Ron Miller is a Maryland personal injury lawyer who focuses on serious injury and wrongful death cases involving motor vehicle collisions, medical malpractice, and products and premises liability. This site is designed to provide practical information to both injury victims and plaintiffs' attorneys in the Baltimore-Washington area who want to achieve a fair settlement or verdict. If you are looking for counsel for your case, call him at 410-553-6000

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A new study on emergency room malpractice was released today that looks at why ER doctors are so frequently sued in misdiagnosis claims.

The study was conducted by The Doctors Company, which is a big insured of doctors, hospitals and physician groups.  It is easy to roll your eyes because you know these folks come with an agenda. And of course their conclusions are euphemistic distortions or maybe downright fictions, but I take most of the data at face value, because I can’t see the point of cooking the relative malpractice incidence rates.

bloodpressure4The study looked at 332 closed emergency room malpractice claims.  Four types of cases made up the lion’s share of the cases:

  • Misdiagnosis: 57%
  • Improper Management: 13%
  • Improper Treatment: 5%
  • Failure to Order Medications: 3%

Misdiagnosis is the biggest culprit.  The study says 57%; I would have put this number at 75 percent. Misdiagnosis includes the failure to make a differential diagnosis and the failure to consider all of the symptoms of the patient’s condition.  I would love to see data on “just didn’t know” versus “just didn’t take the time” because my very unscientific guess is that they are probably equally balanced.  But the study does take a roundabout shot at trying to answer this question, breaking up misdiagnosis cases like this:

  • Obese people are hard to treat because hospitals do not have the right equipment for them: 21%
  • Communication errors which includes something that is surely not a communication error — failing to read the medical records: 17%
  • Improper documentation: 13%
  • Staffing problems: 12%

Okay, now we are getting a little crazy. More than 20% of the emergency department misdiagnosis cases are because they do not have the equipment to treat overweight patients?   It is insane and the slant of the study does come out here.  Blame everyone but the doctors regardless of whether it is a ridiculous reach.

Communication errors is a big one and it is often compounded by misdiagnosis.  I settled a claim for millions, just last week, where there was a misdiagnosis and communication errors.  The patient probably would have survived with one, but not both.  That is how it often goes in these cases.  Doctors certainly have less margin for error in their practice than I do as a lawyer.  I’ll readily admit that.  But often for things to have gone as badly for the malpractice to cause injury or death because there are systematic checks and balances that usually expand the margin for error.

Improper documentation could actually be a communication error.  So the categorization is all goofy.  Not reading the records which is not a communication error is a communication error but improper documentation which is a communication error is not for this study. Got it? (Note: They may have had a good reason to categorize things as they did that I can’t figure out.  I’m just mocking them for it makes no sense to me. )

Anyway, the study concludes that emergency medicine doctors are “more prone to be sued for diagnosis-related issues than many other specialists because they treat patients who are unknown to them and who have a broad range of clinical problems.”  Actually, that is not what the study says.  But I can’t blame there for framing it that way.

The study hopes that this information will help doctors “focus on specific quality measures that will reduce exposure to malpractice claims and improve patient care.”   I hope it does that.  It certainly is interesting data.

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The Maryland Court of Special Appeals recently handed down its opinion in Rosebrock v. Eastern Shore Emergency Physicians.  The opinion makes defense attorney’s jobs a little easier when it comes to admitting testimony in medical malpractice cases, of what the doctor usually does when the doctor has no recollection of the care provided to the patient.   This post addresses this case and whether this ruling is significant to Maryland medical malpractice law.  I’ll also talk a little about a off the beaten path issue related to agency and personal representation.

Habit testimony in Maryland malpractice cases.

Habit testimony in Maryland malpractice cases

This is a medical malpractice cases where a nurse’s aide slipped and fell, while on duty, at Ruxton Nursing Home located in Denton, Maryland.  After the fall, she complained of hip, knee, and back pain. EMTs arrived and immobilized the woman, then place her on a backboard. She went to the emergency room at Shore System’s Memorial Hospital in Easton, Maryland.  The ER doctor orders an x-ray of the patients’ knees and hips, but there is no record of her examining the patient’s back; even though she complained about her back to the triage nurse.  The x-rays come back negative, prompting the doctor to discharge the patient with minor knee and hip contusions.

