Maryland Medical Malpractice Lawyer Blog

The New York Times recently ran a fascinating op ed by Joanna Schwartz, a professor at UCLA. The subject was a study that Professor Schwartz did on the value of medical malpractice litigation in reducing medical errors. Professor Schwartz’s conclusion was that medical malpractice claims and lawsuits actually don’t result in doctors and other health professionals hiding problems and, in fact, such suits actually encourage improved practices.

In order to reach her conclusions, Professor Schwartz surveyed more than 400 people who are responsible for hospital risk management, claims management and quality improvement in hospitals in the U.S. She found that, although hospitals used to handle medical errors and lawsuits by taking an adversarial and secret approach, hospitals have begun changing that approach. Now, she reports, hospitals are more open with patients. In fact, she found that over 80 percent of hospitals that she surveyed now actually have a policy of apologizing to patients who are victims of errors. Most importantly, she found that most hospitals are willing to discuss and learn from errors with staff. This is a dramatic shift form the old days when health care providers kept from patients the fact of medical injury. A copy of the op ed piece can be found here.

Severe and permanent nerve injuries due to medical malpractice unfortunately can occur. These cases can be challenging to win because there often is not clear evidence of exactly how the nerve injury occurred. Recently, I successfully concluded a case of a nerve injury that allegedly was caused by malpractice. That case involved a severed sciatic nerve which occurred during orthopedic surgery. The surgeon denied that he severed the nerve; however, the patient walked into the hospital on the morning of the surgery and woke up with the severed nerve.

Nerve injury cases also can be very challenging because the extent of nerve injuries can be hard to quantify objectively. In my experience, defense attorneys and insurance adjusters tend to be suspicious of plaintiffs who have nerve injuries because the pain caused by these injuries is subjective and, therefore, hard to objectively quantify.

As an experienced Baltimore, Maryland medical malpractice lawyer, I have handled a number of medical malpractice cases involving nerve injuries. They are extremely complicated and require expertise that most general personal injury attorneys do not have. To see some of the cases I have handled, click here.

Most medical malpractice, wrongful death and personal injury lawyers in Maryland are hired by clients through a contingency fee agreement. In such an arrangement, the law firm generally is paid a legal fee based upon a percentage of the total amount recovered in the case plus expenses. If there is no recovery, there is no legal fee or expense. But what happens when the client fires the lawyer before there is any recovery.

The Maryland Court of Appeals recently had the opportunity to address this issue in the case of Brault Graham v. Law Offices of Peter Angelos. A copy of the court’s decision can be found here..

According to the court, “the client’s power to end the relationship is an implied term of the retainer contract,” and therefore, “if the client terminates the representation, with or without cause, the client does not breach the retainer contract, and thus, the attorney is not entitled to recover on the [contingency] contract.” The Court then made it clear, however, that an attorney may be entitled to recover legal fees on a quantum meruit basis. According to the court: "[W]here a client has a good faith basis to terminate the attorney-client relationship but there is no serious misconduct warranting forfeiture of any fee, the attorney is entitled to compensation based on the reasonable value of services rendered prior to discharge, considering as factors the reasonable value of the benefits the client obtained as a result of the services rendered prior to discharge and the nature and gravity of the cause that led to the attorney’s discharge."

The Court explained that, in allowing a discharged attorney to recover the reasonable value of services rendered prior to discharge, “the court ‘preserve[s] the client’s right to discharge his attorney without undue restriction, and yet acknowledge[s] the attorney’s right to fair compensation for work performed.’
The bottom line is that people should be free to hire and fire an attorney if they want to. But if the attorney who is hired on a contingency fee agreement has not done anything wrong, the attorney may be entitled to compensation for the value of his/her services.

As an experienced Baltimore, Maryland medical malpractice lawyer, I routinely enter into contingency fee agreements. If you have a question about such an agreement, call me. To see some of the cases I have handled, click here.

