Who Can Testify in a Maryland Malpractice Case?

Maryland, like many states, creates a lot of hoops that plaintiffs need to jump through in order to bring medical malpractice case.  A lot of these requirements are ticky tacky details. But the big thing is an report and certificate of merit from a doctor who agrees there is a breach of the standard of care – the doctor did something a prudent doctor wouldn’t – and that the breach caused an injury.

In Hinebaugh v. The Garrett County Memorial Hospital, the Court of Special Appeals of Maryland shed some light on this issue of the details required for a  certification for expert witnesses in medical malpractice cases. Here, the plaintiff injured his left cheek and jaw after getting hit in the face while in jail. Dr. Miller, a family medicine doctor in Garrett County, examined him and ordered simple X-rays of his facial bones. The X-rays were later evaluated by Dr. Miller and two radiologists, Drs. Benjamin and Lambert. The report prepared by the doctors indicated no abnormalities. However, the plaintiff was still in pain, and returned to see Dr. Miller again several days later. This time, Dr. Miller did not prescribe any additional treatment or order any more tests.

Ten days later, the plaintiff was released from jail. He went to the emergency room and was seen by Dr. Coughlin, who was also a family medicine doctor. The plaintiff complained about numbness and pain in his left cheek and jaw. Dr. Coughlin reviewed the man’s chart and simple X-rays and ordered a CT scan, which revealed several facial fractures. The plaintiff subsequently filed suit against defendants Dr. Miller, Dr. Benjamin, and Dr. Lambert, alleging that the three physicians breached the standard of care by failing to timely perform a CT scan and timely diagnose and treat his condition.

In most instances, the Court and Judicial Proceedings Article (“CJP”) of the Maryland Health Care Malpractice Claims Act (“Act”) requires the plaintiff in a medical malpractice case to file a “certificate of a qualified expert” who can “attest to departure from the standard of care, and that the departure from standards of care is the proximate cause of the alleged injury.” The certificate must be accompanied by a report from the expert. The relevant section of the CJP, Section 3-2A-02(c), reads:

(ii) 1. In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert or testifies in relation to a proceeding before a panel or court concerning a defendant’s compliance with or departure from standards of care:

A.    Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and

B.     Except as provided in subsubparagraph 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant.

2. Subsubparagraph 1B of this subparagraph does not apply if:

A.    The defendant was providing care or treatment to the plaintiff unrelated to the area in which the defendant is board certified; or

B.     The health care provider taught medicine in the defendant’s specialty or a related field of health care.

In this case, the plaintiff took on Dr. Mitcherling as his qualified expert and filed a Certificate and report by the doctor. The Certificate stated: (1) Dr. Mitcherling was licensed as a doctor of dental surgery, specializing in oral and maxillofacial surgery (“OMS”); (2) Dr. Mitcherling had experience teaching in the same specialty or related field of heath care as the defendants; (3) the defendants had breached the standard of care by failing to timely perform a CT scan and timely diagnose and treat the plaintiff’s condition.

There was no argument over (ii)(1A). Instead, the defendants contended that Dr. Mitcherling did not meet the “same or related specialty” requirement in 3-2A-02(c)(2)(ii)(1B), and as a result, was not qualified to submit a certificate or report. On the other hand, the plaintiff maintained that Dr. Mitcherling was certified in a related specialty. In addition, the plaintiff also claimed that the two exceptions in (ii)(2) applied regardless of whether Dr. Mitcherling met the requirement. The plaintiff made two arguments here: First, Dr. Miller was practicing emergency medicine, not family medicine, so exception A applied. Second, Dr. Mitcherlinnursinghomeg taught medicine in a field of health care related to family medicine and radiology, so exception B applied.

The court began by pointing out that the definition of “health care provider” in the Act is broad and includes dentists. Therefore, the fact that Dr. Mitcherling was a dentist and not a family medicine doctor or radiologist by itself did not prevent him from issuing a certificate or report. The court went on to examine the question of what “related specialty” means. The court looked to DeMuth v. Strong as precedent, explaining that fields of health care are “related” when there is an overlap in treatment or procedures across different specialties. For example, in DeMuth, there was overlap between board certified orthopedic surgeons and vascular surgeons in regards to the postoperative management of orthopedic patients, satisfying the “related specialty” requirement. However, the court was careful to indicate that the overlap only existed with respect to postoperative management – there would not be overlap if the standard of care issue was whether a vascular surgeon properly performed vascular surgery.

