Washington DC Injury Lawyer Blog

As medical devices grow increasingly sophisticated, disputes have begun to arise between doctors and medical device manufacturers over who bears the responsibility when a patient is injured by a device. In some instances, manufacturers try to hold doctors liable for using a device improperly, and in others doctors try to hold manufacturers liable if the device did not function correctly. Disputes such as these bring two different theories of liability together in unforeseen ways: medical malpractice and products liability. How these disputes are resolved could have an important impact on how courts assess liability in future malpractice cases.

American Medical News, a publication of the American Medical Association, reported last month on an orthopedic surgeon in Kentucky who implanted a pain pump in a patient’s shoulder to administer painkillers after reconstructive surgery. The patient later returned, complaining of shoulder pain. An examination revealed that the patient had developed chondrolysis, a condition that causes significant deterioration of joint cartilage. It can be caused by certain types of anesthetic if they are continuously administered into or near the joint. The pain pump had evidently caused the chondrolysis because of the type of anesthetic administered.

The patient sued the pump manufacturer, alleging that the company failed to warn the doctor of the risks of complications from this particular use of the pain pump. The manufacturer brought the doctor in as a third-party defendant and alleged that the doctor used the pain pump “off-label,” meaning in a way not intended by the manufacturer or approved by the Food and Drug Administration (FDA). The case is still in progress in Kenton County, Kentucky.

Doctors have a duty to their patients to provide diligent care. Because of their special training, they occupy a particular position of trust under the law and have unique responsibilities. They must rely, however, on a wide range of products and equipment in order to provide state-of-the-art care, which means they must rely on various warranties and assurances from third-party companies. These include pharmaceutical companies and medical device manufacturers. Doctors can only provide care to the best of their ability with the knowledge available to them. They are responsible for learning how to use medical devices such as pain pumps, but in the event that something goes wrong, the question becomes whether or not they used a device correctly or if the device was somehow defective.

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A Maryland appellate court has overturned a verdict awarding $64,000 to a woman who suffered an injury on a Washington Metropolitan Area Transit Authority (“Metro”) platform. The court found that Metro is entitled to sovereign immunity as a joint agency of the governments of Maryland, Virginia, and the District of Columbia. The decision calls into question the outcome of other pending lawsuits against Metro.

Veronica Tinsley slipped on a wet platform while exiting a train at the Cheverly Station on Metro’s Orange Line in 2007. She fell and broke her ankle as a result. She filed suit against Metro in Maryland state court, arguing that Metro violated its own procedures by mopping the platform during rush hour. She further alleged that Metro failed to post any warnings about the wet platform for riders. These failures breached Metro’s duty of care to its passengers, leading directly to her injuries. A jury found in her favor and awarded her damages.

Metro appealed the decision on the grounds that the doctrine of sovereign immunity precluded any claim for damages. The Maryland Court of Special Appeals agreed with Metro and entered an order in early December overturning the jury verdict and award. The court held that Maryland, Virginia, and the District of Columbia conferred their sovereign immunity protections on Metro when they jointly formed it as a government agency. Congress and the legislatures of Virginia and Maryland passed legislation approving an interstate compact signed by the three governments and authorizing the creation of an entity to manage public transportation across the three jurisdictions. Metro was officially formed in 1967. The interstate compact is the instrument that passed sovereign immunity protection on to Metro.

The doctrine of sovereign immunity generally prohibits suits against the government. It originates from the notion in a constitutional monarchy that the king created the courts and is the source of their authority. As such, the courts have no power to judge the king. The doctrine is practiced slightly differently in the United States today, but the underlying concept remains the same.

Governments may waive sovereign immunity in limited cases, such as in contract disputes. For tort cases such as this one, many states and the federal government have enacted laws that allow claims if the plaintiff first gives notice of the claim and meets various other requirements. The Maryland Tort Claims Act allows claims in certain types of cases but sets a strict limit on the amount of damages.

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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.