This past week, Marylanders were stunned and sickened by news that Johns Hopkins’ gynecologist, Dr. Nikita Levy, allegedly used still cameras and video recording devices to capture surreptitiously his gynecological examinations of potentially hundreds of his patients, and that he allegedly collected massive amounts of those images and videos on multiple media storage devices (computers, thumb drives, etc.). What Dr. Levy did with these images is not yet clear. Local, state and federal law enforcement have begun a large-scale cooperative investigation, and, according to reports, officers have searched Dr. Levy’s home and office, seizing multiple media storage devices pursuant to search warrants issued by Baltimore County and Baltimore City Judges. But in the Dr. Levy case, which involves electronic surveillance and electronic privacy crimes, potential child pornography, voyeurism, and invasion of the privacy of hundreds and hundreds of women, law enforcement faces obstacles far more complex than a physician sexually assaulting one or more patients.

Continue reading "The Hurdles Facing Law Enforcement and the Steps Officers Will Take to Investigate, Collect Electronic Evidence and Identify Victims of Dr. Nikita Levy’s Patient Privacy Invasion " »

As news continues to unfold about the now-dead Dr. Levy’s alleged use of still cameras and video recording devices to capture surreptitiously his gynecological examinations of potentially hundreds of his patients, the entire Baltimore and Maryland community is reacting to and struggling to understand how an invasion of privacy of this magnitude occurred. In a nutshell:

• Women everywhere are thinking hard about their privacy—and cringing as they visualize what happens when they hop on a gynecological examination table and reveal their most intimate body parts to a medical care provider;
• If interviews with dozens of Dr. Levy’s patients can be taken as representative of the whole, the hundreds and hundreds of women examined by Dr. Levy are experiencing the trauma commonly associated with such an abusive invasion of their sexual privacy and are experiencing emotional distress as they imagine what pictures and videos might exist and whether those videos and images are floating about on the Internet;
• Horrifically, some of Dr. Levy’s teenage patients may be possible victims, raising the question--was Dr. Levy creating child pornography;
• Federal and state law enforcement are working diligently to investigate, gather, sort, catalog and evaluate massive amounts of electronic evidence and identify victims from that evidence;
• Prosecutors are considering what electronic privacy laws, criminal laws, child pornography laws, and medical privacy laws may come into play;
• Johns Hopkins is reaching out to former patients while trying to conduct its own internal investigation and handling a PR crisis; and
• Medical malpractice attorneys have rushed to the courthouse filing suits for millions in damages for medical malpractice when not a single victim has yet to be identified, although make no mistake—victims will be identified when there is this much electronic evidence.

Continue reading "Hundreds of women—Their Privacy Invaded in Their Most Vulnerable Moment—on the Gynecological Exam Table" »

A number of news organizations are reporting today that lawyers in Baltimore are racing to the courthouse to file lawsuits against Dr. Nikita Levy and Johns Hopkins Hospital. When I heard that, I sadly chuckled. The only thing that these lawyers know now is what the media is reporting. There is no other information available from Dr. Levy’s family, Johns Hopkins, the Baltimore County Police who executed the search warrant, the Baltimore City Police who are leading the investigation or the FBI which is assisting the Baltimore City Police with the forensic evaluation of the electronic evidence.

My firm and I are taking a different approach than rushing to the courthouse; we believe that it is better to conduct a thorough and detailed investigation rather than run the courthouse simply to be the first to file a civil lawsuit. Accordingly, I issued a pre-lawsuit deposition notice and subpoena to Johns Hopkins today seeking to determine what it knows and where documents and other evidence are located. A copy of the Deposition Notice can be found here. While I believe that ultimately a lawsuit is likely in these cases, such a lawsuit should be based upon a through analysis of the facts and not media reports.

Today, we also joined with a leading Maryland victims service organization, The Maryland Crime Victims Resource Center, Inc., to advocate for victims of this travesty. A copy of the letter can be found here.

Over the last few days, news reports have surfaced that a gynecologist / obstetrician who worked for Johns Hopkins, Dr. Nikita Levy, was improperly taking photographs and videos of patients. The Baltimore Sun's report can be found here. WBAL's report, which includes an interview I gave, can be found here. Apparently, a co-worked reported Dr. Levy to a supervisor at Hopkins on 2/4/13 which resulted in Dr. Levy being fired by Hopkins on 2/8/13 and Hopkins notifying the police.

