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A few days ago, the Baltimore Sun reported on the under-reporting of serious medical errors, known by hospitals as “preventable adverse events,” and which, according to a recent journal article for doctors published in the Journal of Patient Safety, kill more than 400,000 Americans every year (and seriously injure 10-20 times as many).

According to the Journal of Patient Safety article: “[O]ur country is distinguished for its patchwork of medical care subsystems that can require patients to bounce around a complex maze of providers as they seek effective and affordable care.  Because of increased production demands, providers may be expected to give care in suboptimal working conditions, with decreased staff, and a shortage of physicians, which leads to fatigue and burnout.  It should be no surprise that [Preventable Adverse Effects] that harm patients are frighteningly common in this highly technical, rapidly changing, and poorly integrated industry.”

The Sun reported what we at SCBMA already know to be true: that because of the “mostly confidential” and broken system of error-reporting currently in place in Maryland and throughout our country, the truth about many patients’ injuries only sees the light of day once lawyers are hired and are able to investigate adverse medical events through our court system.  Indeed, we see this in our practice every day: patients who do not receive ordered medications, worrisome test results that are not properly transmitted or not properly acted upon, and unnecessary surgery that causes serious harm are only some examples of cases we are routinely asked to investigate.

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Many keystrokes have been typed about General Motors’ faulty ignition switches and the tragic deaths of at least thirteen people who died when their airbags failed to deploy because of the defect.  Yesterday, GM released the report of its own internal investigation, performed by Anton R. Valukas.  Mr. Valukas and his team made many interesting findings and I expect we will write more postings about the report and its importance to our practice.  The most interesting finding to us, though, related to the role of products liability lawsuits in uncovering the truth about GM’s defective cars.  Our firm has a great deal of experience in products liability lawsuits, and in automobile defect and crashworthiness cases in particular, so we have been following the story closely.

airbag-control-743960-mIn 2012, lawyers representing a deceased client’s family sued GM and hired an expert witness engineer named Erin Shipp, P.E. to investigate their clients’ death.  Despite having received very few documents from General Motors in the course of the lawsuit, the expert witness was able to make the connection between the faulty ignition switch and the failure of the airbags to deploy at the time of an automobile collision.  The Valukas Report lauded the expert witness for making the connection even before GM personnel were able to do so.

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Maryland’s Court of Appeals recently ruled that a trial court judge did not abuse his discretion in excluding the standard of care testimony of a plaintiff’s expert pharmacist in an informed consent case involving the cancer treatment drug Amifostine.  The Court of Appeals majority opinion in Shannon v. Fusco overturned a previous ruling by Maryland’s intermediate appellate court that held the pharmacist’s testimony should have been admitted.

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An exculpatory clause is a contractual provision that relieves a party from liability for any future negligent or wrongful act.  Maryland has long recognized that these clauses are valid and that two adults may contractually agree that one or more parties will not be liable for their own negligence.  Recently, however, the Court of Appeals of Maryland has taken this principle one step further and held that parents may sign an exculpatory clause on behalf of their minor children—in essence—agreeing that a company may negligently harm their children and not be held responsible for such conduct.

In BJ’s Wholesale Club, Inc. v. Rosen, Sept. Term 2012, No. 99 (Nov. 27, 2013), BJ Wholesale Club (BJ’s) provided a kids’ play area in its store so that parents could drop their kids off to play while the parents shopped.  Before allowing parents to take advantage of the play area, however, BJ’s required all parents to sign a contractual agreement on behalf of their children.  Included in this agreement was an exculpatory clause protecting BJ’s from any liability for injuries that may be suffered by the children while in the play area.  A child was then seriously injured while using the play area, and subsequently brought a claim alleging that BJ’s had negligently caused the injury.  Relying on the contractual exculpatory clause, BJ’s argued that it was free from all liability for the child’s injuries and the case was dismissed.  The Court of Appeals agreed.

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In addition to our beloved, if not stylish, yellow taxi cabs, road travelers in Baltimore now have several other options for getting from Point A to Point B locally: smartphone “taxi” companies Lyft and Uber.  Both started in San Francisco, Lyft and Uber are internet-based car companies that allow users to view nearby vehicles on a map on their smartphone, request one — and pay for it via credit card.  Lyft technically does not even charge for rides, but rather, accepts “donations” from passengers (your phone “suggests” an appropriate fare at the end of the ride), while Uber has pre-set fares and offers riders various levels of transportation, from small sedan to Town Car to SUV.

The question these new companies raise, however, is what, if any, responsibility does a Lyft or Uber driver have if he or she negligently causes an accident and injures his or her passenger?  The answer may not be what you would expect.  Lyft and Uber drivers are NOT employees of the corporations, and the vehicles they drive are not owned by the corporations either.  Instead, these corporations have taken the position that they are merely “networking” services that allow passengers to electronically “connect” with an independent driver willing to transport them.  And unlike the taxi cab industry, Lyft and Uber are not regulated by any state or federal agency to date.taxi-sign-22063772-300x200

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