May 14, 2015

Evidence of Habit Can Make or Break an Injury Lawsuit

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.

April 21, 2015

ACLU Issues Disturbing Report About Police Brutality in Maryland

Maryland does not currently track the number of deaths that stem from police encounters. So, the American Civil Liberties Union (ACLU) decided to track them, and is now reporting that 109 people died as a result of police encounters between 2010-2014. That's a significant number, and many lawmakers are now trying to do something about it.

ACLU Finds Disturbing Statistics

Of the 109 deaths, 31 occurred in Baltimore, the highest number in the state. The ACLU also reported that of those who died, nearly 70% were black, and more than 40% of them were unarmed. Less than 2% of the officers involved were charged with any type of criminal charge.

There are no statistics by the ACLU on how many may have been sued civilly by the decedent's family members, but the Baltimore Sun has reported that according to its research, since 2011, over $6 million has been paid in lawsuits and settlements involving police brutality.

In fairness, the report doesn't determine which, if any deaths, were justified (i.e., a suspect was putting an officer's life in danger), nor how many deaths were not related to police actions (i.e., someone suffering a heart attack in the back of a police car). The ACLU compiled its statistics from news sources, which it acknowledged was not the best source, but it was the only one, given that the information isn't tracked by police or government.

Legislature is Slow to Pass New Laws

Last year, the legislature did pass a law that required police to be trained in CPR. It also required cultural sensitivity training, proper use of force, and how to deal with those with physical or mental disabilities. But other than those general laws requiring training, the legislature hasn't passed more strenuous or punitive laws.

The legislature is considering passage of laws that eliminate a 10-day waiting period that currently exists before officers can be questioned about certain incidents, and eliminating a 90-day time limit that exists for filing complaints against police officers. The laws also seek to make public the names of officers that have committed violence, misconduct or brutality.

The change that the ACLU wants to see most, however, is transparency, which leads to accountability. It contends that some kind of tracking system, and record keeping that's publicly available, should be implemented.

Suing Civilly for Police Violence

There is, of course, a way to sue civilly if someone is injured by police brutality. Federal civil rights laws allow anyone injured as a result of a violation of civil rights by a government agent to file a lawsuit and recover damages.

Still, those lawsuits don't carry the same weight as criminal penalties would for police brutality. And, they don't address the problem of lack of transparency in state reporting of incidents. In many cases, a jury may give an officer's testimony more weight than an injured victim's, making the cases difficult to prove, although there have been significant police brutality verdicts around the country.

If you feel you have been injured by unfair or excessive police force, you may have a civil lawsuit for damages. Make sure you have attorneys that understand the laws that protect you, and who can properly analyze the facts of your case. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

April 16, 2015

Proposed Law Could Make Birth Malpractice Cases More Difficult

Injuries caused by medical malpractice can be devastating and catastrophic. But they can be even more so when they involve the catastrophic injury or even death of a newborn. Despite this, Maryland is actually trying to pass laws that would make it harder to sue for malpractice related to birth injuries.

Proposed Law Sets Up Injury Fund

The bill seeks to set up a fund into which hospitals would pay for living expenses for babies that suffer neurological injuries at birth. About $25 million yearly would be paid into the fund.

On the surface, this seems like a great idea. But it's not.

First, $25 million is only calculated based on the assumption of seven babies needing the funding every year. That's right--in all of Maryland, with all the babies born, the hospitals are assuming only seven would suffer neurological injuries at birth.

And, assuming that was an accurate number, that works out to only $3.5 million per child. That sounds like a lot. But with a neurologically injured child, a lifetime (say, 70-80 years) of in-home medical care, medications, special schooling, and loss of income, and factoring in inflation, will far exceed that number. And that's only calculating the economic costs, not the non-economic damages, such as loss of enjoyment of life, pain, trauma, etc.--or, the trauma to parents, especially of children who, because of their injuries, may not live to adulthood.

Goal is to Quell Malpractice Suits

The fund wouldn't necessarily just be payable to those injured by malpractice, but could be obtained even by those who suffer injury without any negligence. Lawmakers say that it would make compensation fairer, instead of forcing families to file malpractice lawsuits, which they call "lotteries."

It is not clear yet whether the fund would necessarily prohibit malpractice lawsuits from being filed, but that seems to be the intent. Naturally, lawmakers cite rising malpractice insurance costs and "mega-verdicts" as the reason the law is needed. They contend that many malpractice lawsuits could be avoided, if families could just obtain fund money.

