Maryland Accident Law Blog

Expert Standards in Maryland Medical Malpractice Claims

November 26, 2019 | Lebowitz & Mzhen

Proving that a certain act is legally negligent in a Maryland medical malpractice claim hinges on the testimony of an expert witness. This is because many medical decisions are difficult for nonmedical professionals to evaluate, and expert testimony helps the jurors understand the potentially complex issues involved in a case. In fact, lawmakers have determined that expert testimony is required to successfully bring a medical malpractice claim.

Under the Maryland Health Care Malpractice Act, a plaintiff has to file a Certificate of Qualified Expert within 90 days of the filling of the claim. A plaintiff has to prove that a health care professional failed to meet the standards of practice among members of the same health care profession with similar training and experience. The Certificate of Qualified Expert is an attestation from a qualified health care provider . . . that the care provided was “not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities” at the time of the acts in question. A court can review a certificate and determine whether it meets the requirements under the statute.

The expert health care provider must have had qualified experience in the defendant’s specialty, related health care field, or in the field that the defendant provided care or treatment within 5 years of the acts in question. Maryland also has a law that an expert may not devote more than 20 percent of the expert’s professional time to activities that involve providing testimony in personal injury claims. The following example shows the importance of understanding the standards required of health care providers to weigh a provider’s choices.

Maryland Slip and Fall Accidents Caused by Ice and Snow

November 18, 2019 | Lebowitz & Mzhen

Each year, thousands of people are injured in Maryland slip and fall accidents. Not surprisingly, a large percentage of these accidents occur in the winter months, when the presence of ice and snow makes navigating parking lots, sidewalks, and driveways a potentially dangerous experience.

When it comes to determining who is responsible for clearing snow or ice, Maryland law does not provide clear answers. Under general premises liability law, landowners owe a duty of care to those whom they allow onto their property. This duty requires a property owner to take reasonable care in maintaining their property and that they warn guests of known dangers. Maryland does not have a law directly discussing a property owner’s duty to clear snow and ice. Thus, the extent of a landowner’s duty, if any, will be determined by considering the following:

Did the landowner know about the snowy or icy conditions?

Filing a Lawsuit Against the State of Maryland

November 12, 2019 | Lebowitz & Mzhen

Filing a Maryland injury lawsuit can be more complicated when the state government is the defendant in the case. One potential complication is that a plaintiff must first provide notice when filing a claim against the state of Maryland in a personal injury claim.

Under section 12-106 of the Maryland Tort Claims Act (the Act), a claimant cannot bring a claim under the Act unless the claimant submits a written claim to the Treasurer within one year after the injury. The Treasurer then must deny the claim before the claim can be filed in court. The claim also must be filed within three years after the cause of action arises. There are some exceptions to the rule, for example, if the state has actual or constructive notice of the injury or of the defect within the year following the injury. The notice must comply with the requirements detailed in section 12-107 of the Act, which include a statement of facts and specific damages.

A recent case demonstrates how strictly notice requirements can be construed. In that case, an appeals court considered whether an estimate of damages in a notice to a city complied with the notice requirement. The plaintiff sent her notice to the city, notifying the city that she broke her leg after she stepped in a hole on a city crosswalk. She claimed that the city was negligent because residents had notified the city about the hole, and the city failed to repair it. In the notice, the plaintiff stated that “to the extent that [she] was require[d] to provide a dollar value,” she believed the value of the claim “may exceed $300,000.00.” She also stated that if the letter did not provide sufficient notice under the state, the city should advise her immediately in writing, and that she would correct any deficiencies. The woman subsequently filed suit in court. The city then responded to the notice, stating that the city denied liability. In response to the lawsuit, the city argued that the plaintiff had not complied with the notice requirement.

Third-Party Liability Lawsuits Against Maryland Pharmacies

November 5, 2019 | Lebowitz & Mzhen

Recently, a state appellate court issued an opinion addressing whether pharmacies can be responsible to a third-party when the third-party suffers injuries as a result of the pharmacy’s negligence. The court discussed complex third-party liability issues that may affect Maryland car accident victims.

In this case, the pharmacy technician negligently gave a customer an incorrect prescription. The medication is known to cause sudden drops in blood pressure and subsequent cognitive impairments. These symptoms are particularly severe when the person taking the drug does not suffer from what the drug is designed to treat.

The driver was on the medication when he allegedly caused a fatal car accident. The customer’s son settled a lawsuit with the pharmacy, but the other victims sued the chain. The plaintiffs filed a lawsuit based on third-party liability and negligence per se. The court found that under the specific facts of the case, the pharmacy did not owe the third parties a duty of care and that negligence per se was not applicable.

