Maryland Accident Law Blog

Maryland Court of Appeals Clarifies Evidentiary Standard for Non-Party Negligence in Medical Malpractice Suits

October 14, 2020 | Lebowitz & Mzhen

Recently, the Court of Appeals of Maryland decided a case concerning non-party negligence in a Maryland medical malpractice case. Maryland state law allows those injured by a doctor or other health care professional’s negligence to file a medical malpractice suit against the negligent party to recover for their injuries. Sometimes, when defending against that claim, the defendant will attempt to argue that they were not negligent, but that someone else—a non-party in the case—was negligent, and they caused the injuries.

The recent case provides such an example. According to the court’s written opinion, the plaintiff was found to have a renal tumor in his kidney and an adjacent enlarged lymph node. His urologist removed the cancerous kidney, but did not remove the lymph node because it was thought that it could not be removed safely. The plaintiff’s oncologist also did not think the lymph node could be removed, even though it was likely cancerous. The oncologist treated the plaintiff with a chemotherapy drug instead for several years, and the lymph node shrunk (confirming it was cancerous). During this treatment, a radiologist interpreted various scans of the plaintiff’s lymph node, but never noted any issue of enlargement. However, the original radiologist and another radiologist did note that the scans of the lymph node were not always performed with the best technology, meaning sometimes they were difficult to interpret.

Tragically, it turns out that the lymph node—still cancerous—had increased in size over the years. At this point, it was definitely too big to remove, and the plaintiff underwent cancer treatment. The plaintiff filed suit against the radiologists, alleging that they failed to alert his oncologist of the lymph node’s growth. Had they done so, the plaintiff argues, the oncologist could have removed it safely before it grew too large.

The State-Created Danger Doctrine in Maryland

October 6, 2020 | Lebowitz & Mzhen

The state-created danger theory imposes liability on a governmental entity for acts committed by a private actor. It generally applies in situations where the state increases the risk of harm to an individual through the state’s affirmative acts. Although courts have considered the doctrine in Maryland accident cases, Maryland had not adopted the state-created danger theory as a basis for recovery for violations under the state’s constitution. In general, under Maryland law, a private party does not have a duty to control a third party’s conduct to prevent harm to another person. However, a private party may have a duty when there is a special relationship between the private party and the third party or between the private party and the injured person. Whether a special relationship exists is determined on a case-by-case basis.

A federal appeals court recently considered the doctrine in a case involving three family members who died in a fire after the fire department failed to go look for them. According to the court’s opinion, the woman was in her apartment with her son and her stepfather and called 911 when they saw their apartment building was on fire. An operator from the fire department told her to stay inside the apartment and that help was on the way. The firefighters drove to the wrong location, and when they did arrive at the scene, they were never told that the family was inside, and no one searched for them. The three family members remained inside and died from smoke inhalation. No one looked for them until days later, when the firefighters found their bodies inside the apartment.

The estates of three family members sued the city and two fire department employees. The estates claimed that the state-created danger doctrine applied because the dispatcher told them to close themselves in their room, assured them that firefighters were on their way, and then failed to communicate the family’s presence or location to the firefighters. The court explained that the doctrine requires that there be, 1.) a foreseeable and fairly direct harm, 2.) an action that shocks the conscience, 3.) a relationship with the state that makes the plaintiff a foreseeable victim, and 4.) an affirmative use of state authority that created a danger or made others more vulnerable. The court held that the doctrine was inapplicable because there was it was not an affirmative act and because the conduct did not “shock the conscience.” It held that the dispatcher did not act affirmatively because the dispatcher only failed to communicate the family’s location to the firefighters, and the operator’s failure to communicate the family’s location was not sufficient to “shock the conscience,” in part, because it was not an intentional act.

The Difference Between Direct and Proximate Cause in Maryland Accident Cases

September 28, 2020 | Lebowitz & Mzhen

In Maryland personal injury lawsuits, a plaintiff typically has to prove causation—that the defendant’s action (or failure to act) caused the accident and the plaintiff’s injuries. While this sounds straightforward, it can be incredibly complicated, especially as many courts consider two different types of causation necessary to win a case: direct and proximate causation. Direct causation is easier to understand—did the defendant’s action lead to the accident, such that but for the defendant’s action, the accident would not have happened? However, direct causation is not enough. Sometimes a defendant does something that directly leads to the accident, but the connection between the two is so disconnected that it is unfair to hold the defendant accountable.

