Maryland Medical Malpractice Lawyer Blog

Maryland has enacted significant limitations on the ability of Plaintiffs to use expert witnesses in Maryalnd medical malpractice cases. In 1976, the Maryland Health Claims Arbitration Act was enacted to help address a perceived medical malpractice insurance crisis. In 1986, the legislature further amended the Act to include a certificate of qualified expert requirement. As proposed in Senate Bill 559, an expert only would be qualified to sign a certificate if he or she did not receive 50 percent or more income from testimony and other activities related to personal injury claims. That language was amended to become the 20 Percent Rule; i.e., in order to qualify, a certifying expert cannot devote more than 20 percent of his or her professional activities to activities directly involving testimony in personal injury claims. The dichotomy that the General Assembly sought to reconcile was the desire, on the one hand, to exclude certain “professional witnesses” from the “pool of eligible experts” available to sign certificates of merit, while on the other, it did not want to “shrink” the size of that pool so as to “deny the parties the ability to pursue and defend these [malpractice] claims.” This balance was achieved by the aforementioned language changes which “keyed the critical numerical measurement to time, instead of income,” and narrowing the activities described as “related to” personal injury claims to the more circumscribed world of activities “directly involving testimony in personal injury claims.”

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 . . .”

When most people think of a medical malpractice case, they think about the kind of case in which the plaintiff (the party bringing the case) claims that a doctor of hosptial has acted below the standard of care and caused significnat injury in a patient. Another type of medcial malpractice case, however, inolves what is called "informed consent." In the seminal case of Sard v. Hardy, the Maryland Court of Appeals held that the doctrine of informed consent follows logically from the universally recognized rule that a physician treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient. The fountainhead of the doctrine of informed consent is the patient’s right to exercise control of his own body. In order for the patient’s consent to be effective and “informed,” it must have been one that is given after the patient received a fair and reasonable explanation of the contemplated treatment or procedure.

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.

Many of my Maryland medical malpractice clients ask me whether there is any possibility that they can claim or recover punitive damages in their cases. The answer in every case is no. In Maryland, in order to recover puntive damages, the Maryland Court of Appeals (Maryland's "Supreme Court") decided in the 1992 case of Owens-Illinois, Inc. v. Zenobia, that a person must prove that the defendant acted with "actual malice." Actual malice has been defined to mean intent to injury, ill will, or fraud. In a medical malpractice case, I have never seen a case where a physicain intended to injure a patient, or where there was ill will toward a patient that caused injury. Similarly, I have never seen a case of fraud in a medical malpractice case that injure a patient. While I suppose it could happen, it almost never does.

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.

As a Maryland medical malpracitce lawyer / attorney, many people ask me what is a wrongful birth case. In Maryland, a wrongful birth case is a case in which parents of a child born with birth defects allege that the negligence of prenatal health care providers deprived them of the opportunity to terminate the pregnancy due to the likelihood of the child being born in an impaired state. These type of cases are brought by parents in an effort to recover the economic expenses that will accrue in raising a child with extraordinary needs.

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.

Many peole ask what type of damages they can get in a medical malpractice / medical negligenc cases. One type is lost wages. Maryland courts have repeatedly acknowledged the legitimacy of lost wage claims in negligence cases. For instance, in Adams v. Benson, 208 Md. 261, 270-271, 117 A.2d 881, 885 (1955), the Court of Appeals recognized: "That in an action for personal injuries caused by the negligence of the defendant, 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." The Court then recognized that in a personal injury action, a plaintiff may claim: "damages for (1) resulting loss of time and loss of earnings; (2) loss or diminution of earning capacity sustained by being temporarily deprived of her capacity to perform her ordinary labor, and (3) loss of future earnings, if shown with reasonable certainty and not merely speculative in character". Id., 208 Md. at 271, 117 A.2d at 885.

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.”).

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 " »

A New York trial judge has ordered a new trial on damages in the malpractice case of a businessman left permanently paralyzed after a stroke. The plaintiff was awarded $5 million in April after a jury trial. The judge, however, set aside the verdict last week with respect to damages, finding that the award was too low. The judge then entered judgment for approximately $18.4 million. Specifically, the judge found that the jury’s award of $1 million each for past and future pain and suffering to the plaintiff and his family deviated materially from what would be fair compensation, and thus increased the award to $5 million each. The plaintiff contended in the case that doctors at a hospital failed to diagnose what they called “classic symptoms” of a brain aneurysm that led to the stroke. A copy of the article regarding the case can be found here.

In Maryland, whether in medical malpractice cases or otherwise, it is possible for judges to increase or decrease a jury verdict, but it is very rare that judges increase such verdicts. It is practically unheard of for judges to increase a verdict so much.

