Maryland Medical Malpractice Attorney Blog

An Illinois woman who lost her unborn baby and a small intestine after being admitted to a hospital was awarded an $11.5 million judgment Tuesday by a DuPage County jury. The jury deliberated for about five hours before awarding awarding the mom $10.5 million for her injuries and $1 million for the death of her unborn child (presumably her husband was a plaintiff in this claim as well).

The hospital named in the lawsuit showed real class after the verdict was announced:

We are disappointed with the verdict, but continue to respect the jury system. [The Hospital] is committed to providing the finest care to all of its patients. We wish the best for [the plaintiff and her husband].

I'm sure it was a tough lawsuit but the hospital apparently kept in mind that, regardless of the outcome, its patients are its patients and however it turns out, the hospital supports its patients. That seems like the way it should be.

A new American Association of Justice report entitled "Standing Up for Seniors" underscores that nursing home lawsuits help improve nursing home care for the 1.5 million Americans who are in nursing homes.

No one is surprised that a significant number of our nursing homes are disaster areas, the antithesis of the environment in which people should spend their final years. Nursing homes have become big business in this country and less care equals more profits. The general public gets this and we are taking steps to try to improve the nursing home problem in this country. There are many laws and regulations aimed at protecting nursing home residents.

But the problem with nursing homes and laws that restrict them is analogous to the arms race between police and drivers with radar and radar detectors. Maryland comes up with a new nursing home law to restrain and monitor nursing homes and the nursing homes come up with some sort of way to technically comply outside of the spirit of the law. (This is not just a shot at nursing homes but at capitalism in general. Capitalism is the best economic system in the history of the world but it is not perfect and it has byproducts.)

Not only does the effectiveness of nursing home legislation wax and wane, but the penalties are usually not significant and the government is often not motivated to do the heavy lifting required to enforce the laws. This is why Maryland nursing home and neglect victims and their families turn to nursing home lawyers. The "penalties" of a lawsuit get the attention of nursing homes more than government oversight. AAJ provides a telling quote from geriatrician and bioethicist Steven Miles of the University of Minnesota: “Government sanctions cost a couple of thousand bucks. A lawsuit can cost $500,000 to a million; it gets much more attention.”

It goes against the grain for many to agree that nursing home lawyers and lawsuits are a part of the solution to the nursing home care crisis we have in this country. We would all prefer to live in a world where nursing homes did the right thing because it was the right thing. Moreover, the threat of nursing home lawsuits is not a panacea and it does not protect nursing home residents from acts of neglect and abuse that don't carry with them the risk of serious injury or death. Nursing home lawyers are not bringing claims for generalized mistreatment and substandard care. But when it comes to making sure nursing homes provide care that avoids serious injuries and fatalities, nursing home lawyers have the ability to cut through the bureaucracy that ties down our regulatory and legislative schemes to protect patients and motivate the workforce to keep nursing homes from mistreating their residents.

If you think you have been a victim of nursing home medical malpractice in Maryland, call 800-553-8082 or get a free online consultation.

Surgical mistakes that seem like 'once in a lifetime' errors - such as operating on the wrong patient or amputating the wrong body part - occur more frequently than previously believed, a new Archives of Surgery study reports this month.

The study looked at surgical mistakes in Colorado over a six-and-a-half year period. The study found surgeons operated on the wrong patient at least 25 times and on the wrong part of the body in another 107 patients. Wrong-patient and wrong-site procedures accounted for approximately 1 in 200 medical malpractice errors in the study. While this sounds awful, one of the lead researchers believes this understates the number of "no-brainer" medical malpractice errors.

Doctors and hospitals are doing more to try to double check and triple check to reduce the number of these errors. Although the study does not say, I'll bet the number of these errors trends down during the 6.5 years evaluated. That said, the authors and others quoted in USAToday and CNN underscore that this is a public health problem we still have not solved.

Medical Justice has enlisted a new public relations firm to assist with its traditional and social media, association programs, creative services and speaker bureau efforts.

The PR firm's biggest challenge? Convincing doctors that it actually has a product of value for the $600 it charges. Read this blog post on Medical Justice. It is two years later. Can Medical Justice explain a single tangible member benefit for $600? If you support Medical Justice, read the last paragraph of the post and respond to the questions I've posted. Maybe this new PR firm can set me straight as their first big gig for Medical Justice. I'm out here Trevelino/Keller Communications Group if you want to debate the merits. If you respond, I'll publish anything you have to say in its entirety.

During surgery to treat diverticulitis, doctors left a one foot long sponge in a Florida man. When it was finally determined that a sponge had been left behind, doctors operated again to remove part of the patient's intestine, which allegedly had been damaged by the sponge.

The man reached a settlement and now plans to sue the doctors. Because this kind of thing happens far too frequently, it would not rise to the level of a new story. But the patient is a 67-year old Palm Beach judge.

Low and behold, the Wall Street Journal reports that the judge has a new take on medical malpractice damage caps: he does not believe in them.

“I don’t know what all these caps are. That is not my area of the law,” the judge said. “But what I would like to see is when you have malpractice per se, something this egregious, the damages should be between the parties, a judge and jury without the state legislature dictating limits.”

