Maryland Medical Malpractice Lawyer Blog

A recurring controversy in the military is a legal doctrine – called the “Feres Doctrine” – which forbids any active-duty personnel from filing a medical malpractice case against military doctors. In the past, the United States Supreme Court declined to hear any challenges to the doctrine, but that might change as soon as this week. The Supreme Court decision of whether the Justices will hear a case could come as early as this week.

The Feres Doctrine was created from a consolidation of three cases in the 1950’s that netted the practical effect of barring military personnel from collecting damages for any personal injuries from the United States Government. The Feres Doctrine also prohibits family members of these of service men and women from filing wrongful death or loss of consortium actions when a service member is killed or injured due to medical malpractice. A copy the judicial opinion regarding the case can be found here.

The theory behind the doctrine is that there are other ways military members are compensated for their injuries or death. An example is the Veteran’s Administration. If a military member is injured while serving, they are referred to this organization for medical care and other services.
The case that’s instituting this potential second-look at the long standing doctrine is being brought by the family of an airman in Sacramento. The man, who was diagnosed with acute appendicitis, was left in a persistent vegetative state allegedly due to medical malpractice. The family argues that they should not be denied the ability to bring a medical malpractice action because the man survived the surgery; it was the subsequent breathing complications that arose and ultimately led to his current condition when a nurse negligently put a breathing tube into his trachea instead of his esophagus.

On the other hand, some argue that the cost would be unbearable as an estimated 750 malpractice lawsuits would be filed each year which would cost the federal government as much as $2.7 billion over ten years to defend and litigate. There are also concerns about the distraction this would provide to those actively serving in the military.
A copy of the article regarding this story can be found here.

The defeat, which strengthens a long-standing legal precedent, leaves the field of military medical malpractice unchanged. While active duty personnel can't file medical malpractice claims against government heath care providers pursuant to the Feres Doctrine, people who are not on active duty and other people treated by govenment helath care providers can file Medical malpractice claims. Those claims are governed by a statute called the Federal Tort Claims Act (FTCA). Pursuant to the FTCA, the United States has six months to investigate your claim after it has been filed. Trial happens before a judge, as opposed to a jury, and the entire burden of proof rests on the plaintiff. Congress limited its coverage under FTCA to the United States and its territories, so any claims which arise out of injuries occurring overseas are not covered. Instead, they are covered by the Military Claims Act (MCA) which has worldwide application. Medical malpractice claims under the MCA are limited to injury or death caused by either military personnel or civilian employees who were acting within the scope of their employment.

After the decision of the Supreme Court earlier this week, it is likely that any change to the Feres Doctrine will have to come from Congress.

In August 2000, a Maryland patient visited her gynecologist and informed her that she was experiencing abnormal bleeding. The gynecologist, Dr. Moen, ordered an ultrasound to help her determine the cause of the bleeding, but did not perform an endometrial biopsy. The ultrasound was performed and subsequently interpreted by a radiologist, Dr. DeCandido. When interpreting the ultrasound, Dr. DeCandido did not notice and report a mass located on the patient’s right ovary that measured 1.5 centimeters.

Following these procedures, the patient continued to experience physical problems, specifically pelvic symptoms and irregular bleeding, and complained to Dr. Moen of the same. Approximately a year and half later, Dr. Moen performed an endometrial biopsy of the patient’s uterus and discovered that the patient had endometrial cancer. After being diagnosed with cancer, the patient began treatment with a gynecological oncologist at the Johns Hopkins Hospital. Despite an operation and other treatment, the patient ultimately died approximately five and a half years after she first complained of her symptoms to Dr. Moen.

Prior to her death, the patient’s husband had filed a medical malpractice case against the doctors alleging that they were negligent in failing to diagnose and treat the patient’s endometrial and ovarian cancer in August of 2000. Specifically, the medical negligence case alleged that both Dr. Moen and Dr. DeCandido breached the standard of care by failing to conduct an endometrial biopsy along with an ultrasound and failing to report the 1.5 centimeter visible on the ultrasound, respectively. After the patient’s death, her husband added wrongful death and survivorship claims against the doctors.

