Washington DC Injury Lawyer Blog

Medical Malpractice Suit Dismissed by Washington DC Court for Non-Compliance with Notice Requirement

January 26, 2013 | Lebowitz & Mzhen

The U.S. District Court for the District of Columbia dismissed a medical malpractice suit without prejudice for non-compliance with the notice requirement in the DC Official Code. The court held in Carmichael v. West, No. 11-1513, slip op. (D.D.C., Jul. 27, 2012), that the plaintiff’s failure to give notice to the defendant deprived the court of subject matter jurisdiction. It also held that the plaintiff did not prove that she made a good-faith effort to comply with the notice requirement, nor that the “interests of justice” merited a waiver of the requirement.

Sheila Moody was admitted to D.C. General Hospital for obstetric care on August 30, 1998. She received treatment from the defendant, Dr. Threvia West, M.D. According to the plaintiff’s complaint, West knew that Moody was HIV positive, and that a vaginal delivery would expose the unborn fetus to a serious risk of infection. The plaintiff alleged that West still performed a vaginal delivery, resulting in the child, identified as John Doe, becoming infected with HIV. The child has suffered from HIV encephalopathy, a condition that resulted in severe pain and brain damage. Moody later died, and the child came into the care of the plaintiff, Nora Carmichael.

Carmichael filed suit against West for medical malpractice on August 22, 2011. She claimed that three actions by West directly contributed to the child’s injuries: performing a vaginal delivery instead of a caesarean section, delaying delivery until the child was exposed to ruptured membranes in the womb, and using a fetal scalp electrode that broke the skin and exposed the child directly to the HIV virus. The lawsuit claimed $80 million in damages. On September 21, 2011, the plaintiff sent the defendant a “Notice of Intention to File Suit” in accordance with DC Code § 16-2802. The defendant, with representation provided by the District of Columbia, moved to dismiss the lawsuit, or for summary judgment, based on lack of notice. The DC Code requires a plaintiff to send notice to a defendant at least ninety days before filing a lawsuit, unless the plaintiff can show a “good faith effort” to give notice.

Federal Government Reports on Improvements to Approval Process for Medical Devices

January 22, 2013 | Lebowitz & Mzhen

The Center for Devices and Radiological Health (CDRH) issued a report in November 2012 on improvements to its review and approval procedures for new medical devices. As part of the U.S. Food and Drug Administration (FDA), the CDRH is responsible for medical device safety and quality. The FDA defines “medical devices” as any device designed to either diagnose or treat disease or other conditions, or to alter or affect a bodily structure or function. They may range in complexity from Class I devices, such as dental floss, to Class III devices like pacemakers. The CDRH’s recent report builds on a plan the agency developed in 2011 to streamline and improve the premarket review and approval of medical devices.

Section 510(k) of the Food, Drug, and Cosmetic Act (FD&C Act) requires any person or business who intends to market a medical device designed for human use within the U.S. to submit a Premarket Notification, commonly known as a “510(k),” to the CDRH. The purpose of the 510(k) requirement is to allow the CDRH an opportunity to review the device and confirm that it is at least as safe as similar devices already on the market. Certain Class III medical devices that are entirely new, or otherwise not similar to any other device on the market, must submit to a Premarket Approval (PMA) process, which is more comprehensive because of the lack of existing safety data.

According to the CDRH’s report, entitled “Improvements in Device Review Data,” the agency’s premarket review and approval efficiency declined between 2001 and 2010. This was largely due to budget constraints, high staff turnover, limited training resources, and high workload. A lack of federal funding accounted for much of these issues, but the ever-increasing sophistication of medical devices compounded the problem, according to the CDRH, making it even harder for the agency to keep up with the incoming documentation. The effect of this decrease in efficiency was a significant increase in the time required for approval of new medical devices, along with the possibility of older, less effective or less safe devices remaining in use, posing a possible threat to patient safety.

Supreme Court Reviews the Constitutionality of Blood Tests for Suspected Drunk Drivers

January 10, 2013 | Lebowitz & Mzhen

The United States Supreme Court heard arguments this week in a case in which Missouri prosecutors asked the Court to rule that warrants are not necessary to collect blood samples from individuals suspected of driving while intoxicated. Given that alcohol can break down in the bloodstream, time is often of the essence when collecting evidence of intoxication. The Court ruled back in the 1960’s that police may only draw blood without a warrant when a suspect is involved in an injury accident. The present case, Missouri v. McNeely, No. 11-1425, asks the court to expand that ruling to cover any suspected DWI. Setting aside the arguments over constitutional rights regarding searches and seizures, this is an important case for the personal injury bar, as it may substantially affect how police collect evidence in DWI cases, and therefore what evidence may be available in a civil claim for damages.