Can a Maryland Landlord Be Held Liable for a Tenant’s Injuries

October 28, 2019 | Lebowitz & Mzhen

In Maryland, landlords are not automatically responsible for injuries that a tenant sustains at a rental property. Typically, Maryland landlords are only liable when their tenants or their guest’s injuries were the results of the landlord’s careless action or inaction. Maryland personal injury lawsuits against landlords generally involve accidents that occur in common areas, or as a result of defects in the property when the rental agreement was executed, or from conditions that the landlord agreed to remedy. Lawsuits that fall outside of these parameters present additional challenges.

For example, recently, a state appellate court issued an opinion in a tenant’s lawsuit against her landlord. The court addressed issues that frequently arise in personal injury lawsuits against landlords in Maryland. The tenant suffered injuries after she opened a storm door, and a gust of wind knocked her into a railing. The railing broke, and the tenant fell to the ground, injuring her ankle. During pretrial proceedings, the tenant argued that the porch was in disrepair and did not meet building code requirements, she also conceded that she knew that the railing was broken. The defendants argued that the court should grant summary judgment under both the state’s residential landlord-tenant act and common law theories of negligence. The appellate court found that the tenant knew of the defect and failed to remedy it. Therefore, the defendants were not liable under both the state’s landlord-tenant act and common law theories of negligence.

This case exemplifies common impediments that Maryland tenants may encounter when filing personal injury lawsuits against their landlords. However, there are many instances where Maryland landlords may be liable for injuries that their tenants suffer on their property. First, the landlord may be responsible if they had control over the dangerous feature, such as in the common area of the property. For example, a landlord may be liable if a tenant suffers injuries in a shared laundry facility on the property. Next, Maryland landlords may be responsible if they knew of or hid a concealed danger.

Establishing Homeowner Liability in Maryland Slip and Fall Accidents

October 22, 2019 | Lebowitz & Mzhen

Maryland slip and fall accidents occur under a range of circumstances and can result in serious injuries or even fatalities. According to recent statistics compiled by the Center for Disease Control and Prevention (CDC), more than one million people suffer injuries after a slip and fall accident every year. Additionally, over 15 thousand people die every year related to injuries they sustained during a slip and fall. In many cases, slippery surfaces or broken steps cause slip and falls. When an individual suffers injuries in a Maryland slip and fall accident, they must understand their rights and remedies.

Maryland premises liability law establishes when a property or landowner is responsible for damages that a person suffers when they are injured on the property owner’s land. Generally, all Maryland property owners owe their visitors a duty to keep them reasonably safe from harm. Specific responsibilities vary depending on the type of property owner and visitor. Maryland distinguishes visitors into four categories, trespassers, bare licensees, invitees, and licensees.

In Maryland, trespassers are those that enter a property without permission. Generally, landowners do not owe trespassers any duty except to avoid willful or wanton misconduct. Similarly, bare licensees are those that enter a property for their own gain. Bare licensees are people such as door to door salespeople. Property owners owe bare licensees the duty to warn of any known dangers.

The Collateral Source Rule in Maryland Personal Injury Lawsuits

October 14, 2019 | Lebowitz & Mzhen

Maryland personal injury victims can file personal injury lawsuits and recover damages from the negligent individual or entity that caused their injuries. After a finding of negligence, juries will then determine the amount of damages that the plaintiff should recover. Damages often include medical expenses that the plaintiff incurred as a result of the injury or accident.

Maryland follows the collateral source rule which provides plaintiffs with the right to recover the full value of treatment and other economic damages. This rule allows Maryland plaintiffs to recuperate these losses even if the value is more than their out-of-pocket costs. Juries in these cases are prohibited from reducing a plaintiff’s reward for medical expenses and lost earnings based on reimbursements that they may receive from another source. Other sources include health or car insurance companies or paid leave from the plaintiff’s employer.

The collateral source rule prevents negligent defendants from obtaining a windfall because the victim has other sources of recovery. Moreover, it encourages people to obtain and maintain insurance policies. Collateral source instructions typically come up in the context of motor vehicle accidents. For example, another state’s appeals court recently issued an opinion stemming from an appeal of damages based on the collateral source rule. In that case, the plaintiff suffered severe injuries when she fell in a hotel parking lot. Medicare settled with her medical providers and covered the entirety of her expenses, which ended up being only one-fifth of her original bill. During the trial, the defendant attempted to bar the plaintiff’s introduction of her medical bills. The defendants argued that the plaintiff should only be able to introduce Medicare payments. The appeals court held that the amounts initially billed are relevant evidence subject to the collateral source rule and therefore should be admitted.

