Medical Malpractice

Court Rejects Contributory Negligence Theory in Medication Error Case

February 29, 2024 | Lebowitz & Mzhen

When a pharmacy distributes the wrong medication, the patient can suffer severe health complications. A medication mix-up can cause physical injury and psychological harm, and a person may face steep medical bills to treat the complications of the mix-up. As a result, victims of a pharmacy error may seek to hold the pharmacy liable for their harm and recover compensation. However, when bringing a pharmacy malpractice lawsuit, plaintiffs should be aware that a pharmacy can defend itself through the concept of patient responsibility.

What Is Patient Responsibility?

In medication error lawsuits, the defendant can argue that a patient should have recognized the mix-up before taking the medication. For example, a pharmacy may argue that a patient should be able to tell that the color and shape of a medication differ from their previous doses. As a result, a patient’s failure to recognize a medication error may bar a damages award. Maryland is one of the few states that follows a contributory negligence theory of liability. Under contributory negligence, a plaintiff cannot recover any damages if they were partially at fault for their injury. Despite this high standard for recovery, some courts have refused to dismiss cases based on contributory negligence.

When Will Courts Allow Medication Error Lawsuits to Go Forward?

The Importance of Expert Witnesses in Washington, D.C. Medical Malpractice Cases

May 6, 2021 | Lebowitz & Mzhen

Expert witness testimony is one of the most critical forms of evidence in a Washington, D.C. medical malpractice claim. An expert witness’s purpose is to aid the court or jury in understanding medical evidence or medical facts that are at issue in the case. Generally, both parties call expert witnesses to bolster their claims or defenses. Expert testimony is typically essential in Washington D.C. medical malpractice lawsuits, as such injury victims should consult with an attorney to ensure that they have access to the most appropriate experts.

In 2016, Washington D.C adopted the Daubert standard under the Federal Rules of Evidence 702. Under Rule 702, the court can qualify an expert as a witness if they exhibit the knowledge, skills, experience, training, or education in the relevant field. Expert testimony is appropriate if:

The expert’s scientific, technician, or specialized knowledge will aid the fact finder to understand issues or determine facts;

Filing Suit Against the District of Columbia in a Washington, D.C. Injury Case

November 11, 2020 | Lebowitz & Mzhen

If an individual is injured in the District of Columbia and the local government may be at fault, a plaintiff will likely have to deal with the issue of governmental immunity. Under Washington, D.C. law, the municipal government may be immune from a civil lawsuit depending on the nature of the act.

Are Government Employees Immune from Personal Injury Liability?

In Washington, D.C., the local government and its employees and agents are immune from suit depending on whether the act is discretionary or ministerial. The government is immune based upon its discretionary actions, but not immune from suit based upon its ministerial actions. Generally, a discretionary act is one that involved deliberation, decision, and judgment. A ministerial act is generally confined to following orders or performing a duty in which the employee has little choice. Whether an action is discretionary or ministerial often depends on the specific facts and circumstances of the case.Local government employees also generally are protected under governmental immunity for their actions. They generally are protected as long as they are acting within their official capacity and within the scope of their employment and if they do not act with gross negligence. An individual may also act as an agent of a government entity, depending on the facts of the case.

Court Dismisses Medical Malpractice Suit Against University Based on Immunity

In a recent case before one state appeals court, that court considered whether a university was entitled to immunity after a doctor was sued at an affiliated hospital. In that case, the patient sought treatment from the doctor at his office at the hospital. The university provided healthcare services at that teaching hospital. The doctor was an employee of the university and made an agreement to provide care to patients at the hospital. The patient claimed that the doctor failed to prescribe anti-coagulants to the patient, which resulted in disabilities. The patient claimed that the hospital and the university were liable for the doctor’s actions as an agent of the university.

The Dangers of Filing a Washington, D.C. Medical Malpractice Suit Too Late

July 21, 2020 | Lebowitz & Mzhen

When someone is injured in a Washington, D.C. accident, the District’s laws allow them to file a personal injury suit against whoever caused their injury. This is an important process that allows for many Washington, D.C. accident victims to recover financially for their injuries and losses and move on from an accident. However, it is critical that residents remember that they must bring a claim within a specified period. If they miss filing within this time, which is set by statute and called the statute of limitations, then they will have their suit barred permanently. This can be a harsh wakeup call for accident victims. Thus, anyone who believes they may have been the victim of medical malpractice should contact an attorney sooner rather than later to discuss their case.

For an example of how this works in an actual case, take a recent state supreme medical malpractice opinion. According to the court’s opinion, the plaintiff suffered from periodontal disease, and received allegedly negligent treatment from October 2011 through December 2012. The plaintiff claimed that his periodontist was negligent in treating him as she failed to adequately diagnose and treat his ailments, causing him extreme pain. Additionally, the plaintiff claimed that the periodontist then failed to give him complete medical records regarding his treatment. The plaintiff filed suit in October of 2015, and the periodontist filed a motion for summary judgment to have the lawsuit dropped based on the two-year statute of limitations.

