In catastrophic injury cases, especially those involving larger companies, there is often more than one defendant that needs to be considered liable for a victim’s injuries. It is common for a good personal injury attorney to use multiple causes of action to make sure that all responsible parties are held accountable for negligence.

Truck Accident Involves Driver With a History

A good example of suing all responsible parties is a recent suit that was filed involving an accident that occurred in Howard County. The accident, involving a commercial truck, caused horrific injuries. A father suffered permanent brain injury and his 7-year old son lost his leg and also sustained permanent brain injury. They were injured when their car, stopped at a traffic signal, was rear ended by the defendant, driving a Ford F-350.

It is pretty clear that the driver in this case was negligent in the operation of his vehicle, but were there other parties that were also responsible?

It turns out that the truck driver had a long history of driving mishaps. The victims allege that the driver had pleaded guilty to negligent driving in the past and had a long history of traffic citations including speeding and driving with an open container of alcohol.

This is where the liability of the driver’s employer comes in.

Because of the driver’s history, the victims are suing his employer for negligent entrustment, a theory that in lay terms means that an employer should have known a driver was dangerous or accident-prone, and that the employer negligently trusted the driver to drive on the open road on behalf of the company.

Proving Negligent Entrustment

Proving negligent entrustment can be difficult, but in some cases a driver’s past history can be an indication that an employer should have known that a driver could be dangerous. This is why most employers who put drivers on the road will do extensive background and driving history checks.

It is important to remember that negligent entrustment is not just for employers and employees. A parent who trusts a child with a vehicle that ends up injuring someone, can also be held liable for negligent entrustment. Someone who allows a friend who may have a bad driving history to borrow his or her car can be liable if the friend causes injury.

Why the Theory is Important

Negligent entrustment can be a valuable tool for injury attorneys, because it allows them to not just sue a driver, but also the company the driver is working for.

An individual driver may have no insurance or no assets to satisfy a judgment, and pay whatever is needed to make victims whole. Many individual drivers may even allow a judgment to be entered against them, knowing that the judgment will never be paid. Making sure that all responsible parties are sued can be the difference between an empty judgment and one that can help accident victims recover from their injuries.

Make sure that you know all the parties who are responsible for your injuries and every legal theory that could assist you in recovery. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

Driving under the influence of alcohol is always dangerous and particularly so when it involves minors. A new case explores the civil liability of parents who allow kids to drink alcohol on their property, when those kids end up driving under the influence of alcohol and causing injury to others.

Tragic DUI Accident Leads to Lawsuit

The case arose when a 17-year-old boy died in a car accident that his family alleged was caused by the driver of his vehicle. That driver, he alleged, was intoxicated. The deceased’s family sued the family of the driver. The family alleged that the driver’s house was used as a “party house,” and that days before the party, the parents of the driver had purchased alcohol in preparation for the party.

According to testimony, the mother in the house knew that the driver was intoxicated and observed him as such, yet failed to do anything about it. Eventually the intoxicated driver left the house, driving the other boys in his truck. A boy riding in the truck bed was ejected and killed. Continue reading

Sometimes the most clear-cut injury cases can end up being the most difficult. To the general public many injury lawsuits seem cut and dry, winnable by almost any personal injury attorneys. In fact, many are much more complex behind the scenes and can involve significant contested issues of liability.

Car-on-Pedestrian Accidents
One type of case that falls into this category is the car-on-pedestrian accident (or car-on-cyclist). Sadly, these kinds of accidents often involve the most serious and catastrophic injuries.

When a car hits a pedestrian, it may seem easy for the pedestrian to prove the car was at fault. After all, drivers are supposed to recognize and avoid pedestrians. But subtle factual issues can make proving these cases difficult. Maryland, like most states, requires that victims take some consideration of their own safety and can hold victims responsible for their injuries to the extent that they, and not the other party, caused them.

Factors Determining Liability
We would all likely agree that someone who bolts out into the middle of the road or walks into the middle of a freeway would be almost entirely responsible for his or her own injuries if he or she is hit by an oncoming car. In many cases, the liability is not so clear-cut–the pedestrian did not just bolt out into traffic, and likewise, the driver of the car that hits him could have and should have seen the pedestrian and avoided him. Recreating the actual accident scene to determine what really happened can come down to a matter of seconds and inches. Questions arise, such as:

● When did the driver first see the pedestrian?
● How fast was the driver going?
● Was there time after seeing the pedestrian for the driver to slow down or avoid him?
● Where in the road did the pedestrian get hit? For example, was it in a crosswalk where he legally had the right to be, or in the middle of the road?
● Are there physical clues such as skid marks on the road that would tell us when the driver saw the pedestrian?
● How did the pedestrian get struck? For example, was he thrust backwards, or did he go forwards, over the hood?

