Washington DC Injury Lawyer Blog

Supreme Court Sides with Plaintiff in Armed Forces Medical Malpractice Lawsuit

December 17, 2013 | Lebowitz & Mzhen

Earlier this year, the U.S. Supreme Court reached a decision potentially relevant in any lawsuit dealing with medical malpractice committed by doctors within the Armed Forces.

The case, Levin v. US, 133 S. Ct. 1224 (2013), dealt with a veteran who suffered injuries as a result of cataract surgery performed at the U.S. Naval Hospital in Guam. Just prior to the surgery, the plaintiff revoked his consent to the surgery, due to his concerns with equipment in the operating room. The surgery went ahead anyway, which resulted in his injury. He thus filed suit under the FTCA; however, as an intentional act, rather than a negligent one, the ninth circuit ruled that this case did not fall within the FTCA’s parameters, leading to this appeal to the Supreme Court.

The court engaged in an extensive discussion regarding Congress’s history of enacting agency-specific causes of action, and then reverting back to a general schema for the FTCA. Regarding medical claims, Congress passed the Medical Malpractice Immunity Act in 1976, which is commonly known as the Gonzalez Act. That Act, which is controlling in this case, makes claims against the United States under the FTCA the “exclusive” remedy for injuries resulting from malpractice committed by medical personnel of the armed forces and other specified agencies, and was thus the controlling statute for this lawsuit.

Kroger Green Bean Slip & Fall Case Demonstrates Considerations for whether Personal Injury Cases Remain in Federal or State Court

December 10, 2013 | Lebowitz & Mzhen

Many times in personal injury lawsuits involving corporate defendants, an issue will arise as to whether the claim properly belongs in federal or state court. Defendants who maintain offices within different states than where the accident occurred may prefer federal court for many reasons. However, removing a lawsuit to federal court can only occur in one of two scenarios.

The first is when there is a federal issue involved. This means that the underlying cause of action arises out of some federal law or right that has been violated, such as a constitutional right, or in personal injury cases, those claims arising out of the Federal Tort Claims Act, for example.

The second scenario arises when the underlying issue arises out of what would otherwise be considered a state law matter, but the amount in controversy exceeds $75,000 and there is diversity of citizenship– meaning that the plaintiffs and defendants are residents of different states. For purposes of these types of cases, there must be complete diversity, which occurs only “when no party shares common citizenship with any party on the other side.”

Maryland High Court Sides Against Parents, Upholds Liability Waiver, in Case involving 5 Year Old Seriously Injured in Store’s Play Area

December 3, 2013 | Lebowitz & Mzhen

The Court of Appeals of Maryland, Maryland’s Highest Court, recently handed down a landmark decision in the field of liability waivers and negligence lawsuits concerning injured minors.

The case, BJ’S WHOLESALE CLUB, INC. v. Rosen, Md. Ct. App. (2013), dealt with a scenario every parent dreads. In the case, plaintiff had signed a consent form/liability waiver, waiving any potential future negligence claims and indemnifying the store, on behalf of his minor children, which allowed them to play in the free supervised area of a BJ’s store, while their parents shopped.

Some 15 months after the waiver was initially signed, plaintiff’s five year old son fell off of a play structure animal, and hit his head on the floor, which was concrete covered with a thin layer of carpeting. As a result, he suffered a head injury, which ultimately required a craniectomy for evacuation of the epidural hematoma that developed.

D.C. Court Dismisses Consumer Product Lawsuit for Lack of Standing

November 27, 2013 | Lebowitz & Mzhen

The U.S. District Court for the District of Columbia handed down a case earlier this year, Johnson v. QUAKER OATS COMPANY, Dist. Court, Dist. of Columbia 2013, in which it reiterated the requirements regarding standing in order to bring a lawsuit.

The plaintiff filed a lawsuit against the Quaker Oats Company for allegedly misleading him “about the nutritional and health qualities of its chewy granola bars and instant oatmeal products that contain partially hydrogenated oil.” The plaintiff claimed that the defendant’s “wide-spread marketing campaign” touting the nutritional value of those products between November 1, 2005, and November 2010 “caused” him to pay a higher price for the products that he allegedly purchased from “various individuals” or “from a vendor in the District of Columbia.” He filed the lawsuit under the District of Columbia Consumer Protection Procedures Act, claiming damages in excess of $90,000.

The Quaker Oats company filed a motion to have the case dismissed under the Federal Rule of Civil Procedure 12(b)(1), for lack of jurisdiction on the ground that plaintiff lacks standing, and under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

D.C. Circuit Court Refuses Motion for Summary Judgment Against Whole Foods in Slip and Fall Case

November 21, 2013 | Lebowitz & Mzhen

The U.S. District Court for the District of Columbia made a ruling this year in regards to summary judgment motions in slip and fall cases, which may become more relevant as inclement weather becomes more prevalent this fall and winter. In the case, Kindig v. WHOLE FOODS MARKET GROUP, INC., Dist. Court, Dist. of Columbia 2013, the court held that Whole Foods was not entitled to a summary judgment motion, which essentially dismisses the case completely without trial, for a number of reasons. The case has previously been discussed on this blog for other issues.

