Maryland Medical Malpractice Attorney Blog

In medical malpractice cases, doctors often want to explicitly or implicitly argue that there is informed consent of a risk of an injury and that injuries can occur, therefore, there can be no malpractice claim because the patient was informed of the risks. The strategy is to convince the jurors that the injuries were the expected consequences of the treatment or surgery and since the patient accepted those consequences, there is no malpractice.

This logic fails. While I am aware of the risk of driving down the street, I can still bring a negligence claim if someone runs a stop sign and hits me. Few Maryland judges are going to allow doctors to make this argument directly in medical malpractice cases. But doctors' lawyers also want to make this argument indirectly by just asking plaintiffs on cross examination about the informed consent document they executed. Some jurors, particularly those that are inclined to be predisposed toward the doctor, may conclude that consent to the surgery is fundamentally the same as consent to the injury which resulted from the surgery, essentially finding that informed consent acts as some sort of waiver.

This raises the question of whether evidence that a patient signed an informed consent is admissible in malpractice cases where informed consent is not at issue. Our malpractice lawyers recently fought this issue, filing a motion in limine. We won the motion and the trial. You can find the motion in limine on this issue 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.

Many are concerned about frivolous medical malpractice lawsuits. Little if any attention is given to frivolous malpractice lawsuit defenses.

Everyone realizes that doctors are human beings and sometimes the very best doctors make mistakes, as do the best lawyers, accountants, plumbers and waitresses. But it is incredible how few malpractice lawsuits are conceded on negligence. There is almost invariably some defense, no matter how ridiculous.

One of our Maryland malpractice lawyers faced one of these classic throw all logic to the win defenses in a deposition yesterday: the “it is a known risk excuses everything defense.”

During our client’s laparoscopic cholecystectomy (gallbladder surgery), the Defendant doctors cut the client’s hepatic duct. This was a known risk which, according to the expert, means the doctor did not commit malpractice. No matter what.

The hope of the defendant’s malpractice lawyer is to confuse the jury. At first glance, it makes sense. Why would you hold a doctor accountable for a known risk? But the question in any malpractice lawsuit is not whether the injury suffered was a known risk but whether a prudent doctor would have avoided the injury with reasonable care.

When they feel strongly about their case, plaintiff and defense medical malpractice attorneys tend to shoot for the moon to get "the guy" to be their expert. But jurors in malpractice cases understand that doctors are generally pretty qualified. Relative degrees of qualification are less nuanced by a jury. But what they do appreciate is experts who are paid an obscene amount of money have a motivation to lie. Jurors also prefer a medical expert who is a good teacher that explains complex problems in a way they can understand. This is more important than a Harvard fellowship.

A related overreach many medical malpractice lawyers make when trying to get "the guy" is getting a subspecialist to render a malpractice opinion on generalist. For example, don't hold the general ortho to the world renowned foot and ankle guy. While there is clearly a floor that is the standard of care, jurors are going to be hesitant to hold every doctor to the standard of "the guy" in a subspecialty to a doctor who has a more general practice.

One question you will here Maryland medical malpractice lawyers asking each other is do you need to file in health claims arbitration if the case if filed in federal court. It is a good question because it is a tough question whether under the Erie Doctrine, Maryland's health claims arbitration is "substantive" or "procedural."

While the analysis is tricky, the answer is clear. In Davison v. Sinai Hospital of Baltimore, Inc., 462 F. Supp. 778 (1978), the court found that District Court for the District of Maryland held that mandatory arbitration of Maryland medical malpractice lawsuits are a prerequisite to trial.

So if you have a federal medical malpractice case - usually a diversity case in a jurisdiction where you are not excited about the potential jurors - you still need to begin down the Maryland Health Claims Arbitration path.

Here are two sample medical malpractice lawsuits:

Sample Medical Malpractice Lawsuit #1

Sample Medical Malpractice Lawsuit #2

We provide these sample lawsuits as a guide to medicial malpractice lawyers in Maryland and around the country who are filing medical malpractice complaints.

As the Internet is cluttered with personal information, there is increasing talk in legal journals about using blogs Facebook, MySpace, and other social networking Web sites, to learn more about potential jurors. The Internet provides such a rich resource of information about potential and even already seated jurors.

The problem in Maryland medical malpractice lawyers using this kind of resource is that it is very difficult logistically. Once the jury walks into the room, your computer is facing the jurors. There really is not time under Maryland quick voir dire selection to pass the jurors information along. Once a jury is already seated, I think it is real hard to find information about that juror to tailor your opening or closing statements around a particularly juror.