Wrongful Death

Cap on Noneconomic Damages Violates State Equal Protection Clause, According to Florida Supreme Court

March 26, 2014 | Lebowitz & Mzhen

Caps on noneconomic damages, enacted in many states under the banner of “tort reform,” have brought uncertain results. While the stated purpose is to prevent litigation from driving up the cost of medical care, damage caps often lead in practice to injustice for victims of medical malpractice. A family in Florida challenged that state’s damage cap statute in federal court on constitutional grounds, after a court cut their judgment in half. The Eleventh Circuit Court of Appeals found no violation of the U.S. Constitution, but it asked the Florida Supreme Court to rule on the state constitution’s Equal Protection Clause. After nearly two years of review, the Florida court ruled that the state’s damage cap violates equal protection, finding that it “bears no rational relationship” to the goal of alleviating a “medical malpractice insurance crisis.”

More than half of all U.S. states, including Maryland, have laws capping noneconomic damages in medical malpractice and other personal injury cases. “Noneconomic damages” refer to intangible injuries like pain and suffering, mental anguish, loss of consortium, and disfigurement. Under Maryland law, the amount of the cap in medical malpractice cases increases by $15,000 every January 1. In 2014, the amount is $740,000, or $925,000 in wrongful death cases with two or more beneficiaries. Florida’s cap, which does not increase year-to-year, is $500,000 for medical injuries and $1 million for wrongful death.

The lawsuit challenging the Florida statute involves a woman who died due to complications after giving birth via caesarean section in February 2006. The birth was performed by U.S. Air Force medical personnel at a private hospital. Her parents, individually and on behalf of her estate and her infant son, sued the U.S. government under the Federal Tort Claims Act. A district judge ruled for the plaintiffs after a bench trial, awarding them over $980,000 in economic damages and $2 million in noneconomic damages. The noneconomic damage award was reduced to $1 million because of the damage cap.

Family of Man with Down Syndrome Killed in Altercation with Off-Duty Police Files Amended Complaint in Wrongful Death, Survival Lawsuit

March 19, 2014 | Lebowitz & Mzhen

The family of a man who was killed in an altercation with off-duty sheriff’s deputies at a Maryland movie theater have filed an amended complaint in their wrongful death and survival lawsuit. Estate of Saylor, et al, v. Regal Cinemas, Inc., et al, No. 1:13-cv-03089, am. complaint (D. Md., Mar. 11, 2014). Several defendants moved to dismiss the lawsuit late last year, claiming that the lawsuit failed to state a claim on which the court could grant relief against them. The plaintiffs sought and received leave from the court to amend their complaint, dropping two defendants and adding the State of Maryland in March 2014.

The decedent, Robert Ethan Saylor, was twenty-six years old at the time of his death on January 12, 2013. He had Down Syndrome, with an I.Q. of 40 and physical features commonly associated with the condition. According to the amended complaint, he was about five-feet-six-inches tall and weighed 294 pounds. He went to a movie theater in Frederick on the evening of January 12 with an aide. After the movie, Saylor reportedly became angry when the aide asked if he wanted to go home. The aide called Saylor’s mother, who suggested she go get the car. She left Saylor outside the theater to get the car, which was permitted under his care plan, and when she returned found that he had gone back inside.

A manager approached the aide, and she explained Saylor’s condition, explained that he would “freak out” if touched, id. at 6, and recommended that no one speak to him. The manager then asked an off-duty sheriff’s deputy working as a security guard to remove Saylor. The guard called in two additional security guards, also off-duty deputies, to assist. When they attempted to physically remove Saylor, he resisted, and the guards used force against him. Saylor suffered a fractured larynx, and was pronounced dead at the hospital just before midnight. The medical examiner ruled it a homicide. The plaintiffs describe it as a “violent, terrifying, and painful death.” Id. at 7.

Hospital Failed to Provide Adequate Supervision of Patient, According to Wrongful Death Lawsuit Brought by Family

March 12, 2014 | Lebowitz & Mzhen

A Texas hospital failed to supervise a man known to have mental health problems, resulting in the man’s death, according to a lawsuit filed by the man’s family. Martinez, et al v. Oak Bend Medical Group, et al, No. 14-DCV-212068, 2nd am. pet. (Tex. Dist. Ct., Ft. Bend Co., March 3, 2014). The lack of supervision allowed the man, who had already left the hospital unnoticed once, to leave the hospital and walk to nearby train tracks, where he was struck and killed by a train. The lawsuit assert causes of action for negligence against the hospital and the rail company, as well as claims under the state’s wrongful death and survival statutes.

According to the plaintiff’s second amended petition, police found the decedent, Arturo Martinez, unconscious outside of his father’s house in Richmond, Texas on December 2, 2013. They took Martinez, who had a history of mental illness, to Oak Bend Medical Center for treatment. Hospital staff allegedly knew about Martinez’s mental health issues. The following day, Martinez left the hospital unnoticed, having removed his own IV and catheter. Emergency personnel found him later the same day and brought him back to the hospital. The petition claims that Oak Bend was supposed to assign staff and security personnel to supervise Martinez.

Despite the presence of security personnel, Martinez managed to leave the hospital unobserved again on December 6. He left the building and walked onto nearby train tracks. An oncoming train, which allegedly failed to yield or give any warning of its approach, struck Martinez. He was brought back to Oak Bend with blunt force trauma injuries. The hospital performed surgery, allegedly without first obtaining the family’s permission, but Martinez died later that day.

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.

