Wrongful Death

Wrongful Death Lawsuit Alleges Medical Negligence and Intentional Torts Against Doctor

August 16, 2012 | Lebowitz & Mzhen

A husband’s wrongful death lawsuit alleges that his wife’s doctor caused her death last year by prescribing a wide array of psychotropic medications. The suit further claims that the doctor defrauded her of nearly half a million dollars, which she contributed towards his research funding while under the influence of these medications. The two types of claims, brought in a single lawsuit, raise uncomfortable questions about the doctor/patient relationship.

Phyllis Harvey, described as a philanthropist who formed a foundation with her husband, Brian Harvey, to fund scholarships and engage in other charitable activities, died last year at the age of 59. She reportedly had a history of mental illness and alcoholism, and was diagnosed in 1999 with possible bipolar disorder, schizophrenia, or early dementia. She sought treatment from Dr. Alexander Bystritsky, a physician at the University of California, Los Angeles, beginning in 2004. Dr. Bystritsky allegedly put her on a regimen of multiple psychotropic medications, even though the 1999 diagnoses were never fully confirmed. Her prescribed medications included the anti-psychotic drug Seroquel and the anti-anxiety sedative Ativan.

Washington DC Wrongful Death Lawsuit Filed by Families of U.S. Citizens Killed in Drone Strikes

July 25, 2012 | Lebowitz & Mzhen

A wrongful death lawsuit filed in the U.S. District Court for the District of Columbia seeks damages from the federal government for the allegedly unlawful killings of United States citizens abroad. The families of several people killed overseas by unmanned drone aircraft are claiming violations of the decedents’ constitutional rights as U.S. citizens. Unlike many wrongful death lawsuits, this suit alleges violations of statutory and constitutional rights, rather than negligence, by the government. The lawsuit is sure to generate public controversy, particularly since the government asserted national security reasons for the drone attacks.

Nasser al-Aulaqi (sometimes spelled al-Awlaki) and Sarah Khan, with the assistance of the American Civil Liberties Union (ACLU), filed suit against federal government officials, including Secretary of Defense Leon Panetta and Central Intelligence Agency (CIA) Director David Petraeus, in mid-July 2012. Their complaint alleges that the federal government has engaged in targeted killings of suspected terrorists abroad since 2001. Anwar al-Aulaqi, an American citizen living in Yemen, was added to a “kill list” in late 2009 or early 2010, based on suspicion of terrorist activity or support.

On September 30, 2011, the complaint says, unmanned drones operated by the CIA and the Department of Defense fired missiles at a vehicle in Yemen containing Anwar al-Aulaqi. The blast killed al-Aulaqi and another U.S. citizen, Samir Khan. Another drone strike on October 14, 2011, also allegedly authorized by the defendants, killed at least seven people at a restaurant in Yemen, including another U.S. citizen, Anwar al-Aulaqi’s 16 year-old son Abdulrahman al-Aulaqi.

Washington DC Injury Prevention Ranks High in National Survey

June 14, 2012 | Lebowitz & Mzhen

A study of injury-related deaths conducted by a national healthcare advocacy group, the Trust for America’s Health (TFAH), ranks the fifty states and the District of Columbia based on ten “key indicators.” These key indicators relate to laws, regulations, and initiatives undertaken by state governments. According to TFAH, they represent the effectiveness of state efforts to prevent fatalities due to injuries.

Washington DC scored highly in the study, with seven of the ten key factors. In terms of total number of injury-related deaths per 100,000 population, the District of Columbia did not fare as well compared to many states, with a rate slightly above the national average. The study’s authors stress that they cannot say with certainty why any one state has a lower rate of injury-related fatalities than any other state, but their key factor analysis offers a good set of guidelines for assessing state efforts to promote injury prevention.

TFAH’s study, prepared with the assistance of the Robert Wood Johnson Foundation, a philanthropic organization that supports health care, examined statistics for injury-related deaths over the past twelve or more years. It drew a distinction between injury-related deaths and deaths from both communicable and noncommunicable disease, calling injury-related deaths a serious but largely hidden public health crisis. The study divided injuries into several categories based on the type and cause of the injury, including vehicular accidents, falls, blunt-force impacts, cutting or piercing wounds, burns, poisoning, drowning or suffocation, gunshot wounds, and “unclassified.” TFAH developed its list of key factors based largely on the cause of injury, such as accident or intentional violence.

