Maryland Medical Malpractice Attorney Blog

This article underscores the abject failure of medical error reporting programs - and laws that require reporting - because no one is really trying to enforce the laws that exists in 27 states, including Maryland, requiring hospitals and other facilities to report serious medical malpractice.

Every once in a blue moon, a hospital does get caught. Last year, Doctors Community Hospital in Prince George's County was fined $30,000 by Maryland health regulators after failing to notify them that a patient had died and that at least seven others suffered serious harm as a result of medical malpractice. But the practical reality is that a $30,000 fine is a drop in the bucket for a large hospital and the chances of getting caught covering up medical malpractice in Maryland are extremely low.

A I discussed yesterday, a process tort of failing to disclose or conceal would be a viable solution. But MedChi lobbyists are never going to let the Maryland legislature create a statute that creates a new tort and the "stare decisis is king" Maryland Court of Appeals is not likely to create a controversial new tort anytime soon.

In searching for something else last night, I stumbled onto an article by Richard W. Bourne, a University of Baltimore Law School professor, published last year in the Arkansas Law Review that articulates the theory that there should be a process tort, even in the absence of injury, when a doctor fails to disclose to the patient that he or she has committed medical malpractice. I started to blog on this and then I found my own blog post from last year. In 16 months I had completely forgotten I had already read the article.

In my re-read, I found some points about the question of doctor's offering apologies, an issue I talked about in the latter part of this blog post.

A new article titled, The Flaws in State ‘Apology’ and ‘Disclosure’ Laws Dilute Their Intended Impact on Malpractice Suits, there is also interesting commentary on disclosure and apology laws that exist in most states which the authors believe may do more harm than good. The take home message: it is hard to make a fair law and still give doctors reasonable expectations of what will and will not be used against them.

A new study published in the Archives of Internal Medicine underscores what patients have known for a long time: good research to find the right doctor does not necessarily yield the right doctor.

The study found only a thin correlation between how the doctor performed according to the patient and the objective facts - education, board certification, malpractice claims, disciplinary actions, etc. - that are commonly used to evaluate doctors on-line.

The study did find one thing that I have a hard time believing is true: there is no meaningful correlation between doctors who paid on malpractice claims and those who have not. There is no doubt that good doctors (and good lawyers, by the way) commit malpractice. But studies have also shown that a small number of doctors make up a large percentage of the malpractice payouts and that many of those doctors are "frequent flyers" who have been sued in the past. Moreover, there are other studies suggesting some doctors get sued more than others because they communicate so poorly. Patients usually don't report that the doctor who communicates poorly did a great job treating them. So it's hard to imagine how this data could be accurate. But it sounds like a quality study in a good medical journal so it will be interesting to see if there are follow-up studies that look at this issue more closely.

The Baltimore Sun published a well written rant about the deterioration of the doctor-patient relationship. The editorial stems from the well publicized shooting at Johns Hopkins by a man distraught about his mother's medical treatment. The writer paints an awful picture of a war between doctors and patients that is beginning to boil over.

I can tell you that none of this is going on in my doctor's office. But I don't know what is going on elsewhere. The author appears to be someone in the "know" but there is no explanation of the author's frame of reference. I would have expected the author to be indentified as a doctor or other health care provider. (A quick Google search indicated the author was a writer which would make sense. The piece is well-written, florid and dramatic.)

The author sees the problems as a symptom of the "erosion of civility, humility and reason across America." I could not disagree more. Certainly, minorities, women, gays and lesbians, and many others have experienced an increase in civility and reason. The good ole days never really were. I'll take 2010 over any other year in human history.

The widely read blog KevinMD, written by Dr. Kevin Pho who is an opinion leader on issues related to the medical point-of-view on medical malpractice issues, makes what I think is a startling admission:

Politically, malpractice caps are dead — tort reformers should abandon that option. Furthermore, arguing that tort reform will save significant sums of money is growing less viable.

It’s more important to re-frame the malpractice debate to focus on patients. That’s where the malpractice reform crowd will have more solid evidence to stand on.

Certainly, the American Medical Association public relations engine - and it is a Ferrari-like engine - has not gotten the message because they have been doubling down on pushing for instituting or lowering malpractice caps. I sign up for Google News Alerts on malpractice - a really cool feature, by the way. Methodically, the AMA is putting up opinion pieces in support of medical malpractice reform. This effort to influence public opinion is clearly organized and disciplined. But the AMA is clearly not demanding originality: every piece reads exactly like every other. There are no new ideas being tossed around, just the usual dribble about no-fault malpractice insurance and health courts without any explanation of the benefits or challenges these courts would face.

Dr. Pho and one of the commenters to the post, who appears to be a doctor, seem to buy into this idea of no-fault medical malpractice. I think it is one of those things that sounds good in theory. Kinda like tax cuts. But no-fault means paying for bad medical outcomes that may or may not involve negligence. Only a small percentage of victims bring malpractice lawsuits who have meritorious claims (both sides of the debate agree on this). So we would even have malpractice claim payouts that are infinitely higher than what we have now or we would have compensation that is a small fraction of what meritorious malpractice claims should be worth.

A Salisbury cardiologist has been indicted in federal court on charges stemming from the doctor's giving patients unnecessary stents. Many patients have already filed civil lawsuits in Salisbury claiming medical malpractice for the unnecessary stents.

The debacle at St. Joe's has caused a fresh look into every doctor who has been putting in stents by the bushel load. What we are seeing in many cases is not a pretty picture.