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

According to a recent article published in the “Journal of the American College of Radiology,” the rapid growth of diagnostic testing appears to be placing physicians at greater risk for medical malpractice claims. The reason: test communication failures. As clinical evaluation often depends on diagnostic tests, it is imperative that diagnostic physicians notify the referring physician of any urgent or unexpected findings. The result in failing to do so: a medical malpractice claim.

The article referenced a study in which it was demonstrated that between 1996 and 2003, malpractice payments related to diagnosis increased by approximately 40 percent (40%). Contributing factors in malpractice cases associated with communication failures include, for example, failure of physicians and patients to receive results, delays in report findings, and lengthy turnaround time. Referencing data from the National Practitioner Data Bank (NPDB), the authors found that the total indemnity payout across all medical specialties for U.S. claims, related to these types of communication failures, increased from $21.7 million in 1991 to $91 million in 2010. Linear regression analysis of data from 1991 to 2009 indicated that communications related claims payments increased at the national level by an average of $4.67 million annually.

Over the same period, NPDB data showed that communication failure awards accounted for an increasing proportion of total U.S. malpractice awards for all providers. The proportion increased by a factor of 1.7, from 0.93 percent in 1991 to 2.31 percent in 2009.

The author recommends that healthcare organizations need clear policies that define the responsibility of reporting any urgent or unexpected findings to the referring providers, to ensure patient follow-up.

• Self Referral for Diagnostic Testing
• Medical Malpractice News
• Malpractice Claims Common Outside of the Hospital

I certainly have been neglecting this blog more than I should of late. But I have and my firm is continuing to put information about medical malpractice case in Maryland on-line. We have put together a very elaborate misdiagnosis area of our website that includes:

• Breast cancer misdiagnosis
• Skin cancer misdiagnosis
• Colon cancer misdiagnosis
• Cervical cancer misdiagnosis
• Lyme disease misdiagnosis
• Meningitis misdiagnosis
• Heart disease misdiagnosis

The strict locality rule requires doctors to apply the standard of care specific to the community in which the medical care was given. This doctrine began after the Civil War where courts where loathe to apply the same standards to country doctors as they would to urban doctors that have access to the latest information.

Whatever may have justified the strict locality rule a hundred and forty years ago, that justification perished even before Al Gore invented the Internet. No lawyer would argue to a jury that medical standards change based on the community where the medical service is delivered. Still, doctors' medical malpractice lawyers in Maryland have long claimed that the locality rule is codified by the Maryland Health Care Malpractice Claims Act. Thankfully, this notion was dispelled last month by a Maryland District Court judge.

Under the default statute of limitations for medical malpractice cases in Maryland, malpractice victims have three years to file a lawsuit from the time of the malpractice or wrongful death. The discovery rule says, however, that subject to a five year limit, the clock only begins when you know or have reason to know of the connection between the malpractice and the injuries suffered.

This is one of those "little bit of information can kill you" type situations. Because, before I went to law school, I would interpret know or have reason to know as when the victim(s) would know or have reason to know. But that really is not the law. It is know or have reason to know if you have done a full investigation. The distinction is critical, as the plaintiff in this new Illinois malpractice case found out the hard way.

The Plaintiff in Dixon v. Roseland Community Hospital sued a hospital and a boatload of doctors for the wrongful death of her mother, an active 69 year-old woman who was an artist with no significant health history. For reasons that are not clear in the opinion, the woman had been admitted to the hospital because she was not feeling well. She was given an IV and felt pain in her veins. She was moved to another hospital but died. Her lawsuit alleged that she had gangrene from her hand to her wrist and died from cardiopulmonary failure that was likely secondary to septic shock.

Continue reading "New Opinion on Discovery Rule and Statute of Limitations in Malpractice" »

A paradox that is just dumb: active-duty military personnel cannot sue military doctors - and, more importantly, the military - for medical malpractice. Under the Feres Doctrine, a 1950 Supreme Court ruling that bars active-duty military personnel - and, improbably, their families - from suing the federal government for injuries from malpractice. So unlike the rest of us, people in the military cannot sue for medical malpractice.

So run the scenario: guy is trying to take a hill in Afghanistan and gets shot in the leg, requiring a leg amputation. Doctor amputates the wrong leg. Does the military step up and pay for destroying this guy's life so much further? No.