Later on, the patient is still experiencing significant pain, resulting in another doctor ordering an MRI. The MRI showed a degenerative disk in the patient’s back, which is later revealed to be a burst/fractured vertebrae. Obviously, this is a bit more serious than a minor contusion, and the patient has to get spinal fusion surgery. Unfortunately, the surgery results in an infection, causing the patient to suffer a brain injury and enter a vegetative state.

This case would have never gotten filed if the injuries were not what they are — the future care costs for a patient in a vegetative state are astronomical — and the plaintiff’s malpractice lawyers thought there was a real shot filing and keeping the case in Baltimore City. Really, this case was probably lost the minute the case was transferred to Queen Anne’s County which is just historically a tough place to try serious medical malpractice cases.

The Evidentiary Issue: Testimony of the Doctor’s Usual Practice

The doctor who treated the patient in the ER testified — probably honestly — that she did not remember the patient.

I say “probably honestly” because I wonder when she was told the patient got an infection and went into a vegetative state.   If no one told her how on earth not?  This is not big news at a small  little Easton hospital? And if someone did tell her, how does she not remember that?

It makes no sense.  But let’s get back on track.  The question in the case — at least the most interesting to me — is whether the trial court err by admitting, as “habit” evidence under Maryland Rule 5–406, the doctor testimony regarding her customary practice when presented with a patient immobilized on a backboard?

The Maryland Court of Special Appeals says you can.  Even if there is not a specific record of you doing something, the court said the Maryland Rules of Evidence permit this information to come in because it is the doctor’s habit. In this case, the trial court let in, as habit evidence, testimony from the ER doctor that established her procedure of examining patients backs when they were brought in on backboards. The court was not persuaded by the malpractice attorney’s argument that an ER back examination is not the same type of subconscious, invariable activity as locking the door behind you or taking the same route to work everyday. They alleged that an examination requires conscious thought and could not be assumed to take place based on habit evidence.

When I put on my medical malpractice attorney hat, this ruling a concern.  Isn’t the doctor essentially testifying that she did something that she really does not know that she did?  It is an outrage!

When I put my reasonable person hat on, the waters get much calmer. Really, the jury is not going to be confused into thinking that the doctor conformed to her habit on that particular case.  The plaintiff’s attorney can cross examine the doctor on her failure to recall.  All she is really saying is this is how I would usually do it.  The jury can digest this for what it is.  I seriously doubt that a different ruling would have made a difference in the outcome.

Goofy Agency Issue That Will Never Come Up Again

Plaintiff’s malpractice lawyer filed a motion for judgment notwithstanding the verdict/new trial which lead to the appeal.  Regrettably, the patient died before the appeal was filed.  So the defendant’s malpractice lawyers did what they do: try to make something of nothing.   The argument?   Patient’s counsel essentially filed a motion for a client he does not have because the patient’s guardian is no longer the appropriate party.

But the wrinkle in this case is that the patient’s attorney did not know that the patient had died and was not alerted to her death until after the appeal was filed.  Because normal people do not call their lawyer when they find out someone they love has died.

Thankfully, the law makes sense most of the time.  So the Maryland Court of Special Appeals adopted the majority rule that the appeal was valid because the agent had not learned of his principal’s death. Given that it was valid, the court also said that the substitution of a new representative was also valid.   So the Appellant won this issue but having lost the issue that really mattered, it was of little consolation.

Interesting case but it is clearly not a game changer. You can find the court’s opinion in Rosebrock v. Eastern Shore Emergency Physicians here.

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expertIn any serious personal injury case in Maryland, you need an expert to testify.  Are there some cases where the injury is so obvious that a medical expert is not required?  There may be.  But anyone willing to take that chance should not be trying tort cases in Maryland.

