The first problem is the technology itself.  Evidence collected so far indicates that there may be problems with the design or manufacture of the robot.  During some surgeries, patients have been seriously burned by electrical current that jumped from the machine to the patient.  In one case, a young woman who was scheduled for what should have been a routine hysterectomy had burns to her intestines and an artery, and she died within two weeks of the surgery.  Other cases have seen broken surgical blades.

The second problem is training–this is a sophisticated piece of equipment.  To doctors using it, it may feel like a video game, but the equipment and software are complex.  This is not like learning to pass eight levels of Super Mario Bros.  Hospitals are anxious for their doctors to use the equipment so that they can advertise their cutting-edge technological expertise.  The manufacturer provides a small degree of training, but in light of the number of mistakes made by doctors during surgery, that training is clearly insufficient.

The da Vinci is used for any number of surgeries–most often hysterectomies, bladder surgeries and throat surgeries.  Though cases are being filed, these are untested waters.  Lawyers and clients must decide whether to bring a product defect case against the manufacturer (for failure to warn, design defect, or manufacturing defect), or a medical malpractice case against the surgeon or hospital, or both.  Expert testimony in each type of case (product liability and medical malpractice) is extensive.  To do both at the same will require experts in the underlying surgery, and perhaps others like computer programmers,software engineers and mechanical engineers.

It is likely impossible to completely prevent bedsores.  The negligence in nursing home cases is typically focused on failure to identify and treat pressure ulcers before they get to a dangerous point.  Without proper treatment, patients must be hospitalized and undergo painful cleaning and tissue removal.  In the worst cases, patients die because of infection.  

The Journal of the American Geriatrics Society reports in its September 2012 issue (Hospital-Acquired Pressure Ulcers: Results from the National Medicare Patient Safety Monitoring System Study) that they have found a correlation between bedsores and patient mortality.  Evaluating 51,000 Medicare patients from 2006 and 2007, the authors discovered that hospital patients who develop bedsores are more likely to die, to be readmitted to the hospital within 30 days, and to have longer hospital stays.  The key, of course, is prevention and early treatment.  Evaluating patients who had bedsores, they found that the most common locations are the tailbone or sacrum, followed by the hip, buttocks and heels.

How to Prevent and Identify Bedsores

• Bedridden patients should be checked from head-to-toe every day
• Particular care should be taken to check the tailbone, hip, buttocks and heels
• Patients should change position at least every two hours
• Proper nutrition should be followed (it helps to prevent pressure ulcers in nursing homes and hospitals)
• Skin should be clean and dry, particularly for those patients who are incontinent

Contact a Baltimore Nursing Home Lawyer

If you or a loved one has developed pressure ulcers in a hospital stay or at a nursing home, contact our nursing home abuse lawyers at 443.850.4426, or send an online confidential request for information.  We can order your medical records, have them reviewed by an expert, and determine whether you have a nursing home lawsuit.  

The Court of Appeals (the highest court in Maryland) published its September 25, 2012 decision in S&S Oil, Inc. v. Elaine W. Jackson.  Judge Greene penned the opinion for the court, which tackled the question of whether Maryland’s rules on assumption of the risk amount to the same thing as contributory negligence.  Here’s the case setup:

Ms. Jackson was at a gas station to buy some motor oil.  She went in, purchased the oil, and walked back to her car.  Her granddaughter asked for a soda, so Ms. Jackson went back inside, found the soda machine, and walked toward it.  She tripped on uneven flooring in front of the machine, which she later described as sloped and lumpy.   The store uneven area was part of store renovations, and the store’s owner said there was caution tape near the area and a “watch your step” sign close by.  Ms. Jackson did not see any of it before her fall.

At trial, the judge gave oral instructions for assumption of the risk:  

A plaintiff cannot recover if the plaintiff has assumed the risk of her injury, I guess.  A person assumes the risk of an injury if that person knows and understands the risk of an existing danger, or reasonably should have known and understood the risk of an existing danger and voluntarily chooses to encounter the risk.  

