Maryland Medical Malpractice Lawyer Blog

In a Maryland medical malpractice case, the “Statute of Limitations” governs how long a person has to file a claim or lawsuit. In Maryland, most medical malpractice cases involving adults must be filed within 3 years from the date the injury would have been discovered by a reasonable person. In an adult case, the 3 year deadline may be extended up to 2 additional years , but never more than five years from the date of the injury.

In a Maryland medical malpractice case for a child, the statute of limitations is different. In such a case, the time-frame described above (3-5 years) does not apply until the minor turns 18. Thus, a minor will have at least 3 years after the minor turns 18, and maybe even 2 more years after that.

Calculating the time remaining to file a medical malpractice case according to the Statute of Limitations is something that should only be done by a lawyer experienced in medical malpractice cases. There are nuances in the law that can result in a case being thrown out of court.

Maryland’s Statute of Limitations in medical malpractice cases can be found in section 5-109 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland, which is set forth below. The statute of somewhat confusing because it states that minors only have until their 11th birthday before the time to file suit starts running. That part of the statute, however, was overruled by Maryland’s Court of Appeals in Piselli v. 75th Street Medical, 808 A.2d 508, 371 Md. 188 (2002), which held that the clock starts ticking when the child reaches 18.

(a) An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, as defined in § 3-2A-01 of this article, shall be filed within the earlier of:

(1) Five years of the time the injury was committed; or

(2) Three years of the date the injury was discovered.

(b) Except as provided in subsection (c) of this section, if the claimant was under the age of 11 years at the time the injury was committed, the time limitations prescribed in subsection (a) of this section shall commence when the claimant reaches the age of 11 years.

(c)(1) The provisions of subsection (b) of this section may not be applied to an action for damages for an injury:

(i) To the reproductive system of the claimant; or

(ii) Caused by a foreign object negligently left in the claimant's body.

(2) In an action for damages for an injury described in this subsection, if the claimant was under the age of 16 years at the time the injury was committed, the time limitations prescribed in subsection (a) of this section shall commence when the claimant reaches the age of 16 years.

(d) For the purposes of this section, the filing of a claim with the Health Care Alternative Dispute Resolution Office in accordance with § 3-2A-04 of this article shall be deemed the filing of an action.

(e) The provisions of § 5-201 of this title that relate to a cause of action of a minor may not be construed as limiting the application of subsection (b) or (c) of this section.

(f) Nothing contained in this section may be construed as limiting the application of the provisions of:

(1) § 5-201 of this title that relate to a cause of action of a mental incompetent; or

(2) § 5-203 of this title.

In Maryland, when a person dies wrongfully, certain family members have the right to sue for “Wrongful Death.” A Wrongful Death case is a type of personal injury case that usually arises in medical malpractice and other major injury matters such as those involving automobile collisions, product liability, etc.

A Wrongful Death case in Maryland usually is brought by a parent, spouse (only if married, as common law marriages do not count) or child of the dead person. In such a case, the family member may claim non-economic damages such as emotional distress for the loss of their loved one. They also may claim economic losses, such as lost income or loss of household services.

Maryland’s Wrongful Death statute governs all Wrongful Death cases. The statute, which can be found in Section 3-904 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland, states as follows:

(a)(1) Except as provided in paragraphs (2) and (3) of this subsection, an action under this subtitle shall be for the benefit of the wife, husband, parent, and child of the deceased person.

(2) A parent may not be a beneficiary in a wrongful death action for the death of a child of the parent if:

(i)1. The parent is convicted under §§ 3-303 through 3-308, § 3-323, § 3-601, or § 3-602 of the Criminal Law Article; or

2. The parent committed an act prohibited under §§ 3-303 through 3-308, § 3-323, § 3-601, or § 3-602 of the Criminal Law Article;

(ii) The other parent of the child is the victim of the crime or act described under item (i) of this paragraph; and

(iii) The other parent of the child is a child of the parent.

(3)(i) An action under this subtitle for the wrongful death of a child caused by the parent of the child allowed under the provisions of § 5-806 of this article may not be for the benefit of that parent of the deceased child.

(ii) An action under this subtitle for the wrongful death of a parent caused by a child of the parent allowed under the provisions of § 5-806 of this article may not be for the benefit of that child of the deceased parent.

