Maryland Accident Law Blog

Woman’s Photographic Evidence of Uneven Sidewalk Taken 30 Days after Accident Insufficient to Survive Summary Judgment Challenge

July 26, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Michigan decided an interesting case involving the type of evidence that is sufficient to survive a summary judgment challenge by the defense in a slip-and-fall case arising from an allegedly uneven sidewalk. In the case, Bernardoni v. City of Saginaw, the court held that photos taken 30 days after the woman’s injuries were insufficient to prove the dangerous condition of the sidewalk on the day of her injury.

The Facts of the Case

Ms. Bernardoni was walking on the sidewalk in Saginaw, Michigan when she tripped and fell. Upon inspecting the sidewalk when she got up, she noticed that there was a 2.5-inch differential in the height between two adjacent slabs on concrete, creating the “lip” on which she had tripped. She filed a premises liability lawsuit against the local government, seeking monetary compensation.

In response, the government asked the court to dismiss the case based on the immunity it possesses under state law. Specifically, the government pointed to the state statute that requires anyone suing based on a dangerous sidewalk to prove that the government knew of the dangerous condition for at least 30 days prior to the accident.

Appellate Court Determines Plaintiffs’ Evidentiary Objection Below “Speculative” on Final Outcome, Affirms Defense Verdict

July 19, 2016 | Lebowitz & Mzhen

Earlier this month, a federal appellate court in California affirmed a lower court’s decision in a product liability case involving an allegedly defective door-knob guard that the plaintiffs claimed was responsible for their young son’s death. In the case, Coterel v. Dorel Juvenile Group, the court determined that even if the plaintiffs were correct, and the challenged evidence should not have been submitted to the jury, the effect of including the evidence had only a speculative effect, and reversal was not therefore required.

The Facts of the Case

The defendant manufactured a door-knob cover marketed to parents of young children who are tall enough to reach door knobs but may not know better than to open the door and walk out of the house. On the day in question, the plaintiffs placed the defendant’s door-knob cover on the front door of their home and placed their young son in bed in his crib. Evidently, the young boy escaped his crib, approached the front door, negotiated the door knob cover, and then walked out the front door of the house. Tragically, the boy was later found dead in a pond.

The parents of the boy filed a product liability case against the manufacturer of the cover, alleging that the product was defective. At trial, the defendant presented evidence that the parents knew their son had been able to negotiate the cover, and they had installed a chain lock on the door as well. However, on the day in question, the plaintiffs failed to use the chain lock.

Court Finds “Public Duty” Doctrine Applies, Preventing Government Liability in Boating Accident

July 12, 2016 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion discussing how the “public duty” doctrine can act to prevent a plaintiff from suing a government agency for alleged acts of negligence stemming from a breach of a duty owed to the general public. In the case, McFarlin v. State, the court determined that the state owed a general duty to maintain the lake where the accident occurred in a safe condition. Because there was no evidence that there was some additional duty owed to the plaintiff, the public duty doctrine prevented government liability.

The Facts of the Case

Ms. McFarlin’s young son was on a boat being operated by her boyfriend on a lake that was owned and operated by the state. Shortly after embarking, McFarlin’s boyfriend drove the boat near two “danger” buoys that were marking a shallow dredge pipe. The boat came too close to the pipe, struck it, and flipped over. As a result, McFarlin’s young son died.

McFarlin sued the state, alleging that it was negligent in the placement of the buoys, the placement of the pipe, and that the pipe was not adequately marked. The state took the position that it was not liable because it did not violate any duty owed to the plaintiff. Specifically, the state claimed that the duty to keep the lake safe was owed to the general public, and that there was nothing establishing that it owed the plaintiff a duty above and beyond that which was owed to the public. Because of that, the public duty doctrine prevented the state from being found liable.

State Supreme Court Expands Statute of Limitations in Medical Malpractice Case

July 5, 2016 | Lebowitz & Mzhen

The Connecticut Supreme Court recently released a decision affirming a lower appellate court’s ruling that allowed a plaintiff’s medical malpractice case to proceed despite the fact that the plaintiff’s claim was not filed within the three-year statute of limitations for filing a medical malpractice claim in the state. The appellate rulings applied the “continuing course of treatment doctrine” to expand the statute of limitations and allow the plaintiff to pursue her claim.

