Maryland Personal Injury Blog

Maryland Court Finds Plaintiff’s Expert Failed to Establish Exclusivity of Lead-Based Paint Exposure

October 8, 2016 | by Foran & Foran, P.A.

In a recent opinion, the Court of Special Appeals of Maryland reviewed a lower court’s decision granting summary judgment against the plaintiff in a lead paint exposure case. In Carter v. Hous. Auth. of Baltimore City (Md. Ct. Spec. App. Sept. 8, 2016), the plaintiff brought a personal injury lawsuit against the Housing Authority of Baltimore City (HABC) after she was found to have elevated blood-lead levels. The plaintiff alleged that her injuries related to lead-based paint exposure were sustained while she resided in an HABC-owned property from 1987 to 1992.

Although a jury found in favor of the plaintiff, that verdict was remanded after the appeals court found that the plaintiff’s expert lacked a sufficient factual basis for his opinion that the defendant’s property was the source of the lead exposure. Rather than retaining a new expert witness, the plaintiff filed a supplemental affidavit from the same expert in an attempt to rectify weaknesses in his prior affidavit. The defendant moved for summary judgment, which the trial court granted after finding that the supplemental affidavit didn’t cure the defect. The plaintiff then brought the current appeal.

Imprecise Record-Keeping May Disqualify Experts in Maryland Medical Malpractice Cases Under the Twenty Percent Rule

October 7, 2016 | by Foran & Foran, P.A.

Retaining legally qualified experts to testify in your medical malpractice case is a crucial part of a successful claim. The Court of Special Appeals of Maryland discussed some of these requirements in a recent medical malpractice case, Streaker v. Boushehri (Md. Ct. Spec. App. Sept. 28, 2016).

In Streaker, the plaintiff brought a negligence and breach of contract action against a nurse midwife and her practice. The lower court granted the defendant’s motion to exclude the plaintiff’s expert testimony, finding that the expert devoted more than 20 percent of his professional activity to testifying in personal injury claims. The plaintiff appealed that decision to the higher court.

To file a medical malpractice action in Maryland, a plaintiff must initially file a certificate of a qualified expert, attesting that the defendant departed from the standard of care and that the departure proximately caused the alleged injury to the plaintiff. In medical malpractice cases, a qualified expert is not only measured by education, experience, and expertise, pursuant to Maryland Rule 5-702, but also by an additional statutory threshold. Commonly referred to as the “Twenty Percent Rule,” it provides that qualified experts may not devote annually more than 20 percent of their professional activities to activities that directly involve testimony in personal injury claims.

Maryland Court Explains Tolling Exception for Medical Malpractice Claim of Person with Legally Appointed Guardian

October 6, 2016 | by Foran & Foran, P.A.

In some cases, a medical malpractice claim may be brought after the statutory deadline for filing if it falls under a tolling exception. One of those exceptions may allow a mentally incompetent person to bring an action after the typical filing deadlines. In Kratz ex rel. Kratz-Spera v. MedSource Cmty. Servs., Inc., 228 Md. App. 476 (2016), the adult plaintiff suffered from severe autism and intellectual disability, and he lived in a group home operated by the defendant. In 2008, the plaintiff’s mother and sister were named as his court-appointed guardians. In 2013, after the plaintiff was injured in two separate incidents at the defendant’s group home in 2006 and 2009, his guardians brought suit against the defendant on his behalf. The defendant moved to dismiss the complaint, arguing that it was not timely filed, and the trial court granted the motion.

In general, the Maryland Health Care Malpractice Claims Act provides that a cause of action must be brought against a health care provider within three years of the date the injury was discovered, or in any event no more than five years from the date of the injury. However, in the case of a minor or a mentally incompetent person, the action must be filed within the lesser of three years or the applicable period of limitations after the date the disability is removed. In Kratz ex rel. Kratz-Spera v. MedSource Cmty. Servs., Inc., the plaintiff’s mother knew of the 2006 incident on the day it happened, and she was notified of the 2008 incident on the next morning.

On appeal, the issue for the Court of Special Appeals of Maryland was whether the appointment of a guardian of a mentally incompetent person removes the disability of that person for the purposes of applying the statute of limitations. The court ultimately held that the tolling exception preserves the legal rights of a mentally incompetent individual until a guardian is appointed. Once a guardian is appointed, and he or she gains the requisite knowledge to file a claim on the individual’s behalf, the statute begins to run.

Maryland Court Allows Plaintiff to Proceed in Lead Paint Lawsuit Against Property Owner

August 20, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently reviewed a case involving a property owner’s liability for exposure to lead paint. In Christian v. Levitas (Md. Ct. Spec. App. Aug. 1, 2016), the plaintiff brought a negligence claim against the defendant after blood tests revealed elevated levels of lead while residing at the defendant’s property. The defendant filed a motion to exclude the plaintiff’s expert from testifying as to medical causation and the source of lead exposure. The trial court granted the motion to exclude, as well as summary judgment against the plaintiff due to a lack of expert testimony as to causation.

