In order to hold a defendant liable in a medical malpractice claim, the plaintiff must establish that the defendant owed them a duty of care. In the absence of a doctor-patient relationship, there are rare circumstances under which the law may impose a duty of care to a third party who never received treatment. The Court of Special Appeals of Maryland addressed this issue in Puppolo v. Holy Cross Hosp. of Silver Spring, Inc. (Md. Ct. Spec. App. Nov. 14, 2016), a recent case arising out of the medical treatment of the plaintiff’s mother.hospital bed

In Puppolo, the plaintiff’s mother received treatment at the defendant’s hospital for an intracranial hemorrhage, involving a bedsore on her lower back. The bedsore became a serious health issue that required extensive treatment, and the plaintiff’s mother eventually passed away. The plaintiff sued the hospital, alleging claims of medical malpractice, battery, fraudulent concealment, intentional infliction of emotional distress, and wrongful death. The trial court dismissed the plaintiff’s personal claim for fraudulent concealment, and the plaintiff appealed.

In her complaint, the plaintiff alleged that the defendant intentionally concealed the existence of the bedsores and its failure to treat those bedsores, thus placing undue and unnecessary mental strain on the plaintiff. The necessary elements for fraudulent concealment are:  (1) the defendant owed a duty to the plaintiff to disclose a material fact; (2) the defendant failed to disclose that fact; (3) the defendant intended to defraud or deceive the plaintiff; (4) the plaintiff took action in justifiable reliance on the concealment; and (5) the plaintiff suffered damages as a result of the defendant’s concealment.

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The Court of Special Appeals of Maryland reviewed a personal injury claim involving exposure to lead-based paint, ultimately ruling in favor of the plaintiffs.  In Murphy v. Ellison (Md. Ct. Spec. App. Aug. 23, 2016), the plaintiffs sued the owners of a building in which they resided from 1992 through 1995.  They alleged that the defendants failed to keep the property free of any flaking, loose, or peeling lead-based paint, and the lead-based paint exposure resulted in permanent brain injuries to their children.  The circuit court granted the defendants’ motion for summary judgment, finding that the plaintiffs had failed to produce direct or circumstantial evidence of any lead-based paint hazards at the property.  The plaintiffs subsequently brought their appeal before the higher court.lead exposure

In Baltimore, the housing code establishes minimum standards for building maintenance, and it provides that all walls, ceilings, woodwork, doors, and windows must be free of any flaking, loose, or peeling paint to protect children from lead-based paint poisoning.  In negligence actions based on the housing code that involve lead exposure, as in Murphy, the plaintiff must show that the defendant violated the code and that the defendant’s negligence was a substantial factor in causing the victim’s injury.  Specifically, the element of causation requires evidence that the property at issue contained lead-based paint, and it was a substantial contributor to the victim’s exposure to lead.  This can be proven by either direct or circumstantial evidence.  In a typical circumstantial case, as in Murphy, the plaintiffs attempt to show that they had elevated blood-lead levels while living at the property, and there were no other reasonably probable sources of their exposure to lead.

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People who are hurt on the property of another business or individual may be able to hold a negligent party responsible for their injuries, as long as that party owed them a duty of care.  In Woods v. Dolgencorp, LLC (D. Md. Oct. 21, 2016), the plaintiff suffered injuries after tripping on a buckled mat in front of an ice cooler at a general store.  The plaintiff filed a personal injury claim against the general store as well as the business that provided and maintained the ice cooler, alleging it was negligent in properly placing the mat.  The ice cooler defendant filed a motion for summary judgment, arguing that it did not owe a duty of care to the plaintiff because it did not own, control, or manage the store at which the accident occurred.  The U.S. District Court for the District of Maryland heard the motion.ice

In Maryland, the elements of a negligence claim are:  (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered an actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.  In premises liability actions, the defendant’s duty is dependent on the status of the plaintiff on the property.  In Woods, as a patron of the store, the plaintiff was an invitee on the premises.  An owner is responsible for harm caused by a natural or artificial condition if the owner knew about or could have discovered the condition through the exercise of reasonable care, or the owner should have expected that invitees would not discover the danger or would fail to protect themselves against it, or the owner invited entry upon the land without making the condition safe or giving a warning.

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The Court of Special Appeals of Maryland recently reviewed a jury award of $185,000 to a plaintiff for negligent conduct in a medical malpractice case. In Luecke v. Suesse (Md. Ct. Spec. App. Oct. 28, 2016), the plaintiff sued her doctor and her practice group, alleging that they were negligent in failing to arrange a biopsy and render timely treatment for a mass in her breast. The plaintiff’s condition eventually required extensive medical treatment and major surgery. Before trial, the court denied the defendants’ motion to exclude testimony regarding the plaintiff’s chance of survival. The jury ultimately returned a verdict in favor of the plaintiff, awarding $35,000 in past medical expenses and $150,000 in non-economic damages.hospital IV

On appeal, the defendants argued that the trial court erred in allowing evidence of the plaintiff’s probability of survival, contending that it was irrelevant and highly prejudicial. In particular, the defendants objected to testimony that the plaintiff’s chances of getting a more serious, invasive cancer have increased and that her life expectancy has the potential to be decreased. The defendants contended that the reduced probability of survival was also not compensable under Maryland law as an element of damages because the plaintiff retained a greater than 50% probability of survival. The plaintiff responded that the evidence was relevant to her claim for emotional distress and distinguished it from loss of chance of survival.