As a result, the treatment or procedure has to fall under the specialty of both specialists, so that they should be equally knowledgeable and competent to testify about the standard of care. The procedure in question was the CT scan of the jaw – did the localized CT scan fall under the specialty of family medicine doctors and radiologists, so that these specialists had a duty to order the jaw scan if a patient walked in complaining about pain after being hit in the face? The court answered in the negative and concluded that OMS was not a related specialty to family medicine or radiology where the plaintiff’s injury was concerned. The court stated that family medicine doctors and radiologists are part of a general, frontline practice where doctors see patients for initial examination and testing of the entire body, whereas OMS is a highly specialized field. When it comes to facial fractures, OMS dentists are on higher ground in terms of education, training, and experience. Although Dr. Mitcherling testified that OMS doctors would order a CT scan if such a patient appeared, he did not mention what procedures family medicine doctors or radiologists would take, nor did he indicate that the simple X-rays were inadequate.

The court then went on to reject the plaintiff’s argument that the two exceptions to the “same or related specialty” requirement applied. First, the court concluded that the treatment offered was within the “first-contact care” of family medicine and not emergency medicine. In addition, the court also indicated that there was nothing in Dr. Mitcherling’s affidavit that said he had ever taught medicine in the specialty of family medicine or radiology. Consequently, neither exception was relevant.

Finally, the plaintiff made one last point that the circuit court should not have ruled on the Certificate because discovery had not been conducted yet. The court of appeals disagreed, clarifying that the opportunity to conduct discovery about the basis of a Certificate does not mean that discovery has to be conducted before a court can inspect the validity of the Certificate. In this case, the plaintiff had plenty of information about Dr. Mitcherling even without discovery.

The court’s decision in this case offers insight into standards that a qualified expert must meet in order to testify in a Maryland medical malpractice case. Barring any exceptions, it is important that the expert be certified in the “same or related” specialty as the defendant physicians – otherwise they will not be allowed to issue a certificate or report.

You can find the opinion in Hinebaugh v. Garrett County Memorial Hospital here

New Study Underscores MRSA Risk in Nursing Homes

Finding a suitable nursing home for an older loved one is an arduous and time-consuming process.  Nursing homes can be the best fit for an elderly family member’s care but fears of elder abuse, medical mistakes, and the recent problem of MRSA infections make the choice even more difficult.   Very difficult.

First, what is MRSA?  MRSA is well known as a deadly problem for hospitalized people with open wounds or those recovering from surgery.  This type of MRSA is known as hospital-acquired MRSA.

A new study from the University of California, Irvine shows that the vast majority of surveyed nursing homes tested positive for the drug-resistant MRSA bacteria.   Researchers surveyed 22 facilities and found 20 to have strains of methicillin-resistant Staphylococcus aureus (MRSA).  MRSA is the bacterial strain that no longer responds to the antibiotics used to treat staph infections.   Once it gets going,  it s a beast of a task to fight it off.  What we now know – and suspected all along – is that nursing home patients are particularly at risk, even more so than others patient of the same age who are not in nursing homes.

The UC Irvine study focused on the rapid growth of community-associated MRSA.  This MRSA variation is a new breed of the bacteria that afflicts healthy people.  Community-associated MRSA originates in the general population outside of a nursing home or hospital environment and is later introduced to the closed population.  The UC Irvine researchers noted that 25% of all MRSA infections found in their study were community-associated.

Most previous studies have examined MRSA within the hospital context.  This new study has confirmed that the nursing home environment is conducive to spreading MRSA as residents were less likely to have MRSA when they were admitted than later in their nursing home stay.

The UC Irvine researchers also found that community-associated MRSA was more prevalent in nursing homes with younger populations.  This might seem initially surprising and is likely due to two factors.  First, these younger individuals are more likely to be active outside of the nursing home in places like schools and gyms where it is easy to come in contact with MRSA.  Second, once inside of the nursing home, these younger patients are more likely to be active throughout the nursing home thus taking the MRSA to all corners of the facility.  Researchers also believe that community-associated MRSA will rapidly spread in hospitals because nursing home patients are often admitted directly from their nursing home.