The police subsequently searched Dr. Levy's home and found a large amount of "evidence." Presumably, this means that they found many photos and videos of his patients. After retaining a local lawyer, Dr. Levy committed suicide.

Surprisingly, patients are finding out about Dr. Levy's misconduct through the news media instead of through Hopkins itself. Even the now disgraced St. Joseph Medical Center advised patients when its cardiologist Dr. Midei was found to have unnecessary implanted cardiac stents in hundreds of patients over years.

One major issue is who is responsible for Dr. Levy's misconduct. He is certainly liable, but his malpractice insurance may exclude coverage for such misconduct and the extent of his assets are unknown. Hopkins, on the other hand, may be liable for the conduct of their employee.

As an attorney who handles major medical malpractice cases, I already have been contacted by several patients of Dr. Levy. These people are angry that Hopkins did not contact them, they want to know whether they are victims and whether the photos / videos have been distributed.

In Maryland, the doctrine of informed consent requires a physician, before a patient undergoes a non-emergency medical procedure, to explain the proposed medical procedure to the patient including warning the patient of the benefits, risks and alternatives. The District Court for the District of Maryland recently had the occasion to review this law in the case of Robertson v. Iuliano, et al. A copy of the Memorandum Opinion can be found here.

In that case, Robertson underwent back surgery at St. Agnes Hospital in 2006 following an accident. After the surgery, Robertson developed an infection and two additional surgeries were required. The surgery was performed by Luliano, a doctor employed by Nuerosurgery Services, LLC. Robertson signed informed consent forms for the second and third surgery, but not for the initial surgery. Robertson subsequently filed suit against Luliano, Neurosurgery Services and St. Agnes claiming that he would not have undergone the surgery if he had known of the risk of infection and seeking damages from, among other things, loss of income and medical bills.

In the court's opinion, the court determined whether to grant Motions for Summary Judgment filed by Neurosurgery Services and St. Agnes. In deciding summary judgment was warranted, the court took note of the fact that Robertson testified that he “did not know, did not care and did not ask” who employed Luliano at the time of the initial surgery. In Maryland, courts have declined to extend the duty to obtain informed consent from the patient to hospitals unless they “specifically assumed the duty” or the physician was an agent of the hospital. Here, the court found neither as Neurosurgery Services and St. Agnes never specifically assumed the duty and Luliano was not acting as their agent.

I have handled a number of informed consent cases. These cases can be very complicated and turn on brief conversations between the physician and the patient. These conversations, and the records of these conversations, are important evidence regarding whether the doctor obtained "informed" consent from the patient.

When most hear about complications during childbirth most immediately think of the child. Obviously the birthing process is a delicate one, and infants are quite vulnerable to long-term harm that results from prolonged oxygen deprivation, the applications of excess force, and other incidents. However, it is important not to forget that mothers are just as susceptible to serious injury and even death caused by problems during childbirth. In fact, according to some recent reports, the most serious maternal complications are actually on the rise in the United States.

CDC Maternal Injury Report

Some assume that the days of high maternal death rates during childbirth are a thing of the past - at least in the developed world. The reality, however, is that while medical advances have obviously made childbirth safer, there remains serious risks of a mother suffering injury during birth. Those risks may be higher now than they were just a few decades ago.

According to a new report from the Centers for Disease Control and Prevention (CDC), emergencies which threatened the life of the mother during childbirth increased by a startling 75% in the decade ending in 2009 compared with the rates from the 1990s. In particular, there were significant increases in the number of mothers who experienced kidney failure, cardiac arrest, and serious respiratory emergencies. These are not minor problems but life-threatening events.

Causes of the Increase

These statistics are are a rude awakening for those who assume that things automatically get safer over time. That is not necessarily true. One of the main reasons for the increase in maternal complications is the changing demographics and characteristics of those getting pregnant and having children. Compared to the past, many more mothers are older, potentially obese, and with chronic health problems like diabetes and kidney disease. In previous years these mother would likely not have gotten pregnant at all. Advances have made it possible for them to more regularly take a child to term, but with the “high risk” delivery comes increased complications

Though, it is not only “high risk” mothers who are harmed during childbirth. In fact, the single most common serious maternal injury--hemorrhaging or excessive bleeding--can affect even the healthiest of mothers.

