Articles Posted in Malpractice Law

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 to know or have reason to know as to when the victim(s) would know or have reason to know. But that really is not the law. It is to 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: 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.

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.

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.

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.