Essentially, nursing homes breed MRSA because they encourage residents to be social and MRSA is as easy to spread as the common cold.  While MRSA can be spread to new carriers by skin-to-skin contact, being a carrier does not mean you will also have an infection.  MRSA must enter the body through some sort of wound or skin opening.   MRSA can lead to pneumonia, abscesses, and bloodstream infections.

Taking this new report into consideration, nursing homes will have to re-evaluate their standard procedures if they are going to successfully combat community-associated MRSA.  I hope they are up to this challenge because The last thing residents and families need is one more nursing home problem to worry about.

The full report is available in the March issue of Infection Control and Hospital Epidemiology.

Substituting Plaintiffs in Malpractice Cases

Here an interesting medical malpractice case out of Tennessee worth discussing that relates to substituting plaintiffs in a medical malpractice case.  In this case, Holley v.  Blackett, the Tennessee Court of Appeals allowed common sense to triumph, reversing a trial court’s entry of summary judgment in a wrongful death breast cancer misdiagnosis medical malpractice lawsuit,  allowing the minor daughter of a man who died while pursuing claims for his wife’s death to be named as the plaintiff.

Here are the facts: A husband brings a medical malpractice action on behalf of his wife, alleging her cancer was misdiagnosed and caused her death.   The doctor filed a motion for summary judgment.  While the motion was pending, the husband dies.  This is where it gets a little weird.  Plaintiff’s malpractice attorney has the husband’s daughter substituted as the plaintiff.  The minor girl was born as the result of an extramarital affair that husband had during his marriage.

Crazy, right?  I can’t help but think about if from the dead wife’s perspective.  Would she still support the claim?  I’m assuming she is in a place now where you don’t get caught up in the now trivial, but at the time grievous, sins committed on earth.  But still. The trial court dismissed the case, finding that the substitution was was flawed because the malpractice lawyers never bothered to, ah, get permission from the girl’s guardian.

The Tennessee Court of Appeals reverse finding that the amended complaint should relate back because we have the same doctors and the same allegations of malpractice.

You can find the full opinion in this case here.

Kidney Donor Sues for Malpractice Done to Donee?

Here’s an interesting case that the Nebraska Supreme Court decided yesterday.  Plaintiff volunteers to donate a kidney to his dad.  Doctor removes plaintiff’s kidney and gives it to the father.    Sadly, father has complications with the kidney, requiring further surgery.   According to plaintiff’s complaint, the doctor mistakenly stitched the renal artery during the father’s exploratory surgery, which lead to the loss of the donated kidney.  Really just a tragedy – son tries to help father which is how the world should work.  Malpractice or not, it is just a shame.

But here’s the wierd part.  Isn’t this Dad’s malpractice claim?  Instead plaintiff – actually plaintiffs, inexplicably his wife was also a plaintiff, filed suit instead of the father.  Defendants, understandably, filed a motoin for summary judgment.  Plaintiffs’ response was telling, asking for a continuance to pursue further discovery on whether doctor-patient relationship existed between plaintiff and the doctors.  The court granted defendants’ motion for summary judgment.

So the Nebraska Supreme Court had to decide whether doctor owes a duty of care to a kidney donor during the post-transplant treatment and care of the donee.  Is this really a question?  I don’t think so and the Nebraska high court didn’t think so either.  I’m not even sure why I’m blogging about this except the facts are interesting.  I just wish we had the bad story.  Why didn’t dad sue in his own right?

 

Malpractice Claims Against Baltimore Hospitals

On our website, we have put up pages that provide information about bringing medical malpractice claims against hospitals in Maryland, including these four  Baltimore City hospitals:

  • Harbor Hospital
  • Johns Hopkins
  • University of Maryland
  • Franklin Square (technically not in the City but right on the line)

I’ll be adding Mercy Hospital later this week.

We provide information on who their lawyers are, some of the cases that have been brought against them in the past, how to get medical records from them, and so forth.

In my line of work, it is easy to take potshots at hospitals.  I’ve seen what I think were meritorious lawsuits against all four of these institutions. So, it is easy to put on your blinders and mock them as malpractice havens.  The real work is a little bit more complex.  Clearly, two of these hospitals are nationally recognized hospitals.  I can tell you that if something bad happened to me, I would say rush me to Hopkins and if you can’t get there, get me to University.  We are lucky to have both of these hospitals.  The other two?  They are even easier to take shots at because they don’t have the halos that Hopkins and University.  But I have no reason to believe you cannot get good medical care at Franklin Square or Harbor Hospital.