The Death of a Young Baseball Player and the Lack of Statistics on Youth Sports Injuries

May 10, 2012 | Lebowitz & Mzhen

The tragic death of a 12 year-old Chicago-area boy in a baseball-related accident has brought attention to a lack of data tracking regarding sports injuries in children. Although researchers have extensively catalogued injuries in athletes at the high school level and up, no one is collecting information on injuries to younger athletes. Sports can be a cause of serious injuries in children, so having access to information and statistics could help not only parents, but equipment manufacturers assess risks and develop safer products.

A 12 year-old boy from Oswego, Illinois, Eric Lederman, died in April from an injury caused by a baseball hitting him in the neck. Lederman was playing catch with a teammate on the side of the field while warming up for a game on Thursday, April 12. The ball struck him in the neck, reportedly hitting his carotid artery. He immediately collapsed and was taken to the hospital. He was pronounced dead at the hospital just after 8:00 p.m. The cause of death was determined to be a cerebral hemorrhage caused by blunt-force trauma, and was declared an accident.

DC Council Considers Bill Extending Statute of Limitations for Wrongful Death Claims

April 12, 2012 | Lebowitz & Mzhen

A bill pending in the District of Columbia Council would extend the statute of limitations for filing a Washington DC wrongful death lawsuit. Known as the “Wrongful Death Act of 2012” (WDA), the bill would change the statute from one year to two years. Councilmembers Phil Mendelson and Marion Barry introduced the bill on March 6, 2012. The bill has been referred to the Council’s Judiciary Committee and is awaiting a hearing. The Office of the Chief Financial Officer, in a letter dated March 19 (PDF file), confirmed that sufficient funds are available through fiscal year 2015 to allow the bill’s implementation.

According to the Blog of Legal Times, an attorney struggling with the tight time constraints of a one-year statute of limitations proposed the bill to Councilmember Barry’s office. Tennessee is reportedly the only other jurisdiction in the United States with a one-year statute of limitations for wrongful death claims. Subject to certain restrictions, Maryland has a three-year statute, and Virginia’s is two years. DC’s one-year statute dates back to the late 19th century.

The District of Columbia Official Code, in Section 16-2702, requires a claimant to bring a wrongful death lawsuit within one year from the date of death. From the standpoint of a personal injury attorney preparing a case for litigation, this does not allow a great deal of time to investigate the facts of the case and develop legal theories of negligence and liability. A wrongful death claim is essentially a claim for negligence, in which the injuries asserted include both the decedent’s death and the claimant’s loss of the decedent’s income, support, and companionship. These damages can be very difficult to evaluate and prove, particularly with a short time limit.

One lawsuit mentioned in relation to the WDA and the relatively brief time period to file a wrongful death claim is Nardyne Jefferies’ claim against the District of Columbia for the death of her daughter, Brishell Jones. Jones was murdered on March 30, 2010 in a mass shooting on South Capitol Street that left three people dead and six wounded. One year to the date after the shootings, Jefferies filed her wrongful death suit.

Jefferies’ lawsuit names the District of Columbia and various agencies and officials as defendants. Because the shooters were known to the DC criminal and juvenile justice systems, the lawsuit alleges that the government should have known that they posed a danger to public safety. Jefferies alleges fourteen separate counts, including several negligence-based counts, alleged violations of District and federal statutes and regulations, and violations of constitutional due process and equal protection. the defendants removed the case to federal court in June 2011, where it is pending in the U.S. District Court for the District of Columbia.

Families of Virginia Tech Shooting Victims Win Trial but Face Cap on Damages

April 6, 2012 | Lebowitz & Mzhen

The families of two women killed during a 2007 shooting rampage on the Virginia Tech campus received a jury award of $4 million each in their claims against the university for negligence. The jury found that the university negligently delayed warnings about Seung-Hui Cho, who had shot and killed two people in a campus dormitory two-and-a-half hours before embarking on the deadliest shooting spree in modern American history. Cho ultimately killed thirty-two people before turning a gun on himself. The university, backed by the Commonwealth of Virginia, is now asserting a state law that caps damage awards against the state at $100,000, as the families fight back.

Cho was a 23 year-old undergraduate student at Virginia Tech with a history of mental illness and “abnormal behavior.” His shooting spree began at about 7:15 a.m. on April 16, 2007, when he killed two students on the fourth floor of a high-rise dormitory. Cho then reportedly spent approximately two-and-a-half hours re-arming himself and mailing a package a photographs and documents to NBC News. At about 9:45 a.m., he went to a classroom building across the campus where he shot dozens of people, killing thirty, over the course of nine minutes. Cho then committed suicide when police breached the building.