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A task force appointed to investigate an infamous case at the University of California at Davis, when a campus police officer evidently used pepper spray on a group of seated, allegedly non-violent student protesters in November 2011, has decided not to release the findings of their investigation yet. The task force has retained a private security company to look into the case. The company has completed its investigation, but the task force has opted to withhold its report until the task force itself completes its own work, which may not be until February or later.

The events of November 18, 2011 are still very much in dispute, regarding whether any students were behaving violently, whether the UC Davis police on the scene faced any danger, and whether arrests or use of force were warranted. The incident has become part of the broader debate about the Occupy Wall Street protest movement that began in New York City and has spread to cities around the world. The Occupy protest in Washington, D.C., while enduring arrests by police, has not had issues of alleged police brutality to the extent of other American cities. The issues presented in California are of interest to anyone who represents the rights of people injured by police misconduct.

What is clear about the UC Davis incident is that a police officer used pepper spray, at point-blank range, on a group of unarmed students seated in a close group on the ground. The case has prompted outrage around the country (towards both police and protesters) and calls for investigations by California lawmakers. It has also prompted questions about the safety and health effects of pepper spray, especially as it has been used by police in these protests.

The administration of UC Davis has formally apologized for the incident, acknowledging that the student protest was non-violent and calling the police action “deplorable and unacceptable.” The university chancellor, Linda Katehi, has claimed that she specifically instructed campus police to dismantle the protesters’ camp peacefully, and not to do it at if the students behaved aggressively. The police officer shown pepper-spraying the students was placed on administrative leave shortly after the incident, and he lives on as an internet meme.

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A judge awarded $17.845 million to a family in a negligence lawsuit against the federal government over a military jet crash that killed four people. A series of mechanical failures and human errors caused the U.S. Marine Corps F/A-18D Hornet jet to crash into the family’s University City home in San Diego, California on December 8, 2008. The crash killed 59 year-old Seokim Kim-Lee, her 36 year-old daughter Youngmi Lee Yoon, and Yoon’s daughters Grace Yoon, age 15 months, and Rachel Yoon, age 7 weeks. Kim-Lee was visiting from her home in Korea at the time of the crash.

According to a timeline published by San Diego’s KGTV, the jet took off from the U.S.S. Abraham Lincoln at 11:11 a.m. that morning. It began experiencing mechanical troubles within a few minutes. At 11:21, the carrier ordered the pilot to divert to Naval Air Station North Island in San Diego, about ninety nautical miles away. The right engine shut down at 11:28, and the next thirty minutes saw numerous equipment problems. Three nautical miles from the air station in Miramar, the plane suffered a flameout, and it crashed at 11:57 a.m.

An investigation into the crash conducted by the Marine Corps found that mechanical failures with the jet’s right engine and fuel transfer system caused an “avoidable” tragedy. It identified policies and practices that could have prevented the crash, including “more aggressive maintenance procedures” and better training and oversight of maintenance personnel. The report partly blamed the crash on decisions by the pilot and ground personnel that morning. Four officers, including the commanding officer and operations officer, were “relieved for cause” from the squadron, and several other individuals received administrative discipline.

Don Yoon, husband of Youngmi Lee Yoon and father of Grace and Rachel Yoon, joined by Sanghyun Lee, husband of Seokim Kim-Lee, and several of Lee and Kim-Lee’s adult children, filed a lawsuit in July 2010 against the United States government and The Boeing Company, who manufactures the F/A-18 jet. They had first filed administrative claims with the Navy in May 2009 under the Federal Tort Claims Act (FTCA) and admiralty law. The Navy denied these claims in March 2010, and they proceeded to file suit in the U.S. District Court for the Southern District of California. They alleged that the government and Boeing had knowledge of failures and defects in this jet model, but cleared it for use anyway. They asserted claims for negligence under both admiralty law and the FTCA against the government, and claims for products liability and breach of warranty against Boeing. The government admitted full liability for the crash, and the case went to trial before the court on December 12, 2011 on the question of FTCA damages.