That said, all four of these hospitals have the same problem: rampant malpractice.  You don’t kill 100,000 people a year in a country by malpractice and think it is limited just to bad institutions.  There are both bad doctors and bad systems in every hospital in the country.  Similarly, if you have a large law firm, I don’t care who you are, you are going to have some bad lawyers and/or some bad systems at that firm.

Besides a plug for these pages on our website, I’m not sure where this post is going.  I always thought providing information on the hospitals was a good idea, but I held off because it seems a little bit like naked trolling.  And it is naked trolling on some level.  But I think it does provide information of interest to people considering malpractice claims against these hospitals.

Effort to Kick Malpractice Case in Federal Court Fails

This case is barely worth reporting on, but I thought I would pass it along.

In Smith v. Palin, a Maryland federal court was asked whether the Maryland Health Care Alternative Dispute Resolution Office abused its discretion in extending the time for filing the expert certificate required by Maryland law several times.  Specifically,  the defendant’s argued that the plaintiff’s excuse that they had requested, but not yet received all studies from treating physicians in Pennsylvania – including photographs of condition at issue – did not constitute good cause.

Should it take that long to get the records in a case?  No, it really shouldn’t.  Should the HCADRO hold plaintiffs’ feet to the fire and kick cases out because plaintiff’s lawyer has not done what they are supposed to do?  I think not.  Moreover, it is clearly not an abuse of discretion for the HCADRO director to determine that the plaintiffs do have good cause.  Not for nothing, the plaintiff was a 16 year-old girl when the defendant allegedly recommended that she undergo a bilateral breast augmentation as treatment for a tubular breast deformity.  I don’t know about you, but I would like to see the court extend the benefit of the doubt.  Which is exactly what Judge James K. Bredar does.

Here’s my spin on what happened here.  This case is in Cumberland, Maryland.  The last malpractice verdict in Cumberland, Maryland was during the Lincoln administration.  (Maybe I’m making that up.  Still. It is a conservative jurisdiction.)  So plaintiffs’ malpractice lawyers smartly filed in federal court because the plaintiff resides out-of-state.  The defendant is annoyed to be in federal court but thinks that maybe the federal court judge will be quicker to hold plaintiffs’ feet to the fire.  They never would have filed this motion in state court.  But they learned – probably with little surprise – that federal court judges are not quite that ridiculous.

You can read the opinion in Smith v. Palin here.

Malpractice Reform = Higher Defense Costs

Medical malpractice attorneys that defend doctors love medical malpractice caps.  They just think they are the greatest invention since the iPhone.  Or something like that.  I always thought it was misplaced because what defense lawyer want more than anything else is more cases and I assumed that malpractice caps meant less money in legal fees for them.

For reasons I can’t explain, the opposite may well be true.  In a study in the Journal of Health Politics, Policy and Law titled “Medical Malpractice Reform and Insurer Claims Defense: Unintended Effects?”, the authors looked at the impact of malpractice tort reforms on the cost of defending medical negligence cases.  What they found really surprised me: defense expenses were actually higher in those states where noneconomic damage caps, punitive damage limits, and attorney fee limits had been implemented.

The law of intended consequences is really something.  I honestly cannot think of a reason why this would be true.  And it is just one study.  But it does throw another monkey wrench into one of the rationales for medical malpractice cap.

Medical Malpractice News

Here are a few medical malpractice links/blog posts/stories I found of interest:

  • When doctors and hospitals don’t pay attention to recall notices and warnings, disaster can ensue.
  • An Alabama jury awarded $15 million in the case of a woman who died after a hospital administered an overdose of the anesthetic propofol.
  • Did the doctor’s malpractice lawyer impermissibly misstate the burden of proof in his closing argument?
  • Are there more nursing home cases in 2012? Or are people just talking about it more? I think it is like child molestation. It is not a new thing. People are more aware of the problem than they were 50 years ago. In fact, when it comes to nursing homes, I wonder if nursing home lawyers and greater public awareness has not lead to better care. I can’t image being in a nursing home in 1950 was a joy.

