Washington DC Injury Lawyer Blog

Plaintiff’s Medical Malpractice Damages Limited by State Statute

May 2, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Missouri issued a written opinion illustrating how a state’s statute limiting non-economic damages in medical malpractice cases can act to significantly limit a plaintiff’s recovery amount. In the case, Dodson v. Ferrara, the plaintiffs were initially awarded approximately $1.8 million in economic damages and $9 million in non-economic damages after the loss of their loved one. However, due to the state’s cap on non-economic damages in medical malpractice cases, the court reduced the non-economic portion of the award from $9 million to just $350,000.

The Facts of the Case

Ms. Dodson went to the hospital complaining of shortness of breath. Upon arrival, she was initially diagnosed with bronchitis, and a stress echocardiogram was ordered. The results of that test indicated that there might be an abnormality with her heart, so the attending physician ordered a heart catheterization to further investigate.

The defendant, Dr. Ferrara, performed the catheterization. However, during the process, Ms. Dodson’s left main coronary artery was severed, cutting off blood flow to vital portions of her body. The doctor called for assistance. However, it was not until 30 minutes had passed that doctors arrived. They then unsuccessfully attempted to put a stent in the artery. From there, Ms. Dodson was transported to the operating room for emergency surgery. However, once there, the surgery to repair the damaged artery was unsuccessful, and she died as a result.

Government Admits to Liability in Car Accident Case, Damages Determined by Judge

April 22, 2016 | Lebowitz & Mzhen

Earlier this month, the Nebraska Supreme Court issued a written opinion in a case filed against a government that elucidates one issue of sovereign immunity that is not often seen in personal injury cases. In the case, Moreno v. City of Gering, the court only had to determine the amount of damages that was appropriate because the City of Gering admitted liability for the accident.

The Facts of the Case

The plaintiff, Moreno, was riding as a passenger on a county bus when it was struck by a van that was being operated by a volunteer from the city’s fire department. The impact from the collision resulted in Moreno being ejected from the bus, and she landed on the pavement nearby.

Moreno had suffered from back pain in the past, and according to her, the accident aggravated that pain. After her injury, Moreno consulted with a physician, who recommended that she receive surgery to help correct the aggravation of the pre-existing condition caused by the accident. She had the surgery performed.

Hot Air Balloon Operator Not Entitled to Immunity under Recreational Use Statute

April 15, 2016 | Lebowitz & Mzhen

Earlier this month, the state supreme court in Wisconsin issued an opinion holding that a hot air balloon operator was not entitled to immunity under the state’s recreational use statute. In the case, Roberts v. T.H.E. Insurance Co., the court determined that a hot air balloon operator is neither an owner nor an occupier of the land on which it operates, and it is therefore not entitled to immunity.

The Facts of the Case

Ms. Roberts was at a charity event hosted at a local gun club when she was injured while waiting in line to take a tethered hot air balloon ride. According to the court’s written opinion, the defendant hot air balloon operator was providing free rides to help support the charity event. People interested in taking a free ride would line up, and an employee of the hot air balloon company would hand out waivers of release for each person to sign. The wait to get up in a balloon was about 20-30 minutes.

As Ms. Roberts was waiting, a strong wind broke the balloon free of the tethers, and it came swinging into the line of those waiting to ride in the balloon. It struck Ms. Roberts, and she fell to the ground, sustaining injuries as a result. Afterwards, she filed a lawsuit against the defendant, the operator of the hot air balloon.

Court Determines Case Alleging Injury after Improperly Sterilized Surgical Instruments Was Properly Considered a Medical Malpractice Case

April 8, 2016 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Louisiana issued a written opinion in a case involving a man who developed a serious infection after having a routine back surgery performed at the defendant’s hospital. In the case, Dupuy v. NMC Operating Company, the court ultimately determined that the case was properly considered a medical malpractice case, and it was thus subject to the additional procedural hurdles applicable to all medical malpractice cases.

