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Ron Miller is an attorney who focuses on serious injury and wrongful death cases involving motor vehicle collisions, medical malpractice, and products and premises liability. If you are looking for a Maryland personal injury attorney for your case, call him today at 800-553-8082.

In Adventist Healthcare Inc. v. Mattingly, the Maryland Court of Special Appeals (COSA) was asked to consider whether a mother’s decision to cremate her son’s remains amounted to the destruction of evidence in a subsequent lawsuit for medical malpractice. The COSA ruled that having remains cremated does not constitute spoliation of evidence in a subsequent malpractice case. The Court held that family members have no duty to preserve evidence from the body or allow potential malpractice defendants to examine the body independently.

Facts of Adventist Healthcare Inc. v. Mattingly

The decedent (Mattingly) underwent surgery to reverse a colostomy at Adventist Hospital in Takoma Park, Maryland. Five days after the surgery, Mr. Mattingly died while still in the hospital. Mattingly’s mother was with him at the hospital when he died, and she immediately suspected that the doctors and staff had been negligent. She wanted an autopsy performed to learn the cause of her son’s death, but she didn’t trust anyone at the hospital to give her an honest opinion.

In its final decision of the Term, Maryland’s Court of Appeals gave us an (arguably) game-changing decision Rochkind v. Stevenson. The court announced that it was discarding the old Frye-Reed rule and formally adopting the Daubert test for the admissibility of expert testimony.  We all knew we would get here one day. And here we finally are.

Factual Background of Rochkind v. Stevenson

The case that gave rise to this appellate decision began back in 2011 when the plaintiff brought a lead paint case against her former landlord, Stanley Rochkind.  The Rochkind name has been ubiquitous in the lead paint world, having been the defendant in hundreds of claims over the last 25 years that were covered by multiple insurers.

Defendants in medical malpractice cases will frequently defend themselves by pointing the finger of blame at another doctor who was involved in the plaintiff’s treatment.  Sort of.   They talk about but rarely do they put on the case with expert testimony.  They just make a lot of rumblings about it in discovery.

Usually, the doctor who gets blamed is not a defendant in the malpractice case. I call this defense strategy “blaming the empty chair.” This defense strategy can be very effective in certain situations. Juries often feel sympathetic for injured plaintiffs, but may be reluctant to condemn the defendant doctors. The empty chair defense offers jurors a tempting “scapegoat” in this context.  It is always so much easier to blame the guy who is not in the room.  We do it all the time in our personal lives. (Clint Eastwood is a huge fan.)

American Radiology v. Reiss

Doctors may now have a new and powerful tool for the early diagnosis of newborns who suffer brain damage during childbirth. A study recently published in Scientific Reports announced that a breakthrough neonatal blood test can effectively and immediately identify those newborns with neurologic damage resulting from oxygen loss during labor and delivery.

This is a significant step forward in neonatal medicine because it enables doctors to diagnose immediately babies born with serious neurologic birth injuries such as cerebral palsy. Without this new blood test, many of these life-changing brain injuries may go undiagnosed for months and even years after birth.

Early treatment and intervention are key to making the most of birth injuries.  This is the most important implication if this technology proves effective.  As a Maryland birth injury lawyer, it is hard to ignore the litigation implications this test could have on birth injuries cases.  It would be a blow to defense lawyers trying to argue that the child was not injured a birth (and, for that matter, specious lawsuits that allege a causal connection).  In other words, it would be easier to get to the real truth as to the ultimate question of whether a doctor or nurse’s mistake caused a birth injury.  I also think it would lead to more birth injury lawsuits because many parents do not connect the dots between a mistake during childbirth with mental and physical injuries to the child that are not revealed (or confirmed) until years later.

In Berry v. Queen the Maryland Court of Appeals held that the cost of getting a rental car must be covered under the uninsured motorist component of auto insurance policies. This is a significant decision that will impact any Maryland drivers who get in an accident with an uninsured driver.

