Maryland Medical Malpractice Attorney Blog

The Pop Tort rages about the certificate of merit requirement that many states have in medical malpractice cases, citing a particularly onerous Connecticut merit requirement. The Pop Tort cites a news article of an awful injustice done to a woman who had her medical malpractice lawsuit dismissed.

After a long ride to the end of the article, we find out what the grave injustice was. The plaintiff sued her doctors for alleged breach of contract and infliction of emotional distress — not malpractice - and the court decided she need a certificate of merit.

Personally, I'm fine with this. I think certificates of merit are actually a good thing. There is a knee jerk reaction: the certificate of merit makes it hard for plaintiffs and their lawyers to bring lawsuits. But not all things that are made harder are bad thing. I know that there are some meritorious cases that don't make the cut because discovery is needed to get the information for the cerftificate of merit in the first place. But good lawyering can find a way around that problem, at least in Maryland.

The upside for medical malpractice victims is that there are less cases filed by a pro se plaintiff who is just mad at their doctor and does not have real evidence that could ever support a verdict. In states where there is no certificate of merit, the local paper with nothing else to write about always fires out a story about the poor doctor who got hit with a frivolous lawsuit. The absence of these stories provides an indirect but meaningful benefit to malpractice plaintiffs: less polluted juries and less stupid, irrelevant anecdotes to march in front of the Maryland General Assembly.

Please note: I could be completely wrong about this. Maybe certificate of merits keep out too many good cases than the PR upshot we get. But I think I'm right and I think the knee jerk "if it is hard for plaintiffs, it must be bad" colors the opinion of plaintiffs' lawyers more often than it should.

• Sample certificate of merit
• An overview of the certificate of merit requirement
• The application of the 20% rule

• The family of a man who died at Massachusetts General Hospital has settled its case against the hospital for $850,000. The man died after nurses failed to respond to alarms on his cardiac monitor. This death has shed national attention on the dangers of “alarm fatigue’’ among hospital staff.
• A few New York courts are taking a new approach to handling the 4,000 medical malpractice suits filed each year. The approach...settling cases early. The pilot program will be using a $3 million grant to train more judges in medical issues, and has been shown to cut court backlogs and save money, while also proving to be a cost savings to hospitals and directly impacting the indemnity insurance of doctors. One of the new rules approved for the medical malpractice cases, in order to expedite things - scheduling Settlement Conferences 45 days after court papers are filed.
• The Tennessee Court of Appeals issued an opinion on its relatively new certificate of merit rule in Crawford v. Kavanaugh. Maryland has a similar rule and this opinion is a cautionary tale for both Tennessee and Maryland malpractice lawyers. The lesson: don't take a malpractice case unless you know how to handle it.
• It is being said that confidential settlements make it harder for future plaintiffs to get evidence and information they need to bring out all of the facts about the defendant's conduct. I agree, there is little doubt that confidential settlements make it harder for the next plaintiff, as well as making the insurance less accountable. But, the problem is that people who have been badly injured have a hard time focusing on the global interests of plaintiffs everywhere when they are fighting and scrapping to be compensated for their own injuries.
• Some experts are predicting that the increasing numbers of physicians using electronic health record systems (EHR) may trigger an increase in medical malpractice lawsuits. Regardless of the concern, the federal government is pushing physicians to implement and use EHR systems, as required under the 2009 American Recovery and Reinvestment Act, and are directing hospitals to implement the EHRs by 2012.

A Massachusetts appellate court ordered a new trial after the trial court had granted a doctor's motion for directed verdict in a medical malpractice case.

Classic malpractice case. Patient goes to an ear, nose and throat (ENT) specialist who diagnoses a voice disturbance and reflux esophagitis. Patient gets speech therapy. Critical time passes. He gets a second opinion and finds out he has cancer, metastatic non-small-cell lung carcinoma. Tragically, he dies.

The trial judge found that Plaintiff's medical expert witness, a radiation oncologist, had failed to provide testimony specifically staging Plaintiff's loss of chance claim submitted to the jury. As I have written in the past, Massachusetts has more liberal - and more logical as I write here - lost chance loss than Maryland does.

Continue reading "New Trial in Massachusetts Malpractice Case" »

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.

Lawyers USA probes the question of whether juries will be impacted by health care reform. A jury consultant quoted in the article does a nice job of summarizing one of the critical differences between urban and rural juries:

Smaller town venues will be much more problematic for plaintiffs than urban centers where people have choices for medical care. If potential jurors only have one, or maybe two, hospitals in a 40-mile radius, they are going to be somewhat protective of those places even if they may have made a mistake.

This explains, in part, the difference between the jurors in malpractice cases in Baltimore City and jurors in, say, Ocean City.

Lockshin v. Semsker was decided yesterday. Plaintiffs lost on every conceivable level. You can read the Maryland Injury Lawyer Blog summary here.

Heather Pensyl writes a good summary in the University of Baltimore Law Forum of McQuitty v. Spangler a cerebral palsy case in Baltimore County that I summarized last year discussing informed consent in Maryland.

The Washington Supreme Court unanimously (9-0) threw out a 2006 law that requires an injured patient to get a certificate of merit from an expert before suing for medical malpractice, finding that RCW 7.70.150, usurped the judicial branch's power to determine the procedures by which courts adjudicate medical malpractice lawsuits. In other words, requiring a certificate of merit in medical malpractice cases in Washington violates the separation of state powers in Washington's constitution.