For example, suppose that someone is hit by a car while riding their bike. They are uninjured, but their bike is totaled. Because of this, they have to ride the bus to work, and they slip and fall while exiting the bus hurting themselves. They might want to file a personal injury lawsuit against the driver of the car who originally hit them while they were on their bike, because absent that accident, they would not have been on the bus and then would not have been injured. However, in this case, the driver’s actions would not be the proximate cause of the plaintiff’s slip and fall injuries—the events are too separate from each other to hold the motorist responsible.

Recently, a state appellate court considered a slightly harder case on proximate causation. According to the court’s opinion, the plaintiff bought a cup of hot tea from Starbucks. When the drink was ready, she retrieved it from the store’s pick-up counter. The tea had a lid on it and was “double cupped”—the cup with the tea was placed inside a second empty cup. However, the plaintiff alleges that the cup was very hot, and that there wasn’t a sleeve around the outer cup. When she sat down, she removed the lid on her drink. While seated, she attempted to bend forward and take a sip from the open cup in front of her. While doing so, she tried to push the chair a bit, but it moved more than anticipated and lost her balance, grabbing onto the table and causing the drink to spill onto her thighs, burning her.

Maryland Court of Appeals Clarifies Standard of Admitting Expert Witness Testimony in Personal Injury Cases

September 21, 2020 | Lebowitz & Mzhen

When someone is injured in a Maryland accident and decides to file a personal injury lawsuit, their case may end up going to trial. Many people imagine trials look like how they appear on television—two lawyers arguing in front of a judge, questioning witnesses, and making a passionate appeal to the jury. While this does happen, a lot of the work involved in a trial actually happens behind the scenes, in deciding what evidence is and is not admissible. This is especially important when it comes to Maryland medical malpractice cases, which typically involve expert witness testimony. Recently, the Court of Appeals of Maryland issued an important opinion that clarified when expert testimony based on new or novel scientific principles is admissible.

In the 1970s, the court adopted what is referred to as the “general acceptance” test, which basically stated that courts should decide the admissibility of evidence by looking to see if there is general acceptance within the relevant scientific community. Not every member of the scientific community has to agree with it under this test, but it should be generally accepted by a fair proportion. However, in the 1990s, in response to a U.S. Supreme Court decision, Maryland adopted Maryland Rule 5-702, modeled after the Federal Rules of Evidence Rule 702, which laid out the elements of admissible expert testimony. This new rule did not, however, overrule the court’s previous decision that adopted the general acceptance test, leaving many confused about how the two were related.

Finally, the Court of Appeals addressed the confusion in a medical malpractice case. The plaintiff in the case was trying to submit expert testimony on the connection between lead poisoning and ADHD, and disputes arose over the admissibility of the evidence. In the court’s written opinion, it clarified that the general acceptance rule was no longer the proper test when deciding whether or not the evidence was admissible. Instead, ten factors from the Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals were to be weighed by trial courts.

Damages Available in Maryland Product Liability Lawsuits

September 15, 2020 | Lebowitz & Mzhen

Maryland product liability lawsuits allow consumers to pursue a claim for compensation against the manufacturers, distributors, and resellers of hazardous products. A product liability suit filed against a responsible party may permit an injured plaintiff to recover a range of damages, and it is important for an accident victim to fully understand what may be available when determining the best course of action for their family.

The term damages refers to the financial compensation owed to an accident victim based on the other party’s wrongful conduct. In Maryland, damages are generally made up of compensatory damages, which are divided into two categories: economic and non-economic damages. Economic damages, also referred to as special damages, are damages that consist of a fixed dollar value, such as past and future medical bills, loss of income, transportation costs, and others. Non-economic damages, also referred to as general damages, are damages that do not have a fixed value, such as pain and suffering, loss of consortium, and mental anguish. Compensatory damages are meant to compensate the victim for their pain and losses. Generally, damages must be proven by a “preponderance of the evidence,” which means that it is more likely than not to be true.

