Maryland Medical Malpractice Attorney Blog

Looking to build on the momentum in Illinois, Kansas malpractice lawyers look to strike down Kansas' draconian $250,000 noneconomic damages malpractice cap.

The case is a classic wrong part surgery lawsuit:, a woman went in for right ovary surgery and had her left ovary removed. This is one of those cases malpractice lawsuit reform advocates do not have an answer for: the doctor may a surgical error that even a modicum of due care would have avoided.

Not surprisingly under these facts, the woman filed a medical malpractice lawsuit against the surgeon who operated on the wrong part of her ovaries and was awarded $760,000 in damages. But, consistent with the cap, the trial judge reduced relating to noneconomic damages.

The AP reports that President Obama's says he's willing to start from scratch on health care — and is willing to consider medical malpractice caps sought by most Republicans. I don't think the President really supports malpractice reform. My fear is that, at this point, he would sacrifice too much - including small puppies I think at this point - to enact anything resembling real health care reform.

A man in Tampa Bay has filed a lawsuit against a hospital that told him it would charge him more than $1 million to pull their adverse incident reports on his back surgeon. One goal of the Plaintiff: finding out just how much it would actually cost the doctor to do the search.

In 2010, people are getting used to the information age. They no longer feel comfortable being left in the dark on issues that are important to them, particularly information a patient would want to know. Do hospitals try to put a big price tag on information to deter patients from obtaining information on their doctors? I'm sure some do. But 10 years from now, covering up this kind of information claiming the search is too time consuming is going to be a dead bang loser. It may even be already.

No word yet in either Maryland and Illinois on various challenges to medical malpractice caps both states. The Illinois case was on the list of cases to be decided last week but was withdraw so no ruling will be made in 2009. The Maryland high court will likely not rule until 2010 either.

The Illinois ruling is sexier than Maryland because (1) it is a larger state, and (2) it goes to the core of the cap: is it a violation of the state's constitution. But it is huge deal to medical malpractice victims in Maryland.

Fun random why the Illinois cap is wrong: Rod Blagojevich signed it into law. Ispo facto.

Maryland is not the only case with upcoming battles and decisions to make about its medical malpractice cap. Missouri Lawyers Weekly reports that a St. Louis judge reduced a $6.8 million medical malpractice verdict to $1.28 million in a case Plaintiff is expected to appeal. This was an awful case involving the death of a three year-old boy.

The Plaintiff's malpractice lawyer's angle in this case is interesting. Plaintiff claims that when Missouri imposed its new cap on malpractice pain and suffering damages, it repealed the old law. Therefore, cases arising under the old cap no longer have a cap and the court should award the boy's family the full $6.8 million.

This is a tough argument. In Maryland, there is a far more cogent argument that the legislature repeal the cap in cases where arbitration is waived in Semsker v. Lockshin, a case the Maryland Court of Appeals is considering now.

The New York Times offers the opinion in its "The Ethicist" column that it is perfectly okay for doctors to refuse to treat medical malpractice lawyers. Taking it a step further, the author actually encourages the practice.

The logic of this completely escapes me. Does this doctor believe that it is ethically wrong for a lawyer to handle a medical malpractice case? I'm a lawyer. Some lawyers focus their practice exclusively on legal malpractice cases. It would never even occur to me to have ill feelings towards a legal malpractice lawyer.

Maryland publishes disciplinary actions taken against health-care practitioners. I recently found out that one of the doctors treating one of our clients has was no longer licensed to practice medicine on this website. The American Medical Association frowns upon this type of public exposure and has done a good job of keeping the national database of malpractice payouts closed to the general public.

This database, complied by the U.S. Department of Health and Human Services, almost a half a million malpractice lawsuits whose judgments total nearly $70 billion. Shouldn't patients have access to this information in choosing a doctor?.

When the Saturday Night Live's opening skit started talking about medical malpractice and health care reform (around the 2:00 mark), I was worried what was coming next. But it underscores the silliness of malpractice caps, albeit in a very coarse way:

Are you kidding me? Forbes? I just assumed everyone who has ever picked up Forbes though every malpractice lawsuit was frivolous. I never thought I would live to see the day:

Decisions about the tasks physicians take on are best made with information about the magnitude of the underlying risk to patients. In the surplus lines market, malpractice insurance underwriters convey this information to physicians through their brokers in the form of pricing options for insurance. One option may include surgical coverage while another option, with a lower premium, would not cover surgery. This creates the appropriate incentive for physicians to consider the risk associated with their practice patterns.

All of this protects consumers. The potential for surcharges or cancellation of policies offered by admitted carriers and the higher cost of obtaining insurance in the surplus lines market create an incentive for physicians to practice care that meets medical community standards.

Rarely, in the very worst cases, physicians will be denied coverage in the surplus lines market. It may be because the physician is such a danger to the public that there is no viable restriction that would permit the physician to continue in practice. Even when a state medical board fails to sanction a physician who should not be practicing medicine, denial of malpractice insurance precludes affiliations with most hospitals and other provider organizations, protecting consumers served by those providers. In the seven states where medical malpractice is mandated for practice, all consumers benefit from these protections.

Lindsey Graham (R-South Carolina) and Saxby Chambliss (R-Georgia) today introduced “loser pays” legislation to decrease the number of "frivolous malpractice lawsuits" that increase the cost of medical care. As one doctor wrote last week, it is really hard, given the economics costs for malpractice lawyers to pursue a malpractice lawsuit, to suggest that frivolous malpractice lawsuits are a problem in this country. This is particularly true in states like Maryland where you are required to have a certificate of merit before filing a malpractice lawsuit.