What Were the Facts in Berry v. Queen?

This was actually 2 cases involving the same issue that were consolidated for purposes of the opinion on appeal. The underlying facts of the cases had no real impact on the court’s analysis or decision, but they are worth a brief overview.

In the first case, Misc. No. 10., a man in St. Mary’s County had an auto insurance policy with State Farm that did not include the optional rental car coverage. He was struck by a driver with no insurance and had to get a rental car while his vehicle was being repaired. He submitted a $300 claim for the cost of the rental to State Farm under the property damage section of his UIM coverage. State Farm denied that claim which led the insured to file a class action suit in Circuit Court. State Farm removed the case to federal court and filed a motion to dismiss. The U.S. District Court for the District of Maryland denied the motion to dismiss and then submitted a certified question of state law to the Maryland Court of Appeals.

Good Samaritan laws are intended to protect people from liability when they voluntarily assist others in emergencies.

Here is an example of how Good Samaritan laws work. Let’s say you’re driving to work and you witness a car accident. One of the vehicles flips over the driver is stuck and yelling for help. You pull over and run to help, but in extracting him from the car, you end up breaking his leg and causes other injuries. Under traditional tort law, you could be liable for the driver’s injuries. The rationale was that you have no duty to render aid. But if you helped, you assumed a duty of helping safely and reasonably.

It is a well-established rule that ordinarily, in the absence of some special relationship, no legal duty rests on a member of the public to render services to an injured person. So you can immorally but legally let someone you could help suffer and die.

Since shortly after I became a plaintiffs’ lawyer, I have been preaching that we need fundamental change in our nursing homes in this country.  Profit drivers the train.  These nursing homes need to be fixed.  In ten years, we won’t believe what we as a society turned a blind eye to in 2020.  Everything about the COVID-19 pandemic has enhanced this view.

If you have evidence that a nursing home or long-term care facility is providing grossly negligent care, overbilling, or engaging in other fraudulent practices, you can bring a whistleblower lawsuit and get a percentage of any money awarded in the case. Whistleblower plaintiffs in these cases are usually employees at the nursing home, but anyone with direct knowledge of fraud or neglect at the facility can potentially bring a case.

Nursing home liability

Nursing Home Liability Under the False Claims Act

Chronic inflammatory demyelinating polyradiculoneuropathy (CIDP) is an uncommon neurologic condition causing impairment of the arms and legs. CIDP is a condition that is frequently misdiagnosed leading to harmful delays in treatment or unnecessary treatments. If you have been harmed by a misdiagnosis of CIDP you may be entitled to bring a malpractice case and get compensation.

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The original post was about an interesting verdict in New York in a “calling fore” golf course injury case.  The case is still interesting. But it is 11 years-old.  So I’m updating the post in 2020 by including sample settlements and verdicts in golf course injury lawsuits.

Golf Course Injury Verdicts and Settlements

  • 2020, Texas: $125,000 Settlement. A minor girl suffered a traumatic brain injury after falling from a golf cart that was operated by a minor.  Look at the infographic we have on this page.  These injuries are unbelievably common.  The injury left her with permanent impairments. Her family sued the driver for recklessly operating the vehicle and failing to properly brake. They also sued the cart’s owner for negligently entrusting it to an incompetent operator. The case settled for $125,000. Obviously, there was a real problem for the victim’s lawyer in establishing fault because a case like this should be worth millions at trial if successful.

Just before the coronavirus shut the world down, the Maryland Court of Special Appeals issued an interesting unreported opinion in a premises liability case in Montogmery Counrty that looks at voir dire in Maryland, an issue that has always interested me in Smith v. Rollins Real Estate.  

Case Facts

The case itself is pretty boring. It is slip and fall on the way to a restaurant case.  A woman gets dropped off at the door.  She rolls her foot getting out and blames a separation in the sidewalk.  It is not a case I would ever take.

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