Maryland Medical Malpractice Lawyer Blog

Today, MSNBC ran a story about Operating Room fires. The article states that the latest data reveals about 600 cases annually. A copy of the article can be found here. These fires, sometimes called surgery fires or surgical fires, are completely preventable occurrences.

I have successfully handled a number of these cases, including operative room burns and unintended surgical burns. In these cases, the patient caught on fire because the surgeon did not keep the cautery device away from the oxygen that was being given to the patient during the surgery. The patient also received oxygen at too high a concentration, thereby contributing the likelihood of fire. Doctors and hospitals have known for decades how to prevent surgical fires, yet they still occur. I would say that any time a patient catches on fire during surgery it is a clearly due to medical malpractice and should result in a malpractice lawsuit.

A. Statute of Limitations:

Medical malpractice actions are actions for injury to the person or wrongful death, which must be brought within two years. 42 Pa. Cons. Stat. § 5524(2) (LEXIS 2003). Pennsylvania courts have adopted a discovery rule for injuries to the person. When the existence of an injury is not known to the claimant, and such knowledge cannot be reasonably ascertained within the two-year period, the statute does not begin to run until the discovery of the injury is reasonably possible. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). The discovery rule does not apply in death cases, however. Pastierik v. Duquesne Light Co., 514 Pa. 517, 526 A.2d 323 (1987). For medical malpractice cases arising on or after March 20, 2002, the discovery rule is limited by a seven-year statute of repose that runs from the date of the act (two years for death cases)

B. Modified Rule of Comparative Negligence:

Pennsylvania has adopted a modified rule of comparative negligence. A plaintiff's recovery is barred only if his contributory negligence is greater than the causal negligence of the defendants against whom recovery is sought. 42 Pa. Cons. Stat. § 7102(a) (LEXIS 2003). Otherwise, the plaintiff's damages are diminished in proportion to the amount of negligence attributable to him. Id.

C. Statutory Caps:
Pennsylvania does not impose a cap on compensatory damages, but it does have a program of state-sponsored excess insurance. See Patient Compensation Funds and Physician Insurance. Effective January 25, 1997, punitive damages against individual physicians shall not exceed 200 percent of compensatory damages, except in cases of intentional misconduct. Pa. Stat. Ann. tit. 40, § 1303.505(d) (LEXIS 2003); Pa. Stat. Ann. tit. 40 § 1301.812-A(g) (LEXIS archives) (repealed 2002). Under current law, 25 percent of punitive damages in medical malpractice cases must be paid into the MCARE Fund rather than to the prevailing party. Pa. Stat. Ann. tit. 40, § 1303.505(e) (LEXIS 2003).

D. No Statutory Cap on Attorneys Fees:

The Pennsylvania Supreme Court has held that former Pa. Stat. Ann. tit. 40, § 1301.604 (LEXIS archives) (repealed 1996), which purported to limit contingency fees recoverable in medical malpractice actions, is unconstitutional. Heller v. Frankston, 504 Pa. 528, 475 A.2d 1291 (1984).

E. Collateral Source Rule Modified:

The collateral source rule has been substantially modified for medical malpractice cases arising on or after March 20, 2002. A plaintiff cannot recover for past medical expenses or past lost earnings that were covered by any public or private benefit received prior to trial. Pa. Stat. Ann. tit. 40, § 1303.508 (LEXIS 2003). However, this does not apply to life insurance, pension or profit-sharing plans, social security benefits, or benefits for which the state or federal government has a right of reimbursement from the recovery. Id.

For further information, please contact Andrew G. Slutkin.

Generally, recovery in Maryland for malpractice against a physician/psychiatrist is allowed only where there is a relationship between the doctor and patient. This relationship may be established by contract, express or implied, and the fact that a physician does not deal directly with a patient does not necessarily preclude the existence of a physician-patient relationship.