In Maryland, a reduction in survival percentage is not compensable and not an element of damages when the patient retains a greater than 50 percent probability of survival. As a result, the appeals court agreed that loss of chance of survival was not an appropriate claim in Luecke. The court went on to address the plaintiff’s claim for recovery for emotional damages, noting that it must arise out of tortious conduct. Specifically, to recover emotional distress damages for fear of contracting a latent disease, a plaintiff must show that (1) she was actually exposed to a toxic substance due to the defendant’s tortious conduct, (2) which led her to fear objectively and reasonably that she would contract a disease, and (3) as a result of the objective and reasonable fear, she manifested a physical injury capable of objective determination.

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In some lawsuits, plaintiffs can seek to hold careless business owners responsible for their negligence. In a recent case, Reyen v. Jones Lang Lasalle Americas, Inc. (D. Md. Sept. 7, 2016), an injured plaintiff filed a negligence claim against the owner of a bus company and the property manager of the bus station after she fell on an escalator. The matter was brought in the U.S. District Court of Maryland, which decided a motion for summary judgment filed by the defendants.personal injury

In Reyen, the plaintiff purchased a bus ticket from the defendant to travel from New York to Virginia on an itinerary with several bus changes. Due to a disability that required her to walk with a cane, the plaintiff notified the bus company in advance that she would need help with moving her luggage and getting on and off the buses. The bus company indicated that she would have assistance walking from one bus to the next. During one of the scheduled stops, the plaintiff looked for an elevator she could use but was unable to find one at the station, although they were in fact available. The plaintiff felt that she had no other choice but to ride an escalator, and as she took a step onto it, she fell backwards and sustained injuries.

A plaintiff alleging negligence must prove the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between the deviation and the injury. Generally, common carriers owe different standards of care to passengers and non-passengers. For passengers, common carriers must exercise reasonable care under the circumstances, including protecting passengers against assault, interference with the peaceful completion of their journey, and in certain situations, negligent acts of third parties. However, a common carrier owes no special duty of care to non-passengers, other than the general duty to exercise ordinary care to avoid injury.

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In a recent medical malpractice case, the Court of Special Appeals of Maryland considered whether striking a standard of care expert as a sanction for non-compliance with scheduling and discovery orders was an abuse of discretion by the trial court. In Queensbury v. Rafiq (Md. Ct. Spec. App. Sept. 26, 2016), the plaintiff brought a negligence lawsuit against the defendant doctor, alleging that he failed to exercise reasonable care in treating the plaintiff and subjecting the plaintiff to chiropractic procedures, and that he failed to disclose the material risks and alternatives to the treatment. The court set deadlines for the plaintiff to identify his experts according to Maryland rules. After filing his initial designation of experts, all of the plaintiff’s experts withdrew and were replaced with new ones, although the filing deadline had passed. The plaintiff was allowed an extension of discovery deadlines and designating his experts, but he then canceled a scheduled deposition of his expert. The judge subsequently struck the plaintiff’s expert and granted the defendant’s motion for summary judgment, and the plaintiff brought an appeal.gavel

In Queensbury, the scheduling order at issue was entered pursuant to Maryland Rule 2-504. Although the rule doesn’t expressly provide sanctions for scheduling order violations, Maryland courts have held that a judge may issue sanctions for such violations, including in medical malpractice claims. The court may evaluate several factors in considering discovery sanctions in civil cases, such as whether the violation was technical or substantial, the timing of the violation, the reason for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether the resulting prejudice might be cured by a continuance, and the overall desirability of a continuance.

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Premises liability law holds a property owner accountable for injuries that occur on that individual’s or entity’s property. Victims often bring a personal injury claim alleging negligence on the part of the owner, as the plaintiff did in Watson v. J.C. Penney Corp., Inc. (D. Md. Nov. 30, 2015). In Watson, the plaintiff was visiting the defendant’s store when she fell shortly after walking inside. The defendant moved for summary judgment, and the motion was considered by the U.S. District Court, applying Maryland law.cone

In Maryland, a property owner owes a duty to an individual who comes in contact with the property, the scope of which is dependent upon the individual’s status. In Watson, the plaintiff was a customer in the store for a business purpose and thus had invitee status. The defendant therefore had a duty to use reasonable and ordinary care to keep its premises safe and protect against an unreasonable risk of injury that the plaintiff would be unlikely to perceive in her exercise of ordinary care. When, as in Watson, the fall was caused by a foreign substance on the floor, the burden is on the plaintiff to produce evidence that the defendant created the dangerous condition or had actual or constructive knowledge of its existence.

