Washington DC Injury Lawyer Blog

Statute of Repose Bars Medical Malpractice Plaintiff’s Case

August 2, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Alabama decided a case discussing how a statute of repose can prevent a plaintiff’s case from proceeding forward to trial, even if the evidence against the defendant is very strong. In the case, Cutler v. University of Alabama Health Services Foundation, the court determined that since the plaintiff’s case was filed too late, he would not be permitted to seek compensation for the injuries allegedly caused by the defendant’s failure to tell him he noticed a tumor on his brain.

The Facts of the Case

The plaintiff was involved in a serious motorcycle accident and was taken to the hospital afterward. While at the hospital, he was treated by the defendant doctor, who ordered an MRI to be performed. After looking at the results of the MRI, the doctor told the plaintiff that it looked like a bruise. However, in the doctor’s notes, there was evidence that he found a tumor on the plaintiff’s brain and noted that someone from the neurology department should follow up with the patient.

None of this was conveyed to the plaintiff, and no one followed up with him. It was not until about 10 years later, when he was involved in another car accident, that it was discovered that the plaintiff suffered from a brain tumor. Indeed, that accident was caused when the plaintiff had a seizure that was caused by the brain tumor. Once he found out about the tumor, another doctor determined that it was the same tumor that was present on the previous MRI. The tumor was then determined to be malignant. The plaintiff sued the doctor who ordered the MRI, claiming it was medical negligence to not tell the plaintiff about the tumor.

Family of Victim Not Prevented From Filing Wrongful Death Case Even When Victim Filed Personal Injury Case While Alive

July 27, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Maryland decided a very interesting case involving the parents of a young boy who died after complications involving his birth. In the case, Spangler v. McQuitty, the court determined that although the young boy had successfully recovered compensation for his injuries in a medical malpractice case against the defendants, that did not prevent the boy’s parents from pursing a wrongful death case against the same defendants based on the same conduct.

The Facts of the Case

The McQuittys filed a birth injury case against the defendant doctors after their son was born with the severe condition of cerebral palsy. While the McQuittys were actually the ones who were filing the paperwork, the lawsuit was brought in the name of their son. Ultimately, this case was successful, and their son recovered $5 million for his injuries.

After the boy recovered for his injuries, he passed away from complications related to the injuries he sustained at birth. After their son’s death, the boy’s parents then filed a wrongful death lawsuit against the same defendants, claiming that they were responsible for their son’s death. In response to the allegations, the defendants claimed that they had already been held liable for their negligence in delivering the boy, so they should not be subject to liability again.

State Court Finds Premises Liability Case against Government Sufficient to Proceed Toward Trial

July 20, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Michigan issued a written opinion in a premises liability case brought against a city, alleging that the condition of a road was unsafe. In the case of Kozak v. City of Lincoln Park, the appellate court determined that the lower court should not have granted the defendant city’s motion for summary judgment because the plaintiff presented a prima facie case of negligence, on which facts the government may not be entitled to immunity.

The Facts of the Case

Kozak was injured as she tripped while crossing the street in the city of Lincoln Park. According to the court’s factual summary, there was a three-inch differential in the height of two concrete surfaces that met, creating a tripping hazard. Kozak argued that this was unreasonably dangerous, that the City should have known about it, and that the failure to correct the dangerous condition was negligent.

The government had the Director of Public Services testify on its behalf that the condition at issue was not really a safety hazard and that it was still safe for public travel. The trial court then granted the defendant’s motion for summary judgment, finding that there was insufficient evidence presented to overcome the hurdle of government immunity.

Recreational Use Immunity Doctrine Prevents Paralyzed Injury Victim from Seeking Recovery in Diving Accident

July 13, 2016 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion in a premises liability case that was filed by a man who was paralyzed after he dived off a diving platform in a state park. The court noted that it was sympathetic to the plaintiff, but that the law had to be applied in an unemotional way. In so doing, the court found that the state was immune from the lawsuit based on recreational immunity.