Virginia Tech soon faced accusations that it negligently failed to warn students and staff after the first two murders, which allowed Cho’s rampage to proceed almost unimpeded. Police initially thought the first two deaths resulted from a “romantic dispute.” The university sent an e-mail to students and staff advising them to be cautious more than two hours later, roughly twenty minutes before Cho’s second attack began. Multiple negligence and wrongful death lawsuits followed.

The families of twenty-four of Cho’s victims, as well as eighteen people injured by the shootings, settled with the state in 2008 for $11 million. Several families refused to settle, and two of them recently went to trial.

In March 2012, a trial took place in a courtroom in Christiansburg, Virginia for the families of two victims, Erin Peterson and Julia Pryde. The university repeated many of its defenses, maintaining that officials believed Cho had fled the campus after the first two shootings, and that they did not connect the two series of shootings until later. The jury, after deliberating for just over three hours, returned a verdict finding that Virginia Tech officials were negligent in delaying warnings about the first two shootings, and that this delay directly contributed to the victims’ deaths. It awarded $4 million to each family .

Washington DC Metro Settles Seven of the Nine Wrongful Death Lawsuits Brought Over 2009 Red Line Crash

March 7, 2012 | Lebowitz & Mzhen

The Washington Metropolitan Transit Authority (WMATA) settled seven lawsuits brought by the families of people killed in a 2009 crash on the Red Line. The crash remains the deadliest accident in WMATA’s history. The exact terms of the settlement are confidential. Along with three companies that provide equipment for the train system, WMATA has admitted liability for the crash in a court document filed in mid-February. Four remaining lawsuits, two for wrongful death and two for injuries sustained in the crash, are expected to go to trial.

The crash occurred just after 5:00 p.m. on June 22, 2009. A faulty circuit in the automatic train control system failed to detect a train on the track. It directed Car 1079 into the parked train at full speed. Car 1079 was pushed up onto the other train before coming to rest. Nine passengers died in the crash, and dozens were injured.

An investigation by the National Transportation Safety Board (NTSB) scrutinized WMATA and the Tri-State Oversight Committee, which has responsibility for monitoring safety. The NTSB concluded that the control system’s failure directly caused the crash, and that WMATA had “failed to prioritize safety at all levels.” Multiple WMATA officials left or were reassigned. All trains have been operated manually since the crash, while they develop new safeguards.

Families of each of the nine people who died filed wrongful death lawsuits against WMATA and several of its suppliers. People who were injured in the crash also filed lawsuits to recover for their injuries. The recent settlement news resolves all but four of the lawsuits. The remaining suits are pending in the U.S. District Court for the District of Columbia.

The admissions of liability from WMATA and the other companies will make the trials go more smoothly. In a court filing, they say that they are stipulating to liability in order to “avoid the significant risks and costs” involved with a courtroom fight over the issue. The only issue for trial in the remaining cases, therefore, is the amount of compensatory damages each plaintiff should receive.

The day after the announcement of the settlements and the admission of liability, the judge presiding over the cases issued a gag order preventing the parties from discussing it publicly. A pretrial conference was reportedly scheduled for March 1. At least one of the cases, a wrongful death claim brought by the mother of victim Lavonda King, is scheduled for trial in mid-March.

Elementary School Student Dies from Peanut Allergy

February 24, 2012 | Lebowitz & Mzhen

A seven year-old student died at her Richmond, Virginia elementary school in January after she ate a peanut that a classmate gave to her. The girl, Amarria Denise Johnson, had a severe peanut allergy. She had an immediate allergic reaction and was taken to the school clinic. She then went into cardiac arrest and died.

Although the school was reportedly aware of the child’s allergy, the classmate was not. An investigation by police concluded that the actions of the classmate did not rise to the level of criminal negligence, nor did the actions of the school and the child’s mother. A determination by law enforcement that no crime occurred does not preclude a civil case for wrongful death, although it raises the question of who has a duty to guard against injury from a food allergy.

A Chicago lawsuit deals with a similar situation. On the last day of the fall semester in December 2010, a 13 year-old girl, Katelyn Carson, died after going into anaphylactic shock when she ate some Chinese food at school. The girl had a severe allergy to peanut oil. Her teacher was aware of the allergy, so when he ordered Chinese food for an end-of-semester party, he reportedly requested that the food be prepared without any peanut products. Lab testing on samples of the meal found trace amounts of peanut products.

The girl’s family filed a wrongful death suit against the restaurant, Chinese Inn, in March 2011, claiming $100,000 in damages. The board of Chicago Public Schools, partly in response to Katelyn’s case, voted unanimously in January 2012 to spend nearly $200,000 to stock schools with Epi-pens, which can stop people with certain allergies from going into anaphylaxis.