(b) If there are no persons who qualify under subsection (a), an action shall be for the benefit of any person related to the deceased person by blood or marriage who was substantially dependent upon the deceased.

(c)(1) In an action under this subtitle, damages may be awarded to the beneficiaries proportioned to the injury resulting from the wrongful death.

(2) Subject to § 11-108(d)(2) of this article, the amount recovered shall be divided among the beneficiaries in shares directed by the verdict.

(d) The damages awarded under subsection (c) of this section are not limited or restricted by the “pecuniary loss” or “pecuniary benefit” rule but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education where applicable for the death of:

(1) A spouse;

(2) A minor child;

(3) A parent of a minor child; or

(4) An unmarried child who is not a minor child if:

(i) The child is 21 years old or younger; or

(ii) A parent contributed 50 percent or more of the child's support within the 12-month period immediately before the date of death of the child.

(e) For the death of a child, who is not described under subsection (d) of this section, or a parent of a child, who is not a minor child, the damages awarded under subsection (c) of this section are not limited or restricted by the “pecuniary loss” or “pecuniary benefit” rule but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, attention, advice, counsel, training, education, or guidance where applicable.

(f) Only one action under this subtitle lies in respect to the death of a person.

(g)(1) Except as provided in paragraph (2) of this subsection, an action under this subtitle shall be filed within three years after the death of the injured person.

(2)(i) In this paragraph, “occupational disease” means a disease caused by exposure to any toxic substance in the person's workplace and contracted by a person in the course of the person's employment.

(ii) If an occupational disease was a cause of a person's death, an action shall be filed:

1. Within 10 years of the time of death; or

2. Within 3 years of the date when the cause of death was discovered, whichever is the shorter.

(h) For the purposes of this section, a person born to parents who have not participated in a marriage ceremony with each other is considered to be the child of the mother. The person is considered to be the child of the father only if the father:

(1) Has been judicially determined to be the father in a proceeding brought under § 5-1010 of the Family Law Article or § 1-208 of the Estates and Trusts Article; or

(2) Prior to the death of the child:

(i) Has acknowledged himself, in writing, to be the father;

(ii) Has openly and notoriously recognized the person to be his child; or

(iii) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.

In 2004, the Maryland legislature enacted a statute that prevents a plaintiff or plaintiff’s lawyer from mentioning to a jury in a medical malpractice case that a doctor apologized or expressed regret, if the purpose of the plaintiff in seeking to tell that to the jury is to prove liability or use it as an admission of the doctor’s liability. The statute, however, does not protect a doctor’s admission of liability or fault that is part of or in addition to an apology or expression of regret.

That statute, which is found in Section 10-920 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland, states as follows:

(a) In this section, “health care provider” has the meaning stated in § 3-2A-01 of this article.

(b)(1) Except as provided in paragraph (2) of this subsection, in a proceeding subject to Title 3, Subtitle 2A of this article or a civil action against a health care provider, an expression of regret or apology made by or on behalf of the health care provider, including an expression of regret or apology made in writing, orally, or by conduct, is inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

(2) An admission of liability or fault that is part of or in addition to a communication made under paragraph (1) of this subsection is admissible as evidence of an admission of liability or as evidence of an admission against interest in an action described under paragraph (1) of this subsection.

This month, Silverman Thompson Slutkin & White attorneys Andrew G. Slutkin and Jamison G. White filed a medical malpractice case in the Circuit Court for Baltimore County against Genesis Brightwood Center, a nursing home and rehabilitation facility on Falls Road in Baltimore. The case is on behalf of an elderly women who was admitted to Brightwood Center after a double knee replacement. During the admission to Brightwood, while an aide was getting her dressed in her room she was caused to fall to the ground. When she struck the ground, the woman landed on both knees, which injured both knees and split open the surgical incision of the left knee causing it to become infected due to contamination with bacteria. As a result of the fall and continuing infection of her left knee, over the next few months the woman was readmitted to the hospital three times for complications from the infection. These three readmissions caused substantially more rehabilitation then otherwise would have been necessary, including three admissions to other rehabilitation facilities. As a result of the malpractice, the woman also has suffered extreme pain, suffering and emotional distress from the fall. She also has permanent left knee pain and requires antibiotics for life.