The trial court had initially granted the Defendants’ motion for summary judgment on the husband’s suit, dismissing the case. The Court of Special Appeals affirmed the trial court’s decision. However, the Court of Appeals reversed and remanded the suit back to the Court of Special Appeals with instructions to reverse the decision of the Circuit Court of Anne Arundel County. A copy the judicial opinion regarding the case can be found here.

Failure to diagnose cancer cases in Maryland can be complicated medical malpractice cases. A Plaintiff generally must prove that he or she would have had a probability of survival if treated properly, but as a result of the delay in diagnosis the person has a probability of death (in other words, the 5 year survival rate is below 50%).

Medical errors leading to malpractice litigation generally stems from two root causes: a health-care provider choosing the wrong method of care or a health-care provider choosing the right method of care but carrying it out incorrectly. The former is particularly relevant when a health-care provider makes a misdiagnosis.

Most hospitals have faced litigation related to misdiagnosis at one time or another. For example, Mercy Medical Center in Baltimore was involved in suit regarding the misdiagnosis of cancer. The decedent in this case was diagnosed with prostate cancer and underwent radiation treatment as result. It was later determined that he did not, in fact, have prostate cancer. Prior to the institution of a medical malpractice lawsuit, he died of unrelated causes, and a representative of his estate (his wife) brought a medical malpractice action against both the physician and Mercy Medical Center to recover damages for the emotional distress associated with his misdiagnosis. The Circuit Court for Baltimore City initially granted the physician and hospital’s motion for summary judgment, dismissing the case. However, on appeal, the Maryland Court of Special Appeals reversed and remanded the decision back to the trial court. A copy the judicial opinion regarding the case can be found here.

Of particular note is that the Court of Special Appeals decided that the emotional distress associated with being misdiagnosed with cancer was compensable within the “physical injury rule.” This particular rule stems from negligence law and states that if physical injury is capable of “objective determination,” it is compensable. Objective determination means that the evidence must provide enough detail that a jury has a basis for quantifying the injury so that damages may be awarded. Also, usually evidence has to come from more than just solely the victim in order for the claim to be successful. Finally, it’s important to note that there is no “threshold level” of severity that must be reached for emotional injury to be compensable.

In this case, there were three sources that evidenced the decedent’s emotional distress. First, there was the testimony of the doctor that the decedent went to after he learned that his diagnosis of cancer was wrong. Next, was the testimony of the decedent himself who had given a deposition prior to his death. Third, and finally, the testimony of the decedent’s wife was very helpful testimony as she was able to articulate her husband’s suffering associated with being misdiagnosed with cancer. Ultimately, the Court of Special Appeals found that the decedent’s distress came within the physical injury rule and was compensable.

In a Maryland medical malpractice case in which the plaintiff seeks punitive damages against a doctor for conducting an unnecessary procedure, is the employer hospital vicariously liable for punitive damages?

In general, Maryland has uniformly applied a broad rule for punitive damages and held an employer vicariously liable for punitive damages for its employee’s tortious acts. Embrey v. Holly, 293 Md. 128, 137-38, 442 A.2d 966, 971 (1982). The nature of punitive damages is such that a punitive damage award may be apportioned between multiple wrongdoers depending upon the degree of culpability and the pecuniary status of each. Embrey, 293 Md. at 141, 442 A.2d at 973. In Embrey, which was a defamation case, the Court held that it was entirely proper to permit a jury to apportion punitive damages among multiple defendants, the speaker of the defamatory language and his employer radio station. Id. at 143, 442 A.2d at 974.

