Washington DC Injury Lawyer Blog

Medical Malpractice Lawsuit Dismissed by Court Based on Plaintiff’s Failure to Prosecute

September 25, 2017 | Lebowitz & Mzhen

The courts in Washington, D.C. deal with a heavy caseload. Indeed, it is not uncommon for a Washington, D.C. personal injury case to take months, if not years, to reach trial. In most cases, some delay is expected while the parties conduct their investigation, exchange discoverable materials, and prepare their case. However, if a court determines that a plaintiff is not pursuing their case dutifully, the court has the power to dismiss the plaintiff’s case.

While dismissal for a plaintiff’s failure to prosecute a case is a rare sanction that is not often imposed, a recent appellate decision illustrates when courts are willing to impose sanctions on a party who is not diligently pursuing their claim.

The Facts of the Case

The plaintiff filed a medical malpractice lawsuit against the defendant in 2005. However, since the plaintiff failed to attach a required expert affidavit, the case was voluntarily withdrawn without prejudice in 2007. The next day, the plaintiff filed another lawsuit against the same defendants; however, that case was withdrawn the next year under similar circumstances. The plaintiff’s third lawsuit was filed the very next day.

Plaintiff’s Improper Service of Defendant Results in Dismissal of Wrongful Death Case

September 18, 2017 | Lebowitz & Mzhen

One of the first steps that any Washington, D.C. personal injury plaintiff must take after filing a lawsuit is serving the named defendants. The law requires that all defendants be served so that they know the allegations they are facing and how they can respond to them. This is a critical step, and if a plaintiff does not effectuate proper service, their case may be dismissed. A recent opinion in a wrongful death case illustrates the serious repercussions that a plaintiff can face if a defendant is not properly served.

The Facts of the Case

The plaintiff’s husband was a patient in the defendant hospital. According to the court’s written opinion, on the day before his death, the plaintiff’s husband was admitted to the hospital with sharp chest pain. The attending physician on duty diagnosed him with gastritis and sent him home. On the following day, the plaintiff’s husband was again admitted to the hospital, this time while in cardiac arrest. He remained in the hospital for a short time longer before he was transported to another hospital, where he ultimately passed away.

About a year later, the hospital closed. Shortly after that, the plaintiff filed a timely wrongful death case against the hospital, claiming that the physician’s negligence in failing to diagnose her husband’s cardiac arrest led to his death. The plaintiff served a former member of the board, who was the hospital’s legal counsel. The hospital responded that service was not proper, and the plaintiff voluntarily withdrew her lawsuit so that she could effectuate proper service.

Court Determines Delivery Driver Is Not an “Employee” in Recent Car Accident Case

September 11, 2017 | Lebowitz & Mzhen

Being involved in a Washington, D.C. car accident can be a traumatic experience. Aside from the obvious concerns of physical injuries and emotional distress, car accident victims often find themselves in financial hardship. Thankfully, car accident victims are often able to pursue financial compensation from those responsible for the accident through a Washington, D.C. personal injury lawsuit.

Determining which parties to name in a lawsuit is not necessarily as easy as naming the other drivers involved in the accident. In fact, naming only the other drivers can be a major mistake. For example, in many cases, third parties can also be named in a lawsuit, not only increasing the chances of a favorable verdict but also increasing the chances of being fully compensated for any injuries sustained.

The doctrine of vicarious liability permits accident victims to name third parties in some situations. Essentially, vicarious liability allows a plaintiff to hold one person or entity responsible for another person’s actions. A common example is when an employee is involved in an accident while on the clock. In some cases, the employer can also be liable for any injuries sustained. However, as a recent case illustrates, the burden is on the plaintiff to prove that the relationship between the employee and the employer is sufficient to impose liability on the employer.

Court Upholds Slip-and-Fall Plaintiff’s Verdict Against Hospital

September 4, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Connecticut issued a written opinion that will be of interest to those considering filing a Washington, D.C. premises liability lawsuit. The case presented the court with the opportunity to determine whether a lower court was proper to enter judgment in favor of the plaintiff under the specific facts present in the case. Ultimately, the appellate court concluded that the plaintiff did present sufficient evidence to warrant a finding in her favor. As a result, the defendant hospital’s appeal was dismissed.