All of these questions will assist in dividing up the responsibility between the two parties. Almost always, experts need to get involved–they can testify that based on a certain speed, certain distances, and other factors, whether an accident was avoidable or not. A slight change in even one factor or variable can alter the expert’s opinion and change the liability that is apportioned to each party.

Never assume your injury case is easy, clear cut, or that just anyone can handle it. Winning and losing, especially when you have serious injury, can hinge on even the slightest factual detail and depends on lawyers who know what they are doing. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

When there is injury or damage because of the failure to provide any or adequate security, we often want to hold the security company liable. We rarely give thought to whether the company is responsible for the negligence, acts, or omissions of the guards they employ.

Maryland law does make security companies vicariously liable for the acts of their employee guards, but a recent case tested the boundaries of that law, where employees commit acts that are not in the course and scope of their security duties.

Guards Actions are Outside Scope of Employment

The case involved two security guards, who the homeowners allege set forth on a plan to set homes on fire in Charles County, Maryland. There was some indication that the fire may have been a result of racism, specifically, that the guards were seeking to prevent residents from moving in. Although many homes were damaged, there were no injuries.

Discovery revealed that one guard had been fired by the security agency previously, but then rehired, despite having negative comments in his personnel file.

The homeowners filed suit, not just against the accused arsonists, but against the company hiring them, for negligent hiring claims. The company defended by saying that they could not be liable, because if the guards had committed the arson, they did so without the company’s knowledge, consent, or permission, and outside the scope of their employment. Thus, the company argued, it could not be vicariously liable for the guards actions.

The court agreed, and dismissed the company as a defendant in the case, and an appeal ensued.

Interpreting Maryland’s Security Guards Act

On appeal, the homeowners argued that the company could be held liable for the guards’ actions because of the Maryland Security Guards Act, which makes employers vicariously liable for negligence of security guards. The homeowners contended that there was liability, even if the guards were not acting in the scope of their employment.

Put another way, under the statute, the homeowners argued that as long as an act was conducted while a guard was on duty, no matter what the act was, the hiring company is responsible.

The question has traditionally been whether an employee has been furthering his or her employer’s goals. If not, the employer is not liable. Did the Act change this analysis?

The Act could be read many different ways. Thus, the court looked to policy considerations, to see how broad the Act could be read. The court felt that it would be unfair to hold a company responsible for acts of its employees that have nothing to do with their job. Simply making employers liable for what employees do, just because they happen to be on the job, was too far from traditional notions of vicarious liability for the court, and thus, it held the employer was properly dismissed from the case.

Negligent security cases can have multiple defendants and require detailed factual analysis. There may be parties liable you aren’t even aware of. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

Medical malpractice, and the chances of being a victim of it, are scary. Just the idea that the professionals we rely upon to safeguard our health and well being could make a mistake is frightening. But every now and then, a story comes out that reminds us even more of how scary medical mistakes can be and makes us wonder how poor the standard of care in medicine can get.

Warning About Medical Devices

This time, the news comes out of Maryland’s Baltimore Washington Medical Center (BWMC). BWMC is informing hundreds of patients who underwent spinal fusion procedures that hardware used or implanted in them could actually be fake or otherwise defective.

When we undergo medical procedures, it is not just the skill of our doctors that is at issue, but also the quality of the medicines and the devices they use. The best doctor in the world won’t help if the medical device he or she is using is faulty or if the medicine being used is dangerous.

That said, hospitals and medical providers do have an obligation to make sure they don’t use any device or medicine that they know or should have known to be dangerous. According to allegations, the company that supplied the spinal fusion devices had been previously cited by the FDA for quality control problems. The company even previously issued a recall on spinal fusion devices. The company has since gone out of business.

According to the FDA, the faulty or fake parts could cause product failures, product breakage, or “inadequate sterilization.”