Police arrested the defendant, Tyler McNeely, for DWI after McNeely reportedly displayed the “tell-tale signs of intoxication,” such as “bloodshot eyes” and “slurred speech.” Missouri v. McNeely, 358 S.W.3d 65, 68 (Mo. 2012). After McNeely refused to consent to a blood test or an alcohol breath test, the arresting officer, who did not have a warrant, instructed a medical professional to draw a blood sample. McNeely moved to suppress the results of the blood test at his trial, arguing that the officer violated his Fourth Amendment rights against unreasonable search or seizure. The trial court granted the motion to suppress.

Car Accident at Washington Monument in Mount Vernon Injures Passenger

December 30, 2012 | Lebowitz & Mzhen

The Baltimore Sun reports that on Thursday, December 27, a car rented in Connecticut crashed into a wall at the historic Washington Monument after the driver allegedly fell asleep. According to the article, the driver was not injured, but the sole passenger was taken to the University of Maryland Medical center with neck and back injuries. There were reportedly no other vehicles or individuals involved in this one-car accident.

Officials reported that there had been damage to the wall at the historic monument but did not describe the extent of the damage. The Washington Monument column was built in 1829 and is the most prominent structure in Washington, D.C. Made of marble, the monument honors the nation’s founding father George Washington.

According to the report, the car did not strike the monument itself, but a wall just south of the column that is part of the smaller Lafayette Monument. Honoring the Marquis de Lafayette, who served as major-general in the Continental Army under George Washington, the Lafayette Monument features a bronze sculpture of the French military officer on a horse.

Personal injury lawyers in the Washington, D.C. area are familiar with car accidents in the heavily trafficked nation’s capital. Falling asleep at the wheel is one of many of the risks of driving, and it is almost always due to negligent behavior. People are almost always aware of getting drowsy well before they actually fall asleep when driving. Sometimes they are in a hurry or perceive some other reasons not to heed the warnings of drowsiness.

Drivers have a duty of care to their passengers and other drivers that includes remaining alert and awake. A driver who experiences signs of drowsiness but does not pull over to rest or otherwise address his sleepiness is engaging in negligent conduct. The passenger in this case could seek compensation for his injuries from the negligent driver who fell asleep. Fortunately, it appears from the reporting that no party suffered significant injuries.

Drivers may experience drowsiness due to any number of factors:
– Lack of sleep
– Too many consecutive hours driving
– Overwork
– A medical condition
– Intoxication or drug use
– A prescription medication

No Higher Speed Limits on Major DC Commuter Routes After All

December 21, 2012 | Lebowitz & Mzhen

On December 18, Mayor Vincent Gray announced that several of the major commuter routes in DC would be seeing higher speed limits. While this may come as a welcome convenience for many drivers, Washington, D.C. car accident attorneys know that higher speeds also present higher risks. The D.C. Council must have agreed, as it issued a new rule prohibiting the mayor from changing the speed limits without its approval.

In making the announcement, Mayor Gray cited a study showing that higher speed limits would not affect the safety of the roads. However, even if the study’s findings suggest no impact on safety, it only makes logical sense that a higher speed of traffic would mean more significant injuries in accidents, even if not a higher incidence of accidents overall.

In overriding the mayor, the council said that instead of simply choosing four streets on which to raise the speed limits, the council would rather see more extensive research and deliberation. The mayor’s decision, a council spokesperson said, usurps the council’s authority to set speed limits. The mayor’s office responded that setting speed limits was within the purview of the mayor’s powers because it is a regulatory function, not a legislative one.

According to the latest data, which reports on accident statistics from 2007 to 2009, there are upwards of 15,000 collisions each year in D.C. Although Mayor Gray said that the speed limits were increased on roads that don’t see much if any pedestrians and carry faster moving traffic, most car accident attorneys would likely agree that there should be ample research to support raising speed limits before implementation. While it may be convenient for many commuters to be able to go five miles per hour faster on a few roads, the council has a good point that raising the speed limit on four streets may not be the best way to make change.

Federal Judge Permits Company Disputing CPSC Complaint Data to Remain Anonymous

December 14, 2012 | Lebowitz & Mzhen

In October, a federal judge permitted a company known only as “Company Doe” to remain anonymous in a lawsuit against the U.S. Consumer Product Safety Commission (CPSC). The anonymous company argued that the CPSC’s report with consumer complaint data was “baseless” and would cause “irreparable harm to [the company’s] reputation and financial well-being.” While that is certainly a valid concern, a Washington, DC products liability attorney would likely be more concerned with the extent to which such secrecy places the public at risk of encountering the dangerous product.