Why Do We Need an Expert?

An expert has a number of purposes.  First, with a few exceptions, you want to ask the jury to compensate you for the medical bills that you have incurred, even if they have been paid by medical insurance (because the jury is not told that insurance paid for the medical bills).  Accordingly, you need a medical doctor with experience treating that particular injury to testify that the medical treatment that the plaintiff received was fair, reasonable, and medically necessary.

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malpractice8Nearly a quarter of a million Americans undergo total hip replacement  surgery.  All of them do so reluctantly.  This invasive orthopedic surgery is a major operation.  Everyone agrees that there are unavoidable risks involved in the procedure.  These risks include a foot drop (also called peroneal nerve palsy or drop foot), sciatic nerve injuries, and, many believe, RSD even when the surgery is performed properly.

There is no doubt that the fact that it is a known complication of hip replacement surgery does not make for an easy malpractice case no matter how egregious the facts are.  I’m telling you that the surgeon could do the operation with a machete while wearing a Groucho Marx mask and any Maryland insurance company would still mount a defense.  But that does not answer the question posed which is whether it can be medical malpractice when a patient has a foot drop after a total hip replacement.

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rottweiler2Maryland made the right call by getting rid of the “one bite rule,” which created an assumption that dog owners know their dogs can bite.  In doing so, they effectively nixed a court ruling that said that Pit Bulls are inherently dangerous and imposed strict liability for owners and landlords.  At the end of the day though, insurance companies are most interested in these sort of decisions, since they’re the ones paying out dog-bite claims.  And although the dog breeds may not be as big an issue for Maryland legislators anymore, your insurance company may still discriminate and charge you more based on the type of dog that you have.

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insuranceOur main office is now in downtown Baltimore.  I love it here.  I really do.  But driving in Baltimore can be a pain. The daily commute usually involves at least one narrowly escaped crash, jaywalkers deciding to cross right as your light turns green, and the Circulator cutting you off a few times. It’s the price of doing business downtown.

Baltimore’s drivers aren’t the best, but they’re definitely not the worst. That’s because they’re only the second-worst. In 2013, Allstate rated Baltimore’s drivers 193rd out of 194 different cities in the US. D.C. was the only city that fared worse.  There is a reason Baltimore car accident lawyers keep pretty busy.  While this reality makes our drives a bit more perilous every day, it affects city residents’ wallets in a huge way.

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handsfreeMaryland has banned the use of handheld cell phones while driving. Obviously, this includes texting but it also applies to holding a cell phone up to your ear while you talk.

I’m glad we have this law.  It makes sense that you have both hands to drive and react to emergencies.  Right?  It does not take a Rhodes Scholar to figure this out.

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Bringing a medical malpractice case in Maryland is not something that most lawyers are competent to do.  Maryland law makes you jump through a lot of administrative hoops when filing malpractice cases.  Experienced malpractice lawyers have screwed up the procedural requirements for bringing a claim.  Maryland law and its courts are more than willing to hold a victim’s feet to the fire on technical details that really would not be of consequence if the system was truly interested in allowing victims access to justice.

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Last week, the Maryland Court of Appeals decided Falls Garden Condominium Association v. Falls Homeowner’s Association.  It is not a personal injury case. In fact, it’s a case about parking spots. But Falls Garden is actually alawyers2 case about settlement contracts and their enforceability.  If you are a Maryland personal injury lawyer, you need to know when a deal is actually a binding deal.

Typically, counsel on both sides of the aisle assume that you have a binding deal when you agree to the numbers on the claim.  Most settlements really do go smooth, particularly in car accident cases.  State Farm, GEICO and their brethren do not really care about confidentially, admissions, or anything else outside of its standard form settlement agreement.   But malpractice insurers and their doctors and hospitals and product liability defendants often treat settlement agreements like they are reinventing the wheel.

Keep in mind that, as plaintiffs’ attorneys, we never really have those types of things we are trying to slip in under the wire for a settlement.  Our essential term is money and we are not trying to get the defendants to agree to other terms in personal injury cases.