In Watson, the plaintiff testified that after she fell, she noticed a film of slippery, soapy residue covering the entire floor. After reviewing the evidence, the court found that the plaintiff’s declarations could not prove that the defendant had actual knowledge that the floor was hazardous or that it was aware of the residue prior to the plaintiff’s fall. Nevertheless, the court explained that constructive knowledge may be imputed to a defendant if the plaintiff can demonstrate the dangerous condition existed for a sufficient period of time to permit the defendant, exercising reasonable care, to discover it. In Watson, the court ultimately found that the plaintiff could not establish constructive knowledge, since the residue on the floor was not readily apparent, and employees may not have observed the condition on a day that was during the height of the Christmas shopping season.

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In a recent car accident case, the Court of Special Appeals of Maryland reviewed a jury verdict returned in favor of the defendant. In Lewin v. Balakhani (Md. Ct. Spec. App. Aug. 17, 2016), the defendant was stopped over the median line with the intention of making a left-hand turn. The oncoming plaintiff swerved to avoid a collision with the defendant’s vehicle but hit a vehicle that was parallel-parked on the shoulder of the road. The plaintiff brought a negligence claim against the defendant, alleging that her violation of the left-hand turn statute was the proximate cause of the accident. After a trial, the jury considered the evidence and found that the defendant was not negligent. The judge subsequently denied the plaintiff’s motions for judgment notwithstanding the verdict, and the plaintiff appealed.car accident

On appeal, the court explained that the violation of a statute alone will not support an action for damages, unless there is legally sufficient evidence to show that the violation was a proximate cause of the injury complained of. Instead, the plaintiff must introduce evidence to afford a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the injury. In Lewin, although the plaintiff presented evidence that the defendant violated a traffic law, the defendant rebutted with evidence that her conduct did not cause the subsequent collision that occurred between the plaintiff and the parked vehicle. In addition, a witness testified that he did not see the plaintiff attempting to stop before the collision. As a result, the court ruled that the evidence was sufficient for the trial court to properly deny the plaintiff’s post-judgment motions.

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In order to succeed in a negligence lawsuit, a plaintiff must not only prove that the defendant breached a duty of care but also prove that the defendant’s breach was the cause of the plaintiff’s injury. The Court of Special Appeals of Maryland addressed the issue of causation in a recent medical malpractice action, Hardy v. Advanced Radiology, P.A. (Md. Ct. Spec. App. Aug. 17, 2016). Although the court accepted that the doctor breached the standard of care, it ultimately held that the plaintiff failed to establish the necessary causal link between the doctor’s breach and the plaintiff’s injury.computer

In Hardy, the plaintiff underwent a CT scan of his abdomen in February 2006. The defendant, a radiologist, interpreted the scan as showing nothing abnormal. The plaintiff sought a second opinion from another hospital 19 days later. Two different radiologists detected a mass, and a surgical consult was ordered. The surgeon reviewed the scan and reported that it looked benign, recommending follow-up CT scans. For the next several years, follow-up CT scans were performed annually. In December 2011, the plaintiff underwent a sixth CT scan, showing that the mass had doubled in size, and a biopsy of the mass led to a diagnosis as a cancerous tumor. The plaintiff filed a medical malpractice lawsuit in January 2013 against his doctors, including the defendant who interpreted his first CT scan.

At trial, the plaintiff’s experts testified that the defendant had breached the medical standard of care by failing to identify the mass in the plaintiff’s abdomen. At the close of evidence, the defendant moved for judgment, arguing that the plaintiff failed to prove that the defendant’s breach caused the plaintiff’s injury. The trial court denied the defendant’s motions. The jury found the defendant negligent and awarded $20,635 in damages. On appeal, the defendant again argued that the plaintiff failed to establish the element of causation.

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In an interesting car accident case, the Court of Special Appeals of Maryland ruled in favor of the plaintiff in a negligence claim against the county for its failure to maintain a stop sign. In particular, the court took issue with a line of questioning involving the plaintiff’s previous traffic offenses and the prejudicial influence it had on the jury.highway

In McKenzie v. Anne Arundel Cty. (Md. Ct. Spec. App. Aug. 17, 2016), the plaintiff was involved in an automobile accident after driving from a residential street into a highway. In 1995, the Department of Public Works installed a stop sign on the privately owned street. However, it was no longer in place at the time of the accident in 2010. After the collision, the county replaced the stop sign. The plaintiff filed an action against the county, asserting that it negligently failed to maintain a stop sign at the intersection of the residential street. Following a trial, the jury returned a verdict in favor of the county.

On appeal, the plaintiff argued that the trial court erred by permitting testimony concerning her driving record. During the defendant’s cross-examination, the plaintiff had been asked about her driving history, including questions regarding a previous conviction of unsafe operation of a motor vehicle, operating a motor vehicle while using a handheld cell phone, and suspension of her driver’s license. The plaintiff alleged that the introduction of past instances of negligence was a violation of the Maryland Rules of Evidence. The defendant argued that the line of questioning was intended to impeach the plaintiff’s testimony that she was a safe driver.

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