That position, of course, assumes that the fund is sufficient to fully compensate for damages - which it isn't. It also assumes that any administrative hearing to obtain fund money would be accessible and fair to victims, even without an attorney - another far-fetched assumption.

Many are also concerned about accountability. Doctors who commit malpractice would no longer be subject to malpractice claims, and because the system would be "no fault," there would likely be no hearing or finding of liability or fault. Many victim advocate groups see this as giving a free pass to doctors to commit malpractice, without accountability, and without having to pay the bill for damages.

The law is only in the proposal stage. A similar proposal failed last year, but the idea is gathering more support as time goes on.

Medical malpractice can involve catastrophic injury and complex medical testimony, and may be emotionally difficult. Make sure you have attorneys that understand the laws that protect you, and understand the personal toll that your injuries have caused your family. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

March 23, 2015

New Dog Bite Laws Make It Easier to Recover Damages for Injury

We love our dogs. And generally, dogs are sweet companion animals. But we sometimes forget that animals, with jaws that can impose serious damage on people. That's why every state has dog bite laws of some kind, allowing people bitten by dogs to recover for their injuries. Maryland has recently strengthened its dog bite laws.

The Old Laws

Maryland used to follow what is commonly known as the "one bite" rule. The rule "allowed" someone's dog to bite someone else once without incurring civil liability. In other words, if you are bitten, but the owner had no idea that the dog was vicious as it hadn't bitten anyone before, you would have a hard time recovering damages for your injuries.

The difficulty in proving damages, as you can imagine, is proving what the owner should have known about its own dog.

Interestingly, this rule didn't apply to dogs commonly referred to pit bulls. With pit bulls, there was strict liability. The dog bites someone, and that person can sue for damages, regardless of the dog's history.

The New Dog Bite Law


Maryland law has recently changed, allowing those injured by dogs to sue for damages, regardless of whether the dog has hurt someone previously or not. Some highlights of the new law:

● There is strict liability for owners of dogs who bite people unless the owner can prove he or she did not know, and shouldn't have known, that the dog had "vicious or dangerous propensities."

The big change here is that the law now places on the dog's owner the burden to prove that the dog was not dangerous. There is now an automatic presumption that the owner knew the dog was dangerous. The injured victim doesn't have to prove what the owner knew or didn't know. It's not known yet whether saying "Fifi was always such a sweet dog" will be enough for a defendant to meet that burden.

The law also is breed neutral--that is, one breed isn't treated differently than others.


● There is strict liability for injury or loss by a dog at large.

This seems to imply that if a dog is at large (in other words--loose without a leash), the owner is liable for the damages. This includes not just bites, but any "loss," which could be damage to property as well.

The statute does contain an exception for anybody trespassing, committing a crime, or taunting an at-large dog, in which case the owner is not responsible for injuries caused by the animal.

If someone other than the owner of the dog is responsible for a dog bite injury, the old law applies--there must be a previous bite or indication the dog was dangerous. So, for example, if a pet sitter allowed a dog to get loose, or the vet allows a dog in its custody to attack your dog, it would be harder to sue those non-owners for damages.

Dog bites can result in serious injuries. The law now allows a victim an easier way to seek damages from an owner. Although the law may seem unfair to dog owners, when a dog injures someone, it is fairer to make the owner (who knows and cares for the dog more so than anyone else) responsible, than to leave the victim with no ability to recover for injuries.

If you're injured in any way by a dog or other domestic animal in Maryland, you have a right to recover for your injuries. Make sure you have attorneys that understand the laws that protect you. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

February 18, 2015

Make Sure Your Personal Injury Settlement is a Binding Contract

If you're injured in Maryland, there is no doubt that you want an attorney that's ready to try your case in front of a jury if needed. But the reality is that most cases don't go to trial--they are settled out of court, through settlement agreements.

In personal injury cases, you may think of settlements as simply a matter of how much the defendant is willing to pay you for injuries you've sustained because of their negligence. But in fact, settlement agreements can contain a whole host of other provisions. And if you don't understand and agree to those terms, you may not have a settlement at all.

Recent Case Discusses Enforceability of Settlements

A recent case involving a homeowners' association (HOA) and its members is instructive as to how important it is to understand and agree to all terms of a settlement. In the case, the HOA and the members agreed to a "letter of intent," which contained material terms of a proposed settlement, but wasn't intended to be the final, binding statement of the terms of the settlement.