Complaints of malpractice and intentional infliction of emotional distress with regard to third parties have been reviewed by Maryland Courts. In the case of Dehn v. Edgecombe, 384 Md. 606 (Md. 2005), Mr. Dehn underwent a vasectomy. According to Mr. Dehn, his primary care physician advised him that he could resume engaging in unprotected intercourse with his wife without fear of pregnancy, despite the fact that requisite tests had yet to be performed. Mrs. Dehn subsequently became pregnant and sued her husband's primary care physician, claiming that the physician had negligently counseled her husband. The Court held that there was no independent cause of action for a patient's wife against a doctor who acted negligently while treating her husband because there was no relationship or direct interaction with the wife.

There are exceptions to this rule. For example, when a physician undertakes to act gratuitously or in an emergency situation, a duty may be created, but such exceptions are rare, particularly when the doctor never provided any treatment to the person alleging negligence. Dehn v. Edgecombe, 384 Md. 606 (Md. 2005). Therefore, this case does not appear to fall within one of these exceptions.

”The common law duty of care owed by a health care provider to diagnose, evaluate, and treat its patient ordinarily flows only to the patient, not to third parties. Thus, it has often been said that a malpractice action lies only where a health care provider-patient relationship exists and there has been a breach of a professional duty owing to the patient.” Dehn v. Edgecombe, 384 Md. 606 (Md. 2005).

Continue reading " Status of Maryland Law Regarding Standing For Claims of Medical Malpractice to Third Parties " »

An Indiana jury has returned a $8.1 million medical malpractice verdict in favor of a 33 year old mother of two, whose cancer was not timely diagnosed and treated. Apparently, the woman had a growth removed from her bit toe in 2004 by a local podiatrist, who did not test the growth at the time. When the growth resurfaced two years later, it was tested and the test revealed malignant melanoma. The woman claimed in her malpractice lawsuit that the doctor should have tested the tissue from the excised growth. Now in stage three of the cancer, she has just a 17 percent chance of living another 12 years, according to statistics

Interestingly, the doctor’s medical practice apparently failed to participate in the state program that caps malpractice damages at $1.25 million for all care providers involved in a case. Nevertheless, the doctor will be shielded by Indiana's $250,000 damages cap on all damages against individual doctors under the law. The woman’s lawyers will have to pursue attempting to recover the verdict from the doctor’s medical practice. A copy of the article regarding the case can be found here.

This case involves several important issues. First, is the failure to test the removed tissue. Whenever abnormal tissue is removed from the body, through a biopsy or by excision, it must be tested to determine whether it is cancerous.

Second, this case demonstrates the ill effect of low caps on damages. In my personal opinion, this doctor essentially killed this woman, but will escape any significant liability through a $250,000 cap on damages. It seems like a crime to me.

In Maryland, Maryland law, medical malpractice lawsuit damages for pain, suffering and emotional distress are capped at $650,000. But economic damages, on the other hand, such as past and future lost wages, past and future medical expenses, and lost household services, are uncapped in Maryland.

The only significant exception to the cap on non-economic damages relates to Maryland Wrongful Death cases. A Wrongful Death claim is a personal injury lawsuit that is brought due to the wrongful death of a person. It can be brought by a child, spouse or parent of the deceased person. In a Wrongful Death case in which there are two or more claimants (i.e. a spouse and child), the non-economic damage cap is limited to $812,500 (125% of $650,000). That cap also will start slowly increasing at the end of this year (December 31, 2008), when the cap is scheduled to start increasing $15,000 per year.

A Minnesota jury in medical malpractice case has rendered an award of almost $1 million to the family of a child injured during labor and delivery approximately five years ago. The jury reached its verdict in the medical malpractice lawsuit late last week, finding that the obstetrician was negligent by not recognizing the fetus was so large it should have been delivered by Caesarean Section. As a result, the child, who weighed more than 10 pounds at birth, suffered injuries that unfortunately will affect her for the rest of her life. The jury’s award totaled $975,501, consisting of separate amounts for past medical expenses, bodily and mental harm, future damages and mental harm, and loss of future earning capacity. A copy of the article regarding the case can be found here.

