I have handled a number of medical malpractice cases in Baltimore, Maryland and other places involving medication errors. Most of the cases fall into two categories: giving a patient a medication they are allergic to or giving the patient the wrong medication. In fact, I am handling two such cases now. In this day and age of extensive documentation, these kind of medication errors shouldn’t happen. There is no excuse. To see some of the cases I have handled, click here .

The key to these cases, in addition to proving that the standard of care is to timely and properly read the x-ray, is to make sure that the there would have been enough time to do the life-saving surgery that this man needed. That requires a cardiothoracic or vascular surgery expert. In this case, this man had a condition that can kill him in minutes. The doctors in this case needed to quickly act on his complaints and not let the x-rays sit around in the hospital while this man died. It is a true tragedy.

I have handled a large number of medical malpractice cases in Baltimore, Maryland and other places involving emergency room mistakes. Some of the cases I have handled have involved medical malpractice due to the failure to properly evaluate a heart attack, failure to properly evaluate a drug reaction, failure to properly perform a suicide assessment, failure to diagnose a pulmonary embolism, failure to diagnose an abdominal aortic aneurysm, and failure to diagnose an aortic dissection which is exactly what happened in this case. To see some of the cases I have handled, click here .

This was a major verdict in a difficult case. While it would have been easy to show the jury the disfigured hand, juries sometimes have difficulty understanding Reflex Sympathetic Dystrophy, which is a chronic pain syndrome. The defense usually claims the person is exaggerating, and juries have difficulty grasping that a limb that may look ok is causing severe pain. Brining is experts to explain RSD to the jury is key.

I have handled a large number of medical malpractice cases in Baltimore, Maryland and other places involving surgical mistakes. Sometimes the mistakes are discovered right after surgery and others times it take months or years to discover. Usually, the client is told that the surgery will solve their problem, but the surgery ends up making it worse. Some of the cases I have handled have involved medical malpractice due to the failure to properly perform brain surgery, failure to properly perform back or spinal surgery, failure to properly perform gallbladder surgery, failure to properly perform lung surgery, failure to properly perform bariatric surgery (also known as stomach stapling), etc. To see some of the cases I have handled, click here .

In December 2004, a Maryland General Assembly Special Session passed further amendments to the Act, addressing the issues of how much and what kind of experience an expert witness must have to be qualified to execute a certificate of merit or to testify before a panel or court on the issue of a defendant’s compliance with the standards of care. Those amendments require that a certifying or testifying expert witness: "have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action . . .”

In determining the proper test for measuring the scope of a physician’s duty to disclose risk information, Maryland courts are clear. The appropriate test is not what the physician, in the exercise of his medical judgment thinks a patient should know before acquiescing in a proposed course of treatment, but what the particular patient needs in order to make an intelligent decision. That need is whatever “is material to the patient’s decision. A material risk, in turn, is one which a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment or procedure. In short, whether a physician has fulfilled his duty to disclose, is to be determined by reference to a general standard of reasonable conduct and is not measured by a professional standard of care. Importantly, the law does not allow a physician to substitute his judgment for that of the patient.

From the very beginning, the Maryland Court of Appelas has been clear that there is no bright-line test, or all-inclusive list of items that must be disclosed by a physician in order to procure informed consent. Nevertheless, in Sard, the Court identified five categories of information that generally must be communicated to the patient. (1) the nature of the risks inherent in a particular treatment; (2) the probabilities of therapeutic success; (3) the frequency of the occurrence of particular risks; (4) the nature of available alternatives to treatment; and (5) whether or not disclosure would be detrimental to a patient.

In 2006, the Court of Appeals decided the case of Goldberg v. Boone, its most recent case to address the informed consent doctrine. In keeping with the lack of a bright line test for patient disclosures, this Court held that in addition to the above-referenced five categories, certain “other considerations” may also need to be discussed and resolved on a case-by-case basis, based on the materiality of that information to a patient’s decision. In Goldberg, the issue was whether a physician was obligated to inform his patient that he had performed only one revisionary mastoidectomy over the past three years; and that therefore, there were other more experienced surgeons in the region that could perform the procedure. The Court of Appeals rightly concluded that this information was a valid “other consideration” that would be important to a patient making a decision about whether to go forward with a procedure. The Court further stated that what those ‘other considerations’ may be is determined by what information would be material to a reasonable person in the position of the patient having to decide whether to submit to the medical treatment at issue.