In most medical malpractice cases, the statute of limitations begins to run not when the injury actually occurs, but when the victim actually finds out about it and discovers that there may be a claim. For example, if a doctor botches a surgery and causes long-term complications, the patient may be fine for several months before they suffer adverse effects and realize what has happened. That is when the statute of limitations might begin to run.

Recent Case Highlights the Importance of Proving Damages in a Washington, D.C. Personal Injury Lawsuit

May 25, 2020 | Lebowitz & Mzhen

A plaintiff in a Washington, D.C personal injury case not only has to prove that the defendant acted wrongfully, and that the defendant’s wrongful conduct caused the plaintiff harm, but also that they suffered harm. Further, they must prove the extent of that harm. Damages can only be awarded if the party claiming the damages has adequately proved that the opponent’s wrongful conduct caused the harm suffered. Washington, D.C. courts have stated that damages cannot be based on “speculation or guesswork,” thus, a plaintiff must provide an adequate basis for the jury to make a reasoned judgment. In addition, damage calculations have to be sufficiently detailed to support an award of damages.

Generally, damages are meant to compensate the plaintiff for the harm the plaintiff suffered. Examples of compensatory damages include past and future medical expenses, lost wages, loss of companionship, and pain and suffering. Punitive damages are also available in D.C. injury cases in some instances. Punitive damages are intended to punish the defendant for bad conduct and to deter others from engaging in such conduct. When punitive damages are at issue, a court may consider the defendant’s net worth and ability to pay.

Failing to adequately prove damages can be just as devastating as a judgment in the opposing party’s favor. For example, in a recent case, an appellate court upheld an award of zero future damages, which significantly limited the plaintiff’s recovery. In that case, the plaintiff and her husband claimed that an emergency room physician and his employer failed to properly assess and treat the wife’s brain aneurysm when she went to the emergency room. On the issue of damages, the plaintiffs presented billing records that showed the wife’s medical expenses totaled over $1 million. They also presented testimony concerning her procedures and rehabilitation, future medical expenses, lost wages, and the care she required based on her condition. The defense challenged the extent of future expenses and the credibility of the witnesses.

Summary Judgment in Washington, D.C. Personal Injury Lawsuits

April 27, 2020 | Lebowitz & Mzhen

Most people know that when they are injured in a Washington, D.C. accident, they may be able to sue the negligent party in court to recover for their damages. When potential plaintiffs picture filing a lawsuit against a negligent party, however, they usually picture a dramatic court scene, with lawyers making impassioned and heated arguments in front of a judge and jury. While this situation does occasionally indeed occur in D.C. courts, what many people do not realize is how many personal injury cases are decided way before a trial is even scheduled. One common way is by a court granting a motion for summary judgment.

Summary judgment is proper when there is no dispute of material facts, and the facts at hand can lead to only one outcome. Typically, a party will file what is called a motion for summary judgment, asking the court to weigh the entire record in front of them and determine that the other party could not possibly win. Sometimes both parties will file for summary judgment, convinced that they must win based on the evidence. When considering the motions, the judge draws all inferences in favor of the non-moving party.

In a recent opinion, a federal appellate court considered whether or not summary judgment was proper in a medical malpractice case. According to the court’s written opinion, the plaintiff was admitted to the defendant hospital for cardiac bypass surgery. During his time in the hospital and during surgery, however, complications arose, which resulted in the plaintiff needing to have a double amputation. Afterward, the plaintiff sued the hospital, alleging that they were negligent by not removing contaminated heparin, a certain drug, from their stocks. According to the plaintiff, the contaminated drug was what caused the complications, and as such, the hospital was liable for the resulting injuries.

The Duties of Healthcare Professionals in Washington, D.C.

April 20, 2020 | Lebowitz & Mzhen

Healthcare professionals have a special duty to their patients. Because healthcare professionals receive specialized training and are experienced in their field, they are expected to meet certain standards when treating patients. If a healthcare professional fails to meet those standards, and a patient suffers an injury, the healthcare professional may be liable for medical negligence. In a D.C. medical malpractice case, a plaintiff must prove the applicable standard of care that the defendant was required to meet, that the defendant failed to meet the standard of care, and that the defendant’s failure caused the plaintiff’s injury.

Washington, D.C. courts have stated that while healthcare professionals are not expected to be perfect, they may be liable when their conduct falls below the standard of care that the professional must meet. In order to establish the applicable standard of care, expert testimony is usually required, because the subject often is not within an average person’s common knowledge. In general, a Washington, D.C. medical malpractice case must be filed within three years of the date of injury, or when the plaintiff should have become aware of the injury through the exercise of reasonable due diligence.

In a recent medical malpractice case before a state appeals court, the plaintiff suffered a brain infection at a hospital after undergoing surgery to remove a cyst. The infection resulted in permanent neurological injuries. The plaintiff sued the hospital, claiming that the center’s nurses and other providers were negligent in failing to give her an antibiotic before surgery.