During the delivery of the child, the nerves in her shoulder were injured because the obstetrician had to pull the baby so hard get her out of the birth canal. The injury is called Erb’s Palsy, and occurs when the nerves of the shoulder are stretched or torn, causing permanent loss of sensation and control of the arm. Unfortunately, the injury will cause lifelong limitations and significantly reduce future earnings. The defense was that the size of the fetus can’t be easily determined and that C-Section brings with it significant complication risks. However, the Plaintiffs were able to point out that a radiology report said that measurements of the fetus were “suggestive of a macrosomic fetus.” Macrosomia is a medical term describing a fetus or newborn of excessive weight. In a situation, the standard of care is to do a C-Section to prevent exactly what happened here.

As a Maryland attorney who handles a large number of malpractice suits, I have successfully handled several of these cases in Baltimore and surrounding areas. Typically, the fetus is large or in an awkward position in the uterus. Instead of performing well-establish maneuvers to safely get the fetus out, or converting the vaginal delivery to a C-Section, the doctor continues to pull the fetus in an effort try to deliver the fetus. This tears the nerves in the shoulder, forever causing a floppy arm.

It is important in these cases to make sure to have experts that can properly explain the child’s losses. These include medical experts to explain the future medical expenses the child will suffer, a vocational expert to explain future lost wages, and an economist to calculate these damages.

A Michigan husband and wife have been awarded almost $1.2 million by a jury in a medical malpractice lawsuit filed against a local doctor. The jury decided late last week after a two-day trial that the doctor was negligent regarding hernia surgery he performed in June, 2003. During the procedure, the man’s small bowel was nicked but the injury was not repaired at the time, causing him to have a septic reaction that included an long hospital stay. As part of the treatment for the nicked bowel, the man incurred several hundred thousand dollars of medical bills. The surgeon denied any negligence, saying that the patient knew of and appreciated risks and hazards involved in the medical treatment. The man’s wife was awarded $50,544 for being deprived the comfort, companionship, society, and services of her husband. A copy of the article regarding the case can be found here.

I have successfully handled a number of medical negligence / medical error cases in Baltimore and other counties in Maryland, and the District of Columbia, involving surgical malpractice. In this case, the malpractice probably was not causing the injury to the bowel, as that can happen during abdominal surgery. The problem here was the failure to timely diagnose (recognize) and treat the injury once it occurred. Before finishing up the hernia surgery, the surgeon should have checked to make sure that there was no unintended injury to organs including the bowel, found the injury and then repaired it. By not timely recognizing and repairing it, the man developed a severe abdominal infection, which progressed to sepsis, which is when the infection spreads through the blood to the rest of the body. Once the patient came out of surgery and exhibited signs and symptoms of an infection – usually abdominal pain, swelling, bloating, hardness of the abdomen – surgeon should returned the patient to surgery as soon as possible to stop the leak, wash out the abdomen and start the patient on antibiotics. These cases are tragic b/c someone goes in for a routine procedure and should be back on their feet in a few days, but ends up a long hospitalization, extensive medical care and problems that can last a lifetime.

A South Carolina hospital and doctor have agreed to pay more than $1.2 million to settle a medical malpractice wrongful death lawsuit filed by the family of a woman who died after she failed to receive a physician-ordered blood test. Apparently, the woman had surgery and was later discharged. Two days after the discharge, she went to the emergency room of the defendant hospital complaining of numbness in her left leg. The medical negligence lawsuit claimed that a doctor ordered a blood test that was not done. The woman subsequently went into a coma and died. A copy of the article regarding the case can be found here.

I have successfully handled a number of medical malpractice and wrongful death cases in Baltimore and other counties in Maryland involving a failure to follow-through with a doctor’s orders. One of the cases I handled involved a failure to timely give blood that was ordered by a doctor. As a result, the patient bled out and died. These cases are always tragic because the problem was recognized by the doctor, but the staff just did not follow the order.