The hospital apparently sent the notices to former patients as a cautionary measure to advise them as early as possible that they may be at risk.

Bad Devices are a Large Concern

There is actually a large concern over faulty or low quality medical devices. In an industry where insurance payouts can be significant, it is no surprise that shady operators with substandard products are trying to infiltrate the market.

Many device makers have relationships with doctors that may even include kickbacks or other incentives for doctors that use a certain company’s devices. According to the article, to hide the kickbacks being received by doctors, the company in question developed fake consulting contracts as a way of paying doctors without the payments looking like incentives or kickbacks.

Kickbacks doesn’t automatically mean the products being used are dangerous or substandard, but it does raise concern that doctors or hospitals may not always be objective in evaluating the quality of the products they are using on patients.

BWMC is not the only hospital involved in the potential problems; 17 hospitals nationally are also being investigated. BWMC is also reminding people that the faulty hardware was only used in a very specific kind of spinal surgery, which only a small number of patients even had, increasing the chance that any patients at BWMC are in danger.

If you have been injured by a fake, faulty, defective, or malfunctioning product–medical or otherwise–you need attorneys that understand these kinds of complex cases. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

When we think of injuries that are caused by our doctors and medical provides, it is common to think of a provider performing procedures negligently or failing to conduct tests or take precautions, thus overlooking significant medical symptoms that lead to injury.

But there is another category that can lead to injury – over-testing or excessive medical treatment. In common terms, this is the practice of performing a procedure that isn’t necessary or where there are no conditions that would lead a reasonably prudent doctor to conduct any such procedure.

Examples of Improper Treatments

In one recent case, a physician was convicted of performing numerous tests on patients who did not need the tests in an effort to defraud insurance.

Although there doesn’t appear to be any indication of patient injury, given that most of the tests seem to be diagnostic and non-invasive, the case still reminds us how important it is to ask whether the procedures we undergo are reasonable and necessary. That is especially true with young children and the elderly, who may suffer severe and permanent effects from anesthesia and other aspects of invasive medical procedures.

In a much more serious story, a Florida dentist is accused of performing numerous unnecessary procedures on young children. Again, the motivation seems to be the collection of insurance money.

In at least one case, a mother who had brought her child in to have a tooth pulled ended up having seven of her children’s teeth pulled without her knowledge or consent. There are also reports that the dentist physically assaulted the child.

When the parents of the child went public with the accusations, many more parents whose children had the same experience with the dentist came forward. Some of the patients reported hearing their children crying inside the office, but were prohibited from going inside to attend to the child.

Treatments and Insurance Payments

It can be easy for medical providers to manipulate insurance. A dentist who may cap a tooth can also be paid to pull it. Doctors can be paid to perform multiple tests, and the insurance company relies upon them to truthfully verify all are needed and necessary.

Aside from the insurance company being victimized, as the events above demonstrate, patients also get victimized.

It can be hard to discern what tests or procedures are necessary and what are not. And, of course, in many cases a doctor must legitimately perform a number of tests or procedures to come to a proper diagnosis or cure an ailment.

The issue comes down to whether a reasonable physician in the same or similar circumstances would do the same thing your doctor did. If so, there is no malpractice. But if not, there’s a chance that over-testing may lead to a medical malpractice claim if it causes injury to loved ones.

Medical malpractice can be difficult and complex, and often requires attorneys who know how to work with medical experts. If you have been a victim and sustained injury, contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

To a layperson, car accidents can seem relatively simple, especially if you are clearly not at fault. You may look at a rear-ending accident, for example, and just assume that it is an “easy” case that a jury will award damages for. However, car accident cases can be more complex than they seem and may even involve the use of experts for reasons that you may not think are needed.

Experts When Liability is Clear

In many cases where liability is absolutely clear–say, for example, a rear-ending accident–liability (that is, whether the defendant is negligent or not), won’t be where the heart of the fight is. Rather, the fight will involve the causation and severity of your injuries. The Defendant (specifically, the Defendant’s insurance company) will argue that the accident did not cause your injuries and that your injuries are not as severe as you claim.

Of course, the starting place to look would be your medical records. They, along with your doctor, if he or she needs to testify at trial, will paint a picture of the severity of your injuries. Your doctor is almost always a qualified expert witness to testify in court on your behalf.

The problem is that in most cases, your doctor can’t testify about causation, because that is not his or her field of expertise.

