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Many people think medical malpractice is an invention of medical malpractice lawyers to get money.  It is not.  Before COVID-19, it was the third leading cause of death in the United States.  That is not a malpractice lawyer talking.  It is from Johns Hopkins.

Other studies in the healthcare field have shown that only a fraction of people injured by medical negligence end up bringing a claim, let alone filing a lawsuit. So the reality is that most incidents of medical malpractice never even result in litigation.

When medical malpractice does generate a lawsuit, however, there is a very strong likelihood that the lawsuit will eventually be resolved through some type of out of court settlement. Somewhere between 70-85% of all medical malpractice lawsuits get settled out of court. This means that a big part of every medical malpractice lawsuit is a continuing process of back and forth negotiation about the settlement value of the case. Most people are entirely unfamiliar with how this process works, so the goal of this post is to give you an inside look at how malpractice settlements get negotiated.

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People tend to put a lot of trust in doctors and other medical providers and it can often be very shocking when they make major mistakes or provide negligent care. When you feel like you’ve been the victim of medical negligence or some type of mistake by a healthcare professional its only natural to want to take action. This typically means suing the doctor for medical malpractice. Many people who find themselves in this situation end up getting very frustrated when they can’t seem to find any medical malpractice lawyer willing to take their case.

Our Maryland medical malpractice lawyers field hundred of inquiries from prospective medical malpractice clients each month. Like most malpractice firms, we end up turning away a large percentage of these. On this page, we will look at the top four most common reasons that we end up turning down a potential medical malpractice case.

  1. Malpractice Occurred but No Harm Resulted

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Our lawyers see a lot of pressure sore ulcer cases.  These bedsores come in many shapes, locations and sizes based in part on their etiology.

What Is DuoDerm?

There are a number of dressings and treatment options available. DuoDERM, a hydrocolloid, is an occlusive gel dressing that helps maintain a moist wound bed. The idea is to reduce the amount of skin breakdown that is inevitable as a result of friction that comes with life such as putting on clothes, brushing up against bedsheets, etc.

The hydrocolloid in DuoDERM helps provide absorbency and a “moist gel-like environment” that helps promote moisture to rehydrate, soften, and liquefy the tissue. On contact with the wound drainage, the hydrocolloid matrix forms a cohesive gel that supports moist wound healing.

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We are looking at a birth injury case in Rhode Island which has given us occasion to look at medical malpractice verdicts and settlements in Rhode Island.  This is just for general information.

  • 2019, Rhode Island: $6,000,000 Settlement. This is just a tragic maternal death. A 21-year-old woman was expecting her first child. Her prenatal course was normal, and she arrived at the hospital to deliver her child a week after the due date. Her labor and delivery team planned for her to undergo cervical ripening by administering Misoprostol before inducing labor. However, Misoprostol was not approved for cervical ripening and there could be potential for serious complications to occur. A first-year resident gave the first dose of Misoprostol to the woman. At that time, the attending physician, who was not employed by the hospital, was at home but available via telephone. The woman’s contraction patterns became more frequent and intense shortly after receiving Misoprostol. The attending physician told the resident that she could only give Misoprostol if the contractions became irregular and infrequently. Despite the woman’s contractions being more frequent and consistent, the resident administered a second dose. The woman’s uterus contracted intensely. Fetal bradycardia developed and her cervix enlarged rapidly. Her cervix and uterus tore during the delivery. The baby was successfully resuscitated. However, the cervical and uterine tears caused a significant post-partum hemorrhage. The labor and delivery team attempted to save her, but she died from shock and multi-organ failure. Her son thankfully survived without any residual injuries. The woman’s family alleged that the hospital failed to properly oversee their resident and the resident negligently administered a second dose of Misoprostol. They claim that the woman would have survived had there been no second dose. The case would eventually settle for $6,000,000.
  • 2019, Rhode Island: $36,330,000 Verdict. A 58-year-old woman visited a hospital with back pain and a recent MRSA skin infection. During her second visit, an MRI revealed signs of an infection. However, the radiologist interpreted the MRI as normal. She returned two days later, with sepsis. The woman was hospitalized for an extended period because the hospital staff failed to diagnose and treat her infection. She ultimately underwent amputations to both her legs below-the-knee and eight fingers. The woman also suffered respiratory failure, kidney failure, and a heart attack that disrupted her circulation to her brain. The jury awarded $36,330,000.
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Most of us have probably heard of Zika and know it is most often transmitted through mosquito bites and unprotected sex with infected people.  Zika is also linked to birth defects.

This is not a blog post about Maryland law or medical malpractice.  But we are interested in the health of babies. This is something that people need to understand.

