Maryland Medical Malpractice Attorney Blog

The Washington Supreme Court unanimously (9-0) threw out a 2006 law that requires an injured patient to get a certificate of merit from an expert before suing for medical malpractice, finding that RCW 7.70.150, usurped the judicial branch's power to determine the procedures by which courts adjudicate medical malpractice lawsuits. In other words, requiring a certificate of merit in medical malpractice cases in Washington violates the separation of state powers in Washington's constitution.

I'm not necessarily against the idea of certificates of merit in medical malpractice cases - which have been required for years as a condition precedent to filing medical malpractice lawsuits in Maryland - even though I'm a little queasy about the idea of treating doctors in civil lawsuit differently that the rest of us. (The justification? We have been doing it that way for a while. Which is really no justification at all when you think about it. But let's move on.) But if you read the opinion, it is hard to argued that a certificate of merit is anything other than a procedural rule. Washington state constitution, similar to Ohio's - is clear that procedural rules are for the judiciary.

Seven of the justices also said that the law was unconstitutional because it unduly burdened the right of access to courts.

"Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed," wrote the majority, led by Justice Susan Owens. "Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts."

Justices Barbara Madsen and James Johnson wrote in a separate concurring opinion that while they agreed that the law was unconstitutional on the basis of separation of powers, it did not unduly interfere with access to the courts.

President Obama's speech on malpractice both left Republicans demanding more and Democrats worried that President Obama is willing to sell the rights of the few for health care reform. Clarifying his thinking (sort of), President Obama said on 60 Minutes on Sunday that there was no evidence that malpractice caps would make a meaningful difference in the costs of health care.

"What I would be willing to do is to consider any ideas out there that would actually work in terms of reducing costs, improving the quality of patient care. So far the evidence I've seen is that caps will not do that."

But President Obama chose - as he always does - his words very carefully. "So far the evidence" means this is what I think.... but I might change my mind if I have to for health care reform to go through. President Obama is keep his options open on health care tort reform.

• Great ad for a medical malpractice lawyer in Tennessee. Why didn't we think of that?
• The New York Times underscores the obvious: trial lawyers - particularly medical malpractice lawyers - contribute a lot of money to political campaigns. So do doctors.
• Fox News is shovel ready for medical malpractice reform test projects. The article really does not use the term "shovel ready." But I think this lingo should be worked into more conversations.
• Anne Zeigler reports that the malpractice bone thrown to Republicans is not enough. So the generic lines about malpractice have led to mistrust from core Democratic supporters and unsated Republicans. Can we agree now it is a bad idea to always try to be all things to all people?
• An emergency room doctor who does not believe in civilized discourse.
• More on Obama and malpractice tort reform.

Dr. George E. Hossfeld, an emergency room doctor in Illinois, gets more than carried away attacking medical malpractice lawyers... and me.

A lawsuit by former CBS “Early Show” personality Mark McEwen against a Maryland doctor and Baltimore Washington Hospital has been dismissed on summary judgment. The Maryland medical malpractice lawsuit alleged that Baltimore Washington Medical Center should have recognized that McEwen was suffering from stroke-like symptoms and treated him with anti-coagulates. U.S. District Judge J. Frederick Motz granted summary judgment for the doctors, finding that there was not sufficient evidence that anti-coagulates would not have prevented McEwen's stroke.

Interestingly, the doctor at Baltimore Washington Medical Center (formerly North Arundel Hospital) admitted in his deposition that he spent time looking up McEwen on the Internet during his stint in the emergency room. The doctor told McEwen he had the stomach flu and advised him not to fly for two days. McEwen followed the doctor's orders, then traveled home to Florida and suffered a stroke in mid-air.

It is relatively rare to lose a medical malpractice case in Maryland on summary judgment because usually the doctor's opinion are set out before the case is filed. Honestly, and I'm just going off the press coverage, I doubt there was much of a malpractice case here although the temporal relationship between the ER visit and the stroke is compelling.

A doctor faces a long and almost certainly emotional jury trial. And the doctor wins. Does this mean the doctor can put the incident to bed? The answer is usually, but not necessarily.

A jury's finding that a doctor did not commit medical malpractice does not control a decision of the Maryland State Board of Physicians in a disciplinary proceeding under the Maryland Medical Practice Act. Accordingly, the Board can ignore a malpractice jury verdict in making the decisions it does.