Articles Posted in Malpractice Law

A Florida appeals court gave an interesting ruling in Kristensen-Kepler v. Cooney on the question of whether there was potential liability against an ambulatory surgical center.

Plaintiff’s wrongful death claim was that the ambulatory surgical center’s anesthesiologist negligently caused an infection in decedent’s spine. The court found that the surgery center was not directly the patient’s injuries and death because the patient did not choose the surgical center as the site of his surgery. Instead, the patient chose the doctor who directed the patient to the surgical center.

You can read the full opinion here.

I had the pleasure today to compute post judgment interest in a case we won at trial and on appeal. Maryland’s post-judgment interest rate is 10%. Unfortunately, the interest does not compound so the real rate of interest declines over time. In fairness to parties that win at trial only to have the case unnecessarily delayed by endless appeals, it would make sense to increase the post-judgment interest rate over time. Of course, the changes this gains momentum in the Maryland legislature is the same as LeBron James selecting the University of Maryland tonight.

To file a medical malpractice lawsuit in Maryland, a plaintiffs’ malpractice lawyer must file a certificate of merit by a medical doctor that the negligent doctor breached the standard of care and caused injury to the injured plaintiff. This certificate of merit is a document authored by one or more experts – almost invariably medical doctors – explaining the good faith basis for filing the lawsuit.

A malpractice lawsuit in Maryland is not filed in Circuit Court but in Health Claims Arbitration. However, since 1995, any party may waive this requirement and proceed to circuit court, assuming the certificate of merit requirement has been met.

Can any doctor sign the certificate of merit? The requirements for eligibility vary from different types of malpractice lawsuits. The preliminary requirement for a medical doctor who executes a certificate of merit in Maryland is that: 1) they have clinical experience, i.e. a doctor who actually provides or provided care and treatment to patients, 2) they provided consultation relating to clinical practice, 3) they taught medicine in the subject matter or a related field of health care or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action. With limited exceptions, Maryland also requires the doctor be board-certified in the medicine that is the subject of the lawsuit.

Maryland does not have an independent cause of action for wrongful birth but, to some extent, embraces the concept within medical malpractice law. A Maryland “wrongful birth” claim would appear to require a doctor patient relationship with the defendant doctor or health care provider.

The damages in wrongful birth cases include the cost of raising the child to majority and future education costs. But missing from these damages is the priceless love and affection the child brings.

This makes wrongful birth claims in Maryland incredibly difficult. Because the parents have to contend that the cost of raising the child is more than the joy the child brings. This is a very tough argument for malpractice lawyers to bring because… well, the reason is pretty obvious.

Illinois malpractice reform advocates have apparently given up putting constitutional change on the ballot this year to try to get back caps on medical malpractice awards in Illinois, accordingly to LegalNewsLine.com.

The “letting the voters” decide paradigm sounds very appealing. Up with people and all of that. But, really, do you want the constitution changing as frequently as voters change their minds?

The Washington Supreme Court unanimously (9-0) threw out a 2006 law that requires an injured patient to get a certificate of merit from an expert before suing for medical malpractice, finding that RCW 7.70.150, usurped the judicial branch’s power to determine the procedures by which courts adjudicate medical malpractice lawsuits. In other words, requiring a certificate of merit in medical malpractice cases in Washington violates the separation of state powers in Washington’s constitution.

I’m not necessarily against the idea of certificates of merit in medical malpractice cases – which have been required for years as a condition precedent to filing medical malpractice lawsuits in Maryland – even though I’m a little queasy about the idea of treating doctors in civil lawsuit differently that the rest of us. (The justification? We have been doing it that way for a while. Which is really no justification at all when you think about it. But let’s move on.) But if you read the opinion, it is hard to argued that a certificate of merit is anything other than a procedural rule.

Washington state constitution, similar to Ohio’s – is clear that procedural rules are for the judiciary.

A doctor faces a long and almost certainly emotional jury trial. And the doctor wins. Does this mean the doctor can put the incident to bed? The answer is usually, but not necessarily.

A jury’s finding that a doctor did not commit medical malpractice does not control a decision of the Maryland State Board of Physicians in a disciplinary proceeding under the Maryland Medical Practice Act. Accordingly, the Board can ignore a malpractice jury verdict in making the decisions it does.

  • Does the Maryland Board of Physicians Protect the Public? (Baltimore Injury Lawyer Blog post)

The Maryland Injury Lawyer Blog offers thoughts on when to serve interrogatories. The argument that interrogatories should filed contemporaneously with the complaint applies to medical malpractice cases but with less force. The question is going to hinge on the facts, potential defenses, and other tactics specific to that malpractice lawsuit.

The Maryland Injury Lawyer Blog provides links today to summaries of Maryland malpractice law for medical malpractice lawyers, information on the Maryland malpractice damage cap, and a sample malpractice certificate of merit and expert report.

 

The Maryland Court of Appeals changed an illogical quirk in Maryland law on Friday, finding that doctors must inform patients not only of the risks of treatment but also the potential consequences of forgoing a medical procedure.

The Maryland Injury Lawyer Blog has a complete summary of this medical malpractice case.