Washington DC Injury Lawyer Blog

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.

The Importance of a Thorough Investigation in Washington, D.C. Car Accident Cases

July 11, 2017 | Lebowitz & Mzhen

Last month, an appellate court in Georgia issued a written opinion in a car accident case, highlighting the importance of a thorough pre-trial investigation. The case required the court to determine whether the plaintiff should have been permitted to amend her complaint to add the name of the owner of the vehicle that struck her in a hit-and-run accident. Ultimately, the court did permit the plaintiff to amend the complaint because the court determined that the vehicle owner was a “necessary party.”

The Facts of the Case

The plaintiff was driving in the car with her two daughters when she was struck by a hit-and-run driver. While the driver did not stop after the accident, the plaintiff was able to see that the driver was a male and was able to get the license plate of the vehicle.

The responding police officer ran the license plate number and determined that the vehicle was registered to a female owner. However, the owner could not have been the driver, since the owner was female, and the hit-and-run driver was male. The plaintiff initially filed a personal injury lawsuit against the woman whom she believed to be the owner of the vehicle. The plaintiff later requested insurance information for the vehicle, and another woman’s name was provided as the insured. The two women were mother and daughter. Later, the plaintiff attempted to add the daughter to the lawsuit; however, the trial court prevented the plaintiff from amending the lawsuit.

Court Applies Recreational-Use Immunity in Public Park Slip-and-Fall Case

July 4, 2017 | Lebowitz & Mzhen

Earlier this year, an appellate court in Alabama issued a written opinion in a premises liability case that required the court to discuss the state’s recreational-use statute and determine if the defendant, a government entity, was entitled to immunity. Ultimately, the court determined that the plaintiff failed to establish that an exception to the general grant of immunity applied, and therefore the government entity was determined to be immune from liability.

The Facts of the Case

The plaintiff was attending a July 4th celebration at a park that was owned and operated by the defendant city. The plaintiff arrived at the park by car and parked in a designated parking space. At the border of the parking lot were large vertical poles used to designate the parking area. These poles had holes at the top so that cables could be run through, connecting the poles. While on the day of the plaintiff’s injury there were no cables running through the poles, there were diagonal crossbars present used as support beams.

As the plaintiff exited her vehicle, she negotiated her way around the poles without incident. The plaintiff attended the firework display. However, on the way back to her car, she tripped on one of the diagonal support bars connecting the poles. She filed a premises liability lawsuit against the city, arguing that the poles and the attached support beams constituted a dangerous hazard and that the city should have warned park-goers.

Court Rejects Slip-and-Fall Plaintiff’s Case for Lack of Evidence

June 30, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Rhode Island issued a written opinion in a premises liability case brought by a woman who fell through the wooden stairs leading up to the home in which she lived with the defendant. The case presented the court with the opportunity to discuss the doctrine of “res ipsa loquitur” as it applies to slip-and-fall cases when there is little to no evidence that the defendant knew that the dangerous condition causing the plaintiff’s fall existed. Ultimately, the court concluded that, without more, res ipsa loquitur does not apply.

The Ancient Doctrine of Res Ipsa Loquitur

The doctrine of res ipsa loquitur is an old common-law doctrine that, in Latin, translates to “the thing speaks for itself.” Courts have allowed plaintiffs to apply the doctrine when there was an accident that would not likely have occurred unless the defendant was negligent. In order for the doctrine to apply, several elements must be met:

The injury must be the type that would not normally occur without a negligent act;
The injury was caused by something that was in the exclusive control of the defendant; and
The plaintiff took no part in causing the accident.

Not All Medical Release Waivers Will Be Upheld by the Courts

June 23, 2017 | Lebowitz & Mzhen

Anyone who has ever had a medical procedure or surgery performed has likely been confronted with a medical release waiver. These contracts are designed to limit – or altogether eliminate – a health care provider’s liability in the event something goes wrong during the procedure. While the intention of these contracts is to prevent a patient’s ability to proceed with a medical malpractice case, the reality is that courts often look upon these agreements with disfavor. A recent case out of Florida illustrates how one court struck down one such agreement on the basis that it was too vague.