Roy v. State: The Facts

Roy was paralyzed when he dove off a diving platform into the murky waters below it. He filed a premises liability lawsuit against the state, as well as the owner and operator of the park, alleging that the state had not done enough to protect against the type of injury he sustained.

The evidence presented at trial showed that there were “no swimming” signs up around the park, but that people routinely disobeyed the signage. There was even testimony that there were bathhouses and lifeguards occasionally on duty who would only stop swimmers when they would dive head-first into the pond.

State Appellate Court Upholds Dismissal of Malpractice Claim Against Public Hospital

July 6, 2016 | Lebowitz & Mzhen

The New York Court of Appeals, the highest appellate court in the state, recently released a decision that affirmed two lower court decisions dismissing a plaintiff’s medical malpractice claim for the plaintiff’s failure to timely serve a notice of claim on the defendant, as required by statute. The plaintiff’s claim alleged that the defendant provided substandard prenatal care to the plaintiff’s mother while he was in utero, and that the defendants committed additional malpractice while delivering the child, resulting in permanent injury and disabilities. As a result of the most recent court of appeals decision, the plaintiff and his mother will be unable to recover damages for the alleged negligence of the defendant.

The Plaintiff Was Born Prematurely by an Emergency Cesarean Section

The plaintiff in the case of Wally G. v. NY City Health and Hospitals Corporation was born at a hospital operated by the defendant in June 2005. According to the facts discussed in the appellate opinion and an accompanying dissenting opinion, complications arose in the pregnancy, and an emergency cesarean section was performed to deliver the baby prior to the expected delivery date. The complaint filed in the case alleged that the defendant failed to act quickly enough upon noticing the complications of the pregnancy and then negligently failed to treat the fetal distress. As a result of the defendant’s alleged negligence, the plaintiff developed several neurological and cognitive disorders, including cerebral palsy, seizures, and problems with speech.

Plaintiff’s Mother Serves a Notice of Claim After the 90-Day Time Limit

Approximately 18 months after the plaintiff was born, his mother filed a notice of claim with the defendant, stating her intention to seek compensation for the medical malpractice that allegedly resulted in the plaintiff’s injury and disabilities. Under New York municipal law, medical malpractice claims against a public medical provider such as the defendant require a notice of claim to be issued no later than 90 days after the alleged malpractice occurred. After the plaintiff filed the medical malpractice lawsuit against the defendant in 2008, the plaintiff requested the court grant leave to file a late notice of claim, but the court did not grant the motion. Shortly afterward, the lawsuit was dismissed based on the plaintiff’s failure to meet the 90-day notice-of-claim requirement.

Plaintiff’s Procedural Mistake Results in Dismissal of Premises Liability Case

June 30, 2016 | Lebowitz & Mzhen

Earlier this month, a Rhode Island appellate court issued a written opinion affirming the dismissal of a plaintiff’s premises liability lawsuit based on the fact that he initially failed to provide the correct date of the injury and then failed to attend a hearing on the defendant’s motion to dismiss. In the case, Santos v. Laikos, the court held that there were no extenuating circumstances excusing the plaintiff’s failure to object or attend the hearing, so dismissal was proper.

The Facts of the Case

Back on April 30, 2011, the plaintiff was injured in what he described as a “melee” that occurred at the defendant’s bar. Just short of three years later, on April 18, 2014, the plaintiff filed a lawsuit against the owners of the bar. However, in his complaint, the plaintiff mistakenly claimed that the incident occurred on November 4, 2010.

Rhode Island has a three-year statute of limitations in premises liability cases, and so the defendant electronically filed a motion to dismiss, arguing that the statute of limitations had run by the time the plaintiff filed the lawsuit. The defendant also mailed a copy of the motion to the plaintiff. The court scheduled a hearing on the defendant’s motion, but the plaintiff failed to appear. The court granted the defendant’s motion.

The Various Theories of Recovery in a Premises Liability Case

June 23, 2016 | Lebowitz & Mzhen

Premises liability lawsuits, more commonly known as slip-and-fall cases, are based on the legal theory of negligence. Essentially, these claims rely on the the duty that a landowner or occupier owes to those people who are invited onto its land. Historically, there have been three classes of “guests”: invitees, licensees, and trespassers.