Zika Virus

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The recent decision by the New York Supreme Court Appellate Division in J.H. v. New York City Health and Hospitals Corporation, 169 A.D.3d 880 (NY App. Div. 2019) answers the question of whether a plaintiff can serve late notice of a claim upon a hospital operator. At issue, specifically in J.H., is whether a plaintiff, when there are actual knowledge and an absence of prejudice on part of the defendant, can be granted leave to serve a late notice of a claim despite lacking a reasonable excuse.

New York Law

baby-300x169Under New York’s General Municipal Law § 50–e[1][a], service of a notice of claim is a condition precedent to bringing suit against a public corporation and requires that the notice is served within 90 days after the claim accrues. Unless leave of court is made, late service of the original notice of claim is a nullity. Additionally, after the statute of limitations has run courts lack the authority to deem that late notice of claim timely served nunc pro tunc. The statute of limitations under General Municipal Law § 50–e[1][a] provides that the limitation period for commencing a tort action against a municipal corporation is one year and 90 days, however, in cases such as J.H., the statute of limitations does not expire after one year and 90 days because a plaintiffs infancy tolls the statute of limitations for 10 years.

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The U.S. has long had the highest rate of maternal fatalities during childbirth of any country in the developed world. STOP.  Read that again.  We are inundated with so many statistics these days that we lose sight of the ones that matter.  This one matters. This is insane. The rate of maternal injuries and deaths during childbirth in U.S. hospitals has been steadily increasing over the decade. For their part, hospitals have insisted that this increase was largely out of their control and not a reflection of any declining quality of care. Hospital advocates suggest that poverty rates and an increase in pre-existing maternal health conditions are to blame for these morbidity rates.

USA Today Investigation

This attempt to shift blame away from doctors, nurses, and hospitals fails.  USA Today recently did an investigation of just this.  You don’t think USA Today is the New England Journal of Medicine?  Fair enough.  But this is not rocket science.  It is just a look at the numbers and, yes, the anecdotal stories. USA Today showed that demographics alone cannot explain maternal death rates in the U.S. The investigation looked at medical records and lawsuits from across the country, suggesting that delayed care, misdiagnosis, and poor safety measures contributed to maternal death and injury rates.

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Our law firm handles hypoxic-ischemic encephalopathy (HIE) lawsuits in Maryland. HIE is a type of brain damage that occurs when a baby’s brain doesn’t receive enough oxygen and blood, typically during or immediately before birth.

What is hypoxic-ischemic encephalopathy?

Hypoxic-ischemic encephalopathy (HIE), is a brain injury resulting from a lack of oxygen and blood flow to the baby’s brain. It can lead to seizures, difficulty feeding, low muscle tone, organ dysfunction, and breathing difficulties. HIE may cause long-term neurologic disabilities such as cerebral palsy, intraventricular hemorrhages, and learning disabilities.

What risk factors did the new study link to HIE?

There are many additional pregnancy conditions or issues that are associated with HIE. All of them involve disruption of the delivery of oxygen to the fetus.

They include, but not are limited to:

  • Nuchal cord:  A nuchal cord occurs when the umbilical cord wraps around in a knot or loop around the baby’s neck. When this occurs, the cord can become obstructed, limiting the flow of oxygen-rich blood from the mother to the baby. Sometimes, it can get wound so tightly that it affects the blood vessels on the neck, depriving the baby’s brain of oxygen.
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Do midwives have the midwives — basically nurses — have the medical knowledge and insight to provide consultation for mothers or help them make decisions that are a matter of life and death?

My feeling is that some do and some don’t.  But I think, on balance, why not have an OB/GYN?  If you are having a child, you want to mitigate risk.  The best way to mitigate risk is to find the best doctor you possibly can to guide you through pregnancy and deliver your child.

  • Why midwives are both easier and harder to sue
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Since cerebral palsy (CP) is associated with children, much of the data comprises infants and young children. There is little information on difficulties that adults with cerebral palsy face as they get older. However, a recent study fills in this lack of data. Published in JAMA Neurology, it concluded that adults with cerebral palsy are more likely to be diagnosed with depression and anxiety.

The study                               

baby-in-womb-300x160Conducted by British, American, and Irish researchers, they used data from the United Kingdom’s Clinic Practice Research Datalink primary care database. Their data spans the years 1987 to 2015. The researchers examined 1,705 adults, ages 18 to 99, with cerebral palsy who also received depression and anxiety diagnoses. They compared each adult with CP to three adults without CP. The researchers chose these individuals based on the same age, gender, and primary care practice as adults with CP. The data covers about 7% of the country’s population. It comprises clinical events, prescriptions, referrals, and hospital admissions.

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