The Massachusetts Supreme Court issued a written decision yesterday in a medical malpractice case, finding that doctors can be held liable for medical negligence that reduces a patient’s chance of survival, even if the patient’s probability for recovery was already less than 50 percent. The Massachusetts Supreme Court’s ruling came in a closely watched medical malpractice case. In 2004, a jury awarded $1 million to the family of a man whose cancer was overlooked by a doctor. The court upheld the jury’s award in its decision, ruling that Massachusetts law is such that if a doctor’s negligence reduces or eliminates the patient’s chance for recovery, the doctor still is liable for damages. A copy of the article regarding the case can be found here.

In Maryland medical malpractice cases, the law is different than in Massachusetts. In Maryland, in a case where a plaintiff seeks to prove that a doctor or hospital’s negligent failure to diagnose and/or treat cancer case has or will cause them to die, the plaintiff must prove that the doctor or hospital’s conduct caused them to go from having a probability of surviving the cancer (something greater than 50 percent) to having a probability of not surviving the cancer (something less than 50 percent). I have had many such cases. But if a patient only had a 40 percent probability of surviving the cancer before the malpractice, and now due to the malpractice the patient only has a 20 percent chance of surviving the cancer, that is considered a “loss of chance,” which Maryland does not recognize.

Under Maryland Rule 2-501(a), summary judgment is only appropriate where there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. Therefore a motion for summary judgment should be denied where the opposing party has shown that "there is a genuine dispute as to a material fact by proffering facts which would be admissible as evidence." Beatty v. Trailmasters Products, Inc., 330 Md. 726, 737 (1993). "A material fact is a fact the resolution of which will somehow affect the outcome of the case." Carter v. Aramark Sports and Entertainment, 153 Md.App. 210, 224 (2003) (quoting Sterling v. Johns Hopkins Hosp., 145 Md.App. 161, 167 (2002), cert. denied, 371 Md. 264 (2002)).

"When ruling on a motion for summary judgment, a court must view the facts, including all inferences drawn therefrom, in the light most favorable to the opposing party." Carter, 153 Md.App. at 224, (citing Sterling, 145 Md. App. at 168, quoting Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 676 (2001)). "The moving party bears the burden of establishing the absence of a genuine issue of material fact." Carter, 153 Md.App. at 224, (citing Sterling, 145 Md.App. at 168, citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)), therefore the Defendant must show the absence of disputed facts. Furthermore, the standard is such that the trial court is not to draw inferences in favor of the moving party. Rather, if the facts are undisputed, but these facts "are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law." Carter, 153 Md.App. at 225, (citing, Porter v. General Boiler Casing Co., 284 Md. 402, 413 (1979), quoting Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138 (1970)).

Continue reading "Summary Judgment Standard in Maryland Medical Malpractice Cases" »

Maryland is one of the many states that cap, or limit, certain types of damages in medical malpractice cases. Under current Maryland law, medical malpractice damages for pain, suffering and emotional distress are capped at $650,000. That cap will not change until the end of this year (December 31, 2008), when the cap is scheduled to begin increasing $15,000 per year. A jury can award whatever it wants for pain, suffering and emotional distress, but if it awards more than the cap, the judge is required to reduce the verdict to no more than the cap.

The type of damages that are capped in Maryland medical malpractice cases – pain, suffering and emotional distress – are called non-economic damages. 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 Maryland statute that sets forth the cap on medical malpractice cases specifically states that the jury shall not be told about the cap. Thus, everyone in the courtroom knows about the cap except for the jury that is making the decision on damages.

To determine the maximum value of a Maryland medical malpractice case, you add the maximum non-economic damages to any economic damages that can be proved to a reasonable degree of probability. For example, let’s say that a doctor fails to properly treat a young married man and causes a severe stroke. As a result, the victim can never walk again and must live in a wheelchair, and cannot work again due to moderate brain damage. That victim would have a pretty good chance of convincing a jury to award non-economic damages of at least $650,000 for all of the pain, suffering and emotional distress of having to live with the effects of a stroke and in a wheelchair for the rest of his life.

In addition, to the victim’s suffering, the victim also will have medical expenses related to the malpractice (neurology visits, urology visits, podiatry visits, pain specialist visits, etc.); care expenses related to the malpractice (such as for a home health aide to assist at home); and lost wages (because the victim can no longer work). In our example, let’s say that the case goes to trial two years after the medical malpractice, that medical and other care expenses have been One Hundred Thousand Dollars per year for the each of the last two years, and that the victim has a life expectancy of forty years. At trial, these “economic” damages will be divided into past and future damages, with the past medical and other care expenses being Two Hundred Thousand Dollars (2 x $100,000) and the future medical and other care expenses being Four Million Dollars (40 x $100,000).

