Maryland Accident Law Blog

Doctors Must Obtain Informed Consent Before Performing Any Operation or Procedure

May 9, 2016 | Lebowitz & Mzhen

Doctors hold a very trusted position in society. In part, this is because they have tremendous power to cure diseases and ailments through a variety of means, one of which is surgery. However, surgery also presents a significant amount of risk in many situations. And before a doctor can perform any kind of surgery, operation, or procedure on a patient, that doctor needs to obtain informed consent from the patient after explaining to the patient all the risks involved with having the procedure done. If informed consent is not obtained by a doctor, and a procedure does not cure the patient’s condition or makes it worse, the doctor may be liable under a theory of medical malpractice, specifically medical battery.

One Recent Example of a Medical Battery Claim

Earlier this month, a Hawaii appellate court issued an opinion allowing a plaintiff’s medical battery case to proceed against a defendant surgeon on the basis of the surgeon’s failure to obtain informed consent to perform the surgery. In the case, Garcia v. Robinson, the plaintiff underwent a back surgery at the advice of the defendant surgeon. However, the surgery did not go as planned.

According to the court’s written opinion, the plaintiff had suffered a back injury at work and was seeking treatment. He consulted with the defendant doctor, who, according to the plaintiff, told him that if he elected to have a specific surgery he would no longer experience pain in his back and would be “up and dancing” within three days. The doctor denied telling the plaintiff that he would be pain-free after the surgery, explaining that such an assessment would be preposterous, since back surgery is some of the most painful surgery to undergo. The surgeon also presented the court with a form he claimed to have provided to the plaintiff, explaining that the surgery may not be successful and that it could actually worsen his condition.

City Admits Liability in Bus Accident but Contests Damages

May 2, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Nebraska issued an opinion in a case arising out of a bus accident in which the city government named as the defendant admitted liability but argued that the damages ordered by the court were too high. In the case, Moreno v. City of Gering, the appellate court ultimately determined that the lower court was correct in its ruling, and it affirmed the verdict in favor of the plaintiff.

The Facts of the Case

The plaintiff, Moreno, was injured in an accident involving a county-owned bus and a city-owned fire truck. Evidently, Moreno was riding on the bus when it was struck by a fire truck being operated by a volunteer fire-fighter. As a result of the collision, Moreno, who had a pre-existing medical condition affecting her back, suffered serious injuries. A few months after the accident, she had a cervical fusion surgery performed.

At the trial, the city and county admitted that they were each liable to Moreno, but they argued that the surgery was not necessary. To support their claim, they pointed to recent news articles that the doctor who had recently performed the surgery performed a record number of similar surgeries. The defendants presented a medical expert who testified that the surgery was unnecessary given Moreno’s injuries, and that the surgeon who performed it was “a criminal.” There was also evidence presented that the surgeon had been suspended due to the number of medical malpractice cases brought against him.

Personal Injury Plaintiff’s Case against Government Dismissed for Failure to Comply with Tort Claims Act Requirements

April 22, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Maine issued a written opinion in a case filed by a man against a local government, alleging negligence for failing to maintain a safe property near the city hall. In the case, Deschenes v. City of Sanford, the court ultimately dismissed the case because the plaintiff failed to comply with the state’s Tort Claims Act. Specifically, the plaintiff failed to provide written notice to the city within 180 days of his injury.

The Facts of the Case

The plaintiff, Deschenes, was injured when he slipped and fell down the steps at the city hall after he went to obtain a copy of his daughter’s birth certificate. According to Deschenes, he tripped on a piece of tread that was uneven, fell to the bottom of the stairs, and then slid into some nearby glass doors.

After his injury, he contacted the nearest city employee, who provided some basic first-aid until emergency medical responders arrived. Once they arrived, Deschenes was transported to the hospital. It was determined that he has suffered some “abrasions.”

Maryland Court Allows Lead-Based Paint Lawsuit to Proceed on Circumstantial Evidence of Causation

April 15, 2016 | Lebowitz & Mzhen

Earlier this month, the Maryland Court of Appeals issued a written decision in a case brought by a woman who claimed that she suffered exposure to lead while living in the defendant’s property over 20 years ago. Since the plaintiff moved out of the defendant’s property, it had been torn down. Moreover, there was no testing completed prior to the building’s demolition to determine if there was a presence of lead in the building. The main issue in the case was whether the plaintiff submitted sufficient evidence to survive the pre-trial motion for summary judgment filed by the defendant.

The Evidence Submitted to the Court

The plaintiff acknowledged from the outset that there would be no direct evidence proving that the defendant’s property contained lead. Instead, the plaintiff proceeded with circumstantial evidence in the form of expert testimony. The plaintiff’s experts reviewed the plaintiff’s medical records, as well as a sworn statement from the plaintiff averring that she had not come into contact with alternative sources of lead, and came to the conclusion that it was “more likely than not” that the defendant’s property did contain lead and that living in that property was the cause of the plaintiff’s current lead poisoning.

The defendant also presented expert testimony to the court. The defense experts opined that there was no way to tell whether the defendant’s property contained lead, and even if it did, if such exposure was the cause of the plaintiff’s current condition. The defense argued that, in the absence of any direct evidence of causation, the case should be dismissed.

Premises Liability Cases and the “Recreational Use” Exception

April 8, 2016 | Lebowitz & Mzhen

Whenever a landowner invites others onto their land, the landowner assumes a duty of care to that person. Most commonly, this duty requires that the landowner take reasonable precautions to ensure that there are no dangerous conditions on their property that could result in injury to their guest. However, as is the case with most laws, there are exceptions when a landowner may be absolved from responsibility when someone injures themselves on the landowner’s property.

