Articles Posted in Law in Maryland

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In order to encourage finality of potential claims – and to discourage the filing of claims after evidence has been lost and memories have faded – all states have enacted a “statute of limitations.” A statute of limitations is a law that sets forth the amount of time that a potential plaintiff has in which to file his or her case after the incident giving rise to the case occurs. If the case is not filed by the deadline, the plaintiff will forever be prohibited from bringing that claim. Accordingly, the importance of understanding the statute of limitations and keeping track of the deadline cannot be overstated.

Each state has its own statute of limitations. Additionally, in many states, a statute of limitations for one type of claim may be different than the statute of limitations for another type of claim. For example, a negligence case could have a three-year statute of limitations while a defamation case could have a one-year statute of limitations.

Maryland Medical Malpractice claims have their own statute of limitations, which is set forth in Courts & Judicial Proceedings § 5-109 of the Maryland Annotated Code. A copy of the Maryland medical malpractice statute of limitations provision can be found here. Under Maryland law – and with some limited exceptions – a potential medical malpractice plaintiff must file their lawsuit within the earlier of five years of the time of the injury or three years of the date the injury was discovered. This means that, conceivably, your medical malpractice claim could be extinguished before you ever realize you have one, i.e., if it takes you more than five years to realize that you have been injured by a medical mistake.

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Expert witnesses are necessary in virtually every medical malpractice case filed in Maryland and the District of Columbia. Knowing which types of experts to use and not to use can make or break a case. Therefore, it is important to choose a lawyer who has extensive experience choosing, retaining and using experts.

In each of our cases, we identify the type of experts we need to prove our case. Some of the experts may focus on whether the defendant did anything wrong, such as a surgical expert or internal medicine expert who can testify as to whether the defendant violated the standard of care. Other experts we use may focus on whether a defendant’s conduct caused any injury, such as a neurologist who may testify that a violation of the standard of care during surgery caused paralysis. Finally, we use damage experts, such as life care planners and economists who testify about the cost of future medical care.

After we identify the categories of experts, we frequently consult with experts in those categories we have used before in other cases, since we have experience with such persons. Sometimes, we need to find a new expert in a field, which we do by researching which experts have published medical literature in the field of medicine that relates to our case, and consulting with other attorneys who have used similar experts previously.

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In many personal injury lawsuits, the attorney representing the victim must prove that the victim experienced conscious pain and suffering. Under Maryland law, the victim’s lawyer must prove: (1) that the defendant’s negligence was a cause of the incident; (2) that the victim lived after the incident; and (3) between the time of the incident and the time of death, the victim suffered conscious pain.

Sometimes, proving conscious pain and suffering is easy because a witness saw it, heard it or the medical records document the suffering through complaints of pain or the need for pain medication. But sometimes, that evidence is lacking. In such situations, courts allow evidence of conscious and suffering if there is a “reasonable inference” of it, so I use expert witnesses to prove such a claim. These can be neurologists, medical examiners, etc.

Recently, in a case where a man’s car was struck by a much larger truck, I used a medical examiner to prove that, during the 5-10 minutes after the collision when witnesses said the man was alive, he was in fact consciously suffering. A medical examiner is a good choice to use in such a case because of such an expert’s knowledge of what injuries do to a person and how a person reacts to injuries. In this particular case, using the medical examiner as an expert, the jury awarded $675,000 for the victim’s suffering.

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The U.S. Food and Drug Administration regulates medical devices and prescription drugs to make sure that they are safe and effective for their intended use. Frequently, doctors see clinical uses for medical devices and drugs that lie outside of the FDA-approved labeling. This is a practice known as “off-label use.” The off-label use of a medical device is, in most cases, completely legal. The FDA understands that doctors have the right to make their own treatment decisions, including decisions about off-label uses, based on clinical experience and knowledge. However, the off-label use of medical devices can be a source of increased liability when such use falls short of patients’ expectations.

All doctors engaged in medical practice are liable for damages from negligent injury to patients due to medical malpractice. In such cases, the key question is whether the medical procedure or service at issue met the standard of care. The standard of care generally is defined as what a reasonable doctor would do under the same or similar circumstances.

If a patient brings a malpractice claim against a doctor who uses a medical device for an allegedly improper off-label use, the patient may claim that the doctor failed to obtain the patient’s “informed consent.” The doctrine of informed consent mandates that a doctor must present the patient with material information about the procedure’s risks, benefits, and alternatives, and holds a doctor for any patient injury that results. This information allows the patient to decide which course of action to pursue.

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