It should be noted that, in Goldberg, the disclosure of the surgeon’s experience to the patient was the sole basis of the informed consent claim. In reaching its holding, it can fairly be interpreted this Court believed that an informed consent case could be made out by the failure to disclose this information, alone, without regard for whether this information fit neatly within the five traditional Sard categories of information addressing the material risks, benefits and alternatives of/to the procedure. The significance of the foregoing is clear – the failure to disclose information that falls within the “other considerations” category will, alone, provide the basis for a prima facie informed consent case.

I have successfully handled a number of informed consent cases in Maryland, some resulting in mult-million dollar verdicts and other involving million dollar settlements. Some have been pure informed consent cases, where there was no allegation of negligence. Others have involved both negligence and infofmed consent claims. Informed consent claims can be a very valuable tool in the plaintiffs' attorneys' arsenal, as it is one thing to act below the standard of care, but worse if you have not told the patient things that they should have been told that would have resulted in their not having the (neglignetly performed) procedure performed in the first place.

In 2004, the woman, who then was 24 years old, went to her doctor after experiencing blood in her stool. Her doctor diagnosed the problem as hemorrhoids on several occasions, but the real problem was colon and rectal cancer. Because her doctor failed to timely an properly diagnose her cancer, the woman’s condition went untreated for seven more months. She eventually died in 2007 at age 27.

The family argued that she would have had a extremely high probability of survival - 97% - if the doctor had timely diagnosed her cancer, but that due to the delay in diagnosis her survival rate fell below 50%. A copy of an article regarding the case can be found here.

I have successfully handled a number of medical malpractice / medical negligence / medical error cases in Baltimore and other counties in Maryland involving a failure to timely diagnose and treat cancer. In fact, I was involved in a very similar case where a man repeatedly complained of stomach pains over several years and his family doctor, without doing a colonoscopy, simply diagnosed him with irritable bowel. That is a diagnosis of last resort, which can only be made after other things have been excluded. A couple of years after the diagnosis, the man began to lose weight, have greater stomach problems and went to another doctor. He soon underwent the necessary colonoscopy and was diagnosed with advanced colon cancer. After the man died, that case resulted in a multi-million dollar jury verdict.

While it is unusual to develop colon cancer at such a young age, it certainly does happen and health care providers need to be on the lookout for the unusual.

There are, however, times when punitive damages can be claimed in a medical malpractice case involving a defective product. In Zenobia, the Court of Appeals held that in order to prove a claim for punitive damages, a plaintiff must plead and then demonstrate: (1) that the defendant possessed actual knowledge of the product defect; and (2) that the defendant consciously and deliberately disregarded a foreseeable harm that might result from the defect. With respect to a product manufacturer, the Zenobia Court cited with approval academic commentary which stands for the proposition that manufacturer’s requisite level of knowledge “is usually gained through…testing procedures before the marketing or through post-marketing consumer accident reports and complains received by the defendant.” Additionally, actual knowledge also includes the willful refusal to know. Therefore, a defendant cannot shut his eyes or plug his ears when he is presented with evidence of a defect and thereby avoid liability for punitive damages. Id. Simply put, “the test requires a bad faith decision by the defendant to market or distribute the product, knowing of the defect and danger, in conscious disregard of the threat to the safety of those who will be exposed to the product.” While this is not an easy standard to meet, it can be met, and has been met in many cases, where evidence supports such a claim.

A. The Maryland Seminal Case Recognizing “Wrongful Birth” Claims in Maryland – Jones v. Malinowski

The first case in Maryland to recognize that Maryland permits a wrongful birth claim is Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984). Jones is an action for damages based on negligent sterilization resulting in the birth of a healthy child. The Court of Appeals in Jones clearly stated that Maryland has not established an independent cause of action for wrongful birth cases; instead, it held that wrongful birth cases in Maryland are embraced within the tort of negligence: "there is a cause of action in tort based upon traditional medical malpractice principles for negligence in the performance of a sterilization procedure is well accepted." Id.

