Articles Posted in Malpractice Law

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 “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 closing argument. Plaintiffs, the parents of the lost child, are appealing the verdict because of the instruction. The Plaintiff’s are urging 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.

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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.

One obvious malpractice claim in some hospital cases is negligent credentialing. These claims typically allege the hospital should have suspended or revoked the doctor’s privileges or should have monitored and supervised the doctor more closely. This is also known by its legal term, “Why did you let this idiot in your hospital, anyway?”

Maryland law arguably gives hospitals some leverage to fight these claims with its medical review committee privilege. Maryland’s statute, enacted in 1976, provides that “proceedings, records, and files of a medical review committee are not discoverable and are not admissible into evidence in any civil action arising out of matters that are being reviewed and evaluated by the medical review committee” in any civil action.


The hospital uses this privilege as a sword, claiming that it can’t defend itself because it cannot use this evidence at trial. But almost every state has a medical review committee privilege and, still most states allow for negligent credentialing claims. Ultimately, it is a false argument because the vast majority of negligent credentialing cases, the issue is “what did they know and when did they know it?” So the parties are on a level playing field in a medical malpractice lawsuit: the privilege prevents the introduction of what the peer review committee saw but the information that was presented – assuming it was available elsewhere which it must have been if it is at issue, is fair game. What the peer review committee thought does not really matter either way. In other words, if the jury question was whether the batter was safe or out and you have video, it does not matter what the umpire’s call on the field was at the time.

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.

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 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.

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.)