Articles Posted in Malpractice Law

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: a guy is trying to take a hill in Afghanistan and gets shot in the leg, requiring a leg amputation. The 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 will read incredibly trite when I post this. But it is what it is.)

My understanding of Maryland law is that doctors do not have to consent to settle before the insurance company can make a settlement offer, absent specific policy language giving them that right. (I say “my understanding” because I really don’t know the source. It could be the “Law of Ron.” But I think that is right.)

Either way, I think the point is largely moot in Maryland. Med Mutual, who insures most Maryland doctors, seems to require the doctor’s assent to settling a malpractice case. It it not a bad policy – it is a doctors’ owned insurance company. Most doctors pushing Med Mutual to stick its chest out likely have enough coverage. No one is usually so bold with their own assets on the line.

A lot defendant’s malpractice lawyers use this as a faux means of not pursing settlement discussions before a pretrial. But I know we have tried at least one case because the doctor did not want to settle out of fear which we think was out of fear that Med Mutual would drop him.

Explore Baltimore County writes about a bill introduced by a doctor who is in the Maryland House of Delegates that says, in effect, that if a doctor says he or she is ‘sorry’ for a medical outcome, that apology would be inadmissible in a Maryland courtroom.

I just looked for the bill. I couldn’t find it. But how much do you want to bet me that that is not what “in effect” it says? Instead, if doctors explain exactly how the malpractice occurred and they deny it later, the fact that they have completely changed their story in front of perhaps multiple witnesses is excluded. How is that fair? The idea that the purpose of this bill is to allow doctors to say “Hey, I’m sorry for your loss” is just plain inaccurate.

There is no question in my mind that this bill is well-intentioned. It obviously sounds like a good idea. In fact, there is evidence that patients and their families benefit when doctors fess up and admit medical malpractice. So let’s just move on. Let’s go all George Bush and just go with our gut. Apology = good.

Both lawyers and laypeople have misconceptions about the application of the wrongful death cases. Making matters more complicated, we now have different rules in medical malpractice cases than we do in accident or other tort liability death rules.

On our website, we are making a continuing effort to explain the nuances of wrongful death/survival actions in Maryland.  This page provides an overview of wrongful death survival actions in Maryland and contains a lot of links to other subcategories of interest. If you think there is something we should add to this, let us know.

For a variety of reasons, there is often a significant lag time between the time of death and the filing of a wrongful death lawsuit. For better and for worse, life goes on and the widow often remarries.

So the question is, “Should a jury take this into consideration in computing damages?” The short answer, and the human answer, is that they should not. People who have suffered a great loss should not be penalized for moving on with their lives.

What is Maryland law? Maryland law for at least the last 112 years has supported this common sense view. The rule is that a jury should consider the probable duration of the joint lives of the spouse had one not been killed.

The Maryland high court provides a good look at just how complicated the implications of joint tortfeasor releases can be in Hashmi v. Bennett, a medical malpractice case filed against Good Samaritan Hospital of Maryland and a number of other medical providers.

Plaintiffs’ filed a medical malpractice survival action/wrongful death lawsuit claiming defendants failed to diagnose and treat plaintiffs’ father, a 27-year-old man, who showed signs and symptoms of progressive septic methicillin-resistant staphylococcus aureus, or MRSA, and was treated instead with Ambien to help him sleep.

Good Samaritan Hospital settled the case for $550,000 and the claim against the emergency room practice, and the ER doctor settled for $400,000. The case against the doctor at the hospital who treated the patient was taken to verdict and a Baltimore City jury awarded Plaintiffs $2,295,000, which was reduced by the Maryland medical malpractice cap to $1,795,000.

The Maryland Court of Special Appeals provided yet another ruling about the nuances of malpractice law in Maryland, specifically the certificate of merit and other technical requirements necessary for initiating a medical malpractice lawsuit.

In Maryland, the procedures for filing and litigating medical malpractice actions are established by the Maryland Healthcare Malpractice Claims Act which governs medical malpractice lawsuits filed in Maryland. This statute requires plaintiffs’ medical malpractice lawyers in Maryland to jump through a lot of hoops. Most notably, a certificate of merit from a medical doctor is required before bringing a malpractice lawsuit.

Malpractice attorneys in Maryland dislike this requirement. I have mixed feelings about it because I do think some frivolous malpractice lawsuits get filed in other jurisdictions and I think this is a way to weed out some of those suits. The problem is that the spirit and purpose of the statute often gets destroyed by defendant’s malpractice lawyers using gamesmanship as a means to end-run fairness in an effort to get a meritorious lawsuit past the legal technicalities of bringing a claim.

This article underscores the abject failure of medical error reporting programs – and laws that require reporting – because no one is really trying to enforce the laws that already exists in 27 states, including Maryland, requiring hospitals and other facilities to report serious medical malpractice.

Every once in a blue moon, a hospital does get caught. Last year, Doctors Community Hospital in Prince George’s County was fined $30,000 by Maryland health regulators after failing to notify them that a patient had died and that at least seven others suffered serious harm as a result of medical malpractice. But the practical reality is that a $30,000 fine is a drop in the bucket for a large hospital and the chances of getting caught covering up medical malpractice in Maryland are extremely low.

As I discussed yesterday, a process tort of failing to disclose or conceal would be a viable solution. But MedChi lobbyists are never going to let the Maryland legislature create a statute that creates a new tort and the “stare decisis is king” Maryland Court of Appeals is not likely to create a controversial new tort anytime soon.