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An investigation into a car crash caused by distracted driving has led the nation’s leading governmental traffic safety advocate to urge state governments to ban all use of portable communications devices by drivers. This would include cell phones, meaning a total ban on non-emergency talking and texting while operating a vehicle. The National Transportation Safety Board (NTSB), an independent agency of the federal government, issued this recommendation earlier this week as part of its report on a 2010 automobile accident in Missouri.

The NTSB also recommends that state and local governments follow the model of “high visibility enforcement” pioneered by the National Highway Traffic Safety Administration (NHTSA), another government safety advocate. The NHTSA has run campaigns that combine vigorous enforcement of a specific traffic law with publicity campaigns in order to promote awareness of, and compliance with, such traffic laws.

The CTIA, a trade association that represents the wireless electronics communications industry, has in the past supported bans on texting behind the wheel. On the issue of banning talking on cell phones while driving, it has indicated a willingness to defer to the public and to lawmakers. The single greatest factor that would weigh against a successful ban on talking while driving is that, put simply, everyone seems to be doing it.

“Distracted driving,” which refers to driving while using some sort of electronic communications device or engaged some other activity, caused up to 3,092 deaths in traffic accidents last year, the NHTSA estimates. Thirty-five states and the District of Columbia have enacted bans on sending text messages while driving, but it does not appear to have stopped, or even slowed down, the practice. Texting while driving may have increased by as much as fifty percent in the past year, and the NHTSA estimates that one percent of drivers on the road are, at any given moment, distracted by a cell phone. Younger drivers are even more likely to drive while distracted.

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A Washington, DC-area dentist recently warned about the importance of protecting children’s teeth and jaws from injury as they participate in fall and winter sports, noting the potential for serious damage and complications from fairly common sports injuries. The dentist, of course, recommends obtaining a custom-made mouth guard with the assistance of a dental professional. His advice demonstrates the importance of ensuring safe and reliable protection for children (and adults) who participate in sports, whether the protective device is store-bought or professionally-made.

Sporting goods stores and other retailers sell a variety of protective equipment, including mouth guards, pads, and braces. Almost any of these types of equipment are also available custom-made from medical professionals. The recent article focuses on mouth protection, but its advice applies to protection for the head, limbs, back, and more. Manufacturers of products offered for sale to the public have a duty to take reasonable steps to ensure that their products are fit for their advertised use.

Consumers, under the legal theory of products liability, may be able to recover damages from the manufacturer of a product if that product causes them injury in certain circumstances. A manufacturing defect could be any sort of flaw occurring during the production of a product that makes it unsafe. A design defect is a problem inherent in the product that would have occurred before the product was ever produced or assembled. A marketing defect refers to the advertising of a product for some improper use. Any of these defects could cause an injury to a consumer, and could entitle the consumer to compensation for injuries.

Medical professionals, by virtue of their education, training, and unique position of responsibility to their patients, have a very high duty of care. Producing customized protective equipment for athletes places them into a position of responsibility for the design, manufacture, and marketing of these products. They therefore bear some potential liability for customized equipment along with the actual manufacturers.

The Consumer Product Safety Commission (CPSC), an agency of the federal government, monitors the safety of consumer products, issuing recalls for products it deems sufficiently unsafe. It enlists the cooperation of the manufacturers themselves when possible, but it has the legal authority to order a recall when necessary. The CPSC maintains records of recalls it has ordered or requested, organized by market segment. It has issued multiple recalls for sports equipment, including safety equipment for both adults and children, such as:

- Football helmet chin straps due to “laceration hazard,” November 3, 2011
- Ski helmets due to “head injury hazard,” July 21, 2011
- Baseball and softball gloves due to “presence of mold,” July 6, 2011
- Bicycle helmets due to “head injury hazard,” May 31, 2011
- Lacrosse gloves due to “violation of lead paint standard,” July 26, 2010

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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.

