Maryland Medical Malpractice Attorney Blog

Tragic story here about a lieutenant from a Sheriff's Department who was severely incapacitated after he underwent bariatric surgery in 2007. The details of his care and treatment are appalling.

After being told that a weight-loss surgery would be "less risky" than continuing to live in his physical state (he was 6'1" and 375 lbs), a once active and contributing member of society now remains confined to a wheelchair, brain damaged and blind, but completely aware of what he once was and what he is now.

How could this happen you might ask? Well, when your surgeon is unaccredited and has performed less than half of the required number of surgeries to become accredited, you find yourself with a major case of malpractice. Furthermore, the surgeon was required to have at least twenty hours of bariatric education courses, yet he had only taken one.

None of this stopped the hospital from holding themselves out as having an accredited "Bariatric Surgery Center," which amounted to fraud. The victim's attorney said that the hospital sold the illusion that they had a "team" of doctors and nurses, committed to bariatrics. On the day of surgery, the man found this to be untrue when, in the middle of about ten pages of documents, he found a paragraph stating that "we are all independent and nobody's a team."

The day after having undergone a gastric bypass surgery, the lieutenant collapsed in respiratory failure and was placed into critical care. For eight days, he showed signs of complication, where fluids from the bowels leaked into his abdomen. The hospital's own experts later stated that most bariatric doctors would have taken a patient back into surgery as soon as the patient showed symptoms, and no later than on the sixth day after surgery. But yet, he wasn't taken in for eight days.

At one point during the ordeal, his blood pressure dropped to the point where he suffered a "low-flow" stroke, and went comatose for over two weeks. During this time, he was on a respirator, though no lubricate eye drops were given to him, which burned his retina and caused permanent loss of eyesight. The lieutenant can no longer speak intelligently and he cannot walk, feed, or clean and bathe himself.

Continue reading "Man Awarded $178 Million in Medical Malpractice Lawsuit" »

One frequent emergency room complaint is abdominal pain of unknown origin. The challenge for the ER doctor is to diagnose the source of the problem, or at least narrow the problem, and rule out life threatening aliments. Three big potentials for problems are appendicitis, volvulus, and ruptured abdominal aortic aneurysm and intussusception - all can lead to misdiagnosis and wrongful death malpractice lawsuits. Today, we will look at appendicitis misdiagnosis claims.

Failure to diagnose an appendicitis is a common failure. It is critical to immediately remove an inflamed appendix before it ruptures. If a patient walks in with an inflamed appendix and walks out before getting the proper treatment – usually removal – they are put at risk of death. Particularly at risk for an appendicitis and a missed diagnosis is our youngest and oldest. The classical appendicitis presentation includes patients with low grade fevers with crampy, intermittent abdominal pain that gets worse with movement that migrates to the right lower quadrant of the stomach within 12–24 hours of the onset of symptoms.

Some emergency room doctors miss even the obvious diagnosis in patients most at risk. There are medical malpractice cases where the patient could just have well come in the emergency room with an “I have an inflamed appendix” shirt and the ER doctor still blows it. But the standard of care also requires ER doctors to catch more than just the fly balls. For moderate risk patients that have some, but not all of the classic appendicitis symptoms, doctors really do need to order more follow-up diagnostic testing. Call it defensive medicine, call it whatever you want, but if it looks like it could be an appendix problem, it's worth getting a CT scan.

Continue reading "Appendicitis Misdiagnosis" »

Electronic medical records are all the rage. The potential benefits are not hard to see. Doctors can access a patient's entire medical history from one chart. Allergic reaction to penacilin in 2003? Got it. Equally helpful, the system has built-in alerts of the potential dangers of drugs interactions.

It is a bipartisan idea in Washington, D.C., a town where bipartisan ideas are as common as Indianapolis Colts wins without Peyton Manning. President George Bush first championed Health Information Technology as a national priority for the U.S. in 2004. President Obama then threw $36 billion in stimulus money from the American Recovery and Reinvestment Act (ARRA) – earmarked to facilitate implementation of electronic health records (EHRs) – just what the doctor ordered to speed things up. Since then, the EHR implementation machine has churned away in an effort to improve efficiency in patient care. By broadening access to patient information, creating a consistent system for reminders and alerts, offering important safety features such as clinical decision-making support, and automating prescription filling and re-filling, EHRs have the potential to change the landscape of medicine in the U.S. and across the world.

In addition to their direct patient and physician benefits, EMRs are also touted as a means of reducing medical malpractice claims against doctors. Recently, however, a number of malpractice claims have been filed against providers using EHRs; claims directly and indirectly related to the use of EHRs in patient care. Either medical malpractice lawyers will sue over just about anyone or there is real cause for concern that we all should be thinking about. I suspect it is the latter. Medical malpractice insurers apparently agree and are considering increasing medical malpractice insurance premiums in order to offset the potential risks associated with the use of EHRs.