The Facts of the Case

The plaintiff was visiting a family member at the defendant hospital. After her visit, the plaintiff was walking out of the hospital when she stubbed her toe on a piece of broken pavement on the sidewalk. The plaintiff fell to the ground, and it was later determined that she had broken her toe in the accident. She also suffered lower back pain as a result of the fall.

The plaintiff filed a premises liability lawsuit against the hospital, claiming that the hospital was negligent in safely maintaining the sidewalk area and that the hospital’s failure to do so resulted in her injuries. The parties opted to have the case decided by a judge, rather than by a jury, and after hearing the evidence, the court entered judgment in favor of the plaintiff. The court determined that the plaintiff’s injuries were approximately $180,000; however, since the court also determined that the plaintiff was 40% responsible for her injuries, the award was reduced by that percentage to a total award amount of approximately $108,000.

Appellate Court Determines Missed Cancer Diagnosis Was Not the Proximate Cause of Patient’s Death

August 23, 2017 | Lebowitz & Mzhen

Earlier this month, a federal appellate court issued a written opinion in a personal injury case involving a missed cancer diagnosis filed against the Veterans Administration (VA). Ultimately, the court concluded that, while the VA was negligent in failing to diagnose and treat the cancer, that failure was not the cause of the patient’s death. This case is important for Washington, D.C. medical malpractice plaintiffs because it illustrates the strict requirement of causation and the level of certainty an expert witness must possess when testifying.

The Facts of the Case

The plaintiff was the surviving spouse of a patient who was treated by the VA for various medical issues. Pertinent to this case was the patient’s diagnosis of cirrhosis of the liver. In 2011, a routine test showed the patient presented increased liver function. The attending nurse ordered a CT scan, and the VA doctor interpreting the scan noted that the patient’s cirrhosis was stable but did not note anything else.

In 2013, the plaintiff was admitted to the emergency room with various symptoms, including painful urination, incontinence, confusion, and slurred speech. Another CT scan was ordered and found a cancerous mass in the patient’s liver. The CT scan results were then compared to the earlier CT scan, and it was clear that the mass was present in the earlier scan as well. Since then, the size of the mass had doubled.

Appellate Court Holds Swimmer Assumed Risk of Injury by Entering Water, Dismissing Parents’ Wrongful Death Lawsuit

August 16, 2017 | Lebowitz & Mzhen

Whenever a person’s death is a result of the negligent conduct of someone else, the surviving family of the deceased person may be able to pursue compensation for their loss through a Washington, D.C. wrongful death lawsuit. In Washington, D.C., wrongful death lawsuits may be brought by the surviving spouse or partner of the deceased person. If no surviving spouse or partner exists, the next of kin is able to file the lawsuit.

In order to prove a Washington, D.C. wrongful death lawsuit, a plaintiff must establish that the named defendant’s negligent conduct brought about the death of their loved one. Generally, this requires proof of four elements: duty, breach, causation, and damages. A recent wrongful death case out of Georgia discusses how a court may apply the causation analysis.

The Facts of the Case

The plaintiffs were the parents of a young man who was a student at the defendant university. The plaintiffs’ son enrolled in a study-abroad program in Costa Rica through the university. Prior to traveling to Costa Rica, school officials warned students of the dangers of swimming in the open ocean, and they asked each of the students whether they were a good swimmer. The plaintiffs’ son indicated that he was comfortable in the water and that he could swim.

Slip-and-Fall Plaintiff’s Case Dismissed for Failure to Establish the Defendant Knew about Wet Floor

August 9, 2017 | Lebowitz & Mzhen

In order for a plaintiff to succeed in a Washington, D.C. slip-and-fall case, she must be able to show that the property owner either created the hazard that caused her fall or knew about the hazard but failed to take any corrective action. If a plaintiff is unable to present the court with some evidence of the property owner’s knowledge, the case will most often get dismissed in a pre-trial motion for summary judgment.

