Maryland Medical Malpractice Attorney Blog

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.