Washington DC Injury Lawyer Blog

Affected Families Push the Supreme Court to Reconsider “Feres” Doctrine

February 2, 2016 | Lebowitz & Mzhen

Normally, when a patient is injured due to negligent medical care provided by a doctor, surgeon, or nurse, the injured patient is able to bring a medical malpractice lawsuit against the allegedly negligent medical professional, seeking damages for what they have been through. However, under an old legal doctrine called the “Feres” doctrine, military personnel can be denied the ability to recover damages based on injuries they sustained while on active duty.

The Feres Doctrine

The doctrine was first announced in the case of Feres v. United States, which was a United States Supreme Court case decided back in 1950. The case actually combined three individuals’ cases and decided them in one written opinion. The Court was able to do this because each case presented a similar legal issue: whether the United States government could be held liable for injuries suffered by active military personnel while they were on active duty.

The Court ultimately determined that the government should not be held liable for any injuries that were caused, even if the injuries were caused by a government official’s own negligence. The rationale behind the opinion is that the government should be more worried about big-picture concerns in times of war rather than worried about avoiding potential liability for the actions of its officials. While the basis for the decision arguably makes sense in some spur-of-the-moment battlefield decisions, it has recently been applied to situations that seemingly stray from the heart of the doctrine’s rationale.

Which Jurisdiction’s Law Applies in a Personal Injury Case?

January 26, 2016 | Lebowitz & Mzhen

The United States has two separate sets of laws that govern the citizens of each state. There is federal law and state law. Each state has their own law, and as long as it does not conflict with the federal law in that same area, the state law will apply to many cases. This is especially true in personal injury cases, since most personal injury cases do not give rise to federal court “jurisdiction.”

The term “jurisdiction” essentially means the power to hear a case and impose judgment over the parties to the case. For example, a court in New Mexico will not likely have jurisdiction over a case arising between two Marylanders who get into an accident on a Maryland road. In that case, Maryland would likely be the most proper venue for the lawsuit.

As noted above, each state has the ability to create its own set of laws, and it stands to reason that the law in every state will be a little bit different. This can create major consequences for accident victims in certain cases because under one state’s law a victim’s case may be strong, but under another state’s law the case may be much weaker. This also can have implications regarding the applicable statute of limitations, or the time in which the accident victim has to file their lawsuit against the defendant.

Slip-and-Fall Plaintiff’s Case Against Federal Government Allowed To Proceed, Despite Immunity Claims

January 19, 2016 | Lebowitz & Mzhen

Earlier this month, the Fifth Circuit Court of Appeals decided a case that may have wide-ranging implications for slip-and-fall plaintiffs injured on government land. In the case, Gibson v. United States of America, the court determined that the federal government’s normal sovereign immunity from tort lawsuits did not attach, and the case should proceed to trial.

Gibson v. United States: The Facts of the Case

The plaintiff, Gibson, suffered a fractured leg while he was on federal government property inspecting Federal Emergency Medical Association (FEMA) trailers that were scheduled to be later sold at auction. The evidence presented indicated that the trailers were on a several hundred-acre, fenced-in lot containing hundreds of trailers.

On the day in question, the plaintiff was with a FEMA employee inspecting the trailers. Some of the trailers had pull-out steps to assist with entry and exit, while others did not. For those that did not have steps, the FEMA employee had her own step ladder she carried with her. She would set up the step ladder along the side of the trailer and would enter and exit that way.

Dangerous Products and Product Liability Lawsuits

January 12, 2016 | Lebowitz & Mzhen

Manufacturers, regardless of the products they make, are required to ensure that the goods they release into the stream of commerce are safe for normal use or consumption. When a product causes an injury or death, the manufacturer may be liable to those injured as a result of their product. In some cases, distributors, wholesalers, and retailers of a dangerous product may also be held liable. These lawsuits are called product liability lawsuits.

Product liability lawsuits break down into three categories: negligence, breach of warranty, and strict liability. Negligence claims rely on the fact that the manufacturer was somehow negligent in the design or production of the item. These claims also include a manufacturer’s failure to warn about the dangerous propensities of a product.

Breach of warranty claims arise when there is an express or implied warranty that a product is safe for a certain kind of use, and that turns out not to be the case. These cases are brought under a breach-of-contract theory because the plaintiff is alleging that the manufacturer failed to “live up to their end of the deal.”

Maryland Court Broadens Applicability of “Strict Liability” and “Failure to Warn” Theories Pertaining to Equipment Containing Asbestos

January 5, 2016 | Lebowitz & Mzhen

Earlier last month, the Court of Appeals of Maryland decided a case that may have a significant impact for anyone who had contact with equipment containing asbestos and has subsequently been diagnosed with a serious illness. In the case, May v. Air & Liquid Systems Corporation, the court allowed the plaintiff’s case to proceed against the defendant manufacturer even though the asbestos-containing part causing the plaintiff’s injuries was not manufactured by the defendant.

The Facts of the Case

The plaintiff in the case is the widow of a man who served in the Navy between the years of 1956 and 1976. During her husband’s tenure in the Navy, he was a machinist who worked on pumps that were manufactured by the defendant. At some point after his service, the plaintiff’s husband was diagnosed with mesothelioma that was a result of his coming into contact with asbestos that was contained in the gaskets of the pump.

The gaskets, however, were replacement parts and were not manufactured by the defendant, but by a third party not present in this lawsuit. The man’s wife filed a lawsuit based on the legal theories of strict products liability and failure to warn. It was not contested that the pump’s manual made no mention of the dangers of asbestos.