What follows from that premise that the action is one in tort is that, in the absence of some special statutory provision to the contrary, the ordinary rules of tort litigation apply. Once again, Jones v. Malinowski is instructive: "In a tort action for negligence in Maryland the plaintiff may recover “not only for the consequences which have actually and naturally resulted from the tort, but also for those which may certainly or reasonably and probably result therefrom as proximate consequences, but not for consequences which are speculative or conjectural” (string citations omitted). Otherwise stated, it is the general rule of damages, applicable in tort actions in Maryland, that a plaintiff may recover only those damages that are affirmatively proved with reasonable certainty to have resulted as the natural, proximate and direct effect of the tortious misconduct." Jones, 299 Md. at 268-269, 473 A.2d at 435 (italics and boldface added for emphasis) (see also Dehn v. Edgecombe, 152 Md. App. at 677, 834 A.2d at 157 qouting Jones).

Based upon this definition, one issue that arises is whether Plaintiffs can pursue damages for the child’s post-majority (after 18 years old) medical and other care expenses if it can be shown by the Plaintiffs that such damages are the natural, proximate and direct effect of the Defendants’ tortious conduct.

In Jones there was no need for the Court to address the issue of post-majority damages because there was a negligent sterilization case involving a healthy child. Since the parents of the child in Jones clearly would not have to pay for any medical or other care expenses after their healthy child reached the age of majority, the issue of post-majority expenses simply never was an issue. Accordingly, the type of damages that the Court allowed in Jones is different than the type of damages allowed in this case. Since Jones involved a healthy child, the Court in that case allowed “child rearing costs to the age of the child’s majority, offset by the benefits derived by the parents from the child’s aid, society, and comfort.” Id. 299 Md. at 270, 473 A.2d 435. Nevertheless, the Court of Appeals in subsequent wrongful birth cases intentionally and specifically recognized that damages in wrongful birth cases are not limited to the child’s minority.

B. The First Case After Jones - Reed

The first wrongful birth case decided by the Court of Appeals after Jones was Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145 (1993). That case involved the alleged wrongful birth of a child with severe physical deficits due to genetic abnormalities, due to the alleged failure of health care providers to inform the parents of the availability of a diagnostic genetic test.
The Reed case reached the Court of Appeals because The United States District Court for the District of Maryland certified two specific questions to the Court of Appeals regarding whether Maryland recognizes a tort cause of action for wrongful birth under the circumstances of that case, and whether the continuation of a pregnancy is a decision requiring the informed consent of the patient which can give rise to a Maryland tort cause of action for lack of informed consent under certain circumstances. However, neither of those Certified Questions called upon the Court of Appeals to specifically decide whether post-majority damages are allowed. According to the Court: "The certified questions do not ask this Court to define the measure of damages. For the purpose of answering the first certified question, it is sufficient to state that there is at least some economic harm to the parents in these cases – a harm that can be quantified under the general rules relating to tort damages." Id., 332 Md. at 236, 630 A.2d at 1150 (emphasis added).

Again, the Court of Appeals in Reed did not limit the amount of damages that may be recovered in wrongful birth cases to the child’s minority. After reviewing wrongful birth law in other states, the Court stated that “those courts that recognize the cause of action alleged by the Reeds permit, at a minimum, damages measured by the extraordinary cost, at least through minority, of supporting the child with severe birth defects as compared with supporting a child who is not so afflicted.” Id., 332 Md. at 238, 630 A.2d at 1151 (emphasis added). The Court further stated, “We cite these authorities not for the purpose of defining or refining a measure of damages in these cases, but simply to demonstrate that there is a legally cognizable injury to the parents in these cases.” Id., 332 Md. at 239, 630 A.2d at 1151 (emphasis added). Clearly, the Court of Appeals in Reed did not limit the period of time over which extraordinary damages may be claimed in a wrongful birth case involving an unhealthy child.