Continue reading " Punitive Damages and Vicarious Liability in a Maryland Medical Malpractice Case " »

In 2002, ten years after being born with among other things, cerebral palsy, mental retardation, and developmental delay, a newborn, through her guardian, filed a medical malpractice lawsuit against University of Maryland Medical System’s University of Maryland hospital. The newborn, through her guardian, alleged that hospital was negligent because it made the mother wait before conducting an emergency c-section, which resulted in severe injury to newborn. A jury in the Circuit Court for Baltimore City initially entered a verdict in favor of hospital. On appeal, the Maryland Court of Appeals reversed and remanded the case to the Circuit Court. A copy the judicial opinion regarding the case can be found here.

The underlying issue in this medical malpractice case was a factual dispute regarding culpability on the part of the University of Maryland Hospital for the newborn’s injuries. The mother stated that after arriving at the University of Maryland hospital, she waited for approximately five hours, without any treatment, before the c-section was performed. The University of Maryland hospital, on the other hand, denied that it was negligent and stated that the woman did not arrive at the hospital until minutes before the emergency c-section was performed.

The c-section only took three minutes to perform but when the newborn was delivered, she was without a heartbeat, she was having difficulty breathing, and she had low Apgar scores. Apparently, a placental abruption had caused the need for the emergency c-section, and the newborn’s disabilities. The doctors at the University of Maryland hospital inserted a breathing tube and placed the child on a ventilation machine, after which she was admitted to the Neonatal Intensive Care Unit.

The Circuit Court, in ruling on various evidentiary issues, had excluded hospital medical records that corroborated the mother’s version of events. The Court of Appeals ultimately reversed the decision of the Circuit Court and remanded it for further proceedings because it believed the medical records had been improperly excluded.

I have handled many cases where the entire case turns on a just a few medical records. These cases can be won or lost on the medical records, which is why it is important in a medical malpractice case to use an experienced medical malpractice attorney who is very familiar with what should be in medical records and what should not be in medical records.

In 2003 a twenty-seven year old man, Mr. Bennett, arrived at the Good Samaritan Hospital in Baltimore, Maryland. He entered the emergency department complaining of generalized weakness, vomiting and a bump on the head. Later that day, he was moved from the emergency department and admitted to the hospital. Despite his progressively septic (infected) state, the treating physician failed to follow safety rules that would have resulted in the recognition of the mans’ distress. Twelve hours later, the man was finally treated, for the first time, for sepsis. Less than twenty-four hours after he arrived at the Good Samaritan Hospital, the man was pronounced dead from severe septic shock.

Following his death, Mr. Bennett’s family filed a medical malpractice survival action and wrongful death case against the Good Samaritan Hospital in the Circuit Court of Baltimore City. The family alleged that as a result of medical negligence and medical malpractice, the doctors at the Good Samaritan Hospital failed to timely diagnose and treat the infection from which Mr. Bennett’s ultimately died. The initial award, in favor of the surviving family members, was close to $600,000 even after a reduction pursuant to statutory cap. The doctor appealed in an effort to further lower the jury verdict but both the Court of Special Appeals and the Court of Appeals affirmed the trial court’s determination. A copy the judicial opinion regarding the case can be found here.

The falure to timely treat septic shock can have catastrophic consequences. There are specific protocols for treating septic shock that must be closely followed to ensure that people are timely treated. Septic shock requires immediate antibiotics, as hours matter in prevcenting death.

Earlier this month the Maryland Department of Health and Mental Hygiene Office of Health Care Quality published a report regarding medical malpractice in Maryland hospitals. The report is a review of the safety and care provided to patients in Maryland hospitals. The report compiles information collected by the OHCQ in 2010 relating to serious adverse events that affected patients or their families. A copy of the report can be found here.

The adverse events that hospitals are required to report include a rather long list of mistakes that are possible because of hospital error, medical malpractice (negligence), or inattention. Patient falls are the most frequently reported event. In 2010, there were 88 reported cases resulting in serious disability or death. Of these 88 reported cases, 10 resulted in loss of limb or function of limb, 52 required surgical interventions, 20 required medical intervention and 6 resulted in death of the patient.

