Articles Posted in Malpractice Law

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 sounds like such an obvious 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, the 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 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.

A 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.

In searching for something else last night, I stumbled onto an article by Richard W. Bourne, a University of Baltimore Law School professor, published last year in the Arkansas Law Review that articulates the theory that there should be a process tort, even in the absence of injury, when a doctor fails to disclose to the patient that he or she has committed medical malpractice. I started to blog on this and then I found my own blog post from last year. In 16 months I had completely forgotten I had already read the article.

A new article titled, The Flaws in State ‘Apology’ and ‘Disclosure’ Laws Dilute Their Intended Impact on Malpractice Suits, there is also interesting commentary on disclosure and apology laws that exist in most states which the authors believe may do more harm than good. The take home message: it is hard to make a fair law and still give doctors reasonable expectations of what will and will not be used against them.

This is a sample Maryland medical malpractice lawsuit. The links on the right of the document provide other examples of motions, pleadings and discovery in Maryland medical malpractice lawsuits.

We provide a lot of medical malpractice samples on our website for the Maryland malpractice lawyer who wants to see how another lawyer approaches the workup of a malpractice claim. If you have no experience and understanding of how to handle a malpractice claim, I think you are inviting a different kind of malpractice claim – legal malpractice – if you try to handle the case on your own without an experienced malpractice lawyer.