The verdict sheet (the document that the jurors fill out to help decide who wins the case), however, did not contain any section about assumption of the risk.  It did mention Maryland’s contributory negligence law, which is always raised in slip-and-fall cases.  Contributory negligence basically says that if the plaintiff is even 0.01% responsible for her injuries (perhaps because she wasn’t watching where she was going, she was wearing inadequate shoes, etc…), and the defendant is 99.99% responsible, the plaintiff loses her case.  The judge believed that the rule on contributory negligence seemed to encapsulate assumption of the risk.  The jury decided that Ms. Jackson proved her case and rendered a verdict of $143,416.41.  

The Court of Special Appeals, in a wacky statement, said that “[i]f the jury determined that [Ms. Jackson] assumed the risk of her injury, it would necessarily find that she was contributorily negligent.”  That’s all well and good, but it’s never been the law.  Assumption of the risk and contributory negligence are two totally separate things.  If I see a wet floor sign, and I choose to walk ahead into the water, I am assuming the risk of falling, even though I am walking carefully and perhaps not negligently.  A risk may be reasonable, for one reason or another.  If I walk with a blindfold on and slip on a wet floor, I am contributorily negligent.  

So, the trial judge orally instructed the jury on assumption of the risk, and told them that the assumption of the risk argument was subsumed in the contributory negligence portion of the verdict sheet.  That’s definitely not the right way to do it, but theoretically it accomplished the same thing as a separate line for assumption of the risk.  The jury knew what the rules were, despite a little mix-up from the court.  The plaintiff would have lost if the jury found either contributory negligence or assumption of the risk, so rolling them all into one shouldn’t have changed anything.  

The Court of Appeals decided otherwise, however.  In remanding the case for a new trial, they held that the jury was probably confused–they were told about assumption of the risk, but there was no instruction on the jury verdict form.  The plaintiff’s attorney in the case probably should have joined with the defense in arguing for a separate assumption of the risk line–it’s hard to do something like that because it is contrary to instincts, but the case is now right back where they started.  

Slip-and-fall cases are among the toughest types of cases to try.  It is difficult to prove that the owner knew or should have known of a dangerous condition.  Assumption of the risk and contributory negligence are always raised as defenses, and the gut reaction of many people is that someone who falls is at least partially responsible for the fall (the phrase used is “should have watched where you were going.”).  We may watch where we’re going, but falls happen, regardless.  We’re not expected to keep an eye constantly on the floor, and no one can keep up that kind of behavior.  The lawyers in the case did a good job, but now they’ll have to do it again.  

There have been some court rulings of late about dog bite cases in other states, so we thought this might be a good opportunity to clarify the law in Maryland (at least, the undisputed part of the law–for the ongoing saga of pit bulls and strict liability, see our prior posts).  If you want to see Maryland’s rules, just scroll down.  Otherwise, we’ll take a quick detour to those other states.

New Jersey: Value of Pets Killed or Injured by Other Dogs

In New Jersey, the plaintiff in McDougall v. Lamm argued that she should be able to recover emotional distress damages for watching the defendant’s dog pick up her dog, shake it and drop it to the ground, causing its death.  The high court ruled that emotional distress damages were not recoverable, and that the plaintiff was limited to recovery of the replacement cost of the dog, taking into account the dog’s training and breeding.  

California:  Emotional Distress Damages Are Permitted

 An appellate court in California decided that intentional injury to a pet can result in a valid claim for emotional distress damages.  In Plotnick v. Meihaus, a feuding neighbor somehow injured a dog, perhaps unlawfully on his property, with a baseball bat (vet bills were $2,600.00).  It was a 15-lb. miniature pinscher, and the feuding neighbor was, according to his testimony, acting in self-defense.  The emotional distress damages awarded amounted to $50,000.00.  The ruling appears to indicate that these damages are justified for intentional injury or gross negligence.  

Maryland:  No Emotional Distress Damages

Under Maryland law, the death of a pet at the hands of a negligent owner’s dog is compensable.  Not unlike New Jersey, Maryland permits pet owners to recover for the fair market value of the killed pet.  We still view pets as personal property in this regard, just like a car.  The state legislature passed a rule a few years back that gives pet owners a little more in the way of options.  “In the case of the death of a pet, the fair market value of the pet before death and the reasonable and necessary cost of veterinary care; and (ii) [i] the case of an injury to a pet, the reasonable and necessary cost of veterinary care” (Maryland Cts. & Jud. Proc. §11-110).  The absolute limit of that veterinary care cost, however, is $7,500.00.  