Punitive damages are also available in some Maryland cases. For a punitive damages award under Maryland law, a plaintiff must establish that the defendant acted with knowing and deliberate wrongdoing. This must be proven by clear and convincing evidence. Punitive damages are generally reserved for cases involving egregious conduct, such as deliberately selling a defective product that the seller knew could cause physical harm without proper warnings. Punitive damages are meant to punish wrongful actors and to deter others from similar behavior. Statutory damages are also available in some cases based on mandates under the law.

Maryland Slip and Fall Accident Victims May Face Challenges if They Were Aware of the Hazard Causing Their Fall

September 8, 2020 | Lebowitz & Mzhen

When someone slips and falls, causing injuries, they may be entitled to bring a personal injury lawsuit against whoever owns the property or was responsible for leaving it in a hazardous condition. Maryland slip and fall accidents are frequently brought against cleaning companies for failing to post “wet floor” notices, or against grocery store owners who fail to notice or remedy a leak that causes a customer to slip and suffer injuries. However, Maryland residents should be aware that not every slip and fall case leads to a successful personal injury suit.

For example, take a recent slip and fall case decided in a state appellate court. According to the court’s written opinion, the plaintiff was working in an airport when the accident occurred. One evening, after completing her shift, she went to an office elsewhere in the airport to turn in some paperwork and money. As she got off of an escalator, she noticed a man cleaning the airport was to her left and a “wet floor” sign. She turned right and walked towards the office when she slipped and fell. Unfortunately, she landed hard on her right side, striking her head and briefly losing consciousness. When she regained consciousness, she noticed that her clothes were wet. As a result of her fall, she suffered neck and spinal injuries that required surgery.

The plaintiff brought suit against the independent contractor responsible for cleaning the area. Her suit was based on the defendant’s negligence, claiming that they had knowledge of the danger that she did not have but failed to warn her of the hazard of the wet floor. The defendant moved for summary judgment and to have the case dismissed, arguing that the plaintiff also had knowledge of the hazard. The trial court granted their motion, and the plaintiff appealed.

Holding Drivers Accountable in Maryland Car Accidents Caused by Emergency Situations

August 27, 2020 | Lebowitz & Mzhen

Unfortunately, Maryland drivers encounter dangerous situations all the time—a car stopped in the middle of the road, debris blocking the roadway, or even a chain-reaction crash. Yet, even when a Maryland driver encounters a dangerous situation, the driver must respond reasonably to the situation under the circumstances. Failure to do so may make the driver liable for resulting injuries. Under Maryland law, a driver who “suddenly finds himself in a position of peril” is not expected to exercise the same care as when the driver has sufficient time to decide what he should do. This is known as the emergency doctrine and may apply in some Maryland accident cases. However, the doctrine does not apply when the peril comes about because of the driver’s own negligence or if the driver is not actually in a position of sudden peril. Where a driver does take an action in response to the emergency, a jury (or judge) must consider whether the driver made a choice that a reasonable, prudent person would make considering the choices he had and the time he had to recognize and evaluate those choices.

In a recent case involving the sudden emergency doctrine before one state appellate court, the court explained how and where the sudden emergency doctrine applies under that state’s law. In that case, the defendant was driving on the highway and changed lanes and passed a stopped vehicle to avoid crashing into the stopped vehicle. The plaintiff’s husband’s vehicle was behind the defendant’s vehicle and crashed into the stopped vehicle. The plaintiff’s husband died and the plaintiff filed a wrongful death action against the defendant and others.

The defendant argued that the sudden emergency doctrine applied and acted as a complete defense. The defendant argued that the sudden emergency was the stopped car that he encountered in the road. The plaintiff argued that the defendant created the emergency by changing lanes at an unreasonably late time for the plaintiff’s husband to see the stopped car. The plaintiff argued that the sudden emergency was the husband’s inability to see the stopped car because of the defendant’s late lane change.

Establishing the “Duty” Element of a Maryland Personal Injury Case

August 19, 2020 | Lebowitz & Mzhen

In order to hold another person or entity liable for injuries sustained in a Maryland accident, the defendant must have owed a duty to the plaintiff to protect the plaintiff from the harm the plaintiff suffered. For example, a person who falls on a sidewalk generally cannot hold another passerby liable for the injuries from the fall because the passerby was not involved in the fall and did not owe a duty to prevent the person’s fall or even to render aid to the person. However, for example, the city might be liable for the person’s injuries if it failed to repair the sidewalk. In such a case, the city might have had a duty to repair the sidewalk if it was made aware of the sidewalk’s dangerous condition, and may have failed to meet its duty by failing to take any action.