Invitees are owed the highest duty from landowners. Most commonly, invitees are customers of a business. Licensees are the next-most protected group, and they consist of social guests. Finally, trespassers are owed the most minimal duty, and generally this only requires that a landowner not employ traps or other devices to intentionally harm the trespasser.

Theories of Recovery Available to Premises Liability Plaintiffs

When someone is injured on the land of another, they may file a lawsuit against the landowner. The duty owed to the plaintiff will depend on their classification above. Once the plaintiff’s status is determined, the court will then determine if the defendant violated that duty of care. This can result in one or more of several available claims. A recent premises liability case arising out of a slip-and-fall accident outside a hotel illustrates several potential theories of liability.

Trial Court Error May Jeopardize an Otherwise Favorable Verdict

June 16, 2016 | Lebowitz & Mzhen

In Maryland and across the United States, there is a system in place of appellate courts that are able to review the decisions of the lower courts. In most states, Maryland included, there are three levels of courts, starting with the trial court, then the intermediate appellate court, and finally the state supreme court. Above all of these is the United States Supreme Court, which intervenes only in select cases. Most cases are resolved within the state judicial system.

Judges are human and can make mistakes. Thus, the system is set up to allow for appellate and supreme courts to review the decisions of lower courts in order to make sure that the lower court applied the law correctly. If a higher court decides that a lower court was wrong in its application of the law, the higher court can reverse, or overturn, the lower court. That is exactly what happened in a recent case brought by a woman who rear-ended a garbage truck and sued the driver as well as the truck’s owner for damages.

Torres v. Pabon: The Facts

Torres was driving her Nissan early in the morning along a New Jersey highway before the sun had come up. She approached what she described as a “dark silhouette,” but she did not realize that what she saw was a truck until it was too late. She applied her brakes but was unable to stop in time and struck the back of the truck.

Determining Fault in Multi-Party Washington, D.C. Accidents

June 9, 2016 | Lebowitz & Mzhen

Determining who is at fault in a serious or fatal accident is not always as easy as it may seem. In many cases, there are several parties involved, each with their own role in the accident. In some cases, the injured party may also be partially at fault for the accident. Each of these considerations is relevant in determining what, if anything, the injured party is entitled to receive from the negligent party or parties.

Generally speaking, Washington, D.C. employs the doctrine of joint and several liability. This means that all wrongdoers can be held responsible for the total amount of damages suffered by the plaintiff. This favors plaintiffs because it allows for an injured party to receive full compensation from any one of several liable parties involved.

However, Washington, D.C. also uses the strict doctrine of contributory negligence, which acts to prevent an injured party from recovering at all if they are even the slightest bit at fault. This means that if a person is determined by a judge or jury to be just 5% at fault, they may be prevented from recovering a penny for their damages, no matter how serious.

Court Finds Nursing Home Employees May Be Liable for Failure to Refer Resident to Specialist Physician

May 23, 2016 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of California issued a written opinion holding that a doctor, nursing home employee, or other person with a custodial relationship to an elderly person may be held liable based on that person’s failure to refer the resident to a medical specialist when the situation calls for such a referral. In the case, Winn v. Pioneer Medical Group, the plaintiff was ultimately unsuccessful in establishing the necessary relationship between the defendant and the elder, but the court did note that liability could be appropriate in some situations.

The Facts of the Case

The plaintiffs in the case were the surviving family members of a woman who had died while in the care of the defendant doctors. The elderly woman was being provided outpatient treatment by several doctors. Neither of the doctors made a referral to a specialist, although some facts were evident that would suggest such a referral was appropriate. Ultimately, the elderly woman passed away from blood poisoning. The plaintiffs then filed a claim of elder abuse against the doctors, claiming that it was negligent of them to not refer her to a specialist.

The defendants asked the trial court to dismiss the case against them, claiming that only care custodians can be held liable for elder abuse. The lower court agreed. However, on appeal to the intermediate appellate court, the decision was reversed in the plaintiffs’ favor. The defendant then appealed that order to the state’s supreme court.