The Supreme Court is poised to look at this issue. But you can't blame them for following a 61 year-old rule. But Congress can and should act on this. Because it is just not fair to the people we all agree we should be bending over backwards for because of their service to all of us. (That sentence is going to read incredibly trite when I post this. But it is what it is.)

My understanding of Maryland law is that doctors do not have to consent to settle before the insurance company can make a settlement offer, absent specific policy language giving them that right. (I say "my understanding" because I really don't know the source. It could be the "Law of Ron." But I think that is right.)

Either way, I think the point is largely moot in Maryland. Med Mutual, who insures most Maryland doctors, seems to require the doctor's assent to settling a malpractice case. It is not a bad policy - it is a doctors' owned insurance company. Most doctors pushing Med Mutual to stick its chest out likely have enough coverage. No one is usually so bold with their own assets on the line.

A lot of defendants' malpractice lawyers use this as a faux means of not pursuing settlement discussions before a pretrial. But I know we have tried at least one case because the doctor did not want to settle which we think was out of fear that Med Mutual would drop him.

Anyway, there is a new opinion in Rhode Island that sheds some light on this issue. In Papudesu v. Medical Malpractice Joint Underwriting Association of Rhode Island, the insurance company paid $500,000 to settle plaintiffs' wrongful death lawsuit involving a stillborn birth. The doctor objected because he was confident he would win at trial and believed that a settlement would adversely affect his professional reputation and, maybe more importantly, a settlement would cause the cost of his malpractice insurance to go up.

Continue reading "Doctor's Consent to Malpractice Settlement" »

Explore Baltimore County writes about a bill introduced by a doctor who is in the Maryland House of Delegates that says, in effect, that if a doctor says he or she is 'sorry' for a medical outcome, that apology would be inadmissible in a Maryland courtroom.

I just looked for the bill. I couldn't find it. But how much do you want to bet me that that is not what "in effect" it says? Instead, if doctors explain exactly how the malpractice occurred and they deny it later, the fact that they have completely changed their story in front of perhaps multiple witnesses is excluded. How is that fair? The idea that the purpose of this bill is to allow doctors to say "Hey, I'm sorry for your loss" is just plain inaccurate.

There is no question in my mind that this bill is well intentioned. It sounds like such an obvious good idea. In fact, there is evidence that patients and their families benefit when doctors fess up and admit medical malpractice. So let's just move on. Let's go all George Bush and just go with our gut. Apology = good.

Or... let's be adults and think it through. Where is the study on how these same patients feel when these apologetic doctors admit to their patients what they did but then can make a farce of the victims and court by denying it later without reprisal? Presumably, they can commit perjury and contradict their previous statements without consequences.

Continue reading "Explore Baltimore County on Medical Malpractice" »

The year is just one-sixth of the way over but we already have some interesting medical malpractice opinions:

• Wantz v. Afzal
• Neustadter v. Holy Cross Hospital
• Muti v. University of Maryland Medical Systems
• Robertson v. Iuliano

The Maryland Injury Lawyer Blog summaries two new appellate opinions:

• Muti v. University of Maryland Medical Systems">Muti v. University of Maryland Medical Systems
• Robertson v. Iuliano

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.

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).

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.

The Maryland Court of Special Appeals provided yet another ruling about the nuances of malpractice law in Maryland, specifically the certificate of merit and other technical requirements necessary for initiating a medical malpractice lawsuit.

In Maryland, the procedures for filing and litigating medical malpractice actions are established by the Maryland Healthcare Malpractice Claims Act which governs medical malpractice lawsuits filed in Maryland. This statute requires plaintiffs' medical malpractice lawyers in Maryland to jump through a lot of hoops. Most notably, a certificate of merit from a medical doctor is required before bringing a malpractice lawsuit.

Malpractice attorneys in Maryland dislike this requirement. I have mixed feelings about it because I do think some frivolous malpractice lawsuits get filed in other jurisdictions and I think this is a way to weed out some of those suits. The problem is that the spirit and purpose of the statute often gets destroyed by defendant's malpractice lawyers using gamesmanship as a means to end run fairness in an effort to get a meritorious lawsuit past the legal technicalities of bringing a claim.

Continue reading "New Maryland Malpractice Opinion" »

This article underscores the abject failure of medical error reporting programs - and laws that require reporting - because no one is really trying to enforce the laws that exists in 27 states, including Maryland, requiring hospitals and other facilities to report serious medical malpractice.