The Facts of the Case

The defendant was a doctor who performed a spinal fusion surgery on the plaintiff. During the surgery, something went wrong, and the plaintiff’s ureter was severed. The plaintiff filed a medical malpractice case against the doctor, claiming that the doctor’s negligence resulted in his injuries.

Maryland Court Allows Defendant to Admit Evidence of Previously Named Defendants Who Settled with the Plaintiff Out of Court

June 16, 2017 | Lebowitz & Mzhen

Earlier this month, a Maryland appellate court issued a written opinion in a medical malpractice case brought by the surviving loved ones of a man who died while in the care of the defendant doctor. The case required the court to determine if the lower court was proper to allow the defendant doctor to admit evidence that there had previously been other doctors named as defendants, but they all settled the case out of court prior to the case reaching trial. Ultimately, the court concluded that the lower court was proper to allow the evidence, and it affirmed the jury’s verdict in favor of the defendant doctor.

The Facts of the Case

The plaintiffs filed a wrongful death by medical malpractice case against the defendant physician, claiming that he was negligent in the interpretation of X-ray images that eventually led to their loved one’s death. The case was filed against the defendant doctor as well as the three doctors who treated their loved one after the defendant. The cases against the three other doctors were all settled out of court.

At trial, the one remaining doctor wanted to explain to the jury that there had originally been four named defendants, but three of them had settled the cases against them. The defendant doctor also wanted to claim that these non-present parties were the ones who were ultimately responsible for the plaintiffs’ loss. The plaintiff filed a motion to prevent the defendant from discussing the non-present parties, but the trial court denied the plaintiffs’ motion and allowed the evidence. The jury returned a verdict in favor of the defendant.

Appellate Court Rejects City’s Assertion of Immunity in Recent Personal Injury Case

June 9, 2017 | Lebowitz & Mzhen

Last month, a California appellate court issued an interesting opinion in a premises liability case that was brought against a city after a baby was struck by a golf ball while riding in a stroller on a nearby walking path. The court was tasked with determining whether the city was entitled to trail immunity, based on the fact that the injury occurred while the plaintiff was on a public walkway. Ultimately, the court determined that the city was not entitled to immunity because the hazard that caused the accident was not physically a part of the government-owned trail, nor was it sufficiently related to the trail.

Government Immunity

As a general rule, government entities cannot be named as defendants in personal injury lawsuits without the government entity’s consent. However, statutes passed by state legislatures across the country carve out large exceptions to this general rule. One of the biggest exceptions is when a dangerous condition of government-owned land causes an injury. However, under a related statute, when the injury occurs on an unpaved road that is used for recreational purposes, the government is entitled to immunity. In Maryland and Washington, D.C., this principle is known as recreational use immunity, and it may confer immunity on any landowner who opens his or her land to the public at no cost.

The Facts of the Case

The plaintiff was a young child who was struck by a golf ball as his mother was walking him along a government-owned path that abutted a golf course. A few years before, after someone was struck by an errant golf ball, the golf course installed a concrete wall separating the golf course from the path. There was also a chain-link fence atop the concrete fence.

Legal Liability for Accidents Occurring on Guided Tours in Washington, D.C.

May 23, 2017 | Lebowitz & Mzhen

There is a lot to do in Washington, D.C. and the surrounding area. From historical sites to breweries and wineries to nature and boating activities, there are a number of exciting activities that await anyone willing to hop in the car and go for a quick drive. In many cases, tour companies are eager to take visitors on guided tours of these areas.

While no one wants to think about getting injured while on a guided tour, the reality is that it does happen on occasion. When someone is injured on a guided tour, the tour guide, the tour company, and potentially several other parties may be legally responsible for the injuries to the guest, depending on the surrounding circumstances.

Of course, the mere fact that someone is injured while on a tour will not necessarily give rise to liability. However, if the surrounding circumstances suggest that the guide was somehow negligent, liability may be appropriate. Additionally, if a guide is aware of a danger but fails to warn tour-goers, there may also be a case for legal liability.