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The federal government has agreed to pay $2.5 million to Maureen Stevens, a resident of Lantana, Florida, to settle her lawsuit arising from the 2001 death of her husband, Bob Stevens, in the anthrax attacks that occurred in various cities that fall. The $50 million lawsuit claimed negligence by the government for failing to prevent the attack that killed her husband, citing evidence that a government insider obtained the spores used in the attacks from an Army lab. A settlement was first announced in October, but details only recently became public.

The anthrax attacks occurred in the fall of 2001, a few weeks after the terrorist attacks of September 11. Bob Stevens was a 63 year-old photo editor at American Media, Inc. in Boca Raton, Florida, the publisher of the National Enquirer and other tabloids. He died on October 5, 2001, a few days after opening a letter addressed to the publisher that had been laced with anthrax spores. Bob Stevens’ death was the first of five resulting from similar letters.

Maureen Stevens filed her lawsuit in a Florida federal court in 2003, claiming $50 million in damages for her husband’s death. She alleged that the government negligently failed to secure anthrax spores at the laboratory where they originated, the Army Medical Research Institute of Infectious Diseases at Fort Detrick, Maryland. She claimed that the Institute had a history of failing to track pathogens and of missing microbe samples dating back to at least 1992. In essence, she alleged that the government had a duty to adequately safeguard dangerous pathogens in its possession, particularly ones known to be deadly to humans, and that the government breached its duty by allowing anthrax spores to fall into the hands of the perpetrator of the attacks. This led directly to Bob Stevens’ wrongful death, according to her lawsuit.

The Justice Department, arguing on behalf of the government, disputed her allegations. It claimed that she failed to prove a direct causal connection between the government’s actions, even its lack of security precautions, and Bob Stevens’ death. The Justice Department at one point unsuccessfully argued to the Florida Supreme Court that the government could not be held liable even if it had allowed the release of dangerous materials. Discovery in the case led to many revelations about security at the Maryland research site and the role of various government employees and officials. Only some of these have become public. The case was set for trial in January 2012 when the settlement was announced.

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A jury in a federal lawsuit in Cheyenne, Wyoming has awarded $9 million to Louis and Rebecca Prager. The suit against Campbell County Memorial Hospital in Gillette, Wyoming and Dr. Brian Cullison alleged medical negligence during treatment of Mr. Prager in 2008, leading to permanent disabilities. The award may be the largest medical malpractice verdict in Wyoming history.

Prager, an oil field worker, was involved in a rollover accident on December 9, 2008, when the truck he was driving for his employer went off the road in icy conditions.. An ambulance crew immobilized him on a backboard, placed a neck brace on him, and rushed him to the emergency room at Campbell County Memorial Hospital. According to the lawsuit, despite complaints of neck pain, Cullison released Prager without examining him, taking x-rays of his neck, or providing him with a cervical collar.

Prager, 51 years old at the time, returned to the hospital four days later after losing the use of his left arm and shoulder. The hospital found multiple fractures to his cervical spine and performed emergency neck fusion surgery. The surgery prevented any further injury, but could not repair the nerve damage. He has since had a second neck fusion operation and will probably require more in the future. He has also undergone several procedures aimed at reducing his pain. He has been unable to work since the accident.

Prager’s lawsuit alleged that Cullison’s failure to diagnose his broken neck led to permanent C5 nerve root injuries, and sought to hold the doctor and the hospital liable for his expenses, pain and suffering, and future costs. Defense attorneys argued that Prager’s pain and loss of use of his arm resulted from a progressive shoulder injury, not the failure to diagnose the cervical injury. After a nine-day trial in October 2011, the jury determined that the negligence of the hospital and doctor caused Prager $7 million in damages. They awarded an additional $2 million in damages for loss of consortium to Prager’s wife, Rebecca. “Loss of consortium” damages relate to the loss of companionship and support suffered by the spouse or partner of an injured plaintiff. According to the Casper Star-Tribune, this is the largest medical malpractice award in the state’s history, beating the previous record of $1.5 million by a wide margin.

