Maryland Accident Law Blog

Wrongful Death Plaintiff’s Failure to File Certificate of Merit in Medical Malpractice Lawsuit Results in Dismissal of Case

April 3, 2017 | Lebowitz & Mzhen

Earlier this month, a Vermont appellate court issued a written opinion in a wrongful death by medical malpractice case, involving allegations that a doctor was negligent in prescribing multiple doses of opioid medications to a patient who later died from ingesting a lethal combination of prescription and non-prescription medication. However, the court did not reach the issue of whether the doctor was negligent because the plaintiff failed to file the required certificate of merit in a timely fashion. As a result of the plaintiff’s failure to file the certificate of merit, the case was dismissed.

The Facts of the Case

The plaintiff was the surviving loved one of a woman who had died after she ingested a lethal combination of prescription and non-prescription medication. The prescription medication that the woman had taken was prescribed to her by the defendant physician. After learning about her loved one’s cause of death, the plaintiff filed this wrongful death lawsuit against the prescribing physician.

The case was filed three days before the statute of limitations was set to expire. However, when the plaintiff filed her case, she did not attach a certificate of merit, which is a document certified by another doctor or medical expert stating that, in the expert’s opinion, the plaintiff’s case has merit.

Expert Testimony Fails to Establish Causation in Medical Malpractice Lawsuit

March 27, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Georgia issued a written opinion in a medical malpractice lawsuit, affirming the dismissal of the plaintiff’s claims based on the plaintiff’s failure to establish that the defendants’ allegedly negligent actions caused the plaintiff’s injuries. Specifically, the court held that since the medical experts called by the plaintiff could not testify to a reasonable degree of medical certainty, their opinion failed to establish causation.

The Facts of the Case

The defendant was scheduled to have a robotic-assisted laparoscopic prostatectomy (RALP), which was to be performed by the defendants. On the day of the surgery, the plaintiff was positioned with his hands placed behind his back. During the surgery, none of the defendants repositioned the plaintiff’s body, and the surgery was completed after about 9.5 hours.

After the surgery, the plaintiff complained of pain in both of his shoulders and arms. He was later diagnosed with compartment syndrome in his right arm. A subsequent surgery was performed to relieve the pressure, but the plaintiff never regained the full use of his right arm.

Slip-and-Fall Case Dismissed When Defendant Successfully Showed Plaintiff Had Knowledge of the Open and Obvious Hazard that Caused Her Fall

March 20, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Georgia issued a written opinion in a premises liability case that was brought by a woman who slipped and fell on a “corn hole” game board as she was talking to a sales associate in a car dealership’s showroom. The court ultimately determined that because the evidence presented showed the plaintiff had successfully negotiated her way around the board several time before, and because it was open and obvious, the defendant was entitled to summary judgment.

The Facts of the Case

The plaintiff went with a friend to the defendant’s car dealership to look at the selection of available pick-up trucks. Upon arrival, the plaintiff saw a sales associate in an office across the show room. She crossed the show room, passing a four-foot-long board that was part of a corn hole game. The plaintiff and her friend spoke to the associate, and then made their way out into the lot. A short time later the two came back into the show room and went back to the sales associate’s office, again making their way past the corn hole board.

The plaintiff and her friend had a brief conversation with the associate before leaving his office. On her way out of the associate’s office, he stopped her to ask her a question. She briefly responded and then continued her exit. However, as she did, she tripped and fell on the board, injuring her knee. The plaintiff then filed a premises liability lawsuit against the car dealership, claiming that it was negligent in the placement of the game board.

Appellate Court Permits Plaintiff’s “Bad Faith” Claim Against Insurance Company to Proceed Toward Trial

March 13, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Oklahoma issued a written opinion in a car accident case brought by a passenger who was involved in an accident against the driver’s insurance company. Specifically, the court had to determine if the lower court was proper in granting the defendant’s motions for summary judgment based on the fact that it did not act in bad faith when it questioned the reasonableness of the medical care the plaintiff received.

