Maryland Medical Malpractice Lawyer Blog

A study published in June 2011 provided a somewhat unexpected result - doctor’s offices and hospitals are equally as likely to be sued for medical malpractice. This finding is surprising because the majority of patient safety initiatives focus on inpatient care at hospitals. The finding of this study, however, indicates a need for the focus to shift to outpatient settings as well. The Journal of the American Medical Association study can be found here.

In 2009, of approximately 11,000 medical malpractice payments made on behalf of physicians, close to half stemmed from errors occurring in doctor’s offices. The study revealed that while hospitals and doctor’s offices are equally as likely to face medical malpractice suits – the error or negligence behind those suits differ. In hospitals, malpractice most often results from unsuccessful surgery giving rise to negative outcomes. In doctor’s offices, on the other hand, incorrect diagnosis is most often to blame. While this indicates the necessity that doctor’s offices adopt the same kind of checklists and systems that have been in place in hospitals for many years, it also demonstrates how essential it is that outpatient care standards become a greater focus in the medical community.

Other reports have indicated that for every one hospital discharge, there are as many as thirty outpatient visits. A ratio of this magnitude displays the seriousness of any chronically deficient care in physician’s offices.

The article regarding this study can be found here.

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.

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.

A bill currently is being considered by the Maryland legislature would expand a law that protect a doctors from his apology being used against him in court in a medical malpractice case. Currently, Maryland law states that an apology or statement of regret by a doctor is inadmissible in a medical malpractice trial. That statute, which is found in Section 10-920 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland, encourages doctors to apologize for an error. In my opinion, it is a good law that encourages a doctor to be honest with a patient.

But a new bill has been proposed to expand the current law so that other things the doctor says along with the apology or statement of regret also would be inadmissible. This does not make sense. We shouldn’t have to exclude statements from evidence to encourage our doctors to be honest with us. Moreover, the effect of this proposed law would be to prohibit from evidence what could be the only evidence of what happened. For example, suppose a patient becomes paralyzed during back surgery and the operative report and all of the other records surrounding the procedure are silent as to what happened (this is exactly what happened in a recent case of mine). Then, suppose the doctor comes into the patient’s room after the surgery and says “I’m really sorry that you are paralyzed (currently this would be inadmissible) and I feel really bad about what happened (also currently inadmissible), but during the surgery I dropped an instrument on then spinal cord by accident because I was really tired from being out the night before with my medical school buddies at a reunion; I just wanted you to know what happened.” The proposed law would make that last part of the doctor’s confession inadmissible. That is absurd. A copy of an article in which I was quoted on the subject can be found here.

In my opinion, the much better approach would be to enact a law that requires our doctors to tell us what happened when there is an adverse outcome that is significant. This would serve the public much better than a law that shields the truth from evidence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2) § 5-203 of this title.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) A spouse;

(2) A minor child;

(3) A parent of a minor child; or

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

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

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

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

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

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

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

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

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

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

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

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

(2) Prior to the death of the child:

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

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

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

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

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

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

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

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

As an experienced Baltimore, Maryland medical malpractice lawyer, I am often asked what contributes to my success. Certainly hard work comes first. But there are also various ways that can improve the odds of being successful in the courtroom. One way is to use computerized technology in the courtroom. While it does not substitute for extensive preparation, it can help emphasize points to a jury in a case. A copy an article on the subject, in which I was quoted, can be found here .

The Maryland Court of Appeals has issued a new decision on the law of informed consent in Maryland medical malpractice cases. According to the court, doctors must inform patients not only of the risks of procedures but also the potential consequences of forgoing a medical procedure. The decision is a victory for patient’s rights.

A number of years ago, the Maryland Court of Appeals held that informed consent only applied when there was some physical contact with the patient. The Court’s new decision, however, removed that limitation. A copy of the case can be found here.

As an experienced Baltimore, Maryland medical malpractice lawyer, I have handled a large number of informed consent cases. In any medical malpractice case, it is always important for a lawyer to ask whether the patient was properly informed of risks, alternatives, probabilities of success and failure and other considerations that bear on what was important to the patient. To see some of the cases I have handled, click here.

A copy of the article regarding the case, in which I was quoted, can be found here .

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.

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.

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)).

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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).

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.