The Recreational Use Statute in Maryland

Maryland, like many other states, wants to encourage landowners to open their land for the general public to use and enjoy. In order to encourage this, the law grants landowners immunity from some lawsuits that may arise when someone comes onto their land and hurts themselves.

Generally speaking, the land must be open for free use by any member of the general public in order for the recreational use statute to apply. If it does not apply, the landowner may be held liable for injuries that occur on his or her land, even if the landowner was not aware of the condition himself.

Personal Injury Cases Based on Environmental Contamination

April 1, 2016 | Lebowitz & Mzhen

When a company operates a factory or other operation for a long period of time in the same area, unanticipated consequences can arise from the pollutants expelled from the operation. However, under state and federal laws, companies that operate factories or other facilities in an area have a duty to the residents living in the vicinity to keep harmful environmental toxins out of the water, soil, and air supplies. When people are harmed due to a company’s activity in their area, they may be entitled to monetary compensation for the harms they have suffered. These cases are often referred to as “toxic tort” cases.

Establishing liability in a toxic tort case requires the plaintiff to establish a number of factors. Often, one of the more contested factors is causation, which addresses whether the defendant’s actions in polluting the area were the cause of the plaintiff’s injuries. This often requires the testimony of scientific and medical experts.

Recent Case Against Shell Reversed on Appeal in Favor of Plaintiffs

In a recent case in front of a New Mexico appellate court, the court determined that the plaintiffs’ causation evidence that was excluded at trial should not have been excluded, and it reversed the lower court’s decision. As a result, the plaintiff will be given the opportunity to proceed with their case.

Court Determines City Employee Not Personally Immune from Negligence Lawsuit

March 22, 2016 | Lebowitz & Mzhen

Earlier this month, the Oregon Supreme Court issued an opinion determining that a city employee is not considered an “owner” of city property and thus, may be held liable for his negligent actions that result in another’s injury. In the case, Johnson v. Gibson, the court’s ruling will permit the plaintiff’s lawsuit to proceed against the city employee in his individual capacity.

The Facts of the Case

The plaintiff, who is legally blind, was injured while jogging in a city-owned park. She tripped and fell after stepping in a hole that had been dug to fix a broken sprinkler head. The plaintiff then filed a lawsuit against the individual employee responsible for digging the hole.

The case was filed in federal court, and in order to decide the case the federal court had to apply Oregon law. The federal court then asked the Oregon court to answer one specific question: was the defendant, a city employee, entitled to official immunity as an “owner” of the land?

Maryland Medical Malpractice Lawsuits Arising after Serious Birth Injuries

March 15, 2016 | Lebowitz & Mzhen

Any time a patient seeks medical care, they are doing so with the hope and expectation that what they are seeking to be provided with will be adequate. This is nowhere more so the case than when a family chooses the doctor who will help them through their pregnancy and ultimately deliver their child. However, doctors are humans and do still make mistakes. And sometimes these mistakes can have drastic consequences for both mother and child.

When a physician fails to provide adequate medical care to a pregnant patient, and the patient or her child suffers injury as a result, Maryland law allows for the patient to file a medical malpractice lawsuit against the doctor. In many cases, the hospital employing the doctor, as well as the doctor’s practice group, can also be named in the lawsuit, to prevent the doctor from shifting liability to a non-present party.

If successful, a plaintiff may receive compensation for the injuries they have sustained. Compensation packages vary according to the facts of each case, but generally they will include amounts for previously incurred medical expenses, the future costs of medical care for mother or child, lost wages and accounting for a decrease in earning capacity, as well as for the harder-to-determine category of pain and suffering.

Plaintiff’s Case Against University Dismissed Based on Improper Venue

March 8, 2016 | Lebowitz & Mzhen

Earlier this month, a Mississippi appellate court dismissed a negligence action against an Alabama university, based on the fact that the case was filed in an inappropriate jurisdiction, and the court did not have the authority to transfer the case to a more appropriate court. In the case, Ramsey v. Auburn University, the plaintiff was a college student who was injured while working out in preparation to join the University’s football team.

The Facts of the Case

The plaintiff was a high school student when he applied to attend Auburn University to play football. He was accepted and offered a scholarship. After his acceptance, the coaching staff at the University sent the plaintiff a workout plan in order to get him into shape for the upcoming season. The next year, the plaintiff moved out to Alabama to attend Auburn University.

During orientation, the plaintiff’s father told the coaching staff that his son was prone to back injuries, and not to make him do “power cleans,” a very specific type of workout. However, during his training, the coaching staff recommended that the plaintiff do “power cleans” as part of his regimen. The plaintiff complied. That year, the plaintiff experienced lingering back pain. Eventually, the condition worsened, and he was unable to play football for the University.

Johnson & Johnson Ordered to Pay $72 Million Award Based on Product Liability Lawsuit over Talcum Powder

March 1, 2016 | Lebowitz & Mzhen

Earlier this month, health care products giant Johnson & Johnson was ordered to pay out roughly $72 million to one woman over allegations that the company’s talcum powder caused her ovarian cancer. According to one local news source reporting on the case, the case relied not just on the fact that Johnson & Johnson’s product caused the woman’s cancer but also on the fact that the company failed to warn customers of known risks associated with the product.

The Facts of the Case

The plaintiffs in the case were the family members of a woman who had used Johnson & Johnson’s “Shower to Shower” brand talcum powder for decades. The powder was marketed back in the 1970s as a safe feminine-hygiene product. However, there was evidence submitted at trial suggesting that Johnson & Johnson was aware of research indicating that the powder was not as safe as it was marketed to be. This decisive evidence was in the form of internal Johnson & Johnson documents.

Johnson & Johnson lawyers argued that there was no proof that the woman’s cancer was caused by the use of the company’s product. However, the jury rejected that argument and awarded the woman’s family roughly $72 million – an amount far-and-beyond the $22 million requested by the family.