An Illinois woman has died six days after a surgical fire during an operation at a hospital. The hospital has acknowledged in a statement that the fire happened but won't offer specifics. The medical examiner's office says the woman died from complications of thermal burns, and her death is listed as accidental. A copy of the article regarding the case can be found here.

As an experienced Baltimore, Maryland medical malpractice lawyer, I have successfully handled surgical fire and burn cases. For example, one was a case involving a fire during surgery where a man was severely burned and another involved a severe thermal burn that took place during surgery. Fires and unintended burns during surgery are completely preventable and perfect examples of malpractice. Surgeons and hospitals have known for decades how to prevent operating room fires and burns. Usually, it’s a simple as not using 100% oxygen, draping a patient properly or making sure that flammable skin prep solutions dry before using an electric cautery device. When a surgeon uses excessive oxygen or a patient is not properly draped, things that normally do not catch fire such as surgical drapes, skin and hair, can catch fire in an oxygen rich environment. In fact, I still have a video showing the difference between how surgical drapes catch fire normally (very slowly) compared to an oxygen rich environment (almost explosive). It’s shocking. To see some of the cases I have handled, click here.

The Washington Post has just published a fascinating article about health insurers who improperly cancel health insurance policies to save money once their insureds got sick. What a outrageous thing for an insurer to do. The article reports large verdicts against these health insurers, which are totally appropriate. With one such insurer, the employees actually received bonuses for cancelling such policies. What a disgrace. A copy of the article regarding can be found here. You will need to quickly register to view the article but it is worth it.

Over the years, I have successfully handled a number of breach of contract cases, which is really the main claim in such cases. In such a case, extensive pretrial discovery is necessary to get to the root of why these policies are cancelled. Having an understanding of medical issues also is very helpful.

Amazingly, some health insurers don’t seem to understand that people buy their policy to protect themselves form catastrophic medical bills and, after these people have paid premiums for years, they expect that the insurer will actually pay those bills if necessary. Amazing.

A widower has won an $8.5 million medical malpractice verdict against an Indiana hospital over his wife's death. The woman, who had a dangerous bowel obstruction, died after the hospital failed to timely get an x-ray to doctors that showed her condition. During the trial, the man’s lawyers presented evidence demonstrating that the hospital failed to promptly get an x-ray to doctors that revealed the bowel obstruction, which is a life-threatening medical condition. The Plaintiff alleged that the hospital's actions led to a one day delay in reading the film and postponed emergency surgery that would have cleared the obstruction and saved the woman’s life. A copy of the article regarding the case can be found here.

As an experienced Baltimore, Maryland medical malpractice lawyer, I have handled several bowel cases arising from negligence. Some have been mesenteric ischemia malpractice cases and others have been bowel obstruction malpractice cases. Time is of the essence in treating such a condition, and timely communication among the health care providers is essential. To see some of the cases I have handled, click here.

In this case, an interesting point is that the verdict will be reduced from $8.5 million to about $1.25 million due to a cap on damages in Indiana. Maryland also has a cap on damages. In Maryland, the current law, which can be found in section 3-2A-09 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland, which states:

(a) This section applies to an award under § 3-2A-05 of this subtitle or a verdict under § 3-2A-06 of this subtitle for a cause of action arising on or after January 1, 2005.

(b)(1)(i) Except as provided in paragraph (2)(ii) of this subsection, an award or verdict under this subtitle for noneconomic damages for a cause of action arising between January 1, 2005, and December 31, 2008, inclusive, may not exceed $650,000.

(ii) The limitation on noneconomic damages provided under subparagraph (i) of this paragraph shall increase by $15,000 on January 1 of each year beginning January 1, 2009. The increased amount shall apply to causes of action arising between January 1 and December 31 of that year, inclusive.

(2)(i) Except as provided in subparagraph (ii) of this paragraph, the limitation under paragraph (1) of this subsection shall apply in the aggregate to all claims for personal injury and wrongful death arising from the same medical injury, regardless of the number of claims, claimants, plaintiffs, beneficiaries, or defendants.

(ii) If there is a wrongful death action in which there are two or more claimants or beneficiaries, whether or not there is a personal injury action arising from the same medical injury, the total amount awarded for noneconomic damages for all actions may not exceed 125% of the limitation established under paragraph (1) of this subsection, regardless of the number of claims, claimants, plaintiffs, beneficiaries, or defendants.

Currently, there is a challenge to the cap on damages in wrongful death cases.