Articles Posted in Uncategorized

A recent study has found that medical errors are now the third most common cause of death in the United States. The study found that medical mistakes claim approximately 251,000 lives each year – approximately 9.5 percent of all deaths annually – which is more than deaths caused each year by respiratory disease, Alzheimers, strokes and accidents. In fact, the study found that only heart disease (614,348) and cancer (591,699) kill more people each year. Other categories of death which were part of the study included diabetes, flu/pneumonia, kidney disease and suicide.

The Johns Hopkins professor who ran the study pointed out that in the medical community, when mistakes occur, medical professionals desire (and often are able) to keep those mistakes and confidential. Many states, including Maryland, have medical review board statutory privileges which protect from disclosure the results of investigations into medical mistakes and prevent others from the medical community from learning from the mistakes of others, which could otherwise reduce the risk of reoccurrence. The professor explained that this veil of confidentiality stands in stark contrast to how mistakes in the aviation community are dealt with. He said that when planes crash, the reason is not kept confidential but rather is disseminated widely to every pilot and airline so that the pilots learn from the investigations and can prevent similar disasters in the future. Importantly, the study does not take into account all of the people who are injured by medical mistakes, but who did not pass away.

Our experienced medical malpractice attorneys have decades of combined experience pursuing a large variety of medical malpractice cases. If you or a loved one was the victim of a medical mistake, call us today for a free consultation at 410-385-2225.

As experienced medical malpractice attorneys in Maryland, we frequently receive calls from people who believe an ambulance company, paramedic or some other type of emergency first-responder made a medical mistake that caused them needless injury. Of course, the question becomes: can such emergency personnel be held responsible for medical negligence through a medical malpractice lawsuit? The answer to this question, like so many others under the law, is “it depends.”

Maryland statutory law provides immunity to members of “any State, county, municipal, or volunteer fire department, ambulance and rescue squad, or law enforcement agency” if the member meets certain requirements, such as having completed a first aid course and holding a license or certification from the State as an emergency medical services provider. A copy of the statute can be found here. This law is formally titled “Emergency medical care” and has been referred to by Maryland courts as the “Good Samaritan Act.” Importantly, the Good Samaritan Act only provides immunity for ordinary negligence and not for acts of “gross negligence” or willful misconduct.

In 2013, Maryland’s highest court – the Maryland Court of Appeals – was tasked with deciding whether a private, for-profit ambulance company could take advantage of the immunity protections of the Good Samaritan Act. In that case, captioned TransCare Maryland, Inc. v. Murray, it was alleged that an employee of a private ambulance company was negligent in failing to timely and appropriately provide care and treatment to a minor during a helicopter transport from one medical facility to another, resulting in a devastating hypoxic brain injury. The plaintiff sought to hold the paramedic’s employer liable through the doctrine of vicarious liability, under which an employer is generally held responsible for the negligent acts of its employees committed within the course and scope of his or her employment. The Court of Appeals carefully traced the history and the intended purpose of the Good Samaritan Act and concluded that, as a private, for-profit ambulance company, it did not enjoy immunity under the Act because it did not qualify as a “volunteer ambulance and rescue squad.”

It is not uncommon for a business to require a parent to sign a waiver before their child may participate in any of the business’s activities. By signing such a release, a parent agrees that the business is not responsible for any injuries that the child sustains as a result of the child’s participation in an activity. These releases also often have language indemnifying the business from any claim brought on behalf of the child. Until now, the law in many states has allowed these businesses, although responsible for the injury, to rely on this waiver and avoid all liability. But in a recent case of first impression, the Maryland Court of Special Appeals ruled that such agreements are void and unenforceable on public policy grounds.

In Rosen v. BJ’s Wholesale Club, Inc., Russell and Beily Rosen were members of the Owings Mills BJ’s Wholesale store. As a perk of membership, the store provided a free, supervised children’s play area, subject to the parent signing a release, which contained both an exculpatory and indemnification clause. Russell Rosen signed that release in July 2005. Then, in October 2006, Beily Rosen dropped her five-year-old son, Ephraim, off at the play center and proceeded to shop in the BJ’s. Sadly, Ephraim fell in the play area and suffered life-threatening brain injuries. The Rosens sued BJ’s, arguing the Club was negligent because it failed to have adequate material protecting the play area floor. In turn, the Club argued that it could not be sued because the Rosens signed the waiver. The trial court sided with the Club and threw out the case.

However, the Court of Special Appeals reversed the trial court’s decision and held for the first time in Maryland that an exculpatory and indemnification agreement executed by a parent on behalf of a minor child with a commercial business violates public policy considerations. Lacking any on-point authority in Maryland, the Court turned to case law from other states to find that the majority of states hold such agreements are invalid and unenforceable because a parent cannot waive a child’s injury claim in advance of an incident. Adopting this majority view, the Court anticipated that its holding will provide incentives for commercial businesses to take reasonable precautions in the operation and maintenance of their facilities and obtain adequate insurance coverage for risk of physical injuries. Critically, the Court noted its compelling policy rationale: that these enterprises are in a better position than minor children to evaluate and eliminate hazards on their property, and are better able to insure themselves adequately against risks that cannot be eliminated. With regard to the agreement’s indemnification provisions, the Court ruled that they were an invalid attempt to circumvent the public policy that invalidated the release language. A copy of the case can be found here.

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: