July 31, 2014

DC Court of Appeals Determines Hospital Is Liable for Conduct of Temporary Nurse

by Lebowitz & Mzhen

The legal doctrine of “respondeat superior”—Latin for “let the master answer”—is used to hold employers liable for an employee’s negligent behavior. For example, if someone is injured because an amusement park employee negligently operated a ride, the doctrine would allow the injured party to name both the amusement park employee as well as the amusement park itself in the lawsuit, seeking damages from each.

This is a very critical doctrine for DC personal injury plaintiffs because it allows them to name defendants in a lawsuit that might actually have the money to pay for the damages the accident victim sustained. To use the example above again, the amusement park employee may be an 18-year-old with little to his name. The amusement park, therefore, would provide the plaintiff with a better chance of actually collecting what he or she is owed.

In a recent case in front of the DC Circuit Court of Appeals, the court held that a temporary nurse is to be considered an “employee” for the purposes of defending a suit alleging that the nurse was negligent.

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July 24, 2014

Recent Report Takes a Look at DC Car Accidents

by Lebowitz & Mzhen

In a city that is occupied by drivers from several surrounding states, the question often arises, “who causes most of the accidents in Washington DC?” An article by the Washington Post takes a look at a recent study released that analyzes some of the traffic and accident data in the nation’s capitol.

Although Washington DC shares a border with Maryland and Virginia, and is a popular tourist destination, the number one group involved in accidents in DC is, in fact, DC residents. In second place are Marylanders, causing about one-third of the accidents in the nation’s capitol.

Tourists and drivers from Virginia are actually responsible for very few accidents, given the high prevalence of both populations.

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July 17, 2014

Widow Sues Healthcare Company After Her Husband Dies Due to Malfunctioning Medical Equipment

by Lebowitz & Mzhen

arteriography-391479-m.jpgEarlier this month in Louisiana, a woman filed a lawsuit against a local healthcare company alleging that the company provided her husband with faulty medical equipment leading to his death. According to a report by a local Louisiana news source, the woman’s husband was undergoing home dialysis for a kidney condition. Da Vita, Inc. was providing the equipment for the treatments.

One day, the man called Da Vita, explaining that he could not stop the machine’s cycler and the procedure lasted almost two hours longer than it should have. The company did not offer any assistance to the man.

The next day the man left for a fishing trip and collapsed within 15 minutes of leaving home. He eventually died. Doctors determined that the man had low levels of vital nutrients in his blood.

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July 10, 2014

Report Links Energy Drinks to Dozens of Deaths

by Lebowitz & Mzhen

Energy drinks are a craze of the most recent generation. They advertise the ability to stay up later, work out longer, study harder, and maintain focus for prolonged periods of time. However, a recent study claims that several energy drinks still out on the market today have been linked to dozens of deaths.

According to a recent report, the FDA has endorsed a claim by the Center for Science in the Public Interest that linked energy drink consumption to 34 deaths in the United States. Of those deaths,

  • 22 have been linked to 5-Hour Energy;
  • 11 have been linked to Monster; and
  • 1 has been linked to Rockstar.

Doctor Stacy Fisher, Director of complex heart diseases at the University of Maryland School of Medicine explained, “As I see in my medical practice, energy drinks are clearly causing symptomatic arrhythmias, . . . These new reports of deaths and other injuries raise the level of concern about the adverse effects of energy drinks."

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June 26, 2014

Staffer to US Senator Dies as a Result of a Hit and Run Accident

by Lebowitz & Mzhen

Last week, a staffer to US Senator Mark Kirk died from complications that arose about a month after she was the victim of a hit and run accident in the DC area. According to a report by 4 NBC Washington, Lisa Radogno, daughter of Republican leader Senator Christine Radogno, was injured last month when she was crossing at a crosswalk. She sustained injuries to her knee and wrist but returned home from the hospital and then took a short leave before coming back to work for another senator as an executive assistant.

Evidently, Ms. Radogno died last week of a massive pulmonary embolism, a condition that was allegedly caused by the accident about one month earlier. The driver of the hit and run accident was never arrested because police have yet to locate him.

Hit and Run Accidents in the DC Area

Unfortunately, this is not the first—nor will it be the last—hit and run accident in the DC area. Each year, there are several deaths that are caused by hit and run accidents in the DC area. While this accident is slightly different because the victim didn’t die until almost a month after the accident from complications, the hit and run driver can still be held legally responsible for the death.

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June 19, 2014

As Bike-Sharing Catches on in DC, the Instance s of Head Injuries Increase

by Lebowitz & Mzhen

The recent phenomenon of bike-sharing has caught many of the nation’s largest cities by storm. Rather than purchase a bike to travel around the city, bike sharers opt to pay a fee to use bikes at stations around the city. In most cases, riders can pick up a bike at one location and drop it off at another, making the system very convenient for commuters, shoppers, or those just looking to see the sights.

However, a recent article explains that the convenience may come at a cost. As bike shares pop up around the country, the instances of bike-related head injuries are increasing as well. The most cited reason is that, while the bike shares offer bikes, riders must bring their own helmets, something many riders are not doing.

The Study

An NPR article cites a study that looked at Montreal as well as four U.S cities, including Washington DC, both before and after the bike-share program was implemented. The result was a 14% increase in the proportion of head injuries compared to the total number of serious biking injuries. The bottom line is that a larger percentage of bike-related accidents are involving head injuries than before.

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June 12, 2014

Nap Nanny Responsible for Another Infant Death

by Lebowitz & Mzhen

A few years back, a product that seemed like a godsend for parents with children who could not fall asleep in cribs was released to the market. It was called the “Nap Nanny,” and it was a kind of seat that an infant could sit in to help it fall asleep. It mimicked the cozy, cradling position of a mother’s arms. However, reports began to come in that the Nap Nanny was not as safe as originally thought. One by one, reports of infant deaths came in. Evidently, due to a design flaw, infants could fall off the side of the Nap Nanny and get stuck between the seat and the side of the crib.

According to the U.S. Consumer Product Safety Commission, the Nap Nanny is responsible for more than 90 incidents and five deaths. In 2012, the agency instituted a mandatory product recall, pulling the unit from all primary markets. However, the product has still been available at secondary markets, such as garage sales, online marketplaces, and thrift stores.

Yet Another Death Due to the Nap Nanny

According to an article by the Daily Record, just a few months ago in March, the Nap Nanny claimed its latest victim, an eight-month-old baby. The child’s parents set the baby down for bed and came back to check on him a few hours later. They found their child dead, stuck between the Nap Nanny and the side of the crib.

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June 5, 2014

Pennsylvania Construction Workers Injured When Trench Collapses on Them

by Lebowitz & Mzhen

Just a few weeks ago in May, two construction workers were trapped in a trench when the trench collapses around 1 p.m. in the afternoon. According to a report by the Times Herald, the men were working on a project at the Valley Forge Sewer Authority when the dirt wall of the trench just gave way, trapping the two men under a pile of dirt.
After emergency responders pulled both men from the trench, they noticed that the men had both been injured in the collapse. They were each taken to local hospitals; one man was suffering breathing problems, and the other from injuries to his leg.

One trench worker told reporters that there had been other collapses since he had been assigned to work on the trench a few months ago. At the time the article was published, the Occupational Safety and Health Administration was on the way to determine if the workplace was indeed safe at the time of the accident and to conduct an investigation into the cause of the accident.

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May 27, 2014

Popular Office Toy, Buckyballs, Voluntarily Recalled Facing Lawsuit

by Lebowitz & Mzhen

Earlier this month, the president and creator of the of the popular desk toy, Buckyballs, recalled the product after facing a lawsuit from a federal agency that threatened to hold him personally liable for the damages caused by the product.

What Are Buckyballs?

Buckyballs are high-powered magnetic balls that can be stacked into almost any shape. Once they are placed together, they are difficult to separate due to the extremely high-powered magnets used in the balls.

The Danger of Buckyballs

According to a report by the Washington Post, the danger of the product was that children could ingest several of the high-powered magnets and then suffer internal organ damage when the magnets “connected” with each other in the child’s body.

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May 20, 2014

DC Court of Appeals Dismisses Slip-and-Fall Plaintiff’s Suit Because the Defect in the Pavement Was “De Minimis”

by Lebowitz & Mzhen

Due to a city’s relationship with its citizens, and the fact that the city’s taxpayers pay for the sidewalks and roads, cities have a duty to ensure that they are maintained in a reasonably safe manner. Thus, when a person falls while walking on the sidewalk, and that fall was due to a defect in the pavement (such as a hole in the sidewalk or missing bricks), that person may seek recovery for their injuries from the municipality in which the injury occurred.

However, courts have routinely held that when a defect in pavement is so small that the city could have no way of knowing that there was a problem, and thus having no way to fix it, the city cannot be held liable. That is exactly what happened in a recent case in front of the DC Court of Appeals.

Briscoe v. District of Columbia

In the recent case, Briscoe v. District of Columbia, the plaintiff tripped and fell on the sidewalk outside her home. Before trial, the District of Columbia moved to dismiss the suit, arguing that the crack in the pavement was so small that they could have had no way of knowing it even existed. The trial court viewed pictures of the defect and agreed, dismissing the suit against the District of Columbia.

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May 13, 2014

Recently Filed Lawsuit Likely to Address the Effects of ADHD Drugs and the Wisdom of Their Use

by Lebowitz & Mzhen

In a lawsuit that was filed earlier this month in Virginia, a family is suing several doctors for the misdiagnosis of their son, who eventually killed himself several years after being given—and becoming addicted to—various ADHD medications by a number of doctors. The case involved the Fees, the Virginia family who lost their 24-year-old son, and two doctors who repeatedly prescribed dangerous stimulants to their son despite knowing that he had other mental issues.

The Fees allege that the doctors misdiagnosed their son with ADHD years ago and sent him down a path of unnecessary and harmful drug use—and eventually drug abuse—for a condition for which he never exhibited symptoms. They also claim that the two doctors failed to communicate with each other, and that their failure allowed their son to continue to abuse the medication even after one of the doctors stopped prescribing the drug to their son due to his other mental health issues.

Back in November of 2011, the Fees tried to contact their son, who was living in an apartment they were paying for, with no luck. When they showed up at his home, they found that he had hung himself from his closet. Although the family did not initially bring a suit against the doctors, they reconsidered that decision after an article was published in the New York Times detailing their story. Evidently, many people reached out to the family to share similar stories. After that communication, the Fees wanted to enact some sort of change in the way that doctors go about diagnosing ADHD, as well as how they readily prescribe dangerous and addictive medication to treat the disorder.

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May 6, 2014

D.C. Court Finds Improper Negligence Per Se Jury Instruction Harmless, Affirms Verdict

by Lebowitz & Mzhen

Generally, a personal injury plaintiff must prove four elements to prevail in a negligence claim: duty, breach of duty, causation, and damages. However, in some cases, plaintiffs can take a “short cut” under the legal theory of “negligence per se.” Negligence per se is a Latin term that means negligence in and of itself. Under Washington D.C. law, negligence per se is applicable "where a particular statutory or regulatory standard is enacted to ... prevent the type of accident that occurred.” Further, an “unexplained violation of that standard renders the defendant negligent as a matter of law.”

This means that the plaintiff must prove only that the statute was designed to protect against the type of harm caused in the accident, and that the defendant was the person or entity that engaged in the conduct. Therefore, when the facts of the case allow it, a plaintiff will almost always want to instruct the jury on negligence per se because it makes the plaintiff’s burden that much easier to meet.

For that reason, when a court erroneous instructs a jury on negligence per se, the defendant may have an issue on appeal because of the harm caused by the instruction. However, a recent D.C. Court of Appeals case held that an improper negligence per se instruction can be “redundant” rather than harmful in some cases, and does not always require reversal.

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