Contact Us

If you need to know more about your rights when you or your pet is the victim of a dog attack, contact our office at 443.850.4426, or fill out our online request form.  

The Court of Special Appeals (the middle-level court) last week decided Rosen v. B.J.’s Wholesale Club, and decided that exculpatory waivers are unenforceable against minors (kids under 18).  An exculpatory clause is that little sheet of paper in a really tiny font with lawyer language that basically says “I promise not to sue you even if you do something really stupid and negligent that causes serious injury or death to my baby.”  We’ve all signed them before–at ski resorts, kids’ gym classes, and other areas of child recreation. I’ve never liked them, and if I think I can get away with it, I sometimes scratch out the important parts, initial it, and hand it in a big pile of other releases.  No one has ever been the wiser.

Thankfully, that level of deviousness might not be required, anymore.  In Rosen, the parents were members of a wholesale warehouse store.  B.J.’s had a playland area where parents could drop their kids off while they shopped.  In order to access the playland, the member had to sign an exculpatory clause and indemnification agreement.  That agreement stated, in 8-point font:

I hereby acknowledge that the participation in BJ’s Incredible Kid’s Club (the “Play Center”) is a benefit offered to me as a part of my BJ’s Wholesale Club membership. I further acknowledge that I have read, understood and I voluntarily agree to abide by all of the rules appearing above and/or rules as posted in the Play Center and registration area. In consideration for this service, I, individually and on behalf of my child, do hereby waive, release and forever discharge BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, shareholders, successors and assigns from any and all claims and causes of action of any kind or nature which are in any way related, directly or indirectly, to the use of Play Center which I may have or that hereafter may accrue including any such claims or causes of action caused in whole or in part by the negligence of BJ’s Wholesale Club, Inc., its subsidiaries and affiliates, and their respective agents, employees, officers, directors, successors and assigns. I understand that my child is here at my own risk and expense and agree that neither I nor my child will bring any claim or cause of action of any kind or nature against BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, successors and assigns. I further agree to indemnify, defend and hold harmless BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, successors and assigns from any claims or causes of action of any kind arising from my or my child’s use of the Play Center.

By placing my signature below, I acknowledge and agree that I have read this agreement, understood all of the terms and conditions contained herein, and that this agreement will be in full force and effect during each of my or my child’s visit [sic] to the Play Center. This agreement shall remain in full force and effect at all times whether my child.

Of course, Daddy Rosen signed the agreement, and 15 months later Little 5-year-old Ephraim Rosen was joyfully playing on Harry the Hippo when he fell about three feet and hit his head, landing on the one spot of concrete that was not covered by thick foam padding. Ephraim was seriously injured, and had a large brain bleed.  At Johns Hopkins they performed a craniectomy, requiring surgeons to remove part of his skull.  At trial, B.J.’s argued that the waiver controlled and that the Rosen’s should not be permitted to prove their case.  The Baltimore County Circuit Court agreed, and ruled for the defendants.

Fortunately, the Court of Special Appeals took a second look.  While the trial judge did not do anything wrong (the judge had only two choices with little guidance on this issue), the Court decided that these waivers are ineffective to take away the rights of children.   Adults can waive their own rights (the case doesn’t say, but this likely means that the parents’ individual claim for emotional distress and medical expenses is properly dismissed–interestingly, the waiver doesn’t mention the non-signing parent, however).

The rationale is that the state has an express interest in protecting children, even from the mistakes of their parents.  Further, a commercial business (the opinion doesn’t say what would happen if this was a case against a governmental entity or a non-profit) is in the best possible position to protect itself by training its employees; inspecting for defect; supervising the children; and purchasing insurance.  Removing liability also takes away the incentive of the business to act with reasonable care.  That is, if they know they aren’t liable for injuries, they are less likely to take reasonable safety precautions.

So what changes?  The businesses will probably still continue to require waivers, hoping that future injuries might fall within some sort of exception to be later identified by the courts. Also, B.J.’s might appeal the case to the Court of Appeals, who could decide to change the ruling.  Regardless, the ruling is in the best interests of Maryland’s children, and will go a long way toward protecting them.