Every once in a blue moon, a hospital does get caught. Last year, Doctors Community Hospital in Prince George's County was fined $30,000 by Maryland health regulators after failing to notify them that a patient had died and that at least seven others suffered serious harm as a result of medical malpractice. But the practical reality is that a $30,000 fine is a drop in the bucket for a large hospital and the chances of getting caught covering up medical malpractice in Maryland are extremely low.

A I discussed yesterday, a process tort of failing to disclose or conceal would be a viable solution. But MedChi lobbyists are never going to let the Maryland legislature create a statute that creates a new tort and the "stare decisis is king" Maryland Court of Appeals is not likely to create a controversial new tort anytime soon.

In searching for something else last night, I stumbled onto an article by Richard W. Bourne, a University of Baltimore Law School professor, published last year in the Arkansas Law Review that articulates the theory that there should be a process tort, even in the absence of injury, when a doctor fails to disclose to the patient that he or she has committed medical malpractice. I started to blog on this and then I found my own blog post from last year. In 16 months I had completely forgotten I had already read the article.

In my re-read, I found some points about the question of doctor's offering apologies, an issue I talked about in the latter part of this blog post.

A new article titled, The Flaws in State ‘Apology’ and ‘Disclosure’ Laws Dilute Their Intended Impact on Malpractice Suits, there is also interesting commentary on disclosure and apology laws that exist in most states which the authors believe may do more harm than good. The take home message: it is hard to make a fair law and still give doctors reasonable expectations of what will and will not be used against them.

This is a sample Maryland medical malpractice lawsuit. The links on the right of the document provide other examples of motions, pleadings and discovery in Maryland medical malpractice lawsuits.

We provide a lot of medical malpractice samples on our website for the Maryland malpractice lawyer who wants to see how another lawyer approaches the workup of a malpractice claim. If you have no experience and understanding of how to handle a malpractice claim, I think you are inviting a different kind of malpractice claim - legal malpractice - if you try to handle the case on your own without an experienced malpractice lawyer.

A Florida appeals court gave an interesting ruling in Kristensen-Kepler v. Cooney on the question of whether there was potential liability against an ambulatory surgical center.

Plaintiff's wrongful death claim was that the ambulatory surgical center's anesthesiologist negligently caused an infection in decedent's spine. The court found that the surgery center was not directly the patient's injuries and death because the patient did not choose the surgical center as the site of his surgery. Instead, the patient chose the doctor who directed the patient to the surgical center.

You can read the full opinion here.

I had the pleasure today to compute post judgment interest in a case we won at trial and on appeal. Maryland's post-judgment interest rate is 10%. Unfortunately, the interest does not compound so the real rate of interest declines over time. In fairness to parties that win at trial only to have the case unnecessarily delayed by endless appeals, it would make sense to increase the post-judgment interest rate over time. Of course, the changes this gains momentum in the Maryland legislature is the same as LeBron James selecting the University of Maryland tonight.

To file a medical malpractice lawsuit in Maryland, a plaintiffs' malpractice lawyer must file a certificate of merit by a medical doctor that the negligent doctor breached the standard of care and caused injury to the injured plaintiff. This certificate of merit is a document authored by one or more experts - almost invariably medical doctors - explaining the good faith basis for filing the lawsuit.

A malpractice lawsuit in Maryland is not filed in Circuit Court but in Health Claims Arbitration. However, since 1995, any party may waive this requirement and proceed to circuit court, assuming the certificate of merit requirement has been met.

Can any doctor sign the certificate of merit? The requirements for eligibility vary from different types of malpractice lawsuits. The preliminary requirement for a medical doctor who executes a certificate of merit in Maryland is that: 1) they have clinical experience, i.e. a doctor who actually provides or provided care and treatment to patients, 2) they provided consultation relating to clinical practice, 3) they taught medicine in the subject matter or a related field of health care or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action. With limited exceptions, Maryland also requires the doctor be board-certified in the medicine that is the subject of the lawsuit.

The certificate of merit in Maryland medical malpractice cases must contain three elements:

1. Where the doctor is licensed to practice;
2. An opinion within a reasonable degree of medical probability that the treating doctor departed from the applicable standard of care in treating the plaintiff and that there was damage from the breach of the appropriate standard of care;
3. That the doctor does not devote annually more than twenty percent (20%) of his professional activities directly involved in testimony in personal injury claims.

• More on Maryland Certificate Requirements (links at the bottom have even more resources for meeting certificate requirement in Maryland)
• Sample Certificate of Merit
• Sample Deposition of Doctor in a Malpractice Case