Washington DC Injury Lawyer Blog

State Appellate Court Permits Expert Testimony by Foreign Doctor in Medical Malpractice Case

September 13, 2016 | Lebowitz & Mzhen

The California Court of Appeals recently published an opinion reversing a lower court ruling favoring the defendant in a medical malpractice lawsuit. The trial court had granted summary judgment to the defendant and disposed of the plaintiff’s claim by ruling that the plaintiff’s proposed medical expert, who was a licensed physician in Mexico but not the United States, could not offer testimony in support of crucial elements of the plaintiff’s case. Since the appellate court has reversed the lower ruling, the plaintiff’s lawsuit will proceed toward a trial or settlement of her claim.

The Plaintiff Suffers Worsening Symptoms After Having a Surgery Performed by the Defendant

The plaintiff in the case of Borrayo v. Avery is a woman who sought treatment from the defendant in 2009 for chronic pain in her right shoulder and arm. She was diagnosed with thoracic outlet syndrome, which was said to be the result of repetitive stress on her joints from her history of working in clothing production. In September 2009, the defendant performed a surgery on the plaintiff, removing one of her ribs to alleviate her symptoms and treat the diagnosed condition. According to facts discussed in the appellate opinion, the plaintiff’s symptoms failed to improve, and she developed new medical problems approximately one year after the procedure. Based on her worsening condition, the plaintiff filed a medical malpractice lawsuit against the defendant in November 2012.

Court Determines Homeowner’s Insurance Policy Covered Dog-Walking Injury

September 6, 2016 | Lebowitz & Mzhen

Earlier this month, a federal appellate court issued a written opinion in a case between a man injured while walking his friend’s dog and the dog owner’s insurance company. In the case, American Family Mutual Insurance v. Williams, the court determined that the injured party was not excluded from the homeowner’s insurance policy, so the insurance company was responsible to defend against the lawsuit.

The Facts of the Case

Williams was visiting his college friend, Van de Venter. When Van de Venter was getting ready to leave for work, he explained that his dog, Emma, would ring a bell by the door when she needed to go outside. He did not mention anything about walking Emma, only about letting her out.

At some point during the day, Emma rang the bell. Williams came downstairs and attached her leash to take her for a walk. As Williams was walking Emma, another dog in the neighborhood barked, attracting Emma’s attention. As Emma ran toward the other dog, she jerked the leash and Williams fell, sustaining a serious injury to his shoulder.

Court Holds that Medical Battery Claim Constitutes a Medical Malpractice Claim and Must Meet Heightened Requirements

August 23, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Nevada issued an opinion in what turned out to be a medical malpractice case, although the plaintiff filed the case as a battery case. In the case, Humboldt General Hospital v. Sixth Judicial District Court, the appellate court hearing the case determined that the lower court should have dismissed the plaintiff’s case because she failed to comply with the requirements of a medical malpractice case.

The Facts of the Case

Ms. Barrett had an intrauterine device (IUD) implanted in her body at the defendant hospital. About one year after the procedure, the hospital sent a letter to Barrett, explaining that the IUD implanted in her body had not been FDA-approved. As it turns out, the IUD was made in the same facility as the FDA-approved devices. However, since it was shipped to Canada prior to its arrival in the U.S., rather than directly to the U.S., the exact device was not approved.

Barrett filed a negligence claim against the hospital, claiming that it had a duty to only use FDA-approved devices. Barrett also filed a battery claim against the hospital, claiming that the hospital should have known that she would not consent to a non-approved device being implanted in her body. She did not file any expert affidavit or any other supporting documentation because she saw this not as a medical malpractice case but as a battery case.

Premises Liability Case Dismissed for Plaintiff’s Failure to Prove Defendant’s Knowledge of Dangerous Condition

August 16, 2016 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion in a premises liability case brought by a woman who slipped and fell on a piece of watermelon in a grocery store. In the case, Edwards v. Hy-Vee, the court ultimately dismissed the case against the grocery store because the plaintiff was unable to prove that the defendant had knowledge of the dangerous condition prior to her accident. As a result of the case, the plaintiff will be unable to recover damages to help her cover her medical costs and related expenses.