The Facts of the Case

After his surgery, the plaintiff filed a claim against the defendant hospital, alleging that the hospital failed to properly sterilize the tools used during the surgery. The plaintiff sought damages for medical expenses, pain and suffering, mental anguish, loss of earning capacity, disability, and loss of enjoyment of life, and for his wife’s loss of society, support, and companionship.

In response, the hospital explained that it was a qualified medical provider under the state’s medical malpractice statute, and therefore the plaintiff needed to comply with the statute. Since the plaintiff had not complied with the requirement to submit the case to a medical review panel, the defendant argued that the case was prematurely filed.

Court Holds City Employee Not Entitled to Immunity as a “Land Owner”

April 1, 2016 | Lebowitz & Mzhen

Earlier this month, one state’s highest court issued an opinion interpreting the state’s recreational use statute, determining that a city employee named in his individual capacity is not entitled to governmental immunity as a “land owner” for the land he was in charge of maintaining. In the case, Johnson v. Gibson, the court determined that the plaintiff’s lawsuit should be permitted to move forward against the allegedly negligent employee and his supervisor.

The Facts of the Case

The plaintiff was injured while jogging in a city-owned park when she stepped in a small hole that had been dug to repair a sprinkler. The hole was dug by one of the defendants named in the lawsuit, who was a city employee in charge of park maintenance. The lawsuit also named the employee’s supervisor.

At trial, the defendants asked the court to dismiss the case against them, based on the fact that they were entitled to government immunity as city employees. Generally speaking, governments and private land owners alike are immune from personal injury lawsuits that occur on their land, as long as the land is open for use to the public without a fee. However, in this case the court determined that the city employee was not a “land owner” who had opened his land up for use by the public.

Product Liability Appeal against Food Manufacturer Dismissed for Failure to Preserve Alleged Error

March 23, 2016 | Lebowitz & Mzhen

Earlier this month, a personal injury plaintiff’s appeal was thrown out for failing to object to the error he alleged occurred at trial. The court in Stults v. International Flavors held that the plaintiff’s failure to object to the curative jury instruction given by the trial judge in response to objectionable testimony by an expert prevented him from raising that issue on appeal. This case illustrates the importance of retaining an attentive and knowledgeable team of attorneys.

The Facts of the Case

This case arose after the plaintiff developed a lung disease. He claimed that he developed the disease because he consumed microwavable popcorn manufactured by the defendant every day for 20 years. He also submitted evidence that showed the chemical used to give the popcorn its buttery flavor can cause the very lung disease he was diagnosed with when people are exposed in high doses.

At trial, both plaintiff and defendant had expert witnesses testify to the cause of plaintiff’s lung disease. At some point in the trial, a defense expert made an improper comment on the evidence and the plaintiff objected. The court sustained the plaintiff’s objection and the jury was told to disregard the defense expert’s testimony on that issue. After the trial, the jury determined that the plaintiff did not prove his case.

Chronic Traumatic Encephalopathy Detected in College Athlete

March 16, 2016 | Lebowitz & Mzhen

Chronic Traumatic Encephalopathy (CTE) has been making headlines for the past year or so, as it was detected that this tragic degenerative brain disease has been affecting professional athletes. CTE has recently begun to be studied in-depth by many doctors and scientific researchers throughout the country. CTE is a progressive degenerative disease that generally affects individuals who have incurred a significant amount of trauma to their head. Although CTE has just recently been garnering national recognition as a serious disease, it has actually been detected in professional boxers as early as the 1920s. However, recent studies focusing on the brains of deceased football players revealed that these players’ brain structures were severely damaged and included a build-up of abnormal proteins.

Unfortunately, individuals experiencing this trauma often suffer significant and life-changing experiences. Some common symptoms that people report are depression, anxiety, aggression, memory and cognition problems, lack of impulse control, and impaired judgment. There have been tragic instances where athletes have committed suicide and it was later discovered that they were suffering with CTE.

The New York Times recently published an article focusing on a college football player who was discovered to be suffering from CTE. The football player was an offensive lineman for the University of North Carolina and was by all accounts a well-adjusted individual. However, after sustaining repeated injuries he ended up homeless, addicted to drugs and alcohol. His family noted that he often complained that he felt that he was different and that “something was wrong with his brain.” The young college athlete ended up riding his bike straight into oncoming traffic and was killed after being hit by a car. His mother argued that she is sure that his actions qualify as suicide.

Jury’s Verdict for Plaintiff in the Amount of Zero Dollars Upheld on Appeal

March 9, 2016 | Lebowitz & Mzhen

Earlier this month, a Nebraska appellate court issued a written opinion regarding an appeal filed by a personal injury plaintiff who was awarded a zero-dollar award after a jury trial. In the case, Lowman v. State Farm Mutual Auto Insurance Company, the court determined that, while a zero-dollar award normally requires clarification from the jury, in this case it was clear what the jury intended, so no clarification was necessary.

The Facts of the Case

Lowman was a passenger in a car being driven by her husband when the car was struck by an uninsured driver. The Lowmans’ uninsured motorist carrier was State Farm, so they filed a claim with the company. State Farm admitted that the uninsured driver was liable but disputed the issues of causation and damages. The case proceeded to trial on these two issues.

During the pendency of the trial, the Lowmans withdrew their claim for lost wages and admitted that all medical bills had been paid. Thus, the only claim remaining was that for her pain and suffering. At trial, Lowman’s attorney told the jury “If you think [Lowman] is exaggerating, there should be no verdict. If you think she’s a liar, a cheat and a fraud, there should be no verdict.”

Plaintiff’s Product Liability Case Against Rifle Manufacturer Revived on Appeal

March 2, 2016 | Lebowitz & Mzhen

Earlier this month, the Eleventh Circuit Court of Appeals reversed a lower state court decision, allowing the plaintiff in a product liability lawsuit to proceed toward trial despite the defendant’s challenges to the plaintiff’s expert’s testimony. In the case, Seamon v. Remington Arms Company, the plaintiff was the wife of a man who had died while hunting alone with his Remington Model 700 bolt-action rifle.

The Facts of the Case

The plaintiff’s husband left to go hunting by himself back in November 2011. He had an elevated stand up in the trees from which he would hunt. However, after several hours of failing to return text messages from his family, they called police. Police found the man dead in the elevated tree stand, with his rifle 13 feet below. There was a rope attached to the rifle’s scope, the safety was off, and there was a spent shell in the chamber. There was no gunshot residue on the man, leading investigators to believe he was at least five to 10 feet away when the gun fired. No one witnessed the shooting.

The man’s wife filed a product liability case against the manufacturer of the rifle, claiming that her husband died as a result of a defect in the gun. The plaintiff had an expert testify that, in his experience, the trigger mechanism in the Model 700 rifle was subject to sporadic firing. He testified that in cases of sporadic firing, there are usually some deposits in the fire control housing of the gun. He further testified that upon examination, the gun the plaintiff’s husband was using had deposits in the fire control housing. This led the expert to believe that the gun may have accidentally fired without having the trigger pulled.

Court Finds Little League Not Liable for Dangerous Conditions on Field

February 23, 2016 | Lebowitz & Mzhen

Earlier this month, the Rhode Island Supreme Court issued an opinion in a case, holding that a little league association was not liable for a parent’s injuries sustained when she fell and broke her leg in three places after stepping in a divot in the field. In the case, Carlson v. Towne of South Kingstown, the court reasoned that the little league association was not the owner of the land and did not owe the plaintiff a duty of care to inspect the field prior to its use.

The Facts of the Case

As noted above, the plaintiff was injured when she stepped in a divot in the grass, directly adjacent to a playing field where her son’s little league game was held. After her injuries, she filed a lawsuit against several parties, including the little league association.

The plaintiff presented a witness who was familiar with the field. The witness, another parent and a former assistant coach of the team, testified that divots were a routine problem on the field. He also explained that the divot was not actually on the field itself but was off to the side of right field, on the way to the dugout.