The Facts of the Case

The plaintiff was injured in a car accident while a passenger in her mother’s car. According to the facts as described in the appellate opinion, a driver ran through a stop sign and struck the plaintiff’s mother’s vehicle. After the accident, the plaintiff was taken to the hospital. She was initially taken to the emergency room, and then was transferred to the “L2 trauma center.” She was discharged four hours later with a cervical collar, but was not provided a prescription for pain medication. The plaintiff continued to receive outpatient treatment for her injuries.

The plaintiff later filed a claim under the uninsured/underinsured motorist provision of her mother’s insurance policy. She requested a total of roughly $67,000. Of that sum, $24,420 was incurred from the treatment that the plaintiff received at the L2 trauma center. The insurance company denied coverage for any charges arising from treatment in the L2 trauma center, claiming that such treatment was unnecessary. In support of its position, the insurance company consulted with an expert who stated that the plaintiff did not need to be transferred to the L2 trauma center.

Maryland Medical Malpractice Cases Are Subject to Different Procedural Requirements

March 6, 2017 | Lebowitz & Mzhen

All personal injury plaintiffs must follow strict procedural rules when filing their case. However, medical malpractice cases in particular are subject to a different set of rules that, if ignored, may result in the early dismissal of an otherwise meritorious case. For example, medical malpractice cases in Maryland must be accompanied by a “Certificate of Merit.” A certificate of merit is a document filled out by a medical professional in the field of the alleged negligence, stating that there is a valid basis for the plaintiff’s case.

In addition, Maryland medical malpractice cases are required to be brought with a certain period of time. In most cases, this is within three years of the alleged act of negligence. However, if a patient does not discover their injury until a later date, the patient has up to five years to file their case. In any event, the procedural rules in Maryland medical malpractice cases can be burdensome for plaintiffs and may even result in the dismissal of cases.

Doctors and hospitals are aware of these strict rules, and they may try to characterize any case even tangentially involving a doctor or hospital as a medical malpractice case in hopes of creating additional difficulties for the plaintiff. A recent case illustrates how a slip-and-fall accident was characterized as a medical malpractice case by a state appellate court.

Plaintiff’s Slip-and-Fall Case Dismissed Due to Lack of Causation Evidence

February 22, 2017 | Lebowitz & Mzhen

In a recent case before a state appellate court, a plaintiff’s premises liability claim against a fast-food restaurant manager was dismissed based on the plaintiff’s failure to present sufficient evidence that the manager’s negligence resulted in her injuries. In rejecting the plaintiff’s claims, the court explained that a plaintiff must present evidence more than “mere speculation” as to how her injury occurred.

The Facts of the Case

The plaintiff slipped and fell as she was entering a fast-food restaurant managed by the defendant. According to the court’s recitation of the facts, the restaurant’s entrance consists of a set of double doors. On her way into the restaurant, the plaintiff made it through the first set of doors without a problem, but she was unable to open the second set of doors. She testified that she was shaking the door, trying to get it to open, when she fell.

After her fall, she noticed that the ground around her was damp and that a rug in the foyer area where she fell was wet. However, when asked, she could not remember exactly what happened in the moments before her fall. Specifically, she stated that “it just happened so fast . . . I just remember pushing on the door, and the next thing I remember is just sitting there.”

Hospital’s Failure to Object to Plaintiff’s Untimely Payment of Filing Fees Prevents Appellate Court from Considering the Issue

February 15, 2017 | Lebowitz & Mzhen

Earlier last month, an appellate court in California issued a written opinion in a medical malpractice case that illustrates how important it is for parties to object to perceived errors as they occur. In the recent case, the court held that a defendant hospital’s failure to object to the plaintiff’s untimely payment of a mandatory filing fee prevented the court from reviewing the defendant’s claim on appeal that the untimely payment deprived the court of jurisdiction.

The Facts of the Case

The plaintiff was the surviving loved one of a man who had become quadriplegic and then died after being treated at the defendant hospital. Initially, the man himself brought a lawsuit against the hospital, alleging that the hospital was responsible for his quadriplegia. However, while the jury determined that the hospital was negligent in treating the man, it also found that the hospital’s negligence was not the cause of the man’s quadriplegia.

Shortly after the initial trial, the man died. After his death, additional evidence was discovered indicating that the hospital’s negligence may have actually been the cause of the man’s quadriplegia and subsequent death. The current plaintiff was then named the plaintiff, and the case was changed to a wrongful death case. As a part of this process, the plaintiff was required to pay court filing costs by a certain date.