Naturally, the HOA then tried to get out of the deal, arguing there was no binding settlement agreement. The trial court agreed, and did not enforce the settlement, as it was only a "letter of intent."

But the appellate court disagreed, saying that even though not every term was agreed to, and even though the parties had only "agreed to agree," there was enough there to bind the HOA to the terms. In other words, a valid and binding agreement had been formed, even though not all the terms of the agreement were there.

What are the Material Terms in an Injury Settlement?


In most cases, as long as material terms to an agreement are agreed to, the agreement will be binding on the parties. It would seem that the amount the defendant will pay to an injured victim is the sole material term to a settlement of a personal injury claim.

But often, defendants will try to throw other terms in a settlement agreement. They will request confidentiality--sometimes even restricting you from discussing the settlement from your own family. Or indemnification--a provision that generally makes you responsible for paying them should anybody sue them for matters arising out of the agreement or your outstanding medical bills.

You may agree to an amount that will be paid in a settlement, only to find these kinds of provisions in the actual agreement the defendant proposes be signed. A good plaintiff's attorney may refuse, saying that the agreement to pay the amount promised is the full and final agreement, and contains all material terms.

Taking this position, however, may leave an attorney to seek court approval of the settlement--in other words, to ask a judge to declare that the parties agreed to all the material terms--payment--and the agreement did not include indemnification, confidentiality, or anything else.

Ultimately, the lesson is that simply agreeing to settle isn't enough. You need sufficient, material terms to be binding, and you should make sure your agreement doesn't bind you to provisions you didn't expect were part of the deal.

If you're in an accident in Maryland, make sure you have attorneys that protect you by paying attention to the details, all the way to verdict or settlement. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

January 26, 2015

Study Shows Maryland Drivers Are Generally Carrying Motor Vehicle Insurance

If you're driving in Maryland, you may not give much thought to insurance, so long as you have insurance to cover yourself. But you may want to give some thought about your fellow drivers. Their insurance could have a direct effect on you. Luckily, Maryland rates pretty high in the category of insured drivers.

Why Insurance Is Important

If you're injured in an automobile accident by a negligent driver that's a person (not a corporate-owned vehicle like a FedEx truck or oil tanker), you may want to consider a lawsuit to recover for your injuries.

When you sue individuals, the actual entity that is paying for any verdict or settlement that you enter into is usually the negligent driver's insurance company, not the driver himself. When a negligent driver has insurance coverage, you have a "collectable pocket"--the insurance company.

Insurance also may pay for some of your injuries that aren't caused by a negligent driver, such as if you run into a tree, or are injured by debris on the road. It's not just to protect others.

Without insurance, you'd be left to sue an individual that very likely would never have the funds to pay your judgment. You would have an uncollectible judgment that could even be wiped out if the negligent driver ever declared bankruptcy.

Recent Study Ranks Most, Least Insured Drivers


A recent study looked at the states with the highest and lowest rates of insurance coverage. At the top of the list as safest (most insured) was Maine. Rounding out the next safe states were North Dakota, New York, and a tie between New Hampshire and here in Maryland, where only 12% of drivers are estimated to be uninsured.

Of the top 5, Maryland requires the most different kinds of insurance to be carried as well: personal injury protection (PIP) and uninsured motorist (UM) for bodily injury and property damage.

The worst state was Florida. If you're hit in Florida by a car, there's an estimated 25% chance that the other driver has no insurance at all.

Of the bottom 20 uninsured states, only three have any mandatory insurance requirement for their drivers at all.

What You Can Do


In truth, there's little you can do about who around you has or doesn't have insurance. The best you can do is to carry uninsured motorist coverage, as high as you can afford. UM coverage will stand in the shoes of a negligent driver that injures you who is uninsured.

So, if you are hit by an uninsured driver (yes, even in Florida), and sustain injuries which a jury thinks is worth $100,000, your UM coverage will pay that amount (up to the limits of your UM policy, of course). It's money well spent.

If you're in an auto accident in Maryland, and are considering suit, make sure you have attorneys that understand insurance coverage issues. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

January 16, 2015

College Hazing Again Rears Its Ugly Head

It seems that there are certain topics that keep rearing their ugly head when it comes to injuries in Maryland. You'd think that after awhile, lessons would be learned. But in the case of college hazing, it appears that learning not to beat, maim and injure fraternity pledges is more difficult than anything being taught in the classroom.