• Medical malpractice is exposed in China. This underscores that while we have a very serious problem with medical malpractice in the United States, it pales in comparison to many countries. Of course, that fact that we have less medical malpractice in this country, relatively speaking, is not the lens with which we should be looking at our health care system. If the IOM is even close to right, there are just too many avoidable malpractice deaths a year.
• Where is Obama’s head on medical malpractice reform? Honestly, I’m tired of trying to figure it out.
• Illinois Medical Malpractice Blog writes about Rep. Bruce Braley’s view on malpractice caps (he’s opposed)
• Minnesota ranks 50th in malpractice insurance premium costs. Oh, and Minnesota does not have malpractice caps. Instead, they have good doctor. There a plan.
• I simply don’t understand health insurers’ antitrust exemption. I also don’t understand why the Wall Street Journal believes that antitrust laws are unnecessary unless proven otherwise. Didn’t we decide this issue of 100 years ago?
• The Maryland Injury Lawyer has a blog post on University of Maryland Medical System v. Waldt.

I'm interested in the theory articulated here which argues that medical malpractice tort reform is directed at curbing the income of malpractice lawyers.

At the risk of overgeneralizing, Republicans are far more disciplined than Democrats and are far more able to take the long view. So if this is the core motivation, I would not be surprised. In political chess, Republicans have long been two or three moves ahead.

The Maryland Daily Record reports on a defense verdict in a cancer misdiagnosis case in Washington County.

As any Maryland malpractice lawyer will tell you, Washington County is an extremely difficult place to try a medical malpractice case. Not impossible by any stretch but if you have a close call - as this appeared to be - you are going to have a difficult time in any county in Maryland that is comprised of large rural areas.

Florida's medical malpractice insurance premiums fell for the 5th consecutive year. But, apparently, Florida dentists saw their malpractice rates rise by 4.61 percent, and podiatrists, optometrists and chiropractors saw a 3.65 percent rate hike. So here is what I want to know: exactly how much are these health care providers being charged and how many successful claims have been brought against them? In Montana, there has been only one lawsuit against a podiatrist or a dentist in the last 10 years. Florida is a bigger and more friendly plaintiffs' jurisdiction, as any plaintiffs' lawyer will tell you. But, still, I would love to compare Florida claims with the rates they are paying. Here is a guess: the word "administrative cost" will loom large.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Malpractice Tort Reform , Medical Malpractice News

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• Maybe electronic records are not the cure all.
• The Wall Street Journal supports malpractice tort reform. But how many times and how many different ways do they need to repeat this over again? I get it, I get it. The Journal also hates poor people but they don't feel compelled to repeat it incessantly. So why the ad nauseam on this? (What? They have never actually admitted that? Okay. Whatever.)
• Missouri doctors are paying less in malpractice premiums. Which is good because a lot of these doctors were struggling to make their beach house McMansion payments.
• L.A Times letter to the editor on medical malpractice and workers' compensation.
• The Expert Witness Blog reports on a malpractice trial in progress in Washington.
• More from the L.A. Times on medical malpractice tort reform.

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.

President Obama's speech on malpractice both left Republicans demanding more and Democrats worried that President Obama is willing to sell the rights of the few for health care reform. Clarifying his thinking (sort of), President Obama said on 60 Minutes on Sunday that there was no evidence that malpractice caps would make a meaningful difference in the costs of health care.

"What I would be willing to do is to consider any ideas out there that would actually work in terms of reducing costs, improving the quality of patient care. So far the evidence I've seen is that caps will not do that."

But President Obama chose - as he always does - his words very carefully. "So far the evidence" means this is what I think.... but I might change my mind if I have to for health care reform to go through. President Obama is keep his options open on health care tort reform.

• Great ad for a medical malpractice lawyer in Tennessee. Why didn't we think of that?
• The New York Times underscores the obvious: trial lawyers - particularly medical malpractice lawyers - contribute a lot of money to political campaigns. So do doctors.
• Fox News is shovel ready for medical malpractice reform test projects. The article really does not use the term "shovel ready." But I think this lingo should be worked into more conversations.
• Anne Zeigler reports that the malpractice bone thrown to Republicans is not enough. So the generic lines about malpractice have led to mistrust from core Democratic supporters and unsated Republicans. Can we agree now it is a bad idea to always try to be all things to all people?
• An emergency room doctor who does not believe in civilized discourse.
• More on Obama and malpractice tort reform.

Dr. George E. Hossfeld, an emergency room doctor in Illinois, gets more than carried away attacking medical malpractice lawyers... and me.

A lawsuit by former CBS “Early Show” personality Mark McEwen against a Maryland doctor and Baltimore Washington Hospital has been dismissed on summary judgment. The Maryland medical malpractice lawsuit alleged that Baltimore Washington Medical Center should have recognized that McEwen was suffering from stroke-like symptoms and treated him with anti-coagulates. U.S. District Judge J. Frederick Motz granted summary judgment for the doctors, finding that there was not sufficient evidence that anti-coagulates would not have prevented McEwen's stroke.

Interestingly, the doctor at Baltimore Washington Medical Center (formerly North Arundel Hospital) admitted in his deposition that he spent time looking up McEwen on the Internet during his stint in the emergency room. The doctor told McEwen he had the stomach flu and advised him not to fly for two days. McEwen followed the doctor's orders, then traveled home to Florida and suffered a stroke in mid-air.

It is relatively rare to lose a medical malpractice case in Maryland on summary judgment because usually the doctor's opinion are set out before the case is filed. Honestly, and I'm just going off the press coverage, I doubt there was much of a malpractice case here although the temporal relationship between the ER visit and the stroke is compelling.