Continue reading "Do Electronic Records Lead to More Medical Malpractice?" »

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" »

Medical malpractice is largely a zero sum game. If it helps the defendant's lawyer, it helps the plaintiff's lawyer. We all pretend from time to time this is not so. But it is almost invariably true.

The question of whether to name doctors in a hospital malpractice case is one of those situations where it is best for everyone to keep the doctors out of the lawsuit. (Sure, maybe the public censure of a doctor through a civil lawsuit has value. But, ultimately, our job is to do right by our clients by maximizing the value of their malpractice case.) Plaintiffs' lawyers prefer to name a hospital which is far less sympathetic than an individual doctor. It gives juries the opportunity to award fair damages without the pain of directly blaming a specific doctor (even in cases where obviously it was a single doctor's fault). The doctor's lawyer - even if the lawyer also represents the hospital - gets that a doctor does not want to have her name in the lawsuit.

Everyone's happy. One problem: the general release of a doctor operates as a matter of law to release defendant from liability. And you don't want to use the procedural leverage you have with defendant doctor in terms of reading deposition testimony at trial, etc.

This sample joint stipulation solves these concerns.

This is not a space to praise the virtues of malpractice insurance companies. But let's give credit to Crico/RMF a malpractice insurance company which insures Harvard-affiliated hospitals. Crico/RMF, according to the Wall Street Journal, put on an emergency medicine leadership summit to identify the critical factors that cause missed or delayed diagnoses of patients in the emergency room.

How did they do this? They looked at settled malpractice lawsuits and tried to breakdown what went wrong. They found that doctor-nurse communication breakdowns often happen at a critical juncture in a patient's treatment. From this, they put together a list of best practices that hospitals can use to prevent misdiagnosis.

Continue reading "Diagnosing the Emergency Room Misdiagnosis Problem" »

I'm reading a book called Why We Make Mistakes by Joseph T. Hallinan. The premise of the book is that we, as a species, have shortcomings that make us prone to mistakes. It is a pretty decent book.

In a footnote on page 193, Hallinan makes reference to a study that was done that asked pilots the question: "Even when fatigued, I perform effectively during critical [times]." Only 26% of pilots agreed with that statement. Yet 70 percent of surgeons agreed with that statement.

People wrestle hard with the question of whether to contact a malpractice lawyer about their potential claim? They might like their doctor, fear retribution... there are a whole host of considerations people undertake.

You would expect the malpractice lawyer's answer to be pick up the phone and find out if you have a malpractice case. But we get that it is not that easy. Nor should it be. A lot of very reasonable people have viable malpractice claims that they choose not to bring. This is not necessarily a bad choice. It is a deeply personal choice.

CNN provides today some balanced insight on the decision of whether to file a malpractice lawsuit.

I'm a big fan of the law of unintended consequences. Here's one: better medical care because of a bad economy.

Why? I'm glad you asked. The economic downturn has helped the quality of nursing. During good times, every nurse (and their mother) was selling real estate on the side or involved in some other economic opportunity that provided economic growth. So nursing vacancies were high. In today's economy, nurses are losing those opportunities and are retreating to the hospitals and nursing homes, which increased the number of full-time permanent nurses. This is cheaper for the hospitals and allows them to be choosier about the nurses they pick, immediately improving patient care.

Does a bad economy really decrease incidence of medical malpractice? I don't know. I'll leave that to the Freakanomics guys and their progeny. I just think this is interesting.

The circus that is the aftermath of the St. Joe's stent debacle just added a new act. A Baltimore cardiologist has filed a lawsuit against St. Joseph's claiming the hospital harassed and discriminated against him for his role in a whistle-blowing action by, in part, refusing to refer patients to him.

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.

In Maryland hospital malpractice lawsuits, the Court of Appeals has followed the apparent authority theory of agency. Under this theory, if a Maryland hospital represents that a doctor is its servant or agent and thereby causes a patient to justifiably rely upon the care or skill of that doctor, the hospital is subject to liability to the patient for the doctor's medical malpractice. The Maryland courts have historically understood that it would be unreasonable to expect that an emergency room patient, with no understanding about the business of how hospitals are set up with respect to independent contractors, should have to inquire as to whether the doctor is an employee of the hospital.

When a malpractice lawyer in Maryland brings a vicarious liability claim against a hospital, it typically includes claims of failure to develop or follow policies and procedures that could have avoided or limited the plaintiff's injuries from the malpractice. Lawsuits against Maryland hospitals also include, where appropriate, claims that the hospital negligently failed to properly train the agents or servants responsible for the negligence. Another potential claim against the hospital, although it applies less frequently, is negligent credentialing, which means the hospital was negligent in allowing the doctor (or nurse) to work in the hospital.

