Maryland Medical Malpractice Attorney Blog

Both lawyers and laypeople have misconceptions about the application of the wrongful death cases. Making matters more complicated, we now have different rules in medical malpractice cases than we do in accident or other tort liability death rules.

On our website, we are making a continuing effort to explain the nuances of wrongful death/survival actions in Maryland. Our main wrongful death page is here. This page provides an overview of wrongful death survival actions in Maryland and contains a lot of links to other subcategories of interest. If you think there is something we should add to this, let us know.

President Obama sent ripples through the medical malpractice lawyer community when he said he supports medical malpractice reform. I do not think this is anything new, really. It was just the forum of the State of the Union address that was different. He said he wanted to decrease frivolous malpractice. Me too. How do you get there without hurting real victims in the process? This is the hard (and maybe impossible) part.

This Forbes article makes the same argument, albeit from a different perspective.

I wrote on this last year when we went through all of this before.

Maryland enacted a self referral law in 1993 to help decrease the costs of health insurance and medical care after concerns that Maryland doctors would order unnecessary testing if they had a financial stake in ordering the testing. I think this was a problem with few doctors but as we saw with the St. Joe's stent debacle, it does not take many doctors to create a real problem for patients. Accordingly, Maryland-Self Referral Law prohibits any self-referral or any arrangement which has the practical effect of a self referral.

Where there is radar, there is usually a radar detector. I don't mean that necessarily in a sinister way but doctors are looking to make a profit like anyone else. It does not necessarily mean they plan to order unnecessary tests but if they see a chance to make byproduct business, many doctors want to take that opportunity.

In Potomac Valley Orthopaedic Associates, et al. v. Maryland State Board, doctors appealed a ruling by the Maryland State Board of Physicians forbidding orthopedic doctors from referring patients for an MRI to a facility that is owned or leased by the orthopedic group in which the doctor holds a financial interest.

Doctors appealed the case first to the Montgomery County Circuit Court where Chief Judge DeLawerence deferred to the Board's decision in spite of his conclusion that the Board had "eschewed the plain language of the statute," and had "added and deleted statutorily provided words and definitions," and reached a conclusion contrary to the plain words of the statute.

Why the disconnect? Maryland courts review agency decisions in these cases in the light most favorable to the agency. So the Board's decision carried with it the presumption of validity. The deck was definitely stacked for the Board in this appeal.

Anyway, the case went directly to the Maryland Court of Appeals. Because MRI and CT services have become standard diagnostic tools not only for orthopaedists but for urologists, cardiologists, ER doctors, neurologists, and tons of other doctors, this case ginned up some interest. The American College of Radiology also had an interest (and were giddy about the court's ruling)

The Maryland high court found that the ban on doctor self-referrals applies to an orthopedic surgeon’s referral of a patient to another health care provider in the same group practice for an MRI or a CT scan if the referring doctor has a financial interest in the health care provider receiving the referral.

The ruling applies to orthopedic doctors ordering MRI and CT scans but I would think it will be interpreted more broadly.

You can read the opinion here.

Issue #1 for the House Judiciary Committee: medical malpractice reform. The title of the hearing gives you some idea of the objectivity: "Medical Liability Reform -- Cutting Costs, Spurring Investment, Creating Jobs."

The hearing came a day after the House of Representatives voted 245-189 to repeal the Affordable Care Act (ACA). The repeal vote is seen as largely symbolic, since leaders of the Democratic-controlled Senate have vowed to block repeal. However, Republicans are now expected to begin trying to chip away at the ACA by passing bills to repeal certain provisions. Doctors are shooting for the same thing they always want: malpractice caps - preferably hard malpractice caps that include economic damages.

Ardis Hoven, M.D., chair of the American Medical Association's Board of Trustees, told the House panel that the system we have had for hundreds of years is "an ineffective and often unfair mechanism for resolving medical liability claims."

During questions, Dr. Hoven walked a rather hysterical tightrope, saying doctors practicing in fear of malpractice lawsuits causes expensive tests but she refused to call those tests unnecessary. This is code for "we practice defensive medicine to save ourselves but we can't really admit that because that would be admitting doctors are putting themselves ahead of their patients so we want to play it both ways and we don't care that we are contradicting ourselves." Again, ironically, I think doctors are, by and large, putting patients first. So, this kind of thinking frames all doctors for a crime only a small minority is committing.

The Maryland General Assembly is open for business which means a lot of lobbying on both sides of the aisle on medical malpractice related issues. Lobbyists for doctors and hospitals have been forever sounding the alarm of doctor shortages, relying primarily on their own studies to support this premise. Maybe there is a small issue of bias in citing yourself for the premise that is in your financial interest.

The American Medical Association's data suggests that the doctor/patient ratio has increased in Maryland almost every year for more than forty years. In 1963, there were 470 doctors for each patient in Maryland. That number has more than tripled. Today, there are 153 lawyers for every 300 people. The real problem we have in Maryland is that we do not have enough lawyers. (Wait, I'm getting carried away. That is definitely not a problem we have in Maryland.)

Continue reading " The "Doctors are Fleeing" Argument " »

For a variety of reasons, the is often a significant lag time between the time of death and the filing of a wrongful death lawsuit. For better and for worse, life goes on and the widow often remarries.

So the question is, "Should a jury take this into consideration in computing damages?" The short answer, and the human answer, is that they should not. People who have suffered a great loss should not be penalized for moving on with their lives.

What is Maryland law? Maryland law for at least the last 112 years has supported this common sense view. The rule is that a jury should consider the probable duration of the joint lives of the spouse had one not been killed.