Under Maryland law, duty is characterized as an obligation to meet a certain standard of conduct towards another. In considering whether a defendant owed a duty to a plaintiff in a certain scenario, courts will consider the relationship between the defendant’s conduct and the plaintiff’s injury and whether the harm the plaintiff suffered was foreseeable, among other things. A recent decision from another state appeals court illustrates the limits of a hotel’s duty to a guest in one scenario.

In that case, the plaintiff brought a wrongful death claim against the hotel on behalf of their deceased loved one. Evidently, the deceased accident victim was a guest at the hotel, which offered guests a free golf cart service to take guests around the property. Per the hotel’s policy, the golf cart would cross a local public road next to the hotel to drop guests off on the other side but otherwise did not travel on public roads. One night, the accident victim asked a bellman to give him a ride in the golf cart, and asked to go to a grocery store which was across a highway. Per the hotel’s policy, the bellman did not take the decedent to the store and instead dropped him off on the other side of the public road. The decedent was required to cross the highway to get to the store and while waiting to cross on foot, he was hit by a car and later died.

Filing a Maryland Injury Claim Based on a Product Recall

August 13, 2020 | Lebowitz & Mzhen

A product recall is not a prerequisite to filing and winning a Maryland product liability claim. Yet, product recalls are often a precursor to litigation against the seller, because a recall is an indication that the product is not safe for its intended use. If a product is recalled because it is not safe for its intended use, the agency that called for a recall will offer a remedy for consumers affected by the recall. A consumer can still file a suit against the manufacturer, distributor, and often retailer of the unsafe product.

A government agency can suggest or require a company recall its product, but the company itself has to follow through and issue the recall itself. In some cases, an agency may issue a voluntary recall, and the offending company is left to decide whether to issue a recall. In other cases, an agency may issue a mandatory recall, and the offending company is required to issue a recall.

In a strict liability case, the plaintiff has to show in general that the defendant’s product was defective and that the defect caused the plaintiff’s injuries. Unlike in a negligence case, in a strict liability case the plaintiff does not need to show that the defendant was negligent in some way but rather focus on the defective product. In the case of a misrepresentation related to a product, a potential plaintiff may be able to recover damages if the plaintiff relied on the misrepresentation and is harmed by the misrepresentation. A product must also adequately warn about potential dangers and risks inherent in a product and provide consumers with information about the correct use of the product if necessary.

What Is Res Ipsa Loquitur and When Can It Be Used in Maryland Accident Cases?

August 5, 2020 | Lebowitz & Mzhen

There are certain personal injury cases where there is no specific evidence tying the defendant to the accident, but it is clear that the defendant caused the accident and should be held liable. In these instances, the doctrine of res ipsa loquitur can often be utilized. Res ipsa loquitur is Latin for the “thing speaks for itself” and allows a jury to infer the defendant’s negligence without needing direct evidence. While not often used, res ipsa loquitor can be extremely beneficial to help Maryland plaintiffs recover for their injuries, who might not be able to so otherwise.

In a recent state appellate case, a plaintiff was injured leaving his doctor’s office. Stepping onto the elevator, the plaintiff did not notice the floor of the elevator was two feet below the landing. The plaintiff sued the property owner, arguing the owner was negligent by not fixing the elevator. Among other claims, he argued the defendant was liable under the doctrine of res ipsa loquitur. Although the defendant had sole control over the elevator, and was in charge of its maintenance, the court granted summary judgment for the defendant. During the appeal, the plaintiff chose not to raise the issue of res ipsa loquitor, meaning a jury would not hear this claim.

When a plaintiff asserts res ipsa loquitor in a Maryland personal injury case, they are claiming that negligence may be presumed from the circumstances of the accident. Unlike a traditional negligence claim, a plaintiff relying on res ipsa loquitor does not need to establish the traditional requirements of negligence, nor do they need to provide direct evidence linking the defendant to the accident.