Maryland Accident Law Blog

Plaintiff Nearly Loses Opportunity to Pursue Compensation Due to Late-Filed Expert Affidavit

January 8, 2018 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion in a medical malpractice case illustrating the importance of complying with all procedural rules in medical malpractice cases. Indeed, the point is especially important for Maryland medical malpractice plaintiffs to understand because very similar requirements apply under Maryland state law.

The Facts of the Case

The plaintiff was the parent of a child who was born with serious injuries and birth defects. The defendant was the delivering physician. The plaintiff filed a medical malpractice lawsuit against the defendant, arguing that the care provided by the defendant fell below the generally accepted level of care and that this lapse was the cause of her child’s injuries.

Under state law, the plaintiff had 60 days to file an affidavit of merit from a qualified expert in the field. However, due to an admitted lapse on the plaintiff’s attorney’s part, the affidavit was not filed. The defendant filed to dismiss the case based on the plaintiff’s failure, and the court granted the defendant’s motion. The plaintiff appealed to a higher court.

Court Resolves Dog Bite Case in Favor of Plaintiff

January 2, 2018 | Lebowitz & Mzhen

Earlier this month, an appellate court in Georgia issued a written opinion in a dog bite case requiring the court to discuss an owner’s liability for their dog’s dangerous actions. The court ultimately concluded that the plaintiffs presented sufficient evidence to survive a summary judgment challenge by the defendants, and the case was permitted to proceed toward trial or settlement negotiations. The rules discussed in the case may be of interest to plaintiffs in Maryland dog bite cases as well.

The Facts of the Case

The plaintiffs were neighbors with the defendants, who had recently permitted their adult son to move back into their home. The defendants’ son brought his pit bull, named Rocks, with him into the defendants’ home. The defendants permitted Rocks to stay with them as long as he was kept in a kennel in the back yard and not allowed to run loose.

While Rocks was at the defendants’ home, there were two instances when he acted aggressively. First, Rocks growled at the plaintiff husband when he came over to visit with the defendants. However, Rocks did not lunge at the plaintiff husband or bite him. The second instance was when Rocks growled aggressively at the defendant wife when she went to feed him. Notwithstanding these instances, the defendants permitted Rocks to remain at their home.

Court Answers Statute of Limitations Question in Recent Medical Malpractice Case

December 22, 2017 | Lebowitz & Mzhen

All Maryland personal injury cases must be brought within a certain amount of time, as outlined in the relevant statute of limitations. In most Maryland medical malpractice cases, the statute of limitations requires that the case be filed before three years has elapsed since the injury.

While determining the applicable statute of limitations is often an easy task, determining when the cause of action accrued – and thus, when the “clock” starts ticking – can be a more difficult task. A recent appellate opinion in a medical malpractice case wrestles with the issue of when a plaintiff’s cause of action accrues.

The Facts of the Case

The case involved two sets of parents, each of whom received in-vitro fertilization procedures provided by the defendant doctor. In each case, the defendant implanted a fertilized egg from a donor into the wife. The wives were later determined to be pregnant, and they gave birth to seeming healthy children. One couple had a single child, and the other couple had twins.

Court Allows Plaintiff to Pursue Claim for Punitive Damages in Case Involving Parking Lot Accident

December 15, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Kansas issued a written opinion in a personal injury case discussing when a plaintiff is permitted to pursue a claim of punitive damages against a defendant. The case is instructive to Maryland personal injury claimants considering a claim against a defendant because it provides insight into how courts view claims for punitive damages and when such claims may be appropriate.

The Facts of the Case

The plaintiff was a high-school student who was the manager of the school’s baseball team. The team was preparing to board a bus to a rival school when the defendant, a player on the team, decided he wanted to move his car closer to where the bus was planning on dropping the students off.

As the defendant was parking his car, he saw the plaintiff walking in the parking lot. He pulled up slowly behind the plaintiff as though he was going to hit her with his truck. The plaintiff attempted to move out of the way, but the truck ran over both of her feet. The plaintiff fell to the ground, and another student lifted the plaintiff into the defendant’s truck. The plaintiff claims that the defendant told her that he was sorry and that he only meant to lightly bump her with the truck. The defendant denied making the statement, claiming that he struck the plaintiff as he was trying to park.

Court Submits Question of Timeliness to the Jury in Recent Medical Malpractice Lawsuit

December 8, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Montana issued an opinion presenting an interesting issue dealing with the amount of time a victim has to bring a claim against a medical professional. The question posed in the case is relevant to anyone considering bringing a Maryland medical malpractice lawsuit because Maryland courts, like the court that authored the opinion, apply a strict statute of limitations in medical malpractice cases.

The Facts of the Case

The plaintiff suffered from chronic knee pain after twisting her knee at work in 2007. The plaintiff sought medical care from the defendant orthopedic surgeon. The defendant performed a small surgery on the plaintiff, and in so doing noticed that her ACL was partially torn. Initially, the defendant did not believe that the risks of surgery to repair the ACL were worth the potential gains, but in 2008, the defendant performed ACL surgery on the plaintiff.

