Maryland Medical Malpractice Attorney Blog

The House Judiciary Committee is expected to consider a bill today that would allow military personnel to file medical malpractice lawsuits against the military. The proposed law comes in the wake of the death of a marine as the result of the misdiagnosis of skin cancer by military doctors. The Feres Doctrine, named for a 1950 Supreme Court case, currently preventing people in the military from filing medical malpractice lawsuits.

Why should our military have the opportunity to bring the same claims anyone else can bring? I don't want to minimize the costs, it is real money. But compared to the toll we are putting on our soldiers these days, it seems a small price to pay for a little bit of justice.

The Arizona Star reports that the Arizona legislature is considering a law that would - to put it lightly - make it more difficult for medical malpractice lawyers to recover compensation in medical malpractice cases for their clients. Under the proposed bill, plaintiffs in medical malpractice cases would be required to prove by "clear and convincing evidence' that doctor failed to meet the standard of care. A similar bill passed the Arizona legislature in 2006 but was vetoed by former governor Janet Napolitano.

Under this law, juries can reason that while they think the doctor committed medical malpractice, they cannot be "clear and convincing" sure. I would be a bad law that turns the notion of civil justice that we have had in the country from the beginning on its head.

Point of Law suggests that medical malpractice lawyers and their lobbyists are behind the often cited Institute of Medicine's report that medical malpractice kills 100,000 people a year.

Who knows? How do you argue the methodology without digging through the methodology? I just don't know. But it is important to point out that the Institute of Medicine was a government agency without a real horse in the race.

I realize that one of the investigators things the data was misused and their is talk that drug abuse victims were counted as malpractice deaths. But, really, what if the number is 50,000? That's almost 3 a day for every state in the United States. Think about that for a second. It is still way too many.

Four jurors who helped decide one of Tennessee's largest medical malpractice lawsuits are claiming they felt coerced into finding the gastroenterologist at fault for Plaintiff’s injuries.

This sad case involved a relatively simple procedure - a colonoscopy and endoscopy – on a 33 year-old woman. A day later, complications from the procedures sent her into cardiac arrest leading to brain damage.

In April, a Hamilton County Circuit Court jury found the doctor 51% responsible for the plaintiff’s brain injuries. The jury awarded $6.12 million in damages.

Four of the jurors claim they felt pressure by the judge to find malpractice to spare the time and expense of a retrial. The jury instruction at issue:

"If a substantial majority of your number are in favor of finding a verdict, those of you who disagree should reconsider whether or not your doubt is a reasonable one, since it appears to make no effective impression upon the minds of the others.”

In my opinion, defendant’s malpractice lawyer is desperately trying to recover from a malpractice verdict in a case I’d bet dollar to donuts should have been settled. In Maryland, it is standard to give an Allen charge to a deadlocked jury:

The verdict must be the considered judgment of each of you. In order to reach a verdict, all of you must agree. Your verdict must be unanimous. You must consult with one another and deliberate with a view to reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. During deliberations, do not hesitate to reexamine your own views. You should change your opinion if convinced you are wrong, but do not surrender your honest belief as to the weight or effect of the evidence only because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict.

The Allen charge comes from Allen v. United States, a U.S. Supreme Court case that is over 100 years old. So I suspect the verdict will hold up. Maryland judges give modified versions of the Allen charge all of the time. The exact language is not necessary.

What is compelling is that four jurors say they would have decided differently. Of course, this is after spending a lot of time in the conference room of defendant’s medical malpractice lawyer. Do you think there were some “ex parte” – for lack of a better phrase – comments to those jurors about the case? Are we surprised that jurors would have buyer’s remorse after a verdict like this? It is hard not to have a little cognitive dissonance after a tough case. So while these jurors flipping has some facial appeal of injustice, it really is not any indicia of whether there was a fair and impartial verdict.

The University of Arkansas for Medical Sciences (UAMS) Department of Neurobiology and Developmental Sciences. The site has multiple atlas images, including sectional and MRI images, of the brain and spinal cord. (I found this link via the Tennessee Medical Malpractice Lawyer Blog.

President Obama's mad dash for health care reform - which I think is a good thing - might lead him to take a position on medical malpractice reform that puts him in direct conflict with medical malpractice lawyers who have been major donors to President Obama and the Democratic Party.

Maryland malpractice lawyers already deal with malpractice cap (which I oppose) and thresholds to filed malpractice lawsuits (which I largely support). I cannot imagine President Obama intends to put in more serious restrictions that we already have on medical malpractice lawsuits in Maryland. But the problem goes beyond just the immediate. If the president supports any curb on malpractice lawsuits, it lends legitimacy to those arguing for malpractice tort reform that they did not have before President Obama jumps off the ship, even if does not stray far from the boat.

Related Posts

Obama's Address to AMA May Have Specific Malpractice Tort Reform Proposals

Obama's Position as an Illinois Senator (Obama voted for a malpractice cap)

President Obama and Tort Reform (Obama on Class Action Fairness Act)

Maryland has a ridiculous statute of limitations of five years in medical malpractice cases where the malpractice victim would not have known of their injuries. New York's is even worse: two-and-a-half years, both a strange and draconian length. Some medical malpractice lawyers in New York are a part of the effort in Albany to make a more reasonable statute of limitations in New York.

A Beaumont, Texas man has filed a medical malpractice suit against a local doctor, alleging a needle negligently left inside his body during surgery perforated his bladder. According to the medical malpractice lawsuit filed in Jefferson County District Court, the doctor – a long time general surgeon in Beaumont - failed to locate and retrieve the needle before closing up Plaintiff after surgery.

Maryland malpractice law is tough on many of these “left something behind in the patient” claims because the Maryland medical malpractice five year statue of repose. This malpractice statute of limitations does not excuse cases filed after five years of the injury, even if the plaintiff never knew of the injury. Some Maryland malpractice lawyers disagree with this interpretation by arguing that an “injury” does not occur until the patient knows of the injury, but I don’t know whether this is a viable end run around that statute that the Maryland appellate courts will sign off on under the current state of his malpractice law (we have never pursed a malpractice lawsuit in Maryland outside of the five year limit). The application of this statute will vary from case to case – fraud is certainly an exception to the harshness of this statute – but this statute can cause some very harsh outcomes.