New Hazing Lawsuit Filed

A $3 million lawsuit has been filed against Bowie State University by a fraternity pledge, claiming that he was beaten and hazed while pledging. He has also sued the fraternity itself. The lawsuit alleges that the student was punched, slapped and paddled during fraternity events, both by current students and fraternity members, as well as non-student members of the organization.

Photos produced by the student show brutal bruises to the student's buttocks. The student alleges in the suit that he was beaten at information sessions when he did not recite correct information that he was expected to learn to join the group.

To cover up their deeds, the fraternity allegedly ordered the student not to "snitch," and allegedly went so far as to threaten the student's mother.

Anti-Hazing Laws are Clear But Weak


Maryland's anti-hazing law is simple and clear cut: It is illegal to intentionally subject a student to bodily harm for the purpose of initiation into a student organization. To avoid coercion and peer pressure, the consent or implied consent of the person injured is not a defense. Obviously, these laws supplement other criminal laws, such as battery and assault, which would also be applicable to hazing situations.

Although hazing is a crime, the hazing statute unfortunately does not carry a very severe penalty--imprisonment of less than 6 months, and a possible $500 fine. Some Maryland lawmakers have pushed for an increased financial penalty, up to $5,000, to bring Maryland more in line with other states. Sadly, fraternity and sorority PACS have often lobbied against increased hazing penalties.

But the lenient hazing laws don't affect or limit a victim's right to sue for civil damages in court. Civil lawsuits are often needed to properly and fully obtain redress for severe hazing. Those civil lawsuits often target not just the organization, but the universities where the hazing occurs. This can be particularly true where non-students, who are not subject to university codes of conduct, and may be complete trespassers, are involved in the hazing incidents.

Universities will often react by suspending organizations that haze. But while that's admirable, it doesn't insulate a university from liability for student hazing.

More difficult questions arise when hazing occurs off-campus. The law is not as clear as to whether a university is liable for off-campus hazing that is performed by university chartered and recognized groups. In many cases, discovery must be conducted in court as to whether a university knew a group hazes, and what measures it has taken in the past to expel or suspend a student or group known to haze.

If you've suffered an injury of any severity in Maryland, and you think it may be due to the negligence or intentional act of another, you want an attorney who can identify all liable parties. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

December 24, 2014

Is Someone Who Hires an Uninsured Commercial Driver Liable for Negligent Hiring? New Case Says Maybe Not

If someone is injured in an auto accident in Maryland, there may be more than one defendant responsible. This often is the case where a commercial vehicle is involved. The vehicle may be owned by one company, and driven by a driver employed by another company, which occurs often in our world of contractors and subcontractors.

What duty does a company have to ensure it properly hires an employee who they are going to put behind the wheel of a multi-ton commercial vehicle? And to what extent can the company be held liable for negligently hiring an employee?

Accident Leads to Negligent Hiring Lawsuit

A recent Maryland case discussed the theory of negligent hiring. In Asphalt & Concrete Services Inc. v. Perry, an individual was struck by a truck that was driven by an employee of a separate company (the "driving company"). The injured plaintiff asserted that the company that owned the truck had negligently hired the driving company.

A major theory of the case was that the driving company and its driver had no insurance. The plaintiff argued that hiring a company with no insurance is indicative of negligent hiring. The trial court agreed, allowed evidence of the lack of insurance into the trial, and a large jury verdict for the injured plaintiff was entered.

Negligent Hiring in Maryland

In Maryland, the elements of negligent hiring require demonstration:

1. Of an employee-employer relationship;
2. Of the employee's incompetence;
3. Of the employer's actual or constructive knowledge of the incompetence;
4. That the employee's act or omission caused the injuries; and
5. That the negligent hiring caused the injuries.

The Maryland Appellate court noted that in this case, the driver's lack of insurance was not because of a bad driving record, which may be evidence that the employer should have known not to use the driving company. Rather, it was simply due to non-payment.

Maryland law has long held that the financial status of a contractor is not evidence of incompetence such that an employer can be responsible for negligently hiring them. All that really matters is whether the company or contractor had something in their history to indicate actual incompetence in the performance of the job.

Because the driving company was transporting materials on public highways, which requires insurance, and insurance is presumably to protect the public, the court felt that the lack of insurance was evidence of performance.

Problem Arises With Causation


The problem came with causation, however. Was the failure to carry insurance a cause of the accident? This question usually rests on foreseeability. If a negligent party's actions could foreseeable injure someone, then there is causation, and thus liability.

