Articles Posted in Medical Malpractice Law in Maryland

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The Court of Appeals recently ruled in University of Maryland Medical Systems Corp v. Muti, a case involving the appropriate interpretation of the Maryland’s Wrongful Death Statute found in Sections 3-901 to 3-904 of the Courts and Judicial Proceedings Article of the Maryland Code. A copy of the case can be found here.

The Plaintiffs were the widow and adult children of the decedent. The appeal arose because the Plaintiffs failed to disclose in their Complaint the existence of a stepson whom the decedent had adopted during a prior marriage. Plaintiffs asserted that they had not had any contact with the adoptive son for over twelve years and had no idea if and/or where he was living.

The hospital argued that a wrongful death claim requires that there may only be one action by all possible beneficiaries, and that action must be brought within three years. As a result, the failure to identify the adopted son was a failure by Plaintiffs to join a necessary party and the expiration of the three year statute of limitations precluded the plaintiffs from amending their claim.

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In recent appellate opinion, a catastrophic injury case, Yiallouro v. Tolson, was reviewed for error concerning expert testimony. Yiallouro was severely injured in a car accident while in the scope of his employment, causing him to ultimately lose his job because he could no longer perform his previous tasks and there was no “light duty” work available. When Yiallouro brought suit against Tolson, the driver of the other vehicle, the Montgomery County jury who heard the case awarded Yiallouro $925,000.00 in damages: $32,000.88 for past medical expenses, $35,191.80 for past lost wages, $409,787.00 for loss of future wages, $224,010.16 for pain and suffering, and $224,010.16 for loss of consortium. However, after the verdict, the judge determined that the he had erroneously permitted one of plaintiff’s experts to testify because the testimony was too speculative and lacked an adequate factual basis for opinion under Maryland Rules 5-702 and 5-703. The expert in question was a vocational rehabilitation expert who testified that Yiallouro’s future lost wages were over $400,000.00. A copy of the Court of Special Appeals opinion, filed on March 2, 2012, can be found here.

As a result of the judge’s belief that he had erroneously permitted the expert testimony, and the jury had awarded excessive damages in the wake of hearing that testimony, the case was retried. Interestingly, the vocational rehabilitation expert was permitted to testify in the second case, having met the standard for expert qualifications as set forth in the Frye/Reed test. However, defense counsel presented their own experts in the second trial, and the jury trial found contributory negligence, barring Yiallouru from recovering damages.

Yiallouro appealed, alleging the trial judge should not have excluded the expert’s testimony at the end of the first trial and ordered a re-trial. The Court of Special Appeals reversed the decision in part, finding that the expert had been appropriately qualified in the first case, and holding that only the issue of non-economic damages should have been retried in the second case – not liability. The appellate court found that when the trial court granted the motion for new trial, it confused the weight of the evidence with its admissibility. The expert’s experience, knowledge and skill qualified her to testify before the jury, and it was up to the jury to evaluate the weight of that testimony in reaching their verdict.

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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.

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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.

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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.

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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.

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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.

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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.

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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:

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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.