Fixing the Problem

The one positive to be taken from the CDC report is that, now with the problem out in the open, medical professionals can take the necessary steps to improve the situation. The single best way to do it is with increased preparedness. In other words, medical delivery teams should never be caught off-guard by these complications. Instead, they should expect them and have protocols in place to provide the necessary emergency care to most efficiently deal with the problem. The CDC is providing funding to address that very topic--seeking to determine the best way to train and prepare medical teams to deal with these increasingly common maternal complications.

With a commitment to addressing the problem, hopefully the trends are reversed and complications are spared. However, if you ever suspect that a medical team did not act reasonably when working to prevent or treat a complication of this nature in our area, consider contacting the attorneys at our firm for more information on how the law might apply.

Popular movies and television shows involving lawyers and lawsuits sometimes create misperceptions about how the justice system actually works. For one thing, while courtroom drama makes the most riveting entertainment, in reality the vast majority of cases end with amicable agreements between the parties involved. Actual trials are certainly more an exception than a rule.

In addition, fictional portrayals often present the image of a check being cut for the plaintiff in a case as soon as the verdict is handed down. The reality, however, is sometimes much more muddled. That is because there is often intense disagreement regarding various parties who may be involved, individual doctors, hospitals, speciality clinics, and multiple insurance companies. Sometimes the fighting after liability is handed down is far more contentious than the original trial itself. This is one of many reasons why it is important to have a medical malpractice attorney who is experienced in these cases and familiar with all of the ancillary issues that may come up and delay payment of damages.

Recent Maryland Med Mal Case

Some of these issues were involved in a recent Maryland case on which a Court of Appeals ruled. The full case opinion can be found here.

The legal matter, Mercy Medical Center v. Julian, involved a family who filed a Maryland medical malpractice lawsuit alleging that negligence led to the death of their loved one at a medical facility. Various defendants were named in the suit, including a medical center and several individual doctors. Considering the mix of different individuals and entities involved in modern medical care, lawsuits stemming from negligence frequently include different parties named as defendants.

In this case, before a trial was needed, the family reached a settlement with the medical center in question. As part of the settlement the medical center did not explicitly admit guilt but agreed to provide certain damages to the family. Per this agreement the family’s legal claim against the medical center was dismissed and a “release” was provided.

This did not end the matter, however. That is because there was no settlement with the other defendants. Eventually, those cases proceeded to trial. After hearing all of the evidence, the jury reached a verdict in favor of the family and against the defendant-doctors.

After the unfavorable verdict the defendants who were found liable by the jury filed a separate legal action to force the medical center (which had been released by the family per the settlement) to pay “contribution” to the defendants who owed damages. Ultimately, for a variety of reasons, the appellate court determined that the defendants were able to seek contribution, even though the medical center had reached a settlement and had a “release” from the family.

Maryland Med Mal Lawyers

The point from this somewhat convoluted case is that medical malpractice cases can be very complex - even after a verdict is reached. If you are in Maryland, DC, or surrounding communities, the experienced medical malpractice lawyers at our firm are here to help work through the details in even the most complex of cases to ensure you receive fair redress following medical errors.

The most well-known patient safety research project ever released is the “To Err is Human” report from the U.S. Institute of Medicine. You can download your own free copy of the report here.

One statistic in particular from the study is often shared by patient safety advocates. The report noted that each and every year nearly 100,000 patients are killed by preventable medical errors. The figure is helpful is quickly illustrating the scope of the medical mistake problem. While most doctors, nurses, and aides do their best to provide proper care, the sad reality is that we still have a very long way to go before all medical patients receive reasonable care free of mistakes every time they visit medical professionals.

To Err is Human was first released in 1999. However, follow-up studies from the Institute of Medicine and many other researchers has found that little has changed in the last thirteen years. Tens of thousands of patients continue to be killed and many more injured each and every year as a result of various errors in medical care. It is incumbent upon all practitioners and administrators to do everything in their power to improve patient safety figures.