It would seem that even a common sense analysis would say no, and the court agreed. The court said that it was the poor and careless driving that caused the accident, and there is nothing to suggest that such driving was because there was no insurance.

Finding that there was no negligent hiring, evidence relating to it should not have been admitted. Thus, the appellate court reversed the jury award for the injured plaintiff.

If you've suffered an injury of any severity in Maryland, and you think it may be due to the negligence of another, make sure your attorney understands all the available legal theories of recovery. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

December 15, 2014

Rear End Car Accident Victims Need to Be Aware of Sudden Incapacity Defense

If you are involved in a car accident in Maryland in which you are rear ended, it may seem like it's a clear cut case. Someone who rear ends you and causes you injuries should be liable to you for damages. And normally, that's true. But there's one special circumstance where that may not be so true, and where you, as an injured victim, may have a special burden to prove.

The Sudden Incapacity Defense

In Maryland, if someone loses control of their vehicle by what is known as "sudden incapacity," they may not be liable to you for your injuries, even though the accident was their fault. Sudden incapacity has been described by Maryland courts as "suddenly and unforeseeably" being incapacitated.

The logic is obvious--that a driver shouldn't be responsible for an accident when he wasn't conscious and couldn't control his own actions. A negligent party must be able to comprehend his own actions.

The key is the second word--"unforeseeably." The defense does not apply and cannot be used to avoid liability by a driver when the driver has reason to know that he could black out or lose consciousness. Some examples may be:

● Drivers who are prone to seizures and are unmedicated;
● Drivers who are on medication that may make them woozy or unaware of their surroundings; or
● Drivers who may have suffered a blackout or similar condition in the recent past.

The question of whether a blackout or loss of consciousness was foreseeable is one for a jury. For example, someone who had a heart attack 3 years ago may not be on notice that they could have another one at any time. But someone who recently had a doctor tell them they could have a heart attack at any time could be held responsible for an accident caused due to lack of capacity.

Maryland is not alone; other states have similar laws that will excuse a driver from negligence due to sudden incapacity.

Using and Defeating the Defense

If the defense is used, it is the defendant's burden to prove that they were incapacitated and that the incapacity was unforeseeable.

As you may imagine, proving the defense may often rely on expert medical testimony. Some conditions may make a driver more opt to blackout than others, and that takes a doctor to testify to.

A driver who uses this defense obviously puts his or her medical history into question, and a good accident attorney should take every step to acquire these records. Because of the sensitive nature of medical records, many defendants may opt not to use the defense. But if it's used, discovering medical records that show that a driver has blacked out in the past is a "smoking gun," which will often defeat the defense very quickly.

Sudden incapacity is one of the rare instances where the presumption of negligence that lies against people who rear end other drivers may not apply. A good personal injury attorney needs to look out for defendants who may want to use it.

If you've suffered an injury of any severity in Maryland, and you think it may be due to the negligence of another, you need an attorney that's ready for any defense. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

December 3, 2014

New Case Uses Negligent Entrustment to Find Liability in Catastrophic Trucking Accident

The Negligent Entrustment Theory

When there is a trucking accident, our natural first impression is to sue the trucker or the trucking company under standard negligence grounds. And of course, this is a major avenue for liability.

But many of these cases also involve an issue known as negligent entrustment.

Negligent entrustment is a cause of action where a party is sued for entrusting someone with a car or truck when it should have been apparent that person should not have been trusted. Most commonly, this is used when a parent trusts a teenager to drive a vehicle, or someone allows an impaired person to use their car, and an accident results.

It's somewhat different than vicarious liability. With vicarious liability, one is automatically liable for the actions of another (such as an employer for an employee). But negligent entrustment isn't "automatic." It requires separate proof that it was negligent to allow someone to use a vehicle.

In the trucking context, employers don't have to have a crystal ball to see if their employee drivers will have an accident or not. But they do have an obligation to ensure that their employees are safe and qualified drivers to the best they can before hiring. This may include using background and criminal checks.

Recent Case Uses Negligent Entrustment Theory

A recent case has used the entrustment theory to find liability against a trucking company. An innocent bicyclist was struck by a commercial truck. The bicyclist died from his injuries. The victim's estate was awarded over $2 million in compensation.

Using the entrustment theory here had a benefit for the plaintiff: it allowed the plaintiff to use as evidence the driver's driving record. Ordinarily those records are inadmissible. But with the negligent entrustment theory, driving records may be probative as to whether the employer knew or should have known the driver should not have been hired. In other words, the theory allows very persuasive evidence--a bad driving record--to be considered by a jury when it ordinarily would not have been.

