Maryland Medical Malpractice Attorney Blog

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.