In the plaintiff’s previous appeal, the Maryland Court of Special Appeals initially affirmed the ruling, finding that the plaintiff’s expert lacked experience administering IQ tests relevant to the mental injuries the plaintiff claimed to have suffered as a result of lead paint poisoning. However, the Maryland Court of Appeal vacated the judgment and remanded for reconsideration pursuant to its holding in Roy v. Dackman, 445 Md. 23 (2015). As a result, the matter was again in front of the Court of Special Appeals.

In Christian, the plaintiff had lived for nearly two years as a toddler on the defendant’s property, which contained chipping, peeling, and flaking paint. The plaintiff’s blood lead levels were also elevated when he was living at the property. The plaintiff’s expert testified that his medical injuries had been caused by exposure to the lead-based paint at the defendant’s property. His opinion that lead-based paint was present at that property was based on circumstantial evidence of the age of the home and the presence of lead paint on the exterior of the property.

Court of Appeals of Maryland Rules Hosts Who Allow Underage Drinking on Their Property May Be Liable to Injured Third Parties

August 19, 2016 | by Foran & Foran, P.A.

In an important decision, Maryland’s highest state court held that a social host who illegally allows alcohol to be consumed by an underage person on his or her property owes a duty to another person injured as a result. In Kiriakos v. Phillips (Md. July 5, 2016), the Court of Appeals of Maryland reviewed two separate cases involving underage people drinking alcohol on an adult’s property and then leaving the property in a motor vehicle. In both cases, the victims brought a negligence claim against the adult property owners.

In Kiriakos, the plaintiff was walking her dog when she was hit on the sidewalk by a truck driven by a teenager, causing her life-threatening injuries. The teenager had been drinking alcohol provided by the defendant at the defendant’s house the prior evening. The teenager drove home early the next morning with a blood alcohol level of .08 at the time of the accident. The plaintiff brought suit against the defendant, alleging that he owed a duty to the public in general not to provide alcohol to someone underage with knowledge that the underage person would drive under the influence. The lower courts found that no liability existed, and the plaintiff subsequently appealed.

On appeal, the court ultimately held that, although Maryland has not recognized social host liability to third persons, there exists a limited form of social host liability in negligence based on the strong public policy reflected by Maryland statute § 10–117(b), which prohibits adults from allowing underage drinking on their property. However, liability only exists when the adults in question act knowingly and willfully, as required by the statute. The court went on to explain that its holding is consistent with the factors used to determine whether a duty exists under common law, such as the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and others.

Maryland Court Rules Expert Testimony Required to Establish Plaintiff’s Claim for Lack of Informed Consent

August 18, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently reviewed a personal injury case in which a patient sued her doctor for a failed sterilization procedure. In Tyler v. Judd (Md. Ct. Spec. App. June 30, 2016), the plaintiff sought treatment from her doctor to schedule a tubal ligation. She alleged that the doctor responded to her request by talking to her about Essure, stating that it was a non-reversible, pain free, 100 percent sterilization procedure. Based on that conversation, the plaintiff agreed to undergo insertion of the coils in her fallopian tubes. After the procedure, the plaintiff experienced ongoing abdominal pains and also became pregnant with her third child a short time later. The plaintiff gave birth to a healthy boy and had another doctor remove the coils. The plaintiff then brought suit against the doctor on grounds including lack of informed consent.

At the trial, the plaintiff testified, along with several other witnesses. However, the plaintiff did not call any medical experts to testify in support of her claim. At the close of her case, the defendants moved for judgment, arguing that the plaintiff failed to present expert medical testimony, which is required for a claim of a lack of informed consent. The trial court agreed, ruling that expert testimony is needed to establish the nature of the risks inherent in a particular treatment, and that there was no testimony with respect to medical alternatives or the treatment’s percentage of failure, even the percentage of the Essure failure rate. The plaintiff subsequently appealed.

In Maryland, the doctrine of informed consent imposes a duty on a physician to explain the procedure to the patient before treatment, and to warn the patient of any serious risks or harm related to therapy, in order to allow the patient to make an informed decision about whether or not to undergo the treatment. This duty to disclose requires a doctor to inform the patient of the nature of the condition, the nature of the suggested treatment, the probability of success of the treatment and any alternatives, and the risk of undesirable consequences associated with the treatment. In bringing a negligence claim for lack of informed consent, therefore, the plaintiff must show a breach of this duty, causation, and injuries.

Maryland Court Orders Insurance Company to Cover Loss for Wrongful Death Claims Arising Out of Car Accident

August 17, 2016 | by Foran & Foran, P.A.

In some car accident cases, issues concerning insurance coverage can become an integral part of litigation, since individual defendants may not have the financial resources available to pay an award of damages to plaintiffs. In a relevant opinion, Weiskerger v. Paik’s Decorators, Inc. (Md. Ct. Spec. App. Apr. 29, 2016), the Court of Special Appeals of Maryland addressed the question of whether an insurance company properly denied coverage for a member of the insured’s household who died in an automobile accident. In Weiskerger, a motorist was involved in an accident that resulted in the death of his passenger, who was a resident of his household. The two adult sons of the passenger brought wrongful death claims against the motorist and the other driver, alleging that their negligence caused their mother’s death.