Court Addresses Liability Against Amazon in Maryland Products Liability Lawsuit

October 7, 2019 | Lebowitz & Mzhen

Recently, an appellate court issued an opinion in a Maryland product liability lawsuit against Amazon. According to the court’s opinion, the plaintiff purchased a headlamp from Amazon as a gift for his friends, however, tragically, the headlamp’s batteries were defective and caused the friend’s home to ignite, resulting in over $300,000 in damages. The friend’s home-insurance policy paid damages to the victim and subsequently filed a lawsuit against Amazon to collect their costs. The insurance company alleged negligence, strict liability, and breach of warranty against Amazon. Amazon moved for summary judgment, arguing that they are immune from liability because they were not the seller of the headlamp. The Circuit court held that Amazon was immune under Maryland products liability law.

The appellate court held that Amazon was not liable under Maryland products liability law because they were not the “seller” of the headlamp. The purchaser bought the headlamp from Amazon’s website; however, the transaction stated “sold by Dream Light” and “Fulfilled by Amazon.” Under Maryland law, sellers and manufacturers can be liable for product liability claims under negligence, strict liability, or warranty breach theories. However, Maryland victims must be able to establish three elements to impose liability successfully.

Generally, Maryland products liability plaintiffs must show that, the product was defective, the defect is attributed to the seller, and a causal relationship exists between the injury and defect. After a plaintiff meets these requirements, they must then show that the defect existed when the product left the manufacturer, seller, middleman, distributor, or retailer. However, sellers must have received the title and ownership of the product. Entities that do not take the title of a product during distribution are not sellers, and thus, are not liable for any defects.

Establishing Liability in a Maryland Medical Malpractice Case

September 26, 2019 | Lebowitz & Mzhen

Recently the Supreme Court of Virginia issued an opinion stemming from a medical malpractice lawsuit against a plastic surgeon. The court addressed two common issues concerning expert witnesses and abuse of discretion that frequently occur in Maryland medical malpractice lawsuits.

According to the court’s opinion, the doctor performed a cosmetic procedure, a blepharoplasty, designed to remove puffiness and fat from the eyelids. Following the surgery, the plaintiff discovered that she was functionally blind in one eye after suffering permanent injury to her levator muscle. The plaintiff filed a medical malpractice lawsuit against the doctor, alleging that he negligently performed the surgery. At trial, the jury found in favor of the plaintiff and awarded her compensatory damages. The defendant appealed the ruling, arguing, among other issues, that the plaintiff should not have been permitted to cross-examine his medical expert on his disciplinary history.

In Maryland, plaintiffs must have a medical expert witness to support their medical malpractice lawsuit. Moreover, plaintiffs are entitled to cross-examine a defense’s expert witness. Generally, under Maryland law, an expert witness must have, clinical experience, previous consultations related to clinical practice, and taught medicine in the defendant’s specialty within five years of the negligent action. After a medical expert agrees to testify, they must obtain a Certificate of Merit. During testimony, a plaintiff is permitted to cross-examine an expert witness. Maryland Rule 5-702, mirrors the Frye standard, which allows expert testimony if it will enable the trier of fact to understand the evidence or determine an issue. Additionally, if a party objects to testimony, the court will weigh the testimony’s probative value versus its prejudicial effect to determine whether admitting the testimony is appropriate.

The Gross Negligence Standard in Maryland Wrongful Death Suits

September 19, 2019 | Lebowitz & Mzhen

A Maryland Appellate Court recently issued a written opinion discussing the heightened standard for proving gross negligence in a Maryland wrongful death lawsuit. According to the court’s opinion, in early March of 2011, the victim woke up around one in the morning with chest pains. The victim’s wife called 9-1-1, reporting the chest pain and her husband’s difficulty breathing and speaking. The defendants, first responders, arrived on the scene shortly after, asked the victim about his symptoms, and did a visual assessment, concluding that he should be taken to the ambulance for further assessment. The victim walked to the ambulance himself without the aid of a stretcher. Once inside the ambulance, the defendants checked his vitals, which all appeared normal. The defendants then determined they would take him to the nearest hospital.

Approximately seven minutes after first arriving on the victim’s street, the defendants took him to the hospital. According to the defendants, the victim was comfortable and talkative during the three-minute drive. At the hospital, while waiting in the emergency room, the victim’s condition seemed to worsen, and the victim held his chest and complained about the pain for five to ten minutes until he ultimately became unconscious. At this point, he was taken immediately to receive treatment, and the defendants left the hospital and went back to work. The victim ultimately could not be resuscitated and died of a heart attack.

Maryland law allows surviving family members to seek compensation for a tragedy, and the victim’s family filed a wrongful death claim against the defendant first responders. Under Maryland law, to be successful in a claim against a first responder, the plaintiffs must prove gross negligence, as opposed to simple negligence. Gross negligence, according to the court’s opinion, is a high bar to prove. Simple negligence is falling below the ordinary level of care that a reasonable individual would use in a similar situation. Gross negligence, on the other hand, is an intentional and reckless disregard of the consequences of one’s actions or how they may affect others. This is a difficult standard, and to be considered gross negligence the conduct must be extraordinary or outrageous.