There is conflicting evidence as far as the plaintiff’s condition after the second surgery. The defendant’s notes indicate that the surgery went well and that the plaintiff was recovering as expected. However, the plaintiff testified that she was in constant pain and that she was not sure why. Eventually, the defendant performed a third knee surgery on the plaintiff.

Court Discusses School’s Liability in Recent Gym Class Injury Case

December 1, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Nevada issued an opinion in a personal injury case involving a student who was injured while playing floor hockey in gym class. The case presents important issues involving governmental immunity that may come into play in similar Maryland personal injury cases.

The Facts of the Case

The plaintiff was a student at the defendant middle school. A few years prior to the plaintiff’s injury, the school board approved the addition of floor hockey to the gym curriculum. As was the case with all sports played in gym class, participation was required.

During a game of floor hockey, the plaintiff was accidentally struck in the eye by another student’s stick. This resulted in the plaintiff needing subsequent eye surgery, as well as several follow-up visits. The plaintiff filed a personal injury case against the school.

Procedural Requirements in Maryland Medical Malpractice Cases

November 22, 2017 | Lebowitz & Mzhen

Most personal injury cases involve concepts that the average juror can grasp. For example, when two vehicles are involved in a Maryland car accident, a jury is normally capable of listening to the testimony from each party, weighing the evidence, and coming to a conclusion on their own.

Medical malpractice cases, however, often present complex scientific concepts that are beyond the common understanding of most jurors. Because of this, Maryland medical malpractice cases require expert testimony to establish that the defendant doctor’s conduct fell below the generally accepted standard of care. In Maryland, this requirement is embodied in the form of a mandatory pre-suit expert affidavit.

Not all cases that arise in the medical context, however, are considered medical malpractice cases that are subject to the additional requirements. A recent appellate opinion involved a plaintiff’s slip-and-fall claim against a doctor. In that case, the court determined that the plaintiff’s case was not a medical malpractice case.

Plaintiff Injured in Horseback Riding Accident Precluded from Recovering Damages Under State Statute

November 15, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Montana issued an opinion in a personal injury case involving allegations that a horseback riding outfitter negligently provided a horse and saddle to the plaintiff, who was later injured while riding. The case is illustrative of how Maryland accident victims may have an easier time recovering damages for their injuries in these types of cases because Maryland has no statute limiting liability in horseback riding injury cases.

The Facts of the Case

The plaintiff arranged to go horseback riding through the defendant outfitter. The plaintiff called in advance and asked the outfitter to select a horse that was a good fit for him. The plaintiff told the outfitter that he was a little over six feet tall, was about 220 pounds, and had very little riding experience.

The outfitter chose a horse for the plaintiff and provided him with on-the-ground training before putting him on the horse. The outfitter also inspected the saddle but informed the plaintiff that the saddle could begin to slip, which is a normal occurrence. If the saddle started to slip, the plaintiff was supposed to notify the outfitter, who would be accompanying the plaintiff on the ride.

Court Dismisses Slip-and-Fall Case Based on Plaintiff’s Inability to Show that the Landowner Had Notice of Black Ice

November 8, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Georgia issued an opinion in a slip-and-fall case illustrating several important principles relevant to Maryland personal injury cases. The case presented the court with an opportunity to discuss what a plaintiff must establish in order to survive a summary judgment challenge by the defense. Here, the court held that since the plaintiff did not present any evidence that the defendant knew or should have known about the black ice that caused the plaintiff’s fall, summary judgment in favor of the defense was appropriate.

The Facts of the Case

The plaintiff was injured as he got out of his car on the top level of a parking garage at the defendant hospital. The testimony at trial established that it had snowed several days that week and that there was visible ice and snow underneath some of the cars. However, the ice that caused the plaintiff’s fall was not visible. After his fall, hospital employees came to the plaintiff’s aid. One of the employees testified that she too had difficulty keeping her footing while on the icy pavement.

The hospital presented evidence that a security guard patrolled the area approximately every two hours. When the security officer noticed a snow or ice hazard, he was to call the hospital’s engineering department and remain on scene until an engineer arrived to clear the hazard. Evidence was presented that the area was patrolled that day about an hour and half before the plaintiff’s fall. Additionally, as per hospital policy, salt had been spread across the upper level of the parking garage to melt any ice that might have been present.

Court Finds Employer Not Liable in Case Arising from Car Accident Caused by Employee

November 1, 2017 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion in a car accident case discussing the doctrine of respondeat superior and the attendant “going and coming” doctrine. The case is illustrative of several key principles that often arise in the course of Maryland car accident cases, including the general determination of when an employer can be held liable for the negligent acts of an employee.

The Facts of the Case

An employee of the defendant corporation was driving to work early in the morning when he caused a collision, killing the passenger in the other vehicle. The family of the deceased passenger filed a personal injury lawsuit against both the employee as well as his employer. This case deals with the issue of whether the employer can be held liable for the employee’s allegedly negligent actions.

The employee was not scheduled for work that morning. After the accident, the employee told the responding police officer that he was on his way to work to collect resumes for some upcoming interviews that he had. However, while the employee had conducted several interviews earlier in the week, it was not verified that the employee had scheduled any upcoming interviews. Throughout the proceeding, the employee’s story changed slightly several times.