The CPSC is the federal agency tasked with protecting the public from “unreasonable risks of injury or death” from consumer products within its jurisdiction. Children’s toys, automobiles, and consumer appliances all fall within the purview of the agency’s power to regulate. The CPSC is perhaps most known for issuing announcements regarding product recalls.

In this lawsuit, Company Doe sued the CPSC, asking the court to stop the federal agency from publishing a report on its public searchable database, SaferProducts.gov. Presumably, the report is related to a consumer product Company Doe produces or produced.

Consumer advocacy groups have opposed Company Doe’s requested injunction, citing the First Amendment of the U.S. Constitution and the public interest in understanding why the report should remain undisclosed. They argue that the CPSC database is a critical tool for informing consumers about potentially dangerous products, and the exclusion of one product from the database by an anonymous company could undermine that purpose.

By law, the CPSC must post consumer complaints within 20 business days of receiving them, but it must first notify the product manufacturers to give them an opportunity to respond. Complaints that are shown to be materially inaccurate are corrected or removed.

Each year, thousands of consumer products are manufactured, sold, and then recalled for being defective. A product may be defective three ways. A design defect is a flaw in the way the product was conceptualized. In this case, every single instance of the product is defective, and a recall would affect every product sold. A manufacturing defect is a flaw in the production of the product, and these defective products deviate in some way from the intended product. Products recalled due to a manufacturing defect are often only a subset of the products sold, such as those manufactured and sold in a certain facility, or during a specific time frame. Finally, products may be defective if the manufacturer fails to warn consumers and potential users about foreseeable dangers of using the product, such as detachable blades or dangers of choking.

Energy Drink Maker Faces Lawsuits and Congressional Scrutiny After Multiple Reports of Deaths

December 7, 2012 | Lebowitz & Mzhen

Living Essentials, LLC, the Michigan-based manufacturer of the drink marketed as 5-Hour Energy, currently faces lawsuits around the country blaming the drink’s high caffeine content for multiple injuries and deaths, or alleging that the company makes false statements regarding the drink’s contents or benefits. A nonprofit health organization recently accused the company of misquoting its executive director in an advertisement. The U.S. Food and Drug Administration (FDA) has named the drink in multiple reports based on consumer complaints, including thirteen fatalities, and two U.S. senators have requested to meet with the FDA regarding concerns about regulation of the beverage.

At least ninety-two FDA reports have mentioned 5-Hour Energy since 2004. Thirty-three of those reports involved hospitalizations, and thirteen involved deaths. Common caffeine-containing beverages like Coca-Cola have strict limits on their caffeine content set by the FDA, but “energy drinks” like 5-Hour Energy, Monster, and others are often labeled as “dietary supplements” rather than beverages. While a 12-ounce beverage like Coca-Cola might have an upper limit of 71 milligrams of caffeine, or roughly six milligrams per ounce, a dietary supplement does not face the same regulations. A single serving of 5-Hour Energy, sold in sixty milliliter (approx. two ounce) containers, may contain 207 milligrams of caffeine. The FDA has announced its intention to review its policies on labeling and warnings for drinks with such high caffeine content.

The company has also dealt with complaints from a non-profit science group, the Center for Science in the Public Interest (CSPI). The group accused Living Essentials of running a misleading advertisement online, which implies that the group’s executive director endorses the product’s safety. According to the CSPI, the advertisement includes a quote from the director saying that a fatal overdose is unlikely based solely on caffeine. The company suspended the advertisement in response to the group’s criticism.

Several lawsuits pending around the country are challenging the safety of 5-Hour Energy, either as a result of injury or death, or based on allegedly false or misleading statements regarding the beverage’s ingredients. A Tennessee lawsuit, Hassell v. Innovation Ventures, et al, alleges that consumption of 5-Hour Energy caused the death of the plaintiff’s husband by cardiac arrhythmia in 2009. The plaintiff asserted causes of action for negligence and products liability, but nonsuited the case without prejudice in November 2011.

Wrongful Death Lawsuit Seeks to Hold Truck Driver Liable for Hours-of-Service Violations

November 30, 2012 | Lebowitz & Mzhen

We previously discussed a Nebraska lawsuit that invoked a statute allowing wrongful death claims on behalf of unborn children. The case involved a truck accident that took the lives of a family and their unborn child. The lawsuit, Baumann v. Slezak, et al, also invoked Federal Motor Carrier Safety Administration (FMCSA) regulations governing the length of time truck drivers may operate a vehicle or be “on-duty.” The driver who allegedly collided with the family’s car had, according to the complaint, been driving longer than the maximum time period allowed by the regulations.