It is important that a comprehensive approach to these safety efforts be undertaken. There are many different steps that can be taken to improve the quality of patient care overall. For example, one new report suggests that overall employee engagement in medical work settings has statistically significant effects on limiting medical errors.

New Patient Safety Report

Research published in the latest issue of Journal of Patient Safety suggest that the overall work environment at these facilities affects the quality of the work and, consequently, the number of mistakes that are made which harm patients. Researchers examined various factors at healthcare institutions over a two-year period, from 2007 to 2009. They then compared those figures with rates of medical mistakes and preventable adverse medical outcomes.

The results are striking. Most notably, researchers found that the single biggest predictor of quality care was engagement. The authors noted that “Baseline engagement and change in engagement were the strongest independent predictors of patient safety culture.” In other words, medical facilities which fostered communities where employees were connected with the goings-on of the hospital and actively involved in its organization were far more likely to provide error-free care time and again.

The report is yet another reminder of the need for comprehensive efforts to address the patient safety problem. With all of the political wrangling around tort reform and debates about various aspects of the legal system, the underlying problem of medical errors is often forgotten. It is critical to change that by sharing information about the hundreds of thousands of patients who are still affected by this problem.

Part of that public awareness and accountability function is served by patients and families coming forward when they suspect they were harmed by poor medical care. Nothing can be improved when problems are swept under the rug. If you or someone you know may have been hurt by poor care in our area, consider getting in touch with the medical malpractice lawyers at our firm to see how we can help.

The birth of a child is supposed to be one of the happiest moments in the life of a family. Unfortunately, for some the memorable occasions turns into a nightmare. That is because, at rates far higher than many suspect, childbirth can result in complications and injuries to the mother or child. Because of the delicate nature of the situation, when a new child is hurt during birth, the consequences are often quite severe. Birth injuries can prove to cause lifelong harm and can even be fatal.

When Is Medical Malpractice Involved?

Following a traumatic childbirth that leads to injury, mothers and fathers often have the same question: Could this have been prevented? Of course, there is no one-size-fits-all answer. The delivery of a new baby is a delicate process that is very fact-specific. Two births may be very different, requiring different actions and medical decisions. At times an injury may have been unpreventable. However, many injuries can be prevented if the caregivers acted differently in response to developing problems. When that happens, medical malpractice may have been committed.

How is a family supposed to know whether the injury to their child should have been prevented?

The sad reality is that on many occasions the only way to get answers regarding the quality of care that their medical professionals provided is by demanding more information. Expectedly, many hospitals, doctors, and nurses are not exactly forthcoming when it comes to providing honest information about quality of care issues following a negative outcome.

In any event, it is important for local families to be aware of ways that some of the most common birth injuries might have been caused by negligence before, during, or after the delivery of the child. Two of the most common injuries often caused by malpractice are cerebral palsy and brachial plexus injuries:

Cerebral Palsy: Perhaps the most well-known injury that strikes during delivery, cerebral palsy refers to different injuries that affect a child’s movement, balance, and posture. In most instances cerebral palsy is caused by oxygen deprivation during birth or gestation. For this reason, it is critical for medical professionals to act quickly when they identify possible fetal distress which is causes oxygen problems. This might mean ordering a C-section so that a child is born as soon as possible to minimize time without oxygen. When a doctor fails to order that C-section as early as possible, then a child may suffer a preventable injury.

Brachial Plexus Injuries: The brachial plexus is a bundle of nerves near the shoulder. At times the force applied during a birth may cause that nerve bundle to be stretched, torn, or ripped. As a result, the child can suffer mobility problems in the shoulder, arm, hands, and fingers. One of the most common ways that this injury occurs is when a child’s shoulder becomes caught on the mother’s pelvic bone during delivery. If the medical professional does not act with appropriate care when trying to deliver the child in those situations, then the brachial plexus may be damaged.

For help learning more about how these legal issues might apply in your situation, please take a moment to reach out to the attorneys at our firm. There is no cost or obligation to share your story and learn what options are available in your case to ensure your injured child has access to the best available resources and treatment to help with their injuries.