The Facts of the Case

Edwards was with her daughter, shopping at a grocery store owned by Hy-Vee. On her way out of the store, she slipped and fell on what appeared to be a piece of watermelon. Less than 10 feet from where she fell, an employee of Hy-Vee was handing out samples of watermelon.

Edwards filed a premises liability lawsuit against Hy-Vee, arguing that the company either created the dangerous condition that caused her fall or had constructive knowledge of the condition but failed to do anything to remedy it. At trial, the court resolved both arguments in favor of the defendant, and Edwards appealed.

Recent Case Illustrates Why Maryland and Washington, D.C.’s “Joint and Several Liability” System Favors Plaintiffs

August 9, 2016 | Lebowitz & Mzhen

Earlier this month, an Arizona appellate court issued a written decision in an auto accident case, holding that the lower court erred in not allowing the sole defendant to name an additional defendant whom she believed to be in part liable for the plaintiff’s injuries. The court in Cramer v. Starr based its decision on the fact that Arizona was a “several liability” state.

In short, Cramer struck another motorist, Mungia. Mungia then sought out medical treatment, culminating in a surgery. The surgery ended up making her symptoms worse, and she sued Cramer for negligence without naming the doctor in the lawsuit. Cramer then asked the court for permission to name the doctor as an additional defendant under a medical malpractice theory of liability.

“Several Liability” Versus “Joint and Several Liability”

There are two basic statutory schemes that states use to determine how much an at-fault defendant can be required to compensate a plaintiff. In a “several liability” state, defendants are severally liable to the plaintiff for the damages they caused. This means that any one defendant cannot be required to pay more than their share of the damages. For example, if a defendant is determined to be 30% at fault in an accident, and the total damages suffered by the plaintiff were $500,000, the defendant who was 30% at fault will only be required to pay $150,000.

Statute of Repose Bars Medical Malpractice Plaintiff’s Case

August 2, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Alabama decided a case discussing how a statute of repose can prevent a plaintiff’s case from proceeding forward to trial, even if the evidence against the defendant is very strong. In the case, Cutler v. University of Alabama Health Services Foundation, the court determined that since the plaintiff’s case was filed too late, he would not be permitted to seek compensation for the injuries allegedly caused by the defendant’s failure to tell him he noticed a tumor on his brain.

The Facts of the Case

The plaintiff was involved in a serious motorcycle accident and was taken to the hospital afterward. While at the hospital, he was treated by the defendant doctor, who ordered an MRI to be performed. After looking at the results of the MRI, the doctor told the plaintiff that it looked like a bruise. However, in the doctor’s notes, there was evidence that he found a tumor on the plaintiff’s brain and noted that someone from the neurology department should follow up with the patient.

None of this was conveyed to the plaintiff, and no one followed up with him. It was not until about 10 years later, when he was involved in another car accident, that it was discovered that the plaintiff suffered from a brain tumor. Indeed, that accident was caused when the plaintiff had a seizure that was caused by the brain tumor. Once he found out about the tumor, another doctor determined that it was the same tumor that was present on the previous MRI. The tumor was then determined to be malignant. The plaintiff sued the doctor who ordered the MRI, claiming it was medical negligence to not tell the plaintiff about the tumor.

Family of Victim Not Prevented From Filing Wrongful Death Case Even When Victim Filed Personal Injury Case While Alive

July 27, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Maryland decided a very interesting case involving the parents of a young boy who died after complications involving his birth. In the case, Spangler v. McQuitty, the court determined that although the young boy had successfully recovered compensation for his injuries in a medical malpractice case against the defendants, that did not prevent the boy’s parents from pursing a wrongful death case against the same defendants based on the same conduct.

The Facts of the Case

The McQuittys filed a birth injury case against the defendant doctors after their son was born with the severe condition of cerebral palsy. While the McQuittys were actually the ones who were filing the paperwork, the lawsuit was brought in the name of their son. Ultimately, this case was successful, and their son recovered $5 million for his injuries.

After the boy recovered for his injuries, he passed away from complications related to the injuries he sustained at birth. After their son’s death, the boy’s parents then filed a wrongful death lawsuit against the same defendants, claiming that they were responsible for their son’s death. In response to the allegations, the defendants claimed that they had already been held liable for their negligence in delivering the boy, so they should not be subject to liability again.