The accident occurred in the early morning of September 9, 2012. The family, which was traveling cross-country in two cars, was stopped at the rear of a traffic jam on westbound Interstate 80 in western Nebraska. A semi-truck driven by the defendant Josef Slezak approached the line of traffic at about seventy-five miles per hour. The driver allegedly failed to slow or stop the vehicle, hitting the family’s rear car at full speed. This propelled the car into the family’s other car and into another vehicle, killing the occupants of both cars.

The lawsuit names Slezak and his employer as defendants, asserting causes of action for negligence per se, violations of FMCSA regulations, and vicarious liability. The complaint accuses Slezak of violating two FMCSA regulations: a prohibition on operating a commercial motor vehicle while impaired by fatigue or some other cause, and hours-of-service (HOS) rules. Slezak had allegedly been driving for almost nineteen hours. He arrived at a terminal in Milwaukee, Wisconsin, according to the complaint, at 10:49 a.m. on September 8, 2012, and departed at 1:49 p.m. The accident occurred at about 5:19 a.m. on September 9, approximately 920 miles from Milwaukee.

Statutes Allowing Fetal Wrongful Death Lawsuits Vary from State to State: Baumann et al v. Slezak et al

November 23, 2012 | Lebowitz & Mzhen

A wrongful death lawsuit arising from a Nebraska automobile accident invokes that state’s fetal death statute, reportedly for the first time since the Nebraska Legislature enacted it in 2003. The plaintiffs in Baumann v. Slezak, et al are asserting multiple causes of action in relation to the deaths of a Maryland couple, their two children, and their unborn child. The unborn child was a viable fetus at the time, which is an important distinction in some jurisdictions. The right to recover damages for the wrongful death of a person requires that the law recognize the decedent as a “person.” Nebraska’s statute explicitly applies to unborn children “at any stage of gestation,” while the District of Columbia’s statute does not mention unborn children or fetuses. Case law from DC, however has established that the law may apply to a “viable” fetus.

The accident in Nebraska occurred during the early morning of September 9, 2012. A family of four, consisting of a father, a pregnant mother, and two children, were driving through western Nebraska on their way to California. Each parent was driving a separate vehicle, and the children were riding with the mother. Traffic on westbound Interstate 80 was at a standstill because of an accident between two semi-trailers about one mile further up the road. While the family’s two cars were stopped, one behind the other, at the rear of the line of traffic, another semi-trailer approached from behind at about seventy-five miles per hour. The driver allegedly did not slow before colliding with the father’s car. This caused his car to collide with the mother’s car, propelling it under the trailer in front of her, and killing the four family members and the unborn child.

The legal representatives of the two parents filed suit on behalf of the parents, the children, and the unborn child, asserting causes of action for negligence and violations of federal trucking safety regulations. They sued the truck driver, his employer, and the driver and truck companies allegedly responsible for the accident that caused the traffic jam, asserting causes of action for negligence and violations of federal safety regulations.

Federal Tort Claims Act Requires a Clear Allegation Against a Federal Employee or Agency, DC Court Rules: Moorman v. United States

November 16, 2012 | Lebowitz & Mzhen

A U.S. District Court in Washington DC dismissed a lawsuit brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 et seq., against the federal government and other government entities. The plaintiff in Moorman v. United States asserted causes of action for premises liability, but did not specifically plead facts to show how the federal government, or a federal employee, was liable for her injuries. The court found that the FTCA did not apply in the absence of any allegations to demonstrate the federal government’s liability, and that as a result, it lacked subject matter jurisdiction over the entire case.

The plaintiff, Jacqueline Moorman, attended an event at the D.C. National Guard Armory in March 2009. When she left the event at approximately noon, she descended an exterior stairway. A concrete step crumbled under her feet, causing her to fall and sustain substantial injuries.

Moorman sued the Washington Convention and Sports Authority (WCSA), a government board that owns the Armory. She also named the United States and the District of Columbia as defendants. According to the district court’s opinion, her allegations of premises liability centered on the WCSA, which is part of the city government of Washington, DC. The mayor appoints most of the members of WCSA’s Board of Directors, who must also be confirmed by the Washington City Council. The federal government reportedly has no direct role in the WCSA or the operation of the Armory.