When Does the Statute of Limitations Begin to Run in a Washington, D.C. Medical Malpractice Case?

January 6, 2020 | Lebowitz & Mzhen

A medical malpractice case in Washington, D.C. generally must be filed within three years of the accrual of the cause of action. Under D.C. law, the cause of action accrues, and the statute of limitations begins to run, not when the injury occurs but when the plaintiff knows of the injury or should know of the injury through the exercise of due diligence. A recent decision from a state appeals court illustrates the potential complexities involved in determining when a plaintiff knew or should have known of an injury.

In that case, when the plaintiffs’ minor son was born in September 2009, the parents were told that the baby suffered from an infection, and he remained in the hospital for 10 days after his birth. When the baby was discharged, the mother was told that the baby was healthy and normal. However, she soon began noticing that he was not meeting certain developmental milestones. In April 2010, a CT scan showed that the baby had suffered a fractured skull injury. Almost two years afterward, the baby was diagnosed with spastic cerebral palsy. The mother was told that this type of cerebral palsy is usually caused by a lack of oxygen to the baby’s brain during labor and delivery. The parents filed the complaint in November 2013, claiming that the son’s neurological injury was caused by improper care by the hospital and medical professionals at the hospital.

The defendants claimed that the case was barred by the statute of limitations. Under applicable state law, the claim had to be filed within two years of the time when the incident was discovered or should have been discovered with due diligence. The parents argued that the statute of limitations did not begin to run until November 2012, when the parents were informed that the spastic cerebral palsy might have been related to the delivery. The defendants argued that the statute of limitations began to run in May 2010, when the family should have discovered that medical negligence had occurred. The family met with an attorney at the time, who requested the baby’s medical records. A trial court agreed with the defendants and dismissed the case, and the parents appealed.

Determining the Scope of Liability in a Washington, D.C. Medical Malpractice Case

December 21, 2019 | Lebowitz & Mzhen

Vicarious liability is a legal concept that acts to hold a principal liable for the actions of an agent. Under Washington, D.C. law, an employer can be held liable for the legally careless actions of an employee in a medical malpractice case, even if the employer itself did not commit any legally careless actions. Vicarious liability is based on a relationship between the parties. As a matter of policy, employers are held responsible in part because they are often better situated to provide financial compensation to victims.

In a recent case before one state supreme court, the court considered whether a hospital could still be held liable after a surgeon entered into a settlement agreement with the plaintiff. In that case, a woman’s daughter filed a lawsuit after her mother died two days after undergoing surgery at a hospital. The woman’s daughter sued the hospital and two surgeons. One of the surgeons subsequently entered into a settlement with the plaintiff. As part of the settlement, the plaintiff signed a release, which released the doctor from all claims. The hospital was not involved in the settlement agreement. However, the hospital subsequently filed a motion for partial summary judgment, arguing that the release of the doctor released the hospital from vicarious liability for that doctor’s alleged negligence.

In that case, the state’s supreme court found that the release signed by the doctor also released the hospital from its vicarious liability arising from that doctor’s alleged negligence. The court reasoned that the purpose of the release in part was to reduce the plaintiff’s claims against other parties, so it served to extinguish the plaintiff’s claim against the hospital. It found that the release functioned to fully satisfy the plaintiff’s claims against the hospital.

Washington, D.C. Laws May Make it More Difficult for Plaintiffs to Recover in Medical Malpractice Suits

November 26, 2019 | Lebowitz & Mzhen

When an individual ends up in a hospital, they expect that the nurses and doctors will take care of them and make sure they are safe. Because of the level of trust given to health care professionals, and the stakes at issue, Washington, D.C. (the District) medical malpractice cases can be extremely traumatic. Unfortunately, however, doctors and nurses can and do make mistakes. Generally, Washington, D.C. law allows victims to sue when they are injured as a result of those mistakes.

However, some laws in the District may prevent a plaintiff from recovering anything against their medical provider, even if they were injured as a result of the provider’s negligence. For instance, Washington, D.C. residents should be aware of the District’s harsh contributory negligence rules, which will bar a plaintiff from recovering anything for his damages if the court finds he was at all responsible for his injury. This applies in situations where a plaintiff is found to be just 5 percent responsible. In some unusual cases, a plaintiff who brings suit against a medical provider and is found partially accountable may even end up owing the medical providers money for legal fees.

Additionally, plaintiffs may find themselves unable to recover if they decide to leave the hospital against medical advice (AMA). Typically, in these cases, the hospital will ask the patient to sign a form indicating that they are leaving AMA, that they assume all of the risks of doing so, and that they release the hospital and medical staff of all liability. Sometimes patients won’t even read this form thoroughly, but signing it can preclude a plaintiff from successfully bringing a suit later on. For instance, in a recent state appellate opinion, the court dismissed a plaintiff’s lawsuit against her doctor because she signed an AMA form.