Verdict in Failure to Diagnose Cervical Cord Compression Case Affirmed

An appellate court in Florida affirmed a defense verdict in a medical malpractice lawsuit. Plaintiff alleged that the doctor was negligent in failing to diagnose and treat the decedent’s cervical cord compression, a condition which eventually caused the man to suffer from quadriplegia.

Plaintiff made four arguments on appeal. The one I found interesting was the idea that the doctor’s lawyer made an “impermissible burden-shifting argument” on the issue of the doctor’s negligence when he argued that the plaintiff failed to present testimony from any neurosurgeon that he would have done anything different in treating the patient. Florida law is clear that a plaintiff is not required to prove that the subsequent treating physician would have acted differently in order to prevail at trial.

Certainly, under Maryland and Florida law, lawyers may not in opening or closing statements make comments that mislead the jury as to the appropriate burden of proof. But the court disagrees (as do I) that this is what the doctor’s lawyer was doing in his closing statement.

What I absolutely cannot stand is when defense lawyers answering interrogatories in a malpractice case object by saying the question “impermissibly shifts the burden of proof.” No it doesn’t. I’m just asking what you think happened. Burden of proof is for the jury at trial, not during discovery. It is beyond obnoxious.

Nutrition in Cerebral Palsy Patients

This is a guest post from Jonathan Rosenfeld, a medical malpractice attorney in Chicago, IL. Jonathan is the founder of Rosenfeld Injury Lawyers. I appreciate his contribution to this blog. The topic Jonathan attacks today is an important one: how to help cerebral palsy patients get the best possible outcomes.
There is no doubt that many cerebral palsy (CP) patients face many obstacles. But there is some relatively low hanging fruit to improve patients outcomes: good nutrition. Because of their condition, patients can be malnourished even when though they are fed regularly with what may seem like a healthy diet for the average person.

Causes of Malnutrition in CP Patients

There are many factors that can lead to poor nutrition for patients with CP. A combination of muscle, brain and digestive issues all can lead to undernourishment. Because of these, up to 35% of children with cerebral palsy are thought to be malnourished.

  • Chewing. Due to certain brain lesions that can affect the motor skills for face and mouth muscles, CP patients may have a hard time controlling the muscles needed for chewing. This can lead to food being difficult, if not impossible, to chew. 86% of CP patients experience oral-motor dysfunction.
  • Swallowing. Same as with chewing, swallowing requires muscle control that can be impaired in CP patients. This can lead to choking and vomiting. 60% of CP patients have some kind of swallowing disorder.
  • Digestive Disorders. CP patients can have several digestive issues including acid reflux (77%), chronic constipation (74%) and abdominal pain. These are often caused by lack of muscle tone within the body to properly move food through the digestive system.

Preparation Techniques and Types of Foods To Consider For CP Patients

Nutrition is important for any person to grow and thrive, even more for those with an ailment like CP. Making sure persons with CP are getting the nutrients and calories they need can be challenging, but there are ways to manage their intake. Using proper methods for preparing foods, along with using certain types of foods can increase their nutrient intake.

  • High nutrient foods. Using foods that are full of vitamins, minerals and calories can be beneficial for CP patient’s diets. These can be fruits and vegetables, healthy oils and fats and whole grains. Stay away from highly processed foods that are low in fiber and nutrient content.
  • Preparing easy-to-swallow meals. Make sure meals are soft, with small pieces that are easy to chew and swallow. Smoothies and shakes are a great way to go. These can be made with fruits and juices as well as adding higher fat content with healthy fats like coconut milk or nut butters. You can also add vegetables to increase nutrient and fiber content, which can help with constipation.
  • Reduce acidic foods and beverages. Since so many cerebral palsy patients have acid reflux, limiting foods that can irritate the condition is helpful. Stay away from citrus, spicy foods, fatty meats and carbonated beverages.

With a little forethought, making sure cerebral palsy patients are receiving the nutrients they need is achievable. There are also nutritional counselors and dieticians that can help you make sure that they are getting the right balance of nutrients. Knowing the hurdles and finding ways to overcome them is the first step. This article here also gives some good information about the specific foods for children with cerebral palsy that is worth a read. Caring for Cerebral Palsy also has some good information on this subject as well.