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Last week, the Maryland Court of Special Appeals issued its opinion in Hinebaugh v. Garrett County Memorial Hospital.  This case is a cautionary tale for medical malpractice lawyers and other Maryland lawyers who think they can handle malpractice cases.

Maryland, like many states, creates a lot of hoops that plaintiffs need to jump through in order to bring medical malpractice cases.  A lot of these requirements are ticky tacky details. But the big thing is a report and certificate of merit from a doctor who agrees there is a breach of the standard of care – the doctor did something a prudent doctor wouldn’t – and that the breach caused an injury.

Hinebaugh v. Garrett County Memorial Hospital

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Finding a suitable nursing home for an older loved one is an arduous and time-consuming process.  Nursing homes can be the best fit for an elderly family member’s care, but fears of elder abuse, medical mistakes, and the recent problem of MRSA infections make the choice even more difficult.  Very difficult.

First, what is MRSA?  MRSA is well known as a deadly problem for hospitalized people with open wounds or those recovering from surgery.  This type of MRSA is known as hospital-acquired MRSA.

A new study from the University of California, Irvine shows that the vast majority of surveyed nursing homes tested positive for the drug-resistant MRSA bacteria.   Researchers surveyed 22 facilities and found 20 to have strains of methicillin-resistant Staphylococcus aureus (MRSA).  MRSA is the bacterial strain that no longer responds to the antibiotics used to treat staph infections.   Once it gets going, it’s a beast of a task to fight it off.  What we now know – and suspected all along – is that nursing home patients are particularly at risk, even more so than other patients of the same age who are not in nursing homes.

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Here an interesting medical malpractice case out of Tennessee worth discussing that relates to substituting plaintiffs in a medical malpractice case.  In this case, Holley v.  Blackett, the Tennessee Court of Appeals allowed common sense to triumph, reversing a trial court’s entry of summary judgment in a wrongful death breast cancer misdiagnosis medical malpractice lawsuit,  allowing the minor daughter of a man who died while pursuing claims for his wife’s death to be named as the plaintiff.

Here are the facts: A husband brings a medical malpractice action on behalf of his wife, alleging her cancer was misdiagnosed and caused her death. This is a failure to diagnose a stroke case.   The doctor filed a motion for summary judgment.  While the motion was pending, the husband dies.  This is where it gets a little weird.  Plaintiff’s malpractice attorney has the husband’s daughter substituted as the plaintiff.  The minor girl was born as the result of an extramarital affair that husband had during his marriage.

Crazy, right?  I can’t help but think about it from the dead wife’s perspective.  Would she still support the claim?  I’m assuming she is in a place now where you don’t get caught up in the now trivial, but at the time grievous, sins committed on earth.  But still. The trial court dismissed the case, finding that the substitution was flawed because the malpractice lawyers never bothered to, ah, get permission from the girl’s guardian.

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Here’s an interesting case that the Nebraska Supreme Court decided yesterday.  Plaintiff volunteers to donate a kidney to his dad.  The doctor removes the plaintiff’s kidney and gives it to the father. Sadly, the father has complications with the kidney, requiring further surgery. According to the plaintiff’s complaint, the doctor mistakenly stitched the renal artery during the father’s exploratory surgery, which leads to the loss of the donated kidney.  Really just a tragedy – son tries to help father, which is how the world should work.  Malpractice or not, it is just a shame.

But here’s the weird part.  Isn’t this Dad’s malpractice claim?  Instead plaintiff – actually plaintiffs, inexplicably his wife was also a plaintiff, filed suit instead of the father.  Defendants, understandably, filed a motion for summary judgment.  The plaintiffs’ response was telling, asking for a continuance to pursue further discovery on whether the doctor-patient relationship existed between the plaintiff and the doctors.  The court granted the defendants’ motion for summary judgment.

So the Nebraska Supreme Court had to decide whether the doctor owes a duty of care to a kidney donor during the post-transplant treatment and care of the donee.  Is this really a question?  I don’t think so, and the Nebraska high court didn’t think so either.  I’m not even sure why I’m blogging about this, except the facts are interesting.  I just wish we had a bad story.  Why didn’t dad sue in his own right?

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This case is barely worth reporting on, but I thought I would pass it along.