In addition to the victim’s suffering and medical and other care expenses, the victim in our example also can no longer work. Let’s say the victim was earning approximately One Hundred Thousand Dollars per year in income and benefits before the malpractice, and would have worked for another 32 years, that person would have at leat Two Hundred Thousand Dollars (2 x $100,000) in past lost wages by the time the case goes to trial and future lost wages of more than Three Million Dollars (30 x $100,000). It’s actually more than that due to wage increases that would have occurred if the victim had not been injured.

Finally, we also have to consider a loss of household services. If, before the malpractice, the victim did all of the shopping, home care, lawn care and maintenance around the house, but can no longer do these things, that has a value that can be compensated. That value may be approximately Ten Thousand Dollars per year for forty years. Thus, the total lost household services is Four Hundred Thousand Dollars (40 x $10,000).

So, to figure out the maximum value of this hypothetical case, we add (1) the pain, suffering and emotional distress damages of $650,000, (2) the past medical and other care expenses of $200,000, (3) the future medical and other care expenses of $4,000,000; (4) the past lost wages of $200,000; (5) the future lost wages of $3,000,000; and (6) the lost household services of $400,000. Thus, the maximum amount of damages in this hypothetical case is $8,450,000.

The only major exception to the cap on non-economic damages relates to Wrongful Death cases in Maryland. A Wrongful Death case is a personal injury case that is brought due to the wrongful death of a person. It can be brought by a parent, spouse or child of a person who suffers a wrongful death. In a Wrongful Death case in which there are two or more claimants (a parent and child, for example), 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 begin increasing $15,000 per year.

Over the last few years, more and more nursing homes have been requiring patients to sign binding arbitration clauses before admitting patients to the home, thereby preventing patients from later filing a medical malpractice claim in court against the nursing home, even in the case of egregious malpractice. Because arbitration is stacked against the patient, and the patients have no bargaining power to avoid the arbitration clauses, these clauses are unfair.

Finally, Congress is taking notice. Today, U.S. Senator Mel Martinez (R-FL) introduced legislation to protect dispute resolution options for residents of nursing homes. The measure is in direct response to the increasing practice of nursing home facilities requiring patients to agree to arbitration as the sole vehicle for dispute resolution prior to admittance to a facility. Joining Senator Martinez in this effort as lead-cosponsor is Senator Herb Kohl (D-WI). A copy of the press release regarding the legislation can be found here.

Many people are confused about what "medical malpractice" is and what it means in Maryland. The term medical malpractice simply means a negligence case against a health care provider, usually a doctor, nurse, hospital or nursing home. In order to bring a medical malpractice case in Maryland, the plaintiff (the party who files the case) generally must be able to prove (1) that the doctor, hospital or nursing home violated the standard of care; (2) that the doctor, hospital or nursing home was a cause of some injury or damage to the plaintiff; and (3) that the plaintiff suffered injuries and damage, and what the value is of those injuries and damages.

Another type of medical malpractice case in Maryland is an informed consent case. Generally, before a doctor provides non-emergency medical treatment to a patient, the doctor is required to explain the treatment to the patient and to warn of any material risks or dangers of the treatment, so that that patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment. A material risk is one which a doctor knows or should know would be significant to a reasonable person in the plaintiff's position in deciding whether or not to have the particular medical treatment or procedure. The doctors' duty to disclose material risks is measured by whether a reasonable person in the position of the plaintiff would have considered the risk to be a material risk. Technically, an informed consent case is not a medical malpractice case. As set forth above, in a true medical malpractice case, the plaintiff proves that the doctor, nurse, hospital or nursing home did not do something or did something improperly. In an informed consent case, however, the treatment and/or procedure may have been performed properly, but the information provided to the plaintiff was not enough for them to make an informed decision, and as a result of making that uninformed decision to have the procedure, the plaintiff was injured.

A medical malpractice case or an informed consent case in Maryland must be proved in court by what lawyers call the "preponderance of the evidence." To prove something by the preponderance of the evidence means to prove that something is more likely so that no so. In other words, the plaintiff in a medical malpractice case must prove their case to a reasonable degree of probability. A medical malpractice case is a civil case, meaning that the plaintiffs and defendants are fighting over compensation. Generally, most civil cases, such as all medical malpractice cases, must be proved by the preponderance of the evidence. A plaintiff in a medical malpractice case does not have to prove their case "beyond a reasonable doubt." That is the standard for criminal cases, where someone has been charged with a crime.

In a Maryland medical malpractice case, the plaintiff almost always must present testimony from an expert witness to support their case. An expert is someone who has special knowledge, skill, experience, training or education, and who can assist judge or jury in understanding the issues at trial. Informed consent cases are treated differently. In informed consent cases, expert testimony may come from the defendant or the defendant's experts.