Court Determines Physicians Have a Duty to Third Parties to Warn Patient of Potential Effects Medication May Have on Their Driving

December 31, 2015 | Lebowitz & Mzhen

Earlier this month, a New York appellate court handed down an interesting decision regarding the duty physicians have to warn their patients that the medication they are providing them may affect their driving. Ultimately, the court determined that physicians do have a duty to those people other than the patient to warn the patient that the medication they were just administered could affect their driving.

The Facts of the Case

In the case, Davis v. South Nassau Communities Hospital, the plaintiff was a bus driver who was injured when another vehicle crossed a double-yellow line and collided with the plaintiff’s bus. That other driver was allegedly under the influence of narcotic medication that she was given while at the defendant hospital. The injured bus driver filed suit against the treating physicians as well as the hospital employing them.

At trial, the defendants asked the court for early dismissal, arguing that because they did not owe a duty to the third-party plaintiff they could not ultimately be held liable. The lower courts agreed and dismissed the case.

New Research Suggests Amateur Athletes May Also Be at Risk for Chronic Traumatic Encephalopathy

December 17, 2015 | Lebowitz & Mzhen

Over the past few years, the National Football League and the National Hockey League have been involved in lawsuits brought by players, alleging that the league failed to adequately prevent and treat serious head injuries that can lead to life-threatening diagnoses, including Chronic Traumatic Encephalopathy (CTE). New research indicates that professional athletes may not be the only ones at risk.

The Theory of Liability

Players in these lawsuits claim that the leagues they play in failed to adequately warn them of the potential for serious, life-threatening harm that can result from participating in the sport. Players claim that they were encouraged to get back onto the field or ice shortly after they suffered serious head injuries or concussions, and this has resulted in an increased risk of developing CTE. CTE is only diagnosable after someone has died, but people who suffer from the disease experience myriad symptoms, including anxiety, aggression, parkinsonism, depression, dementia, and even suicidality.

The crux of the players’ claim is that the league knew or should have known of the dangers present in playing the high-contact sports and should have taken more precautions and taken head injuries more seriously when they did occur. In fact, a group of NFL players recently reached a settlement with the NFL to establish a fund to compensate injured players. The details of that settlement are still being worked out.

Ski Injury Plaintiff’s Case Dismissed for Lack of Causation, a Critical Element in Any Negligence Case

December 10, 2015 | Lebowitz & Mzhen

Earlier this month, the Second Circuit Court of Appeals decided a case that was brought by a man who was injured while skiing in Vermont. The allegations were that the ski resort was negligent for allowing “jumps” to be built on its terrain, which caused the plaintiff’s injuries. The court ultimately determined, however, that the plaintiff failed to submit adequate proof that the ski resort’s negligence in allowing the jumps to be present was the cause of the plaintiff’s injuries.

The Facts of Gemmick v. Jay Peak, Inc.

In the case, Gemmick v. Jay Peak, Inc., the plaintiff was skiing with his daughter. Toward the end of the run, the plaintiff’s daughter stopped to look for her father but couldn’t find him. As it turns out, a ski patroller found the plaintiff disoriented and combative midway up the hill. The plaintiff was treated for “fractures to his left ribs and left transverse processes.”

The plaintiff could not recall what exactly had happened. However, his daughter recalled seeing a ski jump to the left of the trail near where he was injured. This led both father and daughter to conclude that another patron went off the jump and collided with the man.

Medical Malpractice Case Dismissed after Expert’s Testimony Deemed Inadmissible

December 3, 2015 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Alaska heard a case brought by a patient against the doctor and anesthesiologist who performed his open-heart surgery. In the case, Brandner v. Pease, the court ultimately determined that the plaintiff’s failure to provide admissible evidence from an expert required that the case be dismissed.

The Facts of the Case

According to the court’s written opinion, the plaintiff suffered a heart attack in 2009 and had a subsequent open-heart surgery that was conducted by the defendants. From the beginning, there were complications, starting with the fact that it took the anesthesiologist two attempts to intubate the plaintiff. Upon successfully intubating the plaintiff, the anesthesiologist administered propofol to induce anesthesia. After the medication was administered, the plaintiff’s blood pressure dropped, nearly sending him into another cardiac arrest. However, with CPR and additional drugs, his condition was stabilized.

Once the plaintiff was stabilized, the doctor attempted to place a transesophageal echo (TEE) to take images of the plaintiff’s heart for diagnostic purposes. The TEE placement was unsuccessful, but the doctors decided to continue forward with the surgery nonetheless. The procedure was completed, and 12 days later the plaintiff was discharged.

Maryland Court Reconsiders Standards Required to Prove Personal Injury Case Alleging Exposure to Lead-Based Paint

November 25, 2015 | Lebowitz & Mzhen

Earlier this month, the Maryland Court of Special Appeals decided a case that will likely have implications for any plaintiff bringing a case alleging they were injured by the use of lead-based paint in a residence. In the case, Barr v. Rochkind, the plaintiff was a woman who suffered lead poisoning while living in a residence owned by the defendant. The tenant filed suit against the landlord, arguing that the landlord should be responsible for her injuries and medical treatment.

At trial, the plaintiff conceded that there was no way she was going to be able to provide any direct evidence that the the defendant’s residence contained lead paint. However, she asked the court to infer that it did, based on circumstantial evidence. Specifically, the plaintiff wanted to prove that the home contained lead paint by submitting medical tests showing that the level of lead in her blood rose 33% while she was living in the home.

The court discussed the general principles of negligence first, noting that in order for a defendant to be found liable, the plaintiff must show that the defendant owed them a duty to protect the plaintiff from injury, that the defendant breached that duty, and that the plaintiff suffered some actual injury that was caused by the defendant’s breach.