Two Lawsuits Filed Over Las Vegas Tour Helicopter Crash

January 13, 2012 | Lebowitz & Mzhen

Families of the victims killed in a tragic helicopter crash near Las Vegas, Nevada have filed two lawsuits against the company that operated the sightseeing craft. The crash occurred the afternoon of December 7, 2011 in the Lake Mead Recreational Area near the Hoover Dam, about twelve miles east of Las Vegas. The helicopter, a Eurocopter AS350, was owned and operated by Sundance Helicopters, a Las Vegas-based tour company. Sundance conducts sightseeing tours of the area surrounding Las Vegas. Five people lost their lives in the crash, two married couples and the helicopter pilot, Landon Nield.

The specific cause of the crash remains unknown. Radar tracking data from the National Transportation Safety Board (NTSB) reportedly showed that the helicopter entered an “erratic and abnormal flight pattern” just before it crashed. The pilot did not make an emergency call. The NTSB has determined that the helicopter did not lose power before crashing. The agency is conducting its own investigation into the crash, but it may not have a final report or a determination of what caused the crash for some time.

The first lawsuit came within days, filed on December 13, 2011 in Clark County District Court in Las Vegas. The plaintiffs are family members of Lovish Bhanot and Anupama Bhola, newlyweds from New Delhi, India who died in the crash while on their honeymoon. The suit alleges negligence against Sundance and demands unspecified monetary damages.

A second lawsuit followed on December 29, filed by four children of Delwin and Tamara Chapman of Utica, Kansas, the other victims of the crash. The Chapmans were in Las Vegas celebrating their twenty-fifth wedding anniversary. This lawsuit also claims unspecified damages against Sundance. The same attorney is representing both sets of plaintiffs. He told the Associated Press that he will do joint discovery in the cases but wants to conduct separate trials.

The lawsuits, according to news reports, allege negligence and make claims for wrongful death. Wrongful death is a civil legal claim seeking to hold a defendant liable for the death of a person, usually as part of a negligence claim. Unlike criminal legal matters, which seek punishment like fines or imprisonment, a wrongful death claim only seeks monetary damages.

NTSB Issues Findings on Deadly 2010 Gas Pipeline Explosion

December 8, 2011 | Lebowitz & Mzhen

The National Transportation Safety Board (NTSB) recently released its report on a deadly gas pipeline explosion that ravaged a neighborhood outside San Francisco and killed eight people last year. The NTSB, after reviewing data and testimony presented at a meeting in August and over a year-long investigation, concluded unanimously that fault for the explosion lies with Pacific Gas & Electric (PG&E), one of the largest gas companies in the country. The 140-page report issued by NTSB contains thirty-nine safety recommendations directed not only at PG&E, but also pipeline operators and government regulators. Lawsuits related to the explosion are also preparing for trial next year.

The accident occurred in the early evening of September 9, 2010 in the San Francisco suburb of San Bruno, when a ruptured natural gas pipeline owned by PG&E exploded with sufficient force to make some first responders, residents, and media think an earthquake or plane crash had just occurred. The explosion caused a fire that destroyed thirty-five houses and damaged many more. Three more homes were later deemed too badly damaged and were demolished. The blast created a crater 72 feet long, 26 feet wide, and 40 feet deep. In all, eight people, mostly neighborhood residents, died in the explosions or from burns.

The NTSB’s report describes a “litany of failures” by PG&E and failures in oversight by government regulators, according to a Bloomberg report. It says the problem began over 50 years ago, when PG&E installed substandard pipe with poor welding, then subsequently failed to conduct tests and inspections that would have identified problems in advance. It further blames an inept response by PG&E for the severity of the destruction. PG&E control room operators allegedly did not relay information on the source of the fire to emergency responders or 911 operators, causing responders to still think they were dealing with a plane crash. The absence of emergency shut-off valves on the pipeline also allegedly prolonged the fire considerably.

PG&E’s problems with pipeline explosions do not end with the San Bruno incident. The California Public Utilities Commission approved a record $38 million fine against the company last week for a Christmas Eve 2008 explosion in Rancho Cordova, outside Sacramento. That blast killed one person, injured five, and destroyed a house. A utility employee and a firefighter were among the injured. The fatality was the elderly owner of the destroyed home. The owner’s family reached a confidential settlement with PG&E in 2009. An investigation found that, during a repair in 2006, PG&E installed the wrong kid of pipe in the gas line. It also found that PG&E responded too slowly to a report of a leak the day of the explosion.