The Court of Appeals in Reed also gave guidance on how courts should consider damages in wrongful birth cases when the child is unhealthy. According to the Court: “For the purpose of answering the first certified question, it is sufficient to state that there is at least some economic harm to the parents in these cases – a harm that can be quantified under the general rules relating to tort damages.” Id., 332 Md. at 236, 630 A.2d at 1150 (emphasis added). As the Court of Appeals previously stated in Jones, the general rules are: “In a tort action for negligence in Maryland the plaintiff may recover not only for the consequences which have actually and naturally resulted from the tort, but also for those which may certainly or reasonably and probably result therefrom as proximate consequences, but not for consequences which are speculative or conjectural.” Jones, 299 Md. at 268-269, 473 A.2d at 435. It goes to follow, that the Court’s findings in Reed would also permit Plaintiffs to recover economic damages for a child’s post-majority medical and other care expenses.

C. The Second Case After Jones - Kassama

The second wrongful birth case decided by Court of Appeals after Jones was Kassama v. Magat, 368 Md. 113, 792 A.2d 1102 (2002). That case involved the alleged wrongful birth of a child with severe physical and mental deficits from Down syndrome, due to the alleged failure of health care providers to report to the parents the abnormal results of a screening genetic test.
The Kassama case reached the Court of Appeals after a jury verdict in favor of the plaintiff on the issue of wrongful birth, but a finding of contributory negligence on the part of the plaintiff resulting in judgment being entered in favor of the physician. The plaintiff appealed alleging that the trial court erred in dismissing a wrongful life claim, submitting the issue of contributory negligence to the jury, and refusing to give a last clear chance instruction. Once again, the Court of Appeals was not called upon to specifically decide whether post-majority damages are allowed.

D. The Third Case After Jones - Dehn

The third and final wrongful birth case decided by the Court of Appeals after Jones was Dehn v. Edgecombe, 384 Md. 606, 865 A.2d 603 (2005). That case involved the alleged wrongful birth of a healthy child due to negligence in the post-operative care following a vasectomy. Like Kassama, the Dehn case reached the Court of Appeals after a jury verdict in favor of the plaintiff on the issue of wrongful birth, but a finding of contributory negligence on the part of the plaintiff resulting in judgment being entered in favor of the physician. The plaintiff appealed and the “principal question” before the court was “whether Maryland recognizes an independent cause of action in a patient’s wife against a doctor who acted negligently while treating her husband but who had no relationship or direct interaction with the wife.” Id., 384 Md. at 611, 865 A.2d at 606. Once again, the appellate issue did not call upon the Court to specifically decide whether post-majority damages are allowed. Nevertheless, in quoting Jones v. Malinowski, the Dehn court did, however, reiterate and reinforce that the general law of tort damages in Maryland governs in wrongful birth cases.

E. Other Judges of the Circuit Court of Maryland Have Allowed Plaintiffs to Pursue Post-Majority Damages In Wrongful Birth Cases

Faced with the same question of whether Maryland law permits the recovery of post-majority damages in wrongful birth cases, The Honorable Clifton Gordy of the Circuit Court for Baltimore City allowed a plaintiff in a wrongful birth case to claim post-majority damages in Bach v. Steinberg, Case No. 94006047/CL174650.

Additionally, The Honorable Robert Cadigan of the Circuit Court for Baltimore County also held that a plaintiff was allowed to claim post-majority damages in a wrongful birth case, when he denied the Defendants’ Motion in Limine in Canelos v. Manley, Case No. 03-96-1226.

In sum, there is a very strong argument that plaintiffs in Maryland wrongful birth cases should be able to claim post-majority medical and other care expsnes in wrongful birth cases.

Additionally, in Lumber Terminals Inc. v. Nowakowski, 36 Md. App. 82, 89, 373 A.2d 282, 287 (1977), the Court of Special Appeals held that, “In personal injury cases courts generally, and Maryland particularly, consider among other losses lost wages and earnings suffered by the injured person not only from the time of the injury to trial, but those reasonably certain to occur in the future.” That Court recognized, “In short, the measure of damages, broadly stated, is the amount which will compensate the injured person for all losses he has sustained by reason of the injury.” Id., 36 Md. App. at 92, 373 A.2d at 289; see also Monias v. Endal, 330 Md. 274, 623 A.2d 656 (1993) (“In an action for personal injuries, a plaintiff may recover for loss of future earnings which will reasonably and probably result from the tort.”).