State Court Finds Premises Liability Case against Government Sufficient to Proceed Toward Trial

July 20, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Michigan issued a written opinion in a premises liability case brought against a city, alleging that the condition of a road was unsafe. In the case of Kozak v. City of Lincoln Park, the appellate court determined that the lower court should not have granted the defendant city’s motion for summary judgment because the plaintiff presented a prima facie case of negligence, on which facts the government may not be entitled to immunity.

The Facts of the Case

Kozak was injured as she tripped while crossing the street in the city of Lincoln Park. According to the court’s factual summary, there was a three-inch differential in the height of two concrete surfaces that met, creating a tripping hazard. Kozak argued that this was unreasonably dangerous, that the City should have known about it, and that the failure to correct the dangerous condition was negligent.

The government had the Director of Public Services testify on its behalf that the condition at issue was not really a safety hazard and that it was still safe for public travel. The trial court then granted the defendant’s motion for summary judgment, finding that there was insufficient evidence presented to overcome the hurdle of government immunity.

Recreational Use Immunity Doctrine Prevents Paralyzed Injury Victim from Seeking Recovery in Diving Accident

July 13, 2016 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion in a premises liability case that was filed by a man who was paralyzed after he dived off a diving platform in a state park. The court noted that it was sympathetic to the plaintiff, but that the law had to be applied in an unemotional way. In so doing, the court found that the state was immune from the lawsuit based on recreational immunity.

Roy v. State: The Facts

Roy was paralyzed when he dove off a diving platform into the murky waters below it. He filed a premises liability lawsuit against the state, as well as the owner and operator of the park, alleging that the state had not done enough to protect against the type of injury he sustained.

The evidence presented at trial showed that there were “no swimming” signs up around the park, but that people routinely disobeyed the signage. There was even testimony that there were bathhouses and lifeguards occasionally on duty who would only stop swimmers when they would dive head-first into the pond.

State Appellate Court Upholds Dismissal of Malpractice Claim Against Public Hospital

July 6, 2016 | Lebowitz & Mzhen

The New York Court of Appeals, the highest appellate court in the state, recently released a decision that affirmed two lower court decisions dismissing a plaintiff’s medical malpractice claim for the plaintiff’s failure to timely serve a notice of claim on the defendant, as required by statute. The plaintiff’s claim alleged that the defendant provided substandard prenatal care to the plaintiff’s mother while he was in utero, and that the defendants committed additional malpractice while delivering the child, resulting in permanent injury and disabilities. As a result of the most recent court of appeals decision, the plaintiff and his mother will be unable to recover damages for the alleged negligence of the defendant.

The Plaintiff Was Born Prematurely by an Emergency Cesarean Section

The plaintiff in the case of Wally G. v. NY City Health and Hospitals Corporation was born at a hospital operated by the defendant in June 2005. According to the facts discussed in the appellate opinion and an accompanying dissenting opinion, complications arose in the pregnancy, and an emergency cesarean section was performed to deliver the baby prior to the expected delivery date. The complaint filed in the case alleged that the defendant failed to act quickly enough upon noticing the complications of the pregnancy and then negligently failed to treat the fetal distress. As a result of the defendant’s alleged negligence, the plaintiff developed several neurological and cognitive disorders, including cerebral palsy, seizures, and problems with speech.

Plaintiff’s Mother Serves a Notice of Claim After the 90-Day Time Limit

Approximately 18 months after the plaintiff was born, his mother filed a notice of claim with the defendant, stating her intention to seek compensation for the medical malpractice that allegedly resulted in the plaintiff’s injury and disabilities. Under New York municipal law, medical malpractice claims against a public medical provider such as the defendant require a notice of claim to be issued no later than 90 days after the alleged malpractice occurred. After the plaintiff filed the medical malpractice lawsuit against the defendant in 2008, the plaintiff requested the court grant leave to file a late notice of claim, but the court did not grant the motion. Shortly afterward, the lawsuit was dismissed based on the plaintiff’s failure to meet the 90-day notice-of-claim requirement.