As a result of the most recent appellate ruling from the highest state court in Connecticut, the plaintiff’s claim will return to the trial court and proceed toward a settlement or trial regarding her claim for damages.

The Defendant Left a Sponge Inside the Plaintiff’s Body During A Surgery, Causing Serious Pain and Discomfort

The plaintiff in the case of Ceferatti v. Aranow is a woman who had been receiving treatment by the defendants for her morbid obesity, which included a gastric bypass surgery that was performed in December 2003. According to the facts explained in the most recent appellate ruling, the defendant doctor inadvertently left a synthetic sponge inside the plaintiff’s abdominal cavity during the surgery. Although the plaintiff testified that she felt pain from the sponge about one year after the surgery, she did not discover the sponge until undergoing an unrelated CT imaging procedure over five years after the gastric bypass surgery. Approximately one year after discovering that the sponge had been left inside her, she filed a medical malpractice action against the defendants.

Evidentiary Issues in Maryland Medical Malpractice Cases

June 22, 2016 | Lebowitz & Mzhen

Earlier this month, a Michigan court issued an interesting opinion regarding the admissibility of evidence in a medical malpractice case. In the case, Rock v. Crocker, the appellate court held that there is a very specific manner in which lower courts should approach questions of evidence admissibility, and since the court below applied the law in the wrong manner, the case was remanded to give the lower court the opportunity to do so correctly.

The Facts of the Case

Crocker, the plaintiff, had ankle surgery performed by the defendant in 2008. Shortly after the surgery, the defendant advised Crocker he could put weight on his ankle without a problem. However, Crocker did not put weight on the ankle and continued to allow it to heal. Just a few months later, however, Crocker required an additional surgery because the defendant allegedly failed to fuse all the necessary bones during the first surgery. Upon hearing this, Crocker filed a medical malpractice lawsuit against the defendant.

At trial, Crocker presented an expert who testified that the defendant was negligent in failing to use enough screws to connect the bones and also in advising that Crocker can put weight on his ankle too early after the surgery. However, the expert also testified that these failures did not cause any injury to Crocker. The plaintiff acknowledged that the expert’s testimony did not prove causation – i.e., that the defendant’s negligence resulted in his injuries – but argued that it was relevant to the defendant’s general competence as a surgeon. The court agreed and allowed the expert’s testimony to be considered.

Court Finds Deceased Skateboarder Assumed the Risk of Injury, Preventing Family from Seeking Compensation

June 15, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in California issued an opinion in a case brought by the father of a boy who died after he sustained a traumatic brain injury when he fell off his skateboard after hitting a lip around a manhole cover. In the case, Bertsch v. Mammoth Community Water District, the court held that the doctrine of “assumption of the risk” prevented the boy’s father from successfully seeking compensation for his loss.

The Facts of the Case

The plaintiff took his two boys on a trip to Mammoth County to enjoy a friend’s condo for a few days. While there, the plaintiff’s sons were out skateboarding around the neighborhood before they were going to meet back up and all go rock climbing. The boys were not performing any tricks, but they did push themselves up a hill so that they could enjoy the long, fast ride down to meet their dad.

Tragically, on the way down the hill, one of the boys’ skateboards hit a lip surrounding a manhole cover, causing the skateboard to come to a complete stop. The young boy flew off the board, striking his head on the pavement as he landed. He suffered a traumatic brain injury and shortly afterward passed away.

Court Finds Park Not Liable for Injuries Caused by Broken Handrail

June 8, 2016 | Lebowitz & Mzhen

Earlier this month, a West Virginia court issued a written opinion in a premises liability case that arose when the plaintiff was injured after the handrail he leaned against broke, causing the man to fall down a hill. The decision in the case, Wheeling Park Commission v. Dattoli, reversed a lower court’s judgment in favor of the plaintiff and held that the lower court should have granted the defendant’s motion for a directed verdict.