I have successfully handled a number of medical malpractice / medical negligence / medical error cases in Maryland involving birth injuries. These cases are always tragic.

In the past year, there has been a number of multi-million dollar medical malpractice verdicts involving hospital acquired infections. For example, in July, a couple was awarded $2.5 million in Missouri after the husband developed MRSA and then lost a foot, leg and kidney. Subsequently, in November, a Massachusetts jury awarded $13 million to the family of a woman who died from a flesh eating infection. After that, in November, a woman reached a confidential settlement after filing a $16 million suit after a Utah hospital failed to diagnose flesh eating bacteria before she gave birth. This caused her to lose three limbs and several organs.

Hopefully, these awards award will be a reminder to doctors and hospitals that it is important for them to recognize and treat MRSA as quickly as possible before a patient develops septic shock. Nobody should go through this.

There has been a lot of talk lately about efforts to reduce the number of hospital acquired infections, which generally start in the tubes and catheters inserted into the body. Today, there was a great article in the Washington Post about one doctor’s initial skepticism that these infections could be prevented, and his eventual realization that these infections can largely be prevented. This doctor was skeptical when his hospital joined the quality improvement initiative led by the Institute for Healthcare Improvement, a nonprofit founded by Harvard pediatrician Donald Berwick. By looking at the process, measuring the results, providing feedback to key people and developing strategies to improve the care of their patients, they made checklists to ensure that certain procedures were followed to prevent hospital acquired infections. These were procedures similar to what intensive care units in Michigan did to reduce bloodstream infections to nearly zero.

For this particular doctor, after two years, there was a 50 percent decline in the intensive care unit infection rate, with a 21 percent (or $702) reduction in cost per ICU discharge. In fact, the results were so stunning, that the group published the results in the journal Quality and Safety in Health Care. A copy of an article regarding the case can be found here.

As of today, there have been only a handful of major verdicts in cases alleging that medical malpractice for causing a hospital acquired infection. As these checklists become generally accepted, there certainly will be more cases.

I have successfully handled a number of serious injury cases in Baltimore and other counties in Maryland. Many of those medical malpractice / medical negligence / medical error cases involve birth injuries. A recent case that settled for a substantial sum involved almost exactly the same set of facts. A woman gave birth to a healthy child, after which she experienced substantial vaginal bleeding. The hospital, however, did not timely address the situation and, as a result, she lost so much blood that her blood stopped clotting properly. This is called Disseminated Intravascular Coagulation (“DIC”) or Consumptive Coagulopathy. She eventually underwent emergency surgery which saved her life, but during the surgery doctors had to remove her uterus. This was a classic case of a woman slipping through the cracks of a hospital. Everybody knew what was going on, but no one assumed responsibility for the matter. The tragedy of this was that the woman was unable have children again as a result.

A jury found that the doctor violated the standard of care and awarded the woman’s family $2.5 million. It is thought to be the largest medical malpractice verdict there since 2004.
The woman’s family argued that if she'd been properly diagnosed when she first visited the doctor, her chances of surviving the cancer would have been 97 percent, but because of the malpractice, her chances dropped to 50 percent by the time she was diagnosed. The family also claimed that the woman likely would be alive today if doctors had diagnosed her cancer earlier. Instead, before she died, the woman went through chemotherapy and major surgery, including the removal of her uterus and part of her lower intestines. A copy of an article regarding the case can be found here.

I have successfully handled a number of medical malpractice / medical negligence / medical error cases in Baltimore and other counties in Maryland involving a failure to timely diagnose and treat colon and other cancers. Some of the cases I have handled involved a failure to properly perform colonoscopies. Other cases have involved a failure to properly read pathology, such as tissue samples on slides from a biopsy during a colonoscopy. These cases are always tragic, as colon cancer is a generally curable cancer if it is caught and treated early.

I have successfully handled a number of medical malpractice / medical negligence / medical error cases in Baltimore and other counties in Maryland involving a failure to timely diagnose and treat infections. Cases against the U.S. government are always more difficult because they must be brought under the Federal Tort Claims Act, which means that they get tried before a judge and not a jury.