Negligence Lawsuit Filed Following Movie Theater Death of Man with Down Syndrome

October 18, 2013 | Lebowitz & Mzhen

A civil lawsuit was recently filed in the case of a man with Down Syndrome who was killed by Sheriff’s Deputies following a misunderstanding after his attempt to view a movie twice without paying.

The altercation happened last January, when the man and his caretaker had just finished watching a film. His caretaker left him out front to retrieve her car, and the man attempted to re-enter the theater to watch the film a second time. After a confrontation with the management, several Sheriff’s Deputies arrived. According to witness statements, deputies wrestled the man from his seat and onto the floor despite warnings from his caregiver that the man would “freak out” if they touched him, and requesting that they be able to “wait it out.” The Frederick County Sheriff’s Office said, when they released the full incident report, that the man had resisted and swore at the officers.

The lawsuit states that he “died a violent, terrifying, and painful death” due to the alleged negligence of the theater and deputies.

Judge Allows Wrongful Death Lawsuit Against Church to Proceed

September 23, 2013 | Lebowitz & Mzhen

A Superior Court judge recently ruled to allow a wrongful death lawsuit to proceed against a church and its pastor.

The lawsuit arises out of the circumstances surrounding the brutal rape and killing of a 35 year old church day-care employee by the church’s janitor. The woman’s husband and children were expecting her to come home from work as usual, but instead were informed that her body had been found in a roadside ditch the next morning several miles south of the church.

Authorities have since charged the church janitor with raping and killing her. His trial was initially set in Maryland, but has since been moved to Delaware. Trial has yet to begin, with the defendant having pleaded not guilty.

Maryland Man’s Estate Recovers $3 Million for his Wrongful Death by Electrocution

May 20, 2013 | Lebowitz & Mzhen

The West Virginia Record recently reported about the disposition of a lawsuit regarding the wrongful death of a local man, who was electrocuted while working.

The decedent’s wife originally filed the lawsuit in 2011 on behalf of husband’s estate against Potomac Construction Industries and Sumersett Construction. The man was killed in Harpers Ferry in October of 2010. Among other claims, the lawsuit alleged that Potomac Construction failed to comply with relevant state and federal safety statutes, and negligently caused the unlawful emission of high voltage electricity.

The complaint sought economic damages in excess of $3 million. Sumersett and New Era settled for $1.8 million, and Potomac Construction later settled for $1.5 million. Thus, the aggregate sum of the settlements was in excess of $3 million.

The exact breakdown of the settlement remains unclear, although the victim left behind his wife and a young child. Under Maryland law, recoverable claims in these types of cases include things such as loss of companionship, lost wages, funeral expenses, and in some cases punitive damages, when there is evidence of blameworthy conduct. A final settlement is an agreement that the party is being compensated for all of the damages suffered, as a final disposition of the matter. This means that no further lawsuits or other legal claims may be pursued regarding the matter.

Maryland Man Dies Tragically at Tough Mudder Race

April 29, 2013 | Lebowitz & Mzhen

With the warmer weather encouraging outdoor activities, many individuals are taking part in challenging races which as their hallmark involve obstacles, mud, or somehow getting dirty as part of the festivities.

One of the most popular types of these races, called the “Tough Mudder,” describes itself as

“probably the toughest event on the planet.” It features ten to twelve miles of obstacle courses, and was initially designed by a former counterterrorism agent for the British government. Typical obstacles include a slicked half-pipe that participants have to scale, and an obstacle where runners must traverse through live wires. Participants are not required to complete every obstacle in the race.

A recent Tough Mudder event in West Virginia resulted in the tragic death of a local 28-year-old man. According to witnesses, the man never resurfaced after jumping into ice cold water during the Walk the Plank obstacle. Friends who were also present at the race, reported that it took four to seven minutes for authorities to get to him. The race had some 75 medical professionals on duty that day. While medics were able to resuscitate him at the scene of the course, he was later flown to a local hospital, and died after being taken off of life support. According to the local medical examiner, the cause of death was accidental drowning.

Representatives of the race released a statement saying that they were “devastated” by the incident, and that they are fully cooperating with local law enforcement authorities. They also stated that this is the first death in the three year history of the company.

According to other sources, this specific race was particularly affected by injuries. One hospital reportedly became so overwhelmed with patients injured on the obstacle course that it actually had to turn people away from its emergency room. It has been reported that two participants suffered heart attacks, ten had hypothermia, head injuries, or orthopedic injuries, and one other individual was treated for drowning. The hospital reported taking in a total of 20 patients over the weekend that the event occurred.

School District to Pay $90 Million for Wrongful Death of 13-Year-Old

April 22, 2013 | Lebowitz & Mzhen

According to news reports, last week a Maryland jury awarded $90 million to a family who lost their 13-year-old daughter 4 years ago. The wrongful death verdict, reached by a jury of six, is one of the largest in the court’s history.

The girl was struck by a Lincoln Continental when she was crossing Brinkley Road near Fisher Road in Temple Hills. The driver then hit another vehicle, as well as another young pedestrian who was walking on the other side of the street. The family sued the Prince George’s County Board of Education, where the girl was a freshman student, two weeks after the September 2009 crash, when she died as a result of her injuries.

The family alleged that the school system did not provide a safe bus stop for students, and further that the bus driver “persistently negligently failed to stop at the appropriate stop,” which resulted in the girl trying to ride a different school bus on the other side of the street. This meant she had to cross the street in order to be picked up.

Apparently parents in the district have expressed their concern for years regarding unsafe routes and late school buses. In some cases, due to budget cuts children are expected to walk 1-1.5 miles to school due to lack of busing services.

The school is expected to appeal the decision.