Everyone loves to point to the examples where the application of the law leads to a nonsensical result and this happens far too often. But most of the time, the law gets it right. When it does, it does not make the evening news.

One opinion worth reading if you a Maryland malpractice lawyer with this issue is Baltimore Transit Co. v. State, 194 Md. 421 (1950).

LawyersUSA put out its "Top Ten" verdicts, defined as the largest verdicts of 2010. As is typically the case, there are no malpractice verdicts on the top ten list.

This is the story of a doctor who practices as an OB/GYN for years without incident. Then, suddenly, he apparently starts getting hit with lawsuits at a rate of about once a week.

I say "apparently" because the doctor does not say how many. In fact, he/she does not even reveal who they are.

Doctors have a lot of stories about their experiences in dealing with medical malpractice cases that may be illustrative in the debate over malpractice. But anonymous articles? Not so much.

• Understanding Medical Malpractice in Foreign Countries (Medical Tourism). Cheat sheet: in most countries where you go looking for a deal, there is not going to be much of a safety net when something goes wrong.
• Medical Mistakes Claim Lives in Tennessee (Public News Service). Reports 5,000 malpractice lawsuits outstanding in Tennessee. Which I find hard to believe.
• Malpractice Cases Missing from Connecticut State Website (Courant). The profiles are a good idea by the state of Connecticut. They give patients more information in choosing a physician. But a local newspaper found more than 100 doctors whose malpractice cases are missing. Worse than no information? Bad information.
• The Role of Practice Guidelines in Medical Malpractice Litigation (Virtual Mentor). Article summary: There are advantages and disadvantages for both sides in using CPGs as authoritative sources in establishing the standard of care.

Continue reading " Malpractice Links Today " »

The Maryland high court provides a good look at just how complicated the implications of joint tortfeasor releases can be in Hashmi v. Bennett, a medical malpractice case filed against Good Samaritan Hospital of Maryland and a number of other medical providers.

Plaintiffs' filed a medical malpractice survival action/wrongful death lawsuit claiming defendants failed to diagnose and treat plaintiffs' father, a 27 year-old man, who showed signs and symptoms of progressive septic methicillin resistant staphylococcus aureus, or MRSA, and was treated instead with Ambien to help him sleep.

Good Samaritan Hospital settled the case for $550,000 and the claim against the emergency room practice and the ER doctor settled for $400,000. The case against the doctor at the hospital who treated the patient was taken to verdict and a Baltimore City jury awarded Plaintiffs $2,295,000, which was reduced by the Maryland medical malpractice cap to $1,795,000.

The doctor filed a motion to reduce the verdict pursuant to the Maryland Contribution Among Joint Tort-Feasors Act. 9, claiming contribution not only from the settling defendants but other health care providers not involved in the medical malpractice lawsuit (a doctor and two nurses). In other words, the doctor wanted to split up the obligation for the $1.8 million as many different ways as he could. The trial court disagreed and reduced the judgment by two-thirds, leaving $598,333.333.

The Maryland Court of Appeals found that if a plaintiff releases a joint tortfeasor, the verdict against any other joint tortfeasor is to be reduced by the amount paid or by any proportion that the settlement release provides if it is greater than the amount paid. In this case, the release provided for a pro rata reduction which is exactly what the court gave. In principal/agent cases, both should be considered one joint tortfeasor for the purpose of determining reduction.

The case gets into a bunch of other issues, including the all important question of how you spell tortfeasor/tort-feasor. Since the Maryland legislature uses a hyphen, the court decides it will use a hyphen. I am asserting my independence as, you know, a journalist and spelling it without a hyphen.

If you are a lawyer dealing with a joint tortfeasor release in a Maryland medical malpractice lawsuit or any other personal injury claim, this is one of the cases you want to read. You can find it here.

• Could proposed reforms change the face of New Jersey medical malpractice claims? (PR-USA.net). Some doctors want a law that limits the ability of medical malpractice insurers to raise premiums on doctors unless there is a finding of liability. The problem? Most good medical malpractice cases are settled. Raising rates only when there is a jury verdict would not properly raise rates on high risk doctors. Why can't insurance companies make their own post-settlement findings on liability?
• Ways In Which Medical Malpractice Claims May Result From Delayed Diagnosis Of Colon Cancer (Colon Cleanse Health). Colon cancer cases are difficult in Maryland because of Maryland's tough loss of chance law.
• Washington clinic accused of medical malpractice in liposuction wrongful death (JusticeNewsFlash Release)
• Mistrial Ruled After Physician Accused of Malpractice Treats Juror in Court (DC Injury Lawyers - JDSupra )
• Seven Ways to Improve Health Care and the Environment in 2011 (Health News Digest)
• St. Francis Hospital Doctors Are Ordered to Pay $7 Million (PR Newswire)
• A Maryland hospital has banned all types of photography in the delivery room until five minutes after the birth of the baby. Why did Meritus Medical Centre at the Hagerstown Hospital make this decision? You guess.
• AEG Wants Katherine Jackson Lawsuit Dismissed
• Medical Malpractice And Wrongful Death Lawsuit Filed By Sacramento Man's Family (Sacramento Medical Malpractice Lawyer Blog)
• New study raises Wrongful Death and Medical Malpractice questions concerning strokes (Oregon Injury Lawyer Blog)
• 5 Reasons Your Medical Malpractice Expert Will Let You Down (Lawyerlife Blog)
• Diagnostic Errors Often Caused by Systems, Shortcuts (Pittsburgh Medical Malpractice Attorney Blog)