The lawsuit arose out of an incident where a woman had arrived at her local Whole Foods to shop for groceries. On that particular occasion, the woman said that it had been raining hard for at least the ten minute drive from her prior location to the grocery store. When she arrived, she got her crutches, and began to walk on the sidewalk to the elevator within the parking garage. An employee was unloading produce nearby. According to the woman, it was dimly lit, and she subsequently slipped and fell flat onto her back. The store employee and another man helped her up. She gave her statement to the store, and then went home and called her doctor. She ended up being transported to the hospital by ambulance the next day.

Whole Foods filed a motion for summary judgment, claiming that the plaintiff did not establish that they knew of the dangerous hazard. The court dismissed this argument.

Johnson & Johnson Reportedly Set to Pay $4 Billion in Hip Replacement Settlement

November 12, 2013 | Lebowitz & Mzhen

Johnson & Johnson has reportedly reached a tentative agreement in regards to a class action lawsuit involving the Articular Surface Replacement, or A.S.R., the all metal hip replacement sold by DePuy which allegedly caused widespread health complications in patients who received the device.

The tentative agreement, which requires court approval, could potentially reach $ 4 billion, making it one of the largest settlements for a medical device product liability lawsuit ever.

The payout, which would apply only to individuals who have already needed to have the device removed and replaced with another artificial hip, would result in an average compensation award of approximately $350,000 per patient. The exact amounts will vary for each individual based on various factors.

Howard University’s Homecoming Concert Leads to at least 10 Individuals Suffering Injury

November 5, 2013 | Lebowitz & Mzhen

According to school and law enforcement officials, several civilians and two police officers were injured when hundreds of disgruntled spectators rushed the gate at Howard University’s annual homecoming concert “Yardfest.”

The annual event has been a free event, open to the public, for at least 20 years. This year, however, the organizers decided to make the concert a ticketed event, charging $5 for each person. A spokesperson for the university also stated that officials had determined that only 14,000 people could safely attend the event, even though authorities had not enforced limits on crowd size in the past.

The result of the changes was essentially chaos, when the disgruntled crowd members, believed to consist mostly of un-ticketed individuals, decided to rush the gate, injuring eight civilians and two officers. All of the victims were taken to local hospitals, though the injuries were all reportedly minor. The concert was reportedly delayed as a result of the behavior.

Wrongful Death Lawsuit Filed in Snorkeling Accident of University of Virginia Student

October 30, 2013 | Lebowitz & Mzhen

A Virginia family recently filed a lawsuit following their daughter’s December 2012 death during a Semester at Sea program in the Caribbean.

The 22 year old young woman was a University of Virginia student at the time of the accident, which happened last December in Dominica. She was reportedly struck by the propeller of a catamaran during a snorkeling excursion.

The lawsuit reportedly seeks funeral costs and other financial recovery. The complaint was filed in federal court in Miami against various defendants involved in operating the Semester at Sea program.

Serious Brain Injury Lawsuit Follows Private Jet Crash

October 21, 2013 | Lebowitz & Mzhen

An Oklahoma man who was a passenger in a private jet with his son-in-law last March, suffered serious brain injuries when the plane attempted an emergency landing, which also killed the plane’s two pilots. The men subsequently filed a lawsuit seeking compensation for their injuries.

The two men sued the makers and owners of the plane, on which they were traveling for business, at the time. The main plaintiff claims that he is unlikely to recover from the serious brain injuries, and that he is now bedridden and has trouble speaking. He is reportedly unlikely to ever make a serious recovery and become independent. While he was a firefighter at the time he was injured, his health insurance did not cover the injuries, as they were sustained while conducting unrelated business.

The man’s son-in-law, while in better overall condition, suffered orthopedic injuries. The families are seeking unspecified damages for physical injury, emotional distress, loss of normal life, medical expenses and lost earnings. An attorney for the men stated that the lawsuit will not be able to proceed until the National Transportation Safety Board completes its investigation.

Defective Bed Rails Lay Potential Groundwork for Class Action Lawsuit

October 14, 2013 | Lebowitz & Mzhen

A tool believed to help make seniors safer by keeping them from falling out of their beds, may actually be more dangerous than perceived. According to several accounts, thousands of frail, confused or elderly people have been injured and hundreds killed after becoming trapped in safety rails installed to keep them from falling out of bed.

The danger happens when the elderly individual falls asleep, and then rolls over in their sleep, becoming entrapped by the bedrail, either stuck in the device itself, or pinned between it and the mattress. Unable to break free, the individuals die from suffocation.

According to reports, there are currently no mandatory federal safety standards for bedrails designed for and marketed towards the eldery. This is in stark contrast to children’s cribs and bedrails, which by law must meet certain design criteria and pass safety tests.