The court also allowed the plaintiff to cite from state safety manuals to the jury. Normally, such manuals can't be used to impeach an expert witness, but the court found there was nothing preventing such standards and manuals from being used generally, such as when questioning a lay witness, or in an opening or closing statement.

The manuals were used to demonstrate a standard of care that must be followed, and that the defendant violated it. A jury may not know what kind of standard of care must be used for a trucker, or for a trucking company in hiring an employee. Allowing the usage of government and safety manuals is a huge asset to a plaintiff trying to provide the standard to a jury.

If you've suffered an injury of any severity in Maryland, you want attorneys that understand every possible theory of liability. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

November 24, 2014

Large Maryland Verdict Highlights Needs of the Catastrophically Injured

A Maryland construction worker injured on the job has been awarded $21.7 million for injuries suffered on the job. The horrific accident left the worker paralyzed from the neck down.

The Accident

The victim was a worker at Pepco, working in a power house in Maryland. He was electrocuted by a transformer, giving him third degree burns to 10 percent of his body. The accident left him paralyzed when the force of the electrocution sent him flying into the air, and then onto the ground, severing his spine.

The workers had apparently been told the transformer had been turned off, when it fact it had not.

At trial, Pepco did not contest liability, admitting fault for the accident. Pepco only contested the amount of damages that should be awarded.

The jury awarded $35.9 million, but because of Maryland's cap on non-economic damages (which include pain, suffering, emotional distress, and loss of enjoyment of life), the award was reduced to $21.7 million.

Large Verdicts Help the Catastrophically Injured

The amount seems huge. And many laypeople envision victims driving off in expensive cars paid for by their verdict or settlement.

But in practicality, considering the nature of the injuries in this kind of case, the money is hardly excessive, and in some case, may barely cover the costs and expense of the victim.

In such catastrophic damage cases, jury awards compensate victims for the necessary care that they need for the remainder of their lives.

We all know how much a medical bill can be for a disease or day-to-day incident. With a life-altering injury that will require a lifetime of intensive, around-the-clock care and routine hospitalizations and usage of medications and medical devices, that cost can be astronomical.

As you may imagine, the amount can be more for a younger victim, who will need care for more years than someone who may be older.

In court, to demonstrate damages, plaintiff attorneys will often use an expert to testify as to the life care needs of such victims, and to provide estimates of the costs of inflation as applied to these expenses of the victim.

In addition to medical care, damages in these kinds of cases also can include retrofitting homes and vehicles to make them accessible to victims of catastrophic injury.

The victim in this case was 28. It's reasonable to imagine 50-60 more years of life. Multiplied by the cost (and loss of income) of all of this, it becomes clear that a verdict such as this may not be any kind of windfall at all.

Rather, it may be just compensation, not as money in someone's pocket, but rather, money to ensure that the victim lives as full and complete a life as they can, and to try to provide him an equal playing field in life as compared to those of us who are not catastrophically injured.

If you've suffered an injury of any severity in Maryland, and you think it may be due to the negligence of another, don't risk your case with attorneys you can't trust. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

November 12, 2014

Can a Hospital be Liable for the Death of an Ebola Patient?

As the Ebola scare continues throughout the U.S., one leading case is raising important issues about medical malpractice. The case of a man who died in a hospital from Ebola can give us an important lesson about the standard of care that our health care providers must demonstrate, and what an injured victim must prove in a medical malpractice action.

The Death of a Texas Ebola Patient

The case involves a Texas hospital that waited many hours before treating Thomas Duncan, who eventually died from the disease. After treating him, the nurses then reportedly continued contact with other patients, unaware of the dangers of spreading the disease to themselves and others.

A nursing group is now calling the Dallas hospital "sloppy," and alleging that nurses were not properly trained in Ebola protocols. The nurses say they were given no protective gear, and that blood was tested using a system that could infect the entire hospital's blood supply.

In a rare move, the hospital has apologized, and admitted mistakes in treating Mr. Duncan.

So did the hospital and its staff commit medical malpractice? Despite the apology and the clear inadequate training alleged by the nurses, that question may be more difficult than it appears.

Medical Malpractice and Ebola

Not every bad outcome is a result of malpractice. Health care providers don't have to always make the right decisions. They just have to make the decisions that other, similar health care providers in the same situation would do.

For example, it's well known that certain pains and shortness of breath may signal a heart attack. A doctor who sees these symptoms and does nothing is likely liable for malpractice.