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The parents of Michelle Fournier, a woman killed in a hair salon shooting that left eight people dead and one wounded, have filed a wrongful death lawsuit against the alleged shooter. The alleged gunman, Scott Dekraai, is Fournier’s ex-husband. The lawsuit asks the court to freeze Dekraai’s assets. According to the family’s attorney, their goal is to obtain compensation for Fournier and Dekraai’s eight year-old son, who is left effectively orphaned by the incident.

The family of another woman killed in the salon, Christy Wilson, has also filed a lawsuit for wrongful death against Dekraai. Her husband alleges in the suit that she “lingered for a ‘significant’ period of time before she died,” and seeks compensation for hospital and funeral costs and loss of “love, care, companionship.” The two lawsuits will likely proceed alongside, but independent of, the criminal prosecution.

Dekraai had taken Fournier to court to modify their child custody arrangement, hoping to get more time with their son. A court-appointed psychologist recommended that the court keep the existing custody plan in place. On October 12, 2011, Dekraai allegedly drove to the salon in Seal Beach, California where Fournier worked, armed with three handguns and wearing a bulletproof vest. According to police and Dekraai’s own statements to police, he shot eight people in the salon, killing seven, including Fournier and Wilson. He then shot and killed a man sitting in a car in the parking lot, telling police later that he thought the man might be a police officer reaching for a weapon.

Police arrested Dekraai shortly after he left the salon. He reportedly offered a full confession to investigators, admitting to all of the shootings and offering explanations for his actions. Prosecutors have charged Dekraai with eight counts of murder and one count of attempted murder, one for each shooting victim. They have announced that they will seek the death penalty. His arraignment is scheduled for November 29.

There are several key differences between the criminal and civil ases. The claims brought by the families for Fournier and Wilson seek civil damages for wrongful death. The criminal case, brought by prosecutors who work for the state of California, seek to punish Dekraai in the criminal justice system. The desired outcome of a wrongful death lawsuit is always monetary damages, while a criminal prosecution seeks fines, imprisonment, or sometimes the death penalty.

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Football, as the saying goes, is a contact sport. It may therefore come as a surprise to learn that a number of professional football players have sued the National Football League and helmet manufacturer Riddell over concussions suffered during games. In all, 125 former players have filed suit in at least five separate complaints, alleging that the NFL failed to properly warn players of the risks of head injuries and to provide support for retired players. Concussions in sports, particularly professional football, have received heightened scrutiny recently in both the media and in Congress, with many statistics suggesting that the number of concussions has increased significantly.

A concussion is a common type of brain injury caused by an impact with the head making the brain collide with the inside of the skull. This can lead to both physical and cognitive symptoms, ranging from headache and dizziness to disorientation and attention deficits. A person who suffers from a concussion may not lose consciousness, and many concussions go undiagnosed because the injured person does not realize the injury’s severity. Multiple concussions over time can cause significant brain damage, including memory loss and dementia. The NFL began to pay serious attention to concussions in 2009, and in February 2011 it announced new guidelines to gauge whether an injured player should continue to play.

The lawsuits consist of a class action suit and three personal injury suits in California state court and a case in a federal court in Pennsylvania. The suits essentially allege that the NFL has a duty to inform players of all risks reasonably associated with their job duties and to support players injured in the course of their job duties. In this situation, the players’ “job duties” involve practicing for and playing football. Lawyers for the players say that they hope to use the lawsuits to improve safety standards for all players, to prevent future injuries, and to get compensation for the players’ injuries.

To prevail on their claim, the players would have to prove that the NFL had knowledge of risks inherent in the game not available to an ordinary prudent person, and that the players did not assume the risk of injury by agreeing to play the game. An argument in the players’ favor, perhaps, is that they did not have the ability to refuse to perform certain job functions, since these would occur in the middle of games and players are contractually obligated to play.

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