Earlier this month, a federal appellate court issued a written opinion in a premises liability case illustrating the difficulties that plaintiffs may encounter when attempting to prove a property owner’s knowledge of the hazard that caused a fall.

The Facts of the Case

The plaintiff was a customer at the defendant restaurant. At the time, the plaintiff was recovering from a recent surgery on her heel, and she was walking with the assistance of crutches. During her meal, the plaintiff got up to use the restroom. In order to access the restroom, customers had to walk past the restaurant’s kitchen. As the plaintiff walked past the kitchen, she slipped on the wet floor.

Court Discusses Expert Witness Testimony in Recent Car Accident Case

August 2, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Connecticut issued a written opinion in a car accident case requiring the court to discuss and analyze the difference between the question of whether evidence is admissible at trial and how much weight that evidence should be assigned. The case is important for Washington, D.C. personal injury plaintiffs because it illustrates the principle that a judge or jury must determine how much weight to assign the evidence presented by both sides.

The Facts of the Case

The plaintiff was driving on the highway when she passed a Department of Transportation vehicle on the side of the road. As she passed the vehicle, she heard a loud noise, and her car flipped over, sliding on the roof for some distance before coming to a stop.

In her complaint naming the Department of Transportation as a defendant, she claimed that the driver pulled out into the road as she was passing and struck her vehicle. The trial took place in front of a judge, rather than in front of a jury. When the plaintiff testified, she explained that she was not looking at the Department of Transportation car and did not notice it until it struck her.

Court Upholds Jury Verdict in Favor of Railroad Worker in Recent Case

July 25, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Georgia issued a written opinion in a case brought by a railroad worker who was injured while on the job. The case required the court to decide if the injured worker presented enough evidence to justify the jury’s verdict in his favor. Ultimately, the court concluded that the injured worker did present at least some evidence that the employer was negligent, and therefore the jury’s verdict was ordered to stand. The case is important for Maryland personal injury plaintiffs because it shows one exception to the general rule that an injured employee cannot file a personal injury case against his employer.

Employer Liability and Workers’ Compensation

Generally, employers are not liable for injuries sustained by employees while on the job beyond the remedies that can be obtained through the workers’ compensation program. However, in some limited circumstances, an employer may be held liable through a personal injury lawsuit. Importantly, if the employee was injured due to the negligence of a third party, the injured employee can file a personal injury lawsuit against that party without prohibition.

The Federal Employers Liability Act (FELA) was enacted back in 1908 to protect railroad workers. The Act allows for injured railroad workers to file claims against their employers, similar to the workers’ compensation program. However, unlike the workers’ compensation program, FELA requires an injured employee to establish that his employer was at fault. As long as the employee is not found to be 100% at fault, the employee can prevail in a claim in state or federal court.

Appellate Court Determines “Full Disclosure” for Medical Procedure Requires a Discussion of Who Will Be Performing the Procedure

July 18, 2017 | Lebowitz & Mzhen

Many Washington, D.C. medical malpractice cases ultimately come down to whether a doctor adequately informed the patient of the risks involved with a procedure. This is called informed consent. Earlier this month, an appellate court in Oklahoma issued a written opinion in a medical malpractice case dealing with the issue of informed consent. The court had to determine if a patient can give informed consent to undergo a surgery without knowing who will be actually performing the surgery. Ultimately, the court determined that in order for a patient’s consent to be valid, the doctor must inform the patient of anyone who will be performing the significant portions of the procedure.

The Facts of the Case

The plaintiff was a patient of the defendant gynecologist. In 2010, the defendant recommended that the plaintiff undergo a total laparoscopic hysterectomy, and the plaintiff agreed. Prior to the surgery, the plaintiff signed a form indicating her consent to the procedure. The consent form stated that the plaintiff authorizes the defendant and “whomever he/she (they) may designate as his/her assistants, to perform the following operative or diagnostic procedure(s): total laparoscopic hysterectomy.” There was also a dedicated section to list who would be assisting with the procedure, but that portion was left blank.

The defendant enlisted the help of a certified nurse with whom she had worked many times in the past. The nurse was not a hospital employee but was an independent contractor hired by the defendant.