But ebola is new to this country. There are no protocols. Hospitals have had little time to learn about the disease and establish standards, much less train employees. Even some experts disagree on how it's transmitted. Given this, the question becomes whether other doctors or hospitals in the same situation, would do the same thing the Dallas hospital did--even if it was ultimately incorrect. The answer may well be yes.

This is likely why the hospital apologized. It may be well aware that while it made a mistake, it made a mistake that many hospitals would make. Hospitals are not so willing to apologize when they know they have violated longstanding standards of care.

Causation will be an issue as well. A victim must demonstrate that the malpractice caused the injury.

Using the heart attack example, thousands of people are saved from heart attacks every day. A hospital may have caused a death if it fails to recognize and react to a heart attack.

But many have died from ebola, even with timely and appropriate treatment (at least, overseas). If Mr. Duncan would have died anyway, the hospital can argue that whatever errors it made did not cause the death. The disease did.

These problems are not unique to ebola. As new diseases and conditions are discovered, and new medicines that may sometimes be dangerous are introduced, the standard of care is always measured against the body of expertise and knowledge that exist in a given medical field. What is not malpractice today because of uncertainties, may be malpractice tomorrow, when more knowledge about a disease's treatment is learned by healthcare providers.

Malpractice cases can be complex and involve proper analysis of facts, the standard of care, and review of medical information even before a case is filed. If you're injured in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

October 28, 2014

Large Medical Malpractice Verdict Demonstrates Importance of Medical Experts

If you are injured as a result of medical malpractice, you must prove what your doctor did or did not do deviated from the ordinary and prudent standard of care. Medicine is uncertain, and not every bad result is malpractice. So, the law generally compares your doctor's actions to those of other doctors in the same field. If other reasonable doctors would have done the same thing in the same situation, there is no liability for malpractice, even if the decision made by your doctor ultimately turns out to be wrong.

To show your medical providers acted negligently, extensive expert testimony is needed. A malpractice case may have medical testimony from your doctor, an expert your attorney hires to support your doctor's actions, and doctors for the other side, who will say that the medical provider you're suing acted reasonably and prudently.

Recent Case Involves Permanent Injury at Birth

A recent case decided by a Maryland appeals court has upheld a $20 million jury verdict because the court felt that although there was conflicting testimony between experts on both sides, ultimately, a jury can and did choose to believe one expert over another.

The case arose from the failure to conduct a cesarean section by the Plaintiff's doctors. Labor was induced because of high blood pressure in the mother and the baby. While in labor, a monitor showed that the baby was low on oxygen.

The Plaintiff's experts testified that this was a sure sign that a C-Section should be performed immediately. Yet, the Plaintiff's doctors allowed labor to continue for three more hours. The child was born oxygen deprived, with his umbilical cord around his neck, and with a kind of cerebral palsy that will leave him wheelchair bound for the remainder of his life.

Battle of the Experts

The hospital and doctor's experts testified that tests after delivery showed the child was not oxygen deprived after delivery, and thus, that his impairments were not a result of choosing not to do a C-Section. They also testified that it was near impossible for a soft umbilical cord to compress a child's jugular veins.

Of course, the Plaintiff's experts testified differently, saying a C-section should have immediately been performed. The jury ultimately believed the Plaintiff's experts, and awarded the $20 million verdict. On appeal, the appellate court upheld the decision.

The appellate court did not find either side's experts unbelievable. Both were found to be credible. It is not an appellate court's job to re-weigh evidence that the jury has already considered. So long as there is enough evidence for a jury to make its finding, that finding won't be overturned on appeal.

Because of the credibility of both sides' experts, the jury's findings were based on solid evidence, and thus, could not be overturned on appeal.

Why Experts Matter

Sometimes, more so than lawyers, in medical malpractice cases, it's the expert doctors that may persuade a jury one way or the other. And once that happens, there is almost no ability to appeal the decision of a jury to believe one expert over another.

This is exactly why so much money is put into finding qualified, credible, and experienced witnesses in medical malpractice cases. In many cases, juries may simply believe the expert that presents the often complex medical information the clearest. Presentation is often just as important as substance when it comes to experts.

Malpractice cases can be complex and involve proper analysis of medicine and proper selection of experts. If you're injured in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

October 13, 2014

Drivers Who Do Not Know Their Licenses are Suspended Can Still be Charged with a Crime

Ignorance is no defense to breaking the law. We hear that maxim often in movies and TV. And to some extent, it is true. But there are many crimes that require the accused to maintain subjective knowledge of facts, or a specific intent to break the law. In those cases, "I didn't know," may constitute a valid defense. A recent case involving driving with a suspended license tested how far ignorance of facts goes.