Doctor’s Slip-and-Fall in Hospital Results in $7 Million Jury Verdict

February 8, 2017 | Lebowitz & Mzhen

Earlier this month, a jury awarded a Georgia doctor $7 million in a premises liability lawsuit brought against the hospital where the doctor sustained a career-ending head injury after falling to the ground after slipping off a rolling stool. According to one local news report covering the case, the doctor alleged that the hospital provided an unsafe rolling stool in the operating room where the fall occurred.

The Facts of the Case

The plaintiff was a doctor who had performed thousands of surgeries at the defendant hospital. On the day of the accident, the plaintiff had just finished with a surgery and sat down to complete the post-op paperwork. However, as he sat on the rolling stool provided by the hospital, the stool shot out from under him, causing him to fall to the floor.

The doctor hit his head on the floor but initially seemed fine. It was not until hours later that he started to become nauseous and then started experiencing double vision. Later, he began to have seizures. He was hospitalized for several days and eventually tried to return to work. However, since he was routinely suffering from seizures, he had to close down his practice. The doctor was later diagnosed with trauma-induced epilepsy and continues to suffer from cognitive and memory problems, migraine headaches, and seizures.

Court Allows Premises Liability Plaintiff to Seek Punitive Damages

February 1, 2017 | Lebowitz & Mzhen

Earlier this month, a federal court of appeals issued a written opinion in a premises liability case brought by a woman who was seriously injured when a glass shower door at the defendant’s hotel shattered, covering her naked body in shards of glass. In the case, the court reversed a lower court’s decision that denied the plaintiff the opportunity to seek punitive damages from the hotel chain. The court held that the issues that needed to be resolved in order to determine whether punitive damages were appropriate should have been determined by the jury, rather than the trial judge.

The Facts of the Case

The plaintiff and her sister were staying at one of the defendant’s hotels. The plaintiff was exiting the shower when the glass shower door exploded, causing her serious injuries. After the accident, a hotel employee came to the room and told the sisters that several rooms had this problem, and it was caused by the shower door coming off its runners. The employee explained that the room was on a “do not sell” list, and the sister should check and see if her shower door had the same problem. The sister checked, and indeed, her shower door was also off its runner.

The plaintiff filed a premises liability lawsuit against the hotel chain, seeking compensatory and punitive damages. Evidence was presented showing that the hotel knew about the problems with the doors, and had at one point taken the rooms off the list of available rooms. However, for an unknown reason the sisters’ hotel rooms ended up back on the available room list. There was also evidence presented that the door in the plaintiff’s room had previously shattered and been replaced.

Court Determines Teacher’s Supervision of Students Is a Discretionary Action Entitled to Official Immunity

January 23, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Georgia issued a written opinion in a wrongful death case brought by the parents of a boy who died while in the defendant teacher’s classroom. In the case, Barnett v. Atlanta Independent School System, the court held that a teacher’s decision on how to supervise and control students is a discretionary action that is entitled to government immunity. As a result of the ruling, the boy’s parents will not be able to seek compensation for the loss of their son.

A Student Falls While the Teacher Is Out of the Classroom

Antoine Williams was a seventh-grade student in the defendant’s American Literature class. One afternoon, Williams’ teacher stepped out of the room for a period of about 30 minutes. Before she left, she asked a neighboring teacher to “listen in” on her class to make sure the students were okay. During that time, Williams and another boy were horse-playing when Williams fell to the ground, fracturing his collarbone. When Williams’ teacher returned, Williams was lying on the ground unconscious. The teacher called 911, and Williams was taken to the hospital. Sadly, Williams died from a loss of blood caused by the fractured collarbone.

The school’s principal called the teacher into his office to discuss what had occurred. During the initial discussion, the teacher lied, claiming that she was in the classroom at the time of Williams’ fall. The principal determined this was not the case and confronted the teacher about her misrepresentation. She then offered a series of other reasons as to why she was not present. During a pre-trial deposition, the teacher changed her story yet again, this time claiming that she was using the restroom. It was verified, however, that she did ask the neighboring teacher to listen in on her class.