Hospital-acquired pressure sores / ulcers, which are associated with high morbidity (medical complications) and mortality (death) once they reach Stage 3 and 4, were reported 59 times in 2010 making it the second most frequently reported event. However, none of the reported cases in 2010 resulted in death.

The third most frequently reported event was delay in providing needed treatment leading to a patient suffering death or serious disability. There were 20 of these reported in 2010. Delays in treatment that result in an adverse event often cause hospital protocols to be revised and changes in hospital policies and procedures to take place. In 2010, there were 17 cases where a delay in treatment resulted in death.

Adverse events related to the failure of doctors to maintain a patient’s airway or to supply an adequate level of oxygenation increased in 2010. A basic medical intervention is a procedure to keep a patient’s airway open. However, there were still 9 reported “airway misadventures” in 2010; 8 were fatal and the other left the patient in a persistent vegetative state.

Delays in treatment and failure to maintain a patient’s airway are the medical errors that most frequently fatal. Over the past six years, 83 of 102 patients whose medical treatment was delayed died, and 51 of the 58 patients whose airway was not maintained.

Surprisingly, adverse events related to foreign bodies being retained within a patient following surgical procedures continue to occur on a regular basis. In 2010, there were 15 reports which is a 250% increase over any previous year. However, the number of reports of wrong patient surgeries, wrong side surgeries, and wrong surgical procedures is low; there were only 4 reported cases in 2010. When these errors are made, the root cause is often the consent or pre-operative forms prepared in doctor’s offices.

There were only 9 reported cases of physician errors resulting in the wrong medication being administered to a patient that resulted in death or serious disability. This includes patients who have adverse drug reactions.

Misdiagnosis was only responsible for 2 reported cases of death or serious disability, whereas failure to act accounted for 3 cases.

We handle cases like these all of the time in my practice. It’s nice to see a government agency reporting on these things. Hopefully, this report will encourage hospital administrators and doctors to take action to try and prevent these things in the future.

Lack of informed consent can also be a basis for these cases involving hospitals, doctors and their patients. The doctrine of “informed consent” in Maryland requires that, prior to performing any type of medical procedure on a patient, a doctor must disclose to the patient a number of things to assist the patient in making an informed choice about whether to undergo the procedure. For example, Maryland case law states it is the duty of the physician to explain the procedure to the patient, warn him of the dangers associated with performing, advise of the probability of success of the procedure and advise of the alternatives to the procedure. The doctor or hosptial may even be required to advise the patient of "other factors," such as whether there are more experiended physicians who do the procedure in the patient's georgraphic area. Providing adequate informed consent is a requirement of all doctors and hospitals, and Johns Hopkins Hospital is no exception.

For example, there is the case of Mark Mahler. Mr. Mahler claimed that his doctor at Johns Hopkins Hospital failed to obtain his "informed consent" beucase the doctor did not disclose the major risks of an elective procedure to him, and he subsequently brought suit.
A copy the judicial opinion regarding the case can be found here. Following his surgery, Mr. Mahler claimed that he was not adequately advised of all of the risks of this particular procedure, and would not have undergone the surgery had he known of them. The Court evaluated the sufficiency of both the consent form that Mr. Mahler signed prior to the procedure and the discussion that he had with his doctor. The Court believed that the consent form created a question as to whether adequate consent was actually given to the patient as it contained a list of rather vague, generic complications that follow any procedure. Furthermore, the discussion that took place between Mr. Mahler and his doctor downplayed the risks of the procedure. For example, the doctors’ explanation of what the standard warnings for numbness and failure to achieve desired results meant did not in any way indicate that permanent numbness or unanticipated change in appearance was possible.