If you are bringing a malpractice claim against the doctors and the hospital in Maryland, it is often wise to determine if there was a corporate entity that employed the defendant doctors. This may provide additional insurance coverage for claims that are not available against the hospital and give the jury a corporate defendant to make it feel better about a plaintiff's verdict.

• Hospital malpractice lawsuits in Maryland (an overview)
• Malpractice lawsuits in Maryland (an overview)
• Discussion of hospital malpractice cases

Cedars-Sinai Medical Center announced Monday that more than 200 patients received excessive doses of radiation because of a programming error in a CT scanner. Incredibly, the medical center said affected patients received eight times the normal dosage of radiation and that the error went unnoticed for about 18 months. Exposure to excessive amounts of radiation has been linked to cancer and other health problems.

Exposure to normal dose of radiation to treat or diagnose disease comes with serious health risks to patients that are already vulnerable. So this is awful news but, hopefully, the victims will tolerate this excessive radiation well.

Recently-passed laws in several states, including Maryland, Virginia, and Washington, D.C., require hospitals to detail serious injuries; this reveals the frequency and variety of so-called “never events” which should never happen. The laws are different in each state. Virginia's public records identify the hospitals by name, but Maryland and Washington, D.C.'s don't name names.

Five years ago, a Maryland law was passed requiring Maryland hospitals to report errors that led to death and serious harm. This month, the Maryland commission that sets hospital rates is using a new system that ranks hospitals on how often they commit 52 specific mistakes, from preventable obstetrical complications to infections of wounds that develop after surgery. Maryland hospitals that report the most mistakes from that list will be required to bill insurers at a lower reimbursement rate. In other words, good hospitals will make more money.

I think most Maryland malpractice hospital lawyers support this idea. The better hospitals get more money, which motivates them to get better. I worry, though, about any hospital that is last on this list. No real motive for the hospital to get better because they are too far from the higher reimbursement. But the rich Maryland hospitals get richer while the poor hospitals get poorer with no motivation to get better.

Again, I like the idea but there is a potential downside.

Infections just happen. Or do they? CNN published a story today that questions the "infections happen" defense. Dr. Alfonso Torress-Cook, director of epidemiology and patient safety at Pacific Hospital of Long Beach California, has reduced the infection rate at his hospital to down to 0.01 per 1,000 discharges, 430 times better than the national average. Read that again: 430 times. Incredible.

The doctor's strategy? Don't go after all bacteria, just the dangerous ones. The hospital uses antibiotics sparingly, feed patients yogurt to replenish healthy bacteria in the gut and bathe patients daily, using a soap that maintains the natural pH of the patient's skin, killing only bad bacteria.

Jury Verdict Research reports on recovery probabilities in the following types of medical malpractice case:

Foreign Object Left in Body 66%
Postsurgical Infection 43%
Catheterization 39%
Failed Sterilization 35%
Lack of Informed Consent 25%

Certainly, our Maryland malpractice lawyers have seen a rise in the number of complaints of post surgery infections, usually against hospitals involving staph infections. I'm also surprised at how low the likelihood of recovery is in informed consent cases. I have to think that this figure is deflated by jurisdictions that require look at informed consent from the perspective of what a prudent doctor would say to a patient receiving similar medical treatment as opposed to what a patient would expect.

The New York Times reports today that badly behaved doctors, specifically arrogant, abusive and disruptive behavior, can contribute to low morale, stress and high turnover among hospital staff and can lead to medical malpractice. A recent survey of medical providers found that an alarming percentage of workers believed that disruptive behavior could lead to medical malpractice.

Certainly, this is true and systematic changes can be made to improve what is tolerated in a hosptial setting. But doctors do not have monopoly on arrogance and abusive behavior as many who have worked for some Maryland malpractice lawyers can attest.

Hospital infections are becoming more of an issue both within hospitals and in the media in recent years. The Center for Disease Control in Atlanta makes clear the reason: infections at hospitals cause 90,000 deaths in the U.S. every year. Infections result in an estimated 205,000 additional hospital days for infected patients and $2 billion in hospital charges.

Most infections are not the result of hospital malpractice. But consider these facts. In Central New York, University Hospital had, according to one study, an infection rate of 0.669 percent. Other New York Hospitals had lower rates: St. Joseph's and Crouse had infection rates of 0.405 percent and 0.364 percent, respectively. But Community General's infection rate was 0.017 percent and Oswego’s rate was absolutely zero.

Now, hospital quality data is not standardized and there are different reports that measure hospitals in different ways. But can this degree of variance in hospital infection rates be the product of mere probability or the way the hospitals report the data? I don't think so.

Many states, most notably Pennsylvania, are taking great steps to collect and report data on hospital-acquired infections. These are just steps in the right direction. Hospital patients have a right to know whether a hospital in which they might receive care and treatment is diligent in the prevention of hospital-acquired infections.