher’s supervision. He died shortly afterwards.

The primary claim of the lawsuit is negligence. To prevail on a claim of negligence, a plaintiff must prove four elements: (1) the defendant owed a duty of care, (2) the defendant breached that duty, (3) the breach caused injury to the plaintiff, and (4) plaintiff has suffered damages as a direct result. The plaintiffs have also claimed negligence by medical professionals, which is a higher standard of negligence. Ordinarily, a negligence claim requires proof of a duty of care for a reasonable person. Medical malpractice imposes a higher standard of care on doctors and other medical professionals because of their specialized training. Since the school district and teacher named in the lawsuit care for children in the course of their daily professional duties, a court might apply a higher standard of care to them than it might to a person not accustomed to dealing with children. The lawsuit specifically alleges failure to follow the requirements of Section 504 of the Rehabilitation Act of 1973, which addresses protection of children with disabilities.

Fatal Bicycle Accident in Severna Park in Dark Lighting Conditions

October 13, 2011 | Lebowitz & Mzhen

Police are investigating a fatal bicycle crash that happened the evening of Friday, October 7, 2011 in Severna Park, Maryland. A 40 year-old cyclist sustained fatal injuries after a car struck him from behind on northbound Veterans Highway. The collision drove the man into the car’s windshield. Police responded shortly after 7:30 p.m., and the cyclist was pronounced dead after arriving at the hospital by helicopter.

The initial investigation has not shown any evidence of speeding or alcohol use as a factor in the accident. Police named “bicyclist visibility” as the accident’s cause, noting that the cyclist was dressed in dark, non-reflective clothing and that the accident occurred in a dark area of the highway. The driver of the car apparently simply could not see the bicycle, according to the investigation.

The Maryland Department of Transportation reports that there were 686 reported bicycle crashes in 2009, the most recent year for which statistics are available. Of those, there were 10 fatalities and 578 injuries. The Department notes that 40% of all bicycle crashes and 57% of all fatal crashes occur between 4:00 p.m. and 8:00 p.m. The cyclist was found to be at fault in 86% of all fatal Maryland crashes and 52% of the total crashes. “Fault” in bicycle accidents is determined the same way as in accidents involving only automobiles.

Maryland law treats bicycles the same as automobiles. Cyclists must take reasonable safety precautions, and car drivers must give the same consideration to a bicycle as they would to another car. For an automobile, reasonably safe driving in the evening or at night involves the use of head- and taillights and extra attention to surroundings that may be obscured by darkness. For cyclists, reasonably safe operation involves not only lights but some form of reflective clothing. Riding a bicycle at night is particularly dangerous, given the difficulty of seeing bicycles in the dark. Maryland law only requires helmets for people under the age of 16, but it applies all the same rules of the road to bicycles as to cars. Bicycles must obey traffic lights and signs, and cyclists may not wear headphones while riding.

Lawsuit Alleges Deliberate Exposure of Baltimore Children to Lead Poisoning

October 6, 2011 | Lebowitz & Mzhen

A lawsuit filed on September 15, 2011 alleges that the Kennedy Krieger Institute, a Baltimore research facility associated with Johns Hopkins University that cares for disabled children, exposed multiple children to lead poisoning during a study of lead paint conducted by the Institute in the 1990s. The class action suit alleges negligence, battery, fraud, and violations of Maryland’s consumer protection act. The number of children, many of whom would now be adults, who may be involved in the suit is not yet known.

The study, conducted from 1993 to 1999, looked for a cost-effective method to abate lead in children’s blood levels. Part of the study involved moving families into subsidized homes with varying levels of treatment to reduce exposure to lead paint and dust. Some homes had full removal of lead paint, and some had other remedial measures. The families included children ages 12 months to 5 years. Researchers would collect dust and water samples from the houses and blood samples from the residents over a 2-year period to compare the effectiveness of different methods at reducing lead exposure.

The lawsuit alleges that children received dangerous levels of exposure to lead in paint and dust in the houses used in the study. Researchers from the Institute allegedly assured the families that the homes were “lead safe,” and did not specifically disclose the potential dangers of lead exposure. The lawsuit further alleges that the Institute did not provide any medical treatment to participating children. Some children reportedly suffer permanent neurological injuries because of the exposure, lack of warning, and lack of treatment.

This lawsuit is only the latest in a larger legal battle related to this study. Another lawsuit reached the Maryland Court of Appeals in 2001, when the court drew a comparison between this study and the Tuskegee experiments of the early- to mid-20th century. The Tuskegee experiment deliberately withheld treatment for syphilis from African-American men who participated in the study, leading to considerable suffering and preventable deaths. The Institute still disputes this comparison.

$21 Million Wrongful Death Suit for Murder of Inmate on Prison Bus Is Going to Trial

September 29, 2011 | Lebowitz & Mzhen

A lawsuit against the state of Maryland and various state departments, state officials, and state employees may proceed to trial according to a ruling by Baltimore City Circuit Judge Sylvester B. Cox. The trial is scheduled to begin October 11, 2011. At issue is whether state officials and employees were negligent in failing to prevent the murder of one inmate by another on a prison bus.

In the early morning of February 2, 2005, a prison bus was transferring 36 inmates from a prison in Hagerstown to a facility in Baltimore. Five corrections officers were also passengers on the bus. As the bus traveled on Interstate 70, inmate Kevin Johns attacked and murdered fellow inmate Phillip E. Parker, Jr. by slashing his neck with a razor blade and strangling him. Parker died about ten minutes after the bus reached its destination.

Johns was convicted of Parker’s murder but was held not criminally liable because of mental illness. Johns already had two prior murder convictions. He committed suicide in prison in 2009.

This Maryland Accident Law Blog reported in May 2006 on the wrongful death lawsuit filed by Parker’s parents, Melissa Rodriguez and Philip E. Parker Sr., against the state, the Department of Public Safety and Correctional Services, the corrections officers on the bus and the bus driver, and other related state agencies. The lawsuit alleges that corrections officers did nothing to intervene in or prevent the attack, even though two officers were seating a few feet behind the two inmates. The officers were allegedly watching videotapes or listening to music and eating when the attack occurred. The plaintiffs’ attorney claims to have evidence that Parker lay dying for 10 minutes with no one trying CPR, as well as evidence that the officers had insufficient training for such situations. The suit seeks $21 million in damages, as well as punitive damages.

The Maryland attorney general’s office asked the court to dismiss plaintiffs’ claims, arguing that the officers had no knowledge of a specific threat against Parker, and that they therefore cannot be held liable for what occurred. Judge Cox disagreed, holding that “it can be reasonably inferred in this case that the officers were, at a minimum, negligent.” Judge Cox’s order denying the state’s motion to dismiss means that the lawsuit may now proceed to trial. The plaintiffs will have to prove by a preponderance of the evidence that the defendants are legally liable for Parker’s death.