As an experienced Baltimore, Maryland medical malpractice lawyer, I have handled many cases involving informed consent. Medical negligence cases do not always involve death and cases are frequently brought involving unanticipated outcomes resulting from routine procedures. To see some of the cases I have handled, click here.

Medical negligence is not the only basis for a medical malpractice lawsuit in Maryland. Lack of informed consent can also be a basis for these cases involving hospitals, doctors and their patients. The doctrine of “informed consent” in Maryland requires that, prior to performing any type of medical procedure on a patient, a doctor must disclose to the patient a number of things to assist the patient in making an informed choice about whether to undergo the procedure. For example, Maryland case law states it is the duty of the physician to explain the procedure to the patient, warn him of the dangers associated with performing, advise of the probability of success of the procedure and advise of the alternatives to the procedure. The doctor or hosptial may even be required to advise the patient of "other factors," such as whether there are more experiended physicians who do the procedure in the patient's georgraphic area. Providing adequate informed consent is a requirement of all doctors and hospitals, and Johns Hopkins Hospital is no exception.

For example, there is the case of Mark Mahler. Mr. Mahler claimed that his doctor at Johns Hopkins Hospital failed to obtain his "informed consent" beucase the doctor did not disclose the major risks of an elective procedure to him, and he subsequently brought suit.
A copy the judicial opinion regarding the case can be found here. Following his surgery, Mr. Mahler claimed that he was not adequately advised of all of the risks of this particular procedure, and would not have undergone the surgery had he known of them. The Court evaluated the sufficiency of both the consent form that Mr. Mahler signed prior to the procedure and the discussion that he had with his doctor. The Court believed that the consent form created a question as to whether adequate consent was actually given to the patient as it contained a list of rather vague, generic complications that follow any procedure. Furthermore, the discussion that took place between Mr. Mahler and his doctor downplayed the risks of the procedure. For example, the doctors’ explanation of what the standard warnings for numbness and failure to achieve desired results meant did not in any way indicate that permanent numbness or unanticipated change in appearance was possible.

As an experienced Baltimore, Maryland medical malpractice lawyer, I have handled many cases involving informed consent. Medical negligence cases do not always involve death and cases are frequently brought involving unanticipated outcomes resulting from routine procedures. To see some of the cases I have handled, click here.

All Baltimore, Maryland hospitals have been sued for allegedly causing a patient to die due to medical malpractice and the University of Maryland hospital is no exception. For example, there is the case of Elliot Muti. This 65 year old man allegedly died of medical malpractice about a month and a half after he experienced a heart attack (myocardial infarction). Before he was treated at the University of Maryland hospital, he underwent a cardiac catheterization which revealed a ninety-nine percent blockage of a heart artery that was not fit for a stent. He then was transferred to the University of Maryland hospital for heart bypass surgery. As part of this surgery, a tube was placed down Mr. Muti’s throat (intubation) to help him breathe. Later, the presence of air in the man’s chest cavity (a “pneumomediastinum”) was discovered. A bronchoscopy revealed an injury to the trachea. Ultimately, the man developed pneumonia, an abnormal heart rhythm (ventricular tachycardia), and kidney (renal) failure which led to his death. A copy the judicial opinion regarding the case can be found here.

Following his death, the man’s family filed a medical malpractice and wrongful death case against the University of Maryland hospital in the Circuit Court of Baltimore City. The trial court dismissed the case and the plaintiffs appealed. The appellate court reversed the trial court and sent the case back to the trial court to determine whether the hospital's anesthesiologist incorrectly inserted the intubation tube causing the injury to the trachea. There is also the question of whether the hospital's employees should have diagnosed tracheal injury.

As an experienced Baltimore, Maryland medical malpractice lawyer, I have handled a number of medical malpractice and wrongful death cases against the University of Maryland hospital. Filing a medical malpractice claim includes proving the that a duty of care was owed by the hospital to the patient, that the standard of care was breached, that the breach was a cause of an injury, and that damages resulted. 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.