In Smith v. Palin, a Maryland federal court was asked whether the Maryland Health Care Alternative Dispute Resolution Office abused its discretion in extending the time for filing the expert certificate required by Maryland law several times.  Specifically,  the defendant’s argued that the plaintiff’s excuse that they had requested, but not yet received all studies from treating physicians in Pennsylvania – including photographs of condition at issue – did not constitute good cause.

Should it take that long to get the records in a case?  No, it really shouldn’t.  Should the HCADRO hold plaintiffs’ feet to the fire and kick cases out because plaintiff’s lawyer has not done what they are supposed to do?  I think not.  Moreover, it is clearly not an abuse of discretion for the HCADRO director to determine that the plaintiffs do have good cause.  Not for nothing, the plaintiff was a 16-year-old girl when the defendant allegedly recommended that she undergo a bilateral breast augmentation as a treatment for a tubular breast deformity.  I don’t know about you, but I would like to see the court extend the benefit of the doubt.  Which is exactly what Judge James K. Bredar does.

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An appellate court in Florida affirmed a defense verdict in a medical malpractice lawsuit. Plaintiff alleged that the doctor was negligent in failing to diagnose and treat the decedent’s cervical cord compression, a condition which eventually caused the man to suffer from quadriplegia.

Plaintiff made four arguments on appeal. The one I found interesting was the idea that the doctor’s lawyer made an “impermissible burden-shifting argument” on the issue of the doctor’s negligence when he argued that the plaintiff failed to present testimony from any neurosurgeon that he would have done anything different in treating the patient. Florida law is clear that a plaintiff is not required to prove that the subsequent treating physician would have acted differently in order to prevail at trial.

Certainly, under Maryland and Florida law, lawyers may not in opening or closing statements make comments that mislead the jury as to the appropriate burden of proof. But the court disagrees (as do I) that this is what the doctor’s lawyer was doing in his closing statement.

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This is a guest post from Jonathan Rosenfeld, a medical malpractice attorney in Chicago, IL. Jonathan is the founder of Rosenfeld Injury Lawyers. I appreciate his contribution to this blog. The topic Jonathan attacks today is an important one: how to help cerebral palsy patients get the best possible outcomes.

There is no doubt that many cerebral palsy (CP) patients face many obstacles. But there is some relatively low hanging fruit to improve patients outcomes: good nutrition. Because of their condition, patients can be malnourished even when though they are fed regularly with what may seem like a healthy diet for the average person.

Causes of Malnutrition in CP Patients

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Disturbingly, the Pennsylvania Supreme Court will consider approving “a mere error in judgment” does not constitute negligence jury instruction. In other words, doctors can make mistakes as long as the jury wants to understand why the doctor made the mistake and can tolerate it.

The case on appeal involves an infant who underwent multiple treatments for what was thought to be gastroesophageal reflux after the child was fussy, wheezy, vomiting, not sleeping, and exhibiting pain while feeding. After several visits with the defendant doctor, the boy’s parents took him to the ER where doctors found him in severe respiratory distress with a low heart rate. Tragically, the boy died. The autopsy revealed the cause of death as diffuse viral myocarditis, a viral infection of the heart.

The case went to trial, and the court gave an “error in judgment” jury instruction which the defense lawyer ran with in the closing argument. Plaintiffs, the parents of the lost child, are appealing the verdict because of the instruction. The Plaintiff’s urge that the court affirm Pringle v. Rappaport, a shoulder dystocia case where the doctor was accused of excessive force when performing the corkscrew procedure in delivering the child, which abrogated the former “error in judgment rule” as a defense in medical malpractice cases.

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Honestly, I have always figured they did. My thinking was that it is basic economics. Decrease the upside risk and premiums will come down.

Now, I’m not so sure. Certainly, at a glance, a cap on noneconomic damages appears to be correlated with keeping health care malpractice premiums down. But the data just does not back that up. Take a look at the analysis in Ferdon v. Wisconsin Patients Comp. Fund 701 N.W.2d 440 (Wis. 2005) where the court breaks down the “caps equal higher premiums” argument.

Even more to the macro picture is whether a cap decreases medical costs. That is the endgame, right? Malpractice caps can’t be about just lining the pockets of our highest paid professionals. (How would that look on a bumper sticker?)

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