In other words, your doctor can say you have a herniated disc, but not whether the force of the accident and the impact you sustained is enough to cause the herniation. Your doctor can’t look at the damage to your vehicle and say that it evidences enough force to cause a herniation. He or she can’t say that your back twisted with sufficient force in the accident to cause the herniation.

Where Biomechanical Experts Come into Play

Victims often need a biomechanical expert to testify on their behalf because these experts have knowledge of how the body and its tissues move and react in response to certain forces. They are experts in how much stress parts of the body can take before failure. They are experts in both engineering and physiology.

Many such experts have done or are familiar with studies that demonstrate how forces exerted in a car accident can lead to certain types of injuries. They can often support a correlation between damage to your car and damage to your body.

Many biomechanic experts also can read and interpret data that your vehicle stores as you drive, much like a “black box” on an airplane. An Event Data Recorder (EDR) is a device is usually common in newer model cars. Unfortunately, some models allow experts to easily access this information, while others safeguard it and will usually avoid producing it unless compelled to do so by a court.

Don’t assume anyone can handle your car accident case, even if you feel it is an “easy” case. Knowledge and anticipation of the Defendant’s defenses are crucial to obtaining full recovery. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

If you are injured in an accident, you may think that the natural next step is to file a lawsuit (or hopefully, to hire a good personal injury attorney, and then file a lawsuit). But in fact, there are many steps that must be taken before a case is ripe to be filed in court. Some of them are procedural or legal, but many of them depend on how you recover from your injuries.

Your Medical Improvement

Imagine that you are injured in a car accident. You receive therapy. You sue, and you win or settle for $10,000. Six months after you settle, you are not recovering and your doctor recommends surgery. You can’t reopen your case or sue again; thus the $10,000 is your only resource.

This illustration shows why it’s important to wait until your medical treatment runs its course before just filing a lawsuit. Filing too early can deprive you of needed payments for your injuries. Even your doctors may not be able to testify at an early stage what your chances of recovery are or what your prognosis may be.

In many cases, a plaintiff may wish to wait until he or she reached maximum medical improvement, or MMI. Your doctor will at some point declare that no more medical improvement can be expected, thus putting you at MMI status.

Experts and Demands

In more complex liability cases, your lawyer may want to employ an expert and have him or her render an opinion as to liability to make sure that there will be a basis for the lawsuit if it’s filed.

Before you file suit, your lawyer may want to send a pre-suit demand to the other side. In many cases, the other side may settle for an agreeable amount, thus avoiding the time and expense of a full-blown lawsuit. The negotiation process can take anywhere from a few weeks to a few months.

This pre-suit negotiation is especially useful where the other side may have limited insurance, or insurance that is far below what your injuries may actually be worth. In these cases, a quick settlement for the maximum of the insurance policy may be able to be reached.

When You Don’t Need to Wait to File a Lawsuit

Of course, there are some instances where there is no need to wait an inordinate amount of time before filing a lawsuit. For example, in a wrongful death case, or a case where immediate catastrophic injury has occurred, there is no need to wait for MMI.

In some cases, a lawsuit may need to be filed immediately to preserve testimony. Your lawyer may want to take depositions of witnesses who may be older, or transient, before they disappear or pass away.

If you’re in an accident, it’s understandable to be a bit impatient–you’re injured, have bills mounting, and want justice. But it’s important to remember the different factors that go into deciding when to file an injury lawsuit or not. Understanding the process will make it easier to wait the time needed to obtain a good settlement or verdict.

If you’re injured, make sure you have lawyers that can explain to you the process of obtaining recovery, from start to finish. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

When we go to the emergency room, we may be in the most precarious medical condition possible. We may be critically injured, where time is of the essence, and where a wrong decision by a medical provider can be the difference between life and death.

New Study Looks at ER Malpractice

Like any doctors, ER doctors can be sued for malpractice, and, in reality, often are. Many ER doctors lament that their higher malpractice rates are due to the nature of their job–they make snap, on-the-spot decisions with patients with whom they may not be familiar, and who are often entirely unconscious.