• Overview of malpractice lawsuits


• Doctor Files Medical Malpractice Lawsuit

In medical malpractice cases, doctors often want to explicitly or implicitly argue that there is informed consent of a risk of an injury and that injuries can occur, therefore, there can be no malpractice claim because the patient was informed of the risks. The strategy is to convince the jurors that the injuries were the expected consequences of the treatment or surgery and since the patient accepted those consequences, there is no malpractice.

This logic fails. While I am aware of the risk of driving down the street, I can still bring a negligence claim if someone runs a stop sign and hits me. Few Maryland judges are going to allow doctors to make this argument directly in medical malpractice cases. But doctors' lawyers also want to make this argument indirectly by just asking plaintiffs on cross examination about the informed consent document they executed. Some jurors, particularly those that are inclined to be predisposed toward the doctor, may conclude that consent to the surgery is fundamentally the same as consent to the injury which resulted from the surgery, essentially finding that informed consent acts as some sort of waiver.

This raises the question of whether evidence that a patient signed an informed consent is admissible in malpractice cases where informed consent is not at issue. Our malpractice lawyers recently fought this issue, filing a motion in limine. We won the motion and the trial. You can find the motion in limine on this issue here.

The Maryland Court of Special Appeals provided yet another ruling about the nuances of malpractice law in Maryland, specifically the certificate of merit and other technical requirements necessary for initiating a medical malpractice lawsuit.

In Maryland, the procedures for filing and litigating medical malpractice actions are established by the Maryland Healthcare Malpractice Claims Act which governs medical malpractice lawsuits filed in Maryland. This statute requires plaintiffs' medical malpractice lawyers in Maryland to jump through a lot of hoops. Most notably, a certificate of merit from a medical doctor is required before bringing a malpractice lawsuit.

Malpractice attorneys in Maryland dislike this requirement. I have mixed feelings about it because I do think some frivolous malpractice lawsuits get filed in other jurisdictions and I think this is a way to weed out some of those suits. The problem is that the spirit and purpose of the statute often gets destroyed by defendant's malpractice lawyers using gamesmanship as a means to end run fairness in an effort to get a meritorious lawsuit past the legal technicalities of bringing a claim.

Continue reading " New Maryland Malpractice Opinion " »

The $11.5 million medical malpractice verdict won against a Miami orthopedist this spring, by former Dolphins receiver O.J. McDuffie, has been overturned.

At trial, McDuffie testified that the doctor never told him that he had completely ruptured the ligaments in his toe, as evidenced by MRIs performed in subsequent weeks. In fact, McDuffie told the jury that the doctor encouraged him to continue to practice and play.

So, the crux of this malpractice lawsuit is that McDuffie continued to practice and play with ruptured ligaments, which caused irreversible joint surface damage even after his doctor knew or should have known that he was causing further injury by continuing to play with the injury. It is not a surprise to see a malpractice verdict disturbed. What is surprising is when the trial judge grants a new trial for his own error on an evidentiary issue that would likely be an abuse of discretion question on appeal: whether the use of a medical manual as evidence at trial was appropriate. The judge apparently agreed that it was relevant and then reversed himself and ordered a new trial.

I don't know the facts and how this "medical manual" was used. Hopefully, someone will offer more details with the nuances of how this medical manual was used and why the court did a 180 degree reversal and determined its use at trial was inappropriate.

Metro Verdicts Monthly and the Maryland Daily Record report on a $4,947,837 verdict in Montgomery County for a young woman claiming medical malpractice caused her nerve and spinal injuries. The jury awarded $2.5 million for lost wages, $276,000 for medical expenses, $675,000 for loss of consortium, and $2.1 for non-economic damages (which will be reduced to the malpractice cap).

The claim of medical negligence was atypical, particularly for a successful case: the lawsuit claimed negligent manipulation, high-velocity neck-twist caused the injuries. The issue in the case boiled down to whether the doctor, a D.O., was negligent in his manipulation of her neck and whether there was informed consent of the patient. The manipulation apparently caused an internal disc disruption at C5 and damage to the dorsal scapular nerve of her brachial plexus.

The verdict was what it was because Plaintiff was a young woman with significant future lost wages because she was unable to return to work as a physical therapist. It also sounds like she was an appealing plaintiff: she was a triathlete that had been on the swimming and cycling teams at Michigan State University.

One of my favorite parts of the Metro Verdict Monthly reports is the editor's notes on who said what about the verdict. In this case, plaintiff's medical malpractice attorney, Alan Belsky, told MVM that six of the seven medical expert witnesses who testified on behalf of plaintiff were her treating doctors. It is hard for malpractice lawyers to get subsequent treating doctors to testify in malpractice cases even when the doctors believe the negligence is clear. Having treating doctors up against the defendants' usual suspects certainly helps in the battle of the experts. If we are not sure as to whether we should take a malpractice case, a big tipping point is whether the subsequent treating doctor is willing to stand up and opine as to whether the defendant doctor committed malpractice.

This malpractice verdict actually came out in June but Metro Verdicts has a lag time of a few months in reporting on verdicts.