Articles Posted in Malpractice Law

The House Judiciary Committee is expected to consider a bill today that would allow military personnel to file medical malpractice lawsuits against the military. The proposed law comes in the wake of the death of a marine as the result of the misdiagnosis of skin cancer by military doctors. The Feres Doctrine, named for a 1950 Supreme Court case, currently preventing people in the military from filing medical malpractice lawsuits.

Why should our military have the opportunity to bring the same claims anyone else can bring? I don’t want to minimize the costs; it is real money. But compared to the toll we are putting on our soldiers these days, it seems a small price to pay for a bit of justice.


Our lawyers handling medical malpractice lawsuit against medical assistants in severe injury and wrongful death negligence cases in Maryland

Medical Assistants in a Healthcare Setting

Medical assistants are an important part of the healthcare team and are responsible for a wide range of clinical and administrative tasks. While they work under the supervision of licensed healthcare professionals such as physicians and nurses, medical assistants can still be held liable for medical malpractice.

Before undergoing surgery or other types of medical procedures, patients are asked required to sign a medical waiver or informed consent form. These forms often contain language confirming that the patient understands and accepts certain risks associated with the procedure.

But what happens if the medical procedure goes wrong and the patient is seriously injured? Does the medical waiver form the patient they signed legally prevent her from bringing a medical malpractice lawsuit?

We discuss the legal implications of medical waiver or informed consent forms and whether they limit a patient’s right to sue for medical malpractice when things go wrong.

An appellate court in Florida affirmed a defense verdict in a medical malpractice lawsuit. Plaintiff alleged that the doctor was negligent in failing to diagnose and treat the decedent’s cervical cord compression, a condition which eventually caused the man to suffer from quadriplegia.

Plaintiff made four arguments on appeal. The one I found interesting was the idea that the doctor’s lawyer made an “impermissible burden-shifting argument” on the issue of the doctor’s negligence when he argued that the plaintiff failed to present testimony from any neurosurgeon that he would have done anything different in treating the patient. Florida law is clear that a plaintiff is not required to prove that the subsequent treating physician would have acted differently in order to prevail at trial.

Certainly, under Maryland and Florida law, lawyers may not in opening or closing statements make comments that mislead the jury as to the appropriate burden of proof. But the court disagrees (as do I) that this is what the doctor’s lawyer was doing in his closing statement.

Disturbingly, the Pennsylvania Supreme Court will consider approving “a mere error in judgment” does not constitute negligence jury instruction. In other words, doctors can make mistakes as long as the jury wants to understand why the doctor made the mistake and can tolerate it.

The case on appeal involves an infant who underwent multiple treatments for what was thought to be gastroesophageal reflux after the child was fussy, wheezy, vomiting, not sleeping, and exhibiting pain while feeding. After several visits with the defendant doctor, the boy’s parents took him to the ER where doctors found him in severe respiratory distress with a low heart rate. Tragically, the boy died. The autopsy revealed the cause of death as diffuse viral myocarditis, a viral infection of the heart.

The case went to trial, and the court gave an “error in judgment” jury instruction which the defense lawyer ran with in the closing argument. Plaintiffs, the parents of the lost child, are appealing the verdict because of the instruction. The Plaintiff’s urge that the court affirm Pringle v. Rappaport, a shoulder dystocia case where the doctor was accused of excessive force when performing the corkscrew procedure in delivering the child, which abrogated the former “error in judgment rule” as a defense in medical malpractice cases.

The Connecticut Appellate Court ruled that a trial court was within its discretion in precluding two expert witnesses from providing testimony in a wrongful death medical malpractice lawsuit involving a tragic stillbirth. This case provides a teachable moment – to beat that phrase into the ground – for Maryland medical malpractice lawyers.

The child’s parents brought a medical malpractice action against the doctor alleging the doctor, who specialized in obstetrics and gynecology, did not properly treat the mother’s gestational diabetes.

The take home lesson for medical malpractice lawyers: don’t assume your experts can speak to causation just because they are doctors who are can opine on the standard of care.

A plaintiff’s medical malpractice lawsuit against doctors she believes caused her to go blind was revived last week by the Tennessee Court of Appeals. The court remanded her malpractice action that had ended in a defense verdict. This is one of those rare cases when a motion for reconsideration actually worked because the court had previously affirmed the trial court.


There Is a National Standard of Care for Doctors

At issue in the case is the malpractice locality rule. For historical reasons that escape modern logic, some states require the standard of care for doctors to be local instead of national. Most states, including Maryland, have moved away from the locality rule because it is insulting to patients to suggest that doctors in their area do not have to be as competent as other doctors around the country. The Tennessee Medical Malpractice Act stays firmly rooted in 1845 and imposes a geographic-based limitation on doctors offering opinion testimony in a medical malpractice lawsuit. To be qualified to testify, the doctors must have practiced within the preceding year of the action in a contiguous state to Tennessee.

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 needs 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 things. I know that there are some meritorious cases that don’t make the cut because discovery is needed to get the information for the certificate of merit in the first place. But good lawyering can find a way around that problem, at least in Maryland.

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 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 were 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.