Maryland Medical Malpractice Attorney Blog

Should Hospitals Be Required to Stand By Their Independent Contractor Emergency Room Doctors in Malpractice Cases?

Most hospitals have three categories of doctors practicing medicine in their hospital: (1) a doctor who has privileges at that hospital; (2) salaried employees and (3) independent contractors. In emergency rooms in Maryland, most of the doctors that are providing treatment are independent contractors.

Of course, patients don't know this. In fact, if you polled members of the Maryland State Bar Association, I think you would find the average Maryland lawyer does not know this either. So the question is can the hospital hide behind its independent contractor relationship with the ER group? The question hinges on whether malpractice lawyers can hold hospitals vicariously liable for its contractors' negligence under the theory of ostensible/apparent agency. Certainly, hospitals argue for the application of the rule that it should be absolved of liability because the ER doctors are independent contractors over who it has no control.

Maryland follows the apparent agent theory set forth in the Second Restatement of Agency. Section 267 says that:

One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.

The seminal Maryland malpractice case for ER liability is Mehlman v. Powell. The malpractice lawsuit in this case stemmed from a patient who went to the emergency room at Holy Cross Hospital. The man - like most patients - had no clue that the ER was not operated by the hospital. Plaintiffs argued the ER doctor misdiagnosed his heart condition by misreading his electrocardiogram and that the malpractice caused the death of their father/husband.

Continue reading " Malpractice Lawsuits Against the Hospital for ER Care " »

• Malpractice lawyers: if you give your medical malpractice client the job of finding a doctor to serve as an expert witness in her case, then basically sit back and do nothing while the statute of limitations runs out, you will probably be called out by the state bar.
• DC Medical Malpractice and Patient Safety Blog writes about ProPublica's "effort to shine a cleansing light into the murky closets of Big Pharma."
• A British woman is suing her dentist for malpractice. He took out the wrong tooth, and then, when she realized it and told him, he took the tooth out of the trash, where it was sitting next to all sorts of medical waste, and re-implanted it.
• A federal jury in Pennsylvania has awarded an ex-Marine $17.5 million. The man had dental surgery at a VA Hospital, during which his blood pressure dropped sharply several times. The doctor did not stop the procedure, though, and the patient suffered a stroke while driving home, crashing his car and leading to brain damage.
• A Pennsylvania woman has been awarded $23 million in a case where a heath-care aide did not report a contaminated catheter, which led to an infection that necessitated a double leg amputation.
• A Florida jury awarded $4.5 million in a wrongful-birth suit to the parents of a child born with no arms and one leg. These things happen with and without negligence. It is just so sad when something like this can be so easily avoided.

How Much Does the Public Have a Right to Know About Their Doctor's Malpractice History?

The National Practitioner Data Bank (for short: NPDB) is an electronic repository containing doctors' malpractice settlements and judgments that the feds have maintained for 15 years. It also includes adverse peer review actions against licenses, clinical privileges, and professional society memberships of physicians and other health care providers and Medicare and Medicaid exclusion reports of sanctions against doctors for fraudulent billing.

This database - while not as complete as it should be - has been a huge weapon on both sides of the malpractice debate to separate fact from fiction. Federal law dictates that all medical liability payments and certain adverse actions must be reported. The NPDB makes some of this information available to hospitals, state licensure boards, some professional societies, and other health care entities under certain prescribed circumstances.

The public also had access to the database until this month when the government shutdown public access to this data. The public never had unfettered access but the NPDB has long been providing access to its reports with the names of the doctors, patients and hospitals redacted.

What happened? Newspapers were using the NPDB to connect the dots to figure out the names of the parties - mostly hospitals and frequent flyer malpractice doctors. Local newspapers do a number of "Can you believe this doctor had 9 nine malpractice cases against him while he was treating y'all?" stories a month.

Continue reading " National Practitioner Data Bank: New Secrecy Rules " »

Unless you are in the health care profession or dealing with the health care profession, it is hard to appreciate the deference given to medical records. Doctors believe - correctly in most cases - that looking at a patient's medical records can tell you exactly what should come next in the care and treatment of that patient.

In spite of this, the Indiana Supreme Court wants to impose liability on doctors and hospitals for losing medical records, rejecting the idea of a medical malpractice claimants' tort for losing the records themselves.

This opinion was the result of a medical malpractice claim filed by a woman who had complications after her son's emergency cesarean birth in 1999. The Plaintiff brought a separate damages claim against the hospital for losing the records which made it difficult to bring a birth injury claim against her obstetrician.

Continue reading " Penalty for Destroying Medical Records in Maryland and Indiana? " »

...Because even Texas Governor and presidential candidate Rick Perry thinks so. In his quest to win the Republican presidential nomination, Perry giddily brags about the putative benefits of malpractice and other tort reforms that have effectively choked serious malpractice victims in Texas. But even Governor Perry agrees that tort reform at the federal level is a bad idea that violates the 10th Amendment to the Constitution which limits the role of the federal government. If Governor Perry is not in a scheme to vacate malpractice victims' rights to recover what a jury believes they should, it is just not going to happen.

• A doctor who cut off part of a patient's cancer-ridden penis while the patient was under anesthesia for a circumcision has prevailed in the medical malpractice suit against him. Link via the always-provocative Legal Blog Watch.
• An Ohio assisted living home has to pay $1.93 million to the family of a woman who eventually died after the home administered medicine for a disease she didn't have.
• A California lawyer is fighting that state's medical malpractice cap.
• Check out this illustrated guide to hospital hazards. It's frightening and maddening.
• "When Does a Reasonable Person Suspect Medical Malpractice?"
• Kansas Star: "Maribeth Chase didn’t know that the neurosurgeon who would be operating on her had been sued at least 16 times for allegedly making medical mistakes."