I'm not necessarily against the idea of certificates of merit in medical malpractice cases - which have been required for years as a condition precedent to filing medical malpractice lawsuits in Maryland - even though I'm a little queasy about the idea of treating doctors in civil lawsuit differently that the rest of us. (The justification? We have been doing it that way for a while. Which is really no justification at all when you think about it. But let's move on.) But if you read the opinion, it is hard to argued that a certificate of merit is anything other than a procedural rule. Washington state constitution, similar to Ohio's - is clear that procedural rules are for the judiciary.

Seven of the justices also said that the law was unconstitutional because it unduly burdened the right of access to courts.

"Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed," wrote the majority, led by Justice Susan Owens. "Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts."

Justices Barbara Madsen and James Johnson wrote in a separate concurring opinion that while they agreed that the law was unconstitutional on the basis of separation of powers, it did not unduly interfere with access to the courts.

Four jurors who helped decide one of Tennessee's largest medical malpractice lawsuits are claiming they felt coerced into finding the gastroenterologist at fault for Plaintiff’s injuries.

This sad case involved a relatively simple procedure - a colonoscopy and endoscopy – on a 33 year-old woman. A day later, complications from the procedures sent her into cardiac arrest leading to brain damage.

In April, a Hamilton County Circuit Court jury found the doctor 51% responsible for the plaintiff’s brain injuries. The jury awarded $6.12 million in damages.

Four of the jurors claim they felt pressure by the judge to find malpractice to spare the time and expense of a retrial. The jury instruction at issue:

"If a substantial majority of your number are in favor of finding a verdict, those of you who disagree should reconsider whether or not your doubt is a reasonable one, since it appears to make no effective impression upon the minds of the others.”

In my opinion, defendant’s malpractice lawyer is desperately trying to recover from a malpractice verdict in a case I’d bet dollar to donuts should have been settled. In Maryland, it is standard to give an Allen charge to a deadlocked jury:

The verdict must be the considered judgment of each of you. In order to reach a verdict, all of you must agree. Your verdict must be unanimous. You must consult with one another and deliberate with a view to reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. During deliberations, do not hesitate to reexamine your own views. You should change your opinion if convinced you are wrong, but do not surrender your honest belief as to the weight or effect of the evidence only because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict.

The Allen charge comes from Allen v. United States, a U.S. Supreme Court case that is over 100 years old. So I suspect the verdict will hold up. Maryland judges give modified versions of the Allen charge all of the time. The exact language is not necessary.

What is compelling is that four jurors say they would have decided differently. Of course, this is after spending a lot of time in the conference room of defendant’s medical malpractice lawyer. Do you think there were some “ex parte” – for lack of a better phrase – comments to those jurors about the case? Are we surprised that jurors would have buyer’s remorse after a verdict like this? It is hard not to have a little cognitive dissonance after a tough case. So while these jurors flipping has some facial appeal of injustice, it really is not any indicia of whether there was a fair and impartial verdict.

The Illinois Medical Malpractice Blog has a post with a link to a Miami Herald article on a 12 year-old boy who died of serotonin syndrome. The mother of the boy filed a wrongful death and medical malpractice lawsuit last week in Miami-Dade circuit court, claiming the child's psychiatrist, and the now closed group home where this autistic boy lived, failed to properly monitor his condition.

Serotonin syndrome is a rare but not idiosyncratic response to what is a good thing in the appropriate dosage: serotonin. This child was taking Seroquel, Zyprexa, Depakote, and Clonazepam.

While it is easy to question whether some of these drugs should have been prescribed for this boy, the medical malpractice question is whether his death was from serotonin syndrome and whether this combination of drugs was such that a reasonably prudent psychiatrist (and the group home) should have not prescribed this level of medication or should have more carefully monitored the child. Specifically on this point, the malpractice lawsuit alleges that the doctor had not seen the child in a year before the day he died and that the boy exhibited symptoms that he was reacting poorly to the medication.

I can't prejudge the merits of many malpractice cases, including this one, without seeing all of the evidence. But it is easy to make the following judgment: malpractice or not, this is a tragic case.

The Maryland Injury Lawyer Blog wrote a post on Friday that analyzes a new 34 page Maryland Court of Special Appeals opinion fee dispute between a referring lawyer and the Maryland malpractice lawyer to whom he referred a failure to diagnose cancer case. The case sheds interesting light on the referral arrangement between a Maryland medical malpractice lawyer and the referring lawyer. One thing that is not common about this relationship: the referring lawyer referred the case after a medical malpractice lawsuit had already been filed.

A recent Jury Verdict Research study looking at cancer injuries involving negligence found that the average compensatory award is $4,147,526 (median is $2,052,500). Most of these cancer cases involve medical malpractice lawsuits for the failure to diagnose cancer.

One medical malpractice study found that 12% of the time, cancer is misdiagnosed because a doctor or other health care provder either missed the signs and symptoms of cancer and did not order further testing or because the cancer test was improperly excecuted, read, or an error was made with at the lab or with the radiologist. With breast cancer patients, mammograms have a false-negative - malignant cancer that goes undetected- rate of approximately 10%.

A Sand Diego jury has awarded $3.7 million to a man who sued a doctor for failing to diagnose the iron-overload disease hemochromatosis.

Plaintiff went to his workers' compensation doctor who found increased ferritin in his blood, an indication of hemochromatosis. No diagnosis was made. Three years later, the diagnosed with hemochromatosis. Alleging tissue and organ damage, arthritis and memory loss, Valentine said that Kramer failed to diagnose and treat his hemochromatosis, failed to refer him to a specialist and failed to discuss the lab results with him. The workers' compensation doctor alleged that he showed the Plaintiff the lab results and told him to see a primary care doctor.

Medical Malpractice Law News provies a list of 28 things that should never happen in a hospital. These are a list of medical events that should not happen in the absence of negligence. Of course, many of these adverse events listed could happen in the absence of medical or hospital malpractice.