Driving with a Suspended License Requires Knowledge

It is a crime in Maryland to drive on a suspended license. However, to prove the offense, the state must demonstrate that the driver knew or should have known that the license was suspended.

Knowledge is easy--did the Defendant actually know that their license was suspended? Even if the answer to that question is "no," the state can still demonstrate that a driver "should have known" that their license was suspended.

This means that a driver cannot hide his or her head in the sand, or exhibit deliberate indifference to facts or circumstances that would put a reasonable person on notice that their license was suspended. What kinds of facts are needed to demonstrate a driver "should have known" a license was suspended is up to a jury to decide.

Recent Case Determines Driver Should Have Known of Suspension

In Steward v. State, a driver was arrested for driving with a suspended license. There was no doubt she did not actually know her license was suspended. However, the driver's license was previously suspended and reinstated, and she had attended a point system conference. Her license was suspended again in 2010, and was again lifted after she paid a fine. Her license was suspended again when she did not attend a mandatory driver improvement program. Later, she was pulled over and arrested once more for driving with a suspended license. As to the latter instance, she testified that she was homeless at the time and did not receive notice of the suspension.

The appellate court found that, based on her driving history, she should have known that her license was suspended. Each infraction in her past caused her license to accumulate points, and the court felt that it was fair to presume someone who continually accumulated such points and failed to attend mandatory driving courses can be charged with knowledge of the fact.

A person may innocently and honestly not know his or her license is suspended. In many cases, someone may believe they paid a fine or never got notice of a trial date, resulting in their failing to appear in court and their licensed being suspended. It is always best to stay on top of your driving record, make sure you maintain a current address with the MVA and make sure your license is valid if you committed even minor infractions.

Do you have questions about your rights? Did you recently receive a traffic infraction? The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

October 6, 2014

Is it Constitutional for the Police to Seize and Test DNA Evidence?

An important constitutional right concerns the prohibition against the search and seizure of your property by law enforcement without due process of law. When we think of items police may search and seize, we often think of tangible items--phones, drugs, computer files, etc. But we do not often think of the most telling piece of evidence, that which we carry around with us every day, wherever we go--DNA.

Case Calls into Question Legality of Testing DNA Evidence

Our DNA is everywhere. It is in our hair, our saliva, and our sweat. It is not unusual for police to seize DNA for an investigation--blood samples or saliva swabs are often compelled by courts. But it is the DNA that we leave behind unknowingly that is causing a significant legal issue in one case.

A Maryland case is challenging just this issue. The defendant in the case was taken into police custody for questioning. After being questioned, the police asked if they could swab his DNA for testing. He refused. Despite this refusal, after leaving the interrogation, police swabbed his perspiration from a chair in which he was sitting. His DNA was tested, and he was later found guilty of rape based on that evidence.

The defense argued this was an illegal search and seizure of his DNA. The court disagreed, finding the defendant "abandoned" his DNA material by sweating on the chair, thus making it fair game for seizure and testing. The Defendant is now trying to get the Maryland Court of Appeals to overturn the decision.

The Defendant is relying upon a Supreme Court decision requiring police officers to obtain warrants before searching the cell phones of those they arrest. This argument makes sense. Certainly, something as private and personal as DNA should have a higher expectation of privacy than the contents of a cellphone, which are often broadcast for all to see anyway.

Probable Cause

The case may also hinge on probable cause issues. A search and seizure is permissible in situations where police have probable cause. Even if the random seizing of DNA is a violation of due process, such a seizure may be allowed if probable cause exists. Yet the line between reasonable suspicion and probable cause is often a gray one.

What makes the issue even more difficult is that police do not need probable cause to legally seize and test fingerprints that are left behind unintentionally. The professor argues there is a big difference between testing fingerprints, which society tends to accept as routine, and DNA, which it does not.

The case holds significant implications for the constitutional rights of those accused of crimes. It is presumed that consent to search and seizure must be knowing and voluntary--yet DNA is not always left behind knowingly and voluntarily. Allowing law enforcement to test any and all DNA would create significant privacy implications for everyone, and would severely weaken the Fourteenth Amendment's protections.

Do you have questions about your rights, or whether the police obtained evidence in violation of the law? The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience with the rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.