Seeking to determine the extent of the motorist’s insurance coverage, the motorist’s estate requested a declaratory judgment from the court finding that the policy obligated the insurance company to indemnify it for any damages assessed as a result of the son’s wrongful death claims. In turn, the insurance company denied coverage on the basis of the policy’s household exclusion, which excluded liability coverage for physical harm to the passenger and her resulting death. After the trial court found in favor of the insurance company, the motorist’s estate appealed.

Maryland courts follow the laws of contract interpretation in determining the rights of the insured under an insurance policy. That is, when the clear language of the policy is unambiguous, the court will give effect to its plain, ordinary, and usual meaning, taking into account the context in which it is used. However, in Maryland, any ambiguity will be construed liberally in favor of the insured and against the insurer as the drafter of the instrument. A term in an insurance policy is considered ambiguous if, when read by a reasonable layperson, the language is susceptible of more than one meaning.

Maryland Plaintiffs May Bring Wrongful Death Action Despite Successful Personal Injury Claim of Decedent

August 15, 2016 | by Foran & Foran, P.A.

In a newly issued decision, the Court of Appeals of Maryland settled the question of whether surviving family members can bring a wrongful death action based on the same alleged conduct as a personal injury claim won by the decedent before his death. In Spangler v. McQuitty (Md. July 12, 2016), the court ultimately held that the decedent’s beneficiaries are not barred from filing a subsequent wrongful death action, despite a judgment on the merits in the decedent’s personal injury claim. The court further held that when only one joint defendant is released from liability by the injured person, the other defendants are not also discharged. Accordingly, such a release does not preclude a wrongful death action brought by the survivors against other defendants that were not parties to the release.

In Spangler, the mother suffered a placental abruption, causing severe injuries to her child during his birth as well as cerebral palsy. The parents of the minor child sued their obstetrician and medical practice group for failing to secure the mother’s informed consent for treatment. Several of the defendants settled with the plaintiffs before trial. After trial, the jury awarded the child approximately $13 million in damages, including future medical expenses. Although the verdict was upheld, the jury award was ultimately reduced after subsequent appeals.

During the appeal litigation of his personal injury claim, the child died. His parents filed a wrongful death action against the defendants under the Maryland wrongful death statute, based on the same underlying facts as the personal injury action regarding the obstetrician’s failure to obtain informed consent. The circuit court dismissed the case, concluding that it was precluded by the previous judgment. That decision was reversed by the Court of Special Appeals, and the case subsequently came before the Maryland Court of Appeals.

Maryland Court Addresses Contributory Negligence of Plaintiff in Car Accident Case

August 13, 2016 | by Foran & Foran, P.A.

In a recent decision, the Court of Special Appeals of Maryland addressed the issue of contributory negligence in a car accident case. In Yanes v. Mamado (Md. Ct. Spec. App. July 12, 2016), the plaintiff filed suit against the defendant and the defendant’s employer following a motor vehicle accident. At the bench trial, the parties stipulated that the defendant was negligent. The only remaining question, therefore, was whether the plaintiff was contributorily negligent in causing the accident. After reviewing the dashcam from the defendant’s van, the circuit court determined that the plaintiff was contributorily negligent and found in favor of the defendants. The plaintiff brought the subsequent appeal.

In Yanes, the defendant was driving a shuttle when he entered an intersection on a red light and turned left. When the plaintiff continued through the intersection on a yellow light without stopping, the defendant’s van struck the plaintiff’s vehicle. Although the parties agreed that the defendant was negligent in entering the intersection on a red light, the issue for the appeals court was whether the lower court erred by concluding that the plaintiff was contributorily negligent by approaching a yellow light without slowing down, or otherwise proceeding with caution.

Maryland Plaintiff Wins on Appeal in Slip and Fall Case Against Convenience Store

August 12, 2016 | by Foran & Foran, P.A.

In a victory for the plaintiff, the Court of Special Appeals of Maryland reversed summary judgment in a personal injury case, allowing her to proceed with her suit against the defendant. In Smith v. Rite Aid of Maryland, Inc. (Md. Ct. Spec. App. May 19, 2016), the plaintiff suffered injuries after falling over a tote box on the floor of the defendant’s store. An employee had placed the box next to the checkout counter and against the candy and magazine rack to unload magazines. After checking out, the plaintiff was looking straight toward the exit to leave when she tripped over the box.

The defendant argued in its summary judgment motion that it had no duty to warn the plaintiff of an open and obvious condition. The circuit court granted summary judgment, finding that the plaintiff had seen totes in the store on previous occasions and was not looking where she was going when she fell. The plaintiff subsequently appealed the decision of the lower court. The appeals court ultimately held that the grant of summary judgment was in error for several reasons.

In Maryland, a business owner has a duty to exercise reasonable care to protect customers from an injury caused by an unreasonable risk, about which the owner knows or that the owner could have discovered in the exercise of reasonable care. This duty includes not only inspecting the premises and warning customers of any known hidden dangers, but also taking reasonable precautions against foreseeable dangers. A customer also has a duty to exercise due care for her own safety, including a duty to look at her surroundings. Accordingly, a business owner ordinarily has no duty to warn a customer of an open, obvious, and present danger.