The Facts of the Case

The Dattolis were attending an event at Wheeling Park. Due to the popularity of the event, there was no seating available, and the Dattolis opted to stand. Mr. Dattoli quickly inspected a nearby handrail before leaning up against it, but as he did, the handrail snapped. Mr. Dattoli fell past the rail and down a hill, injuring his shoulder as a result. He filed a negligence lawsuit against the park, claiming that the park was responsible for his injuries because it was the park’s duty to keep safe premises, including the handrail.

At trial, the Dattolis called the Director of Operations for the park, who testified that the fence was installed between 1970 and 1990, that there were no maintenance records for the fence, that the fence had a life expectancy, and that the park’s management was in a better place to ensure that the handrail was in good condition than was a guest. The Park called no witnesses but asked the court to enter a directed verdict in its favor, arguing that the Dattolis failed to show evidence that the Park was negligent.

Court Finds Post-Mortem Misconduct Falls under Medical Malpractice Umbrella and Must Comply with Applicable Procedural Requirements

June 1, 2016 | Lebowitz & Mzhen

Earlier this month, the Texas Supreme Court issued a written opinion broadly interpreting what constitutes a medical malpractice claim, holding that a hospital’s alleged fraud in obtaining consent to perform a private autopsy was subject to the additional procedural requirements of a medical malpractice action. In the case, Christus Health Gulf Coast v. Carswell, the court dismissed the plaintiffs’ claim because it was filed after the applicable two-year statute of limitations for medical malpractice lawsuits.

The Facts of the Case

The Carswells alleged that the defendant nursing home was negligent in the care it provided to their loved one, which ultimately led to his untimely death in 2004. These claims were filed about a year after the death of their loved one, in compliance with the state’s medical malpractice statute.

In addition, the family claimed that the nursing facility fraudulently obtained the family’s consent to conduct a private autopsy so that the facility could determine their loved one’s cause of death. However, these claims were only raised in the family’s third amended complaint, which was filed nearly three years after the death of their loved one.

Joan Rivers’ Family Reaches Confidential Settlement with Doctors and Medical Clinic

May 23, 2016 | Lebowitz & Mzhen

Back in 2014, actress and comedienne Joan Rivers died while undergoing a routine medical procedure in a New York clinic. The 81-year-old was suffering from some minor symptoms when she visited the defendant clinic for what was supposed to be a quick procedure. According to a recent New York Times article, the family of Rivers accepted a confidential settlement offer, and, as a result, the case against the doctors allegedly responsible for Rivers’ death will not go to trial.

A Routine Endoscopy Gone Wrong

Back in August 2014, Rivers visited Yorkville Endoscopy, complaining of a hoarse voice and a sore throat. The medical staff on duty suggested Rivers undergo a laryngoscopy and an endoscopy so that doctors could see what was causing her discomfort.

During the procedure, several doctors were present. One doctor in particular was concerned that Rivers’ vocal cords were extremely swollen and alerted senior doctors of her observation. Other doctors dismissed this doctor as “paranoid” and continued with the procedure. Fearful that she might be blamed for anything that went wrong during the procedure, that doctor then began taking copious notes that were later passed to the plaintiffs during the discovery phase of the case.

Court Reads Insurance Policy to Limit Total Recovery in Accident Involving Underinsured Motorist

May 16, 2016 | Lebowitz & Mzhen

Earlier this year, a federal court of appeals issued a written opinion interpreting the language of a contested insurance policy in favor of the insurance company, thus limiting the total amount of recovery among the three injured parties to $500,000. In the case, Trotter v. Harleysville Insurance Company, the court determined that the insurance company that carried an underinsured motorist policy for one of the victims involved in the accident was not required to pay out on the claim, since the at-fault party’s insurance policy provided the same limit.

The Facts of the Case

This case involves a single accident between two vehicles. Powers was the at-fault party, and he had an insurance policy that covered damages up to $250,000 per person or $500,000 per accident. The driver of the other car, Trotter, as well as his two passengers, Jackson and Petrie, were all injured as a result of the accident. All the injured parties filed claims against Powers’ insurance company.

The injured parties all entered into a settlement agreement with Powers’ insurance company, whereby Trotter would receive $250,000, Jackson would receive $238,000, and Petrie would receive $12,000. However, after the settlement, the parties asserted that the recovered sum failed to make them whole. So they filed a claim under Trotter’s insurance company, the defendant in the case.