But a new study sought out to definitively determine why ER doctors are sued and for what. The Doctors Company, a medical insurer, conducted the study based on 332 ER malpractice claims from 2007 two2013. The study found that the highest medical malpractice claims came from the following:

● 57% – failure to diagnose. This may include failing to rule out causes of injury, or failure to consider alternative means of treatment. In common parlance, it means as it says–a claim based on the fact that a doctor could have or should have seen a sign or symptom, but failed to do so, or otherwise failed to take a certain course of treatment that should have been taken.
● 13% – Failure to manage treatment or trauma. This would include stabilizing a patient, or preventing a patient from getting worse. An example would be failure to properly brace someone with a spinal injury, leading to a more severe injury.
● 5% – Negligent performance of a procedure. This means that the doctor may have made all the right decisions, but conducted a procedure in a negligent way.
● 3% – Failure to prescribe proper medication. This includes not just prescribing the wrong medicine, but failing to prescribe medicine timely–many medicines must be provided to patients within strict time parameters to be effective.

Other Contributing Factors to ER Malpractice
The study didn’t just look at medical malpractice from the physician’s fault. It also looked at external factors that can contribute to malpractice. They included:

● 21% – Patient factors, including obesity, or diabetes, which can delay or alter the care given.
● 17% – Internal lack of communication. This includes failure to review the medical records, or speak with other nurses or physicians on scene about the patient.
● 14% – External lack of communication. This includes communication between the doctor and the patient’s family.
● 12% – Too much work, or understaffing, particularly in busy times, or holidays.

Certainly, the job of an ER doctor is a tough one, and neither patients, nor the law, demands perfection. Ultimately, the law requires doctors to act the way other doctors in a similar situation would act. In other words, a doctor’s standard of care can’t slip below that of others in the medical community. That’s not a huge burden to put on those that we trust with our lives.

There are many causes for medical malpractice. Make sure you have attorneys that can identify when malpractice occurs, and how to preserve your rights to recovery if it happens to you or your family. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

Medical malpractice trials in Maryland are often decided based on the kind of evidence that gets in or out at trial. One kind of evidence is called “habit” evidence, and it allows someone to testify as to what they think, but don’t know for certain, they did or didn’t do in a given situation.

Malpractice and Habit Evidence

A recent case discusses how testimony of habit can affect the rights of a victim injured as a result of malpractice. In 2003, a man slipped and fell, and had pain in his knee, hip and lower back. Emergency personnel immobilized him and he was transported to the emergency room.

In the emergency room, the victim’s hip and knee pain, but not his back pain, were noted and treated and released by the triage doctor. After numerous visits with his own doctors, he was eventually diagnosed with a “burst fracture” in the vertebra fragments in his back. He was rushed back to the emergency room. Eventually, he underwent a spinal fusion. Days later, the wound was infected. The man eventually suffered cardiac arrest, ended up in a vegetative state, and died.

The victim’s estate sued the hospital doctor for malpractice, alleging that he completely failed to see or treat his back injury at the time, and that if it had been treated he would have survived. To support his argument that the victim’s back was examined, the doctor at trial testified as to what his “habit” was, specifically, that he always checked for back problems, and thus must have done so in this case.

The victim’s estate challenged the doctor’s ability to use “habit” evidence to show that he had or hadn’t performed an exam on the victim’s back on the night he was admitted, and an appeal ensued on that issue.

Habit Evidence in Maryland

Admitting habit evidence can be tricky. When someone says they do something out of habit, it doesn’t mean that’s how they reacted in a certain, particular situation. Rather, the jury is left to infer that because someone reacts a certain way as a matter of habit, that’s how they must have acted in the case they are hearing.

Maryland law does allow people to testify as to habit, which is usually defined as an activity someone doesn’t think about doing, and does with invariable regularity. The habit actions must be “semi-automatic” or reflexive in nature. Examples may be always holding a handrail down stairs, or always buckling a seatbelt.

Appellate Court Allows the Evidence

The victim’s estate argued that examining someone in a certain way doesn’t fit that definition. The doctor argued that he has performed thousands of exams, and that his routine is, in fact, habit. The difficulty of the doctor’s exam, and the fact that every patient may be different, did not change that analysis.

The court noted the doctor’s testimony that when someone comes to the emergency room on a back brace, as this victim did, that he always performs a spinal exam. The appellate court thus agreed with the doctor that the evidence was habit and that the jury could hear the doctor testify as to that fact.

The rules of evidence can make or break a medical malpractice case. Make sure you have attorneys that understand how to take injury and malpractice cases to trial. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.