So what this new Maryland Court of Appeals ruling is about is to what extent defendants can impose conditions after settlement and say, “If you don’t like it, we don’t have a deal.”

What This Case is Really About

This case happened because a condo association and a homeowner’s association were feuding over parking spots.  This is because it is a scientific fact that 93.4% of the people involved in condo and homeowner’s associations are stone nuts.  But, after having to resort to litigation, the parties were able to come to a deal on the key issue of the parking spots. They put together a letter of intent memorizing the deal.  The agreement was silent on whether the agreement was intended to be binding.  But the Plaintiff has a change of heart, fires its lawyer and gets another one to try to nix the settlement agreement.  Why?  I don’t know. But remember what I said about these people a minute ago.  Ultimately, both the trial court and Court of Appeals said that the letter of intent was binding on the parties and encompassed the settlement.

The Court’s Logic

Judge Battaglia’s opinion read like a Contracts I Maryland law school exam, explaining the doctrines of “mutual assent,” “materiality,” and the “objective theory of contracts.” But legalease aside, the main question she was tasked with answering was whether both the condo association and homeowner’s association intended to be bound to the letter of intent. She explained two scenarios in which parties would be bound to the letter:

  1. When parties agree on all “essential” terms, only leaving out relevant matters that are not “essential”
  2. When the parties lay every term out on the table and specifically say that they agree to them

She quickly crossed option two off the list, noting that the parties did not explicitly say that they intended the letter of intent to be the final deal. But she did find that, prior to the letter of intent, the parties agreed on the “essential” or “material” terms of the deal, and the letter of intent merely included those terms. The court’s analysis hinged on the terms “essential” and “material.”

Think about this to help: view the contract (letter of intent) as a car. Think of the parking spot lease agreement as the engine: it’s essential to making the car run, it’s the purpose of having a car. Think of the other terms at issue as the spare tire under the trunk: yeah it helps to have it, but it’s not necessary to make the car run.  Here, the engine (lease agreement) was in the car (letter of intent), along with the other essential terms, so it was ready to go, and was binding on the parties.

So how exactly could this tie back into a personal injury settlement?

In a personal injury settlement, there is really one main term that is “essential” and “material:” defendants pay money so that plaintiffs will drop claims.  So going back to our scenario above, let’s say you agree via telephone to accept $500,00 in exchange for dropping the claim.  I don’t think it matters if it is before or after suit is filed.  The defense lawyer does not discuss any other term with you when you make the settlement. But you then get the email attachment with their additional terms.  What are those terms?  Usually it is a confidentially provision that was not asked for in the oral agreement or maybe some language demanding Medicare or other indemnification.

Under this case, the question becomes whether they are material and essential terms of the deal.  I would argue no.  But unless a case comes out that is truly on point, I think you have to be careful. This means you don’t stand down by releasing  your experts, the witnesses you have under subpoena and everything else you need to go to trial until you have an agreement firmly in place.

For contract lawyers and especially for students getting ready to sit for the Maryland bar exam, this case is also a great read.  You can find the opinion in Falls Garden Condominium Association v. Falls Homeowner’s Association  here.

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Osteomyelitis is a serious bone infection characterized by inflammation of the bone/bone marrow that can prove fatal if not properly treated.  Usually, when it is not properly treated, it is because a doctor has misdiagnosed the condition.  This happens far more often than it should.

Osteomyelitis is caused by bacterial or fungal infections. If caught early, the condition is treatable with antibiotics and, in some cases, surgery. However, if left untreated due to misdiagnosis, the infection can spread to other parts of the body. If bone death occurs, amputation may be the only option to prevent the spread of infection. We are focusing our attention on humans, obviously. But osteomyelitis is not limited to humans.  Elephants in particular are particularly prone to this condition, which is often misdiagnosed and leads to their death.

If you have a potential osteomyelitis medical malpractice claim in Maryland, call us at 800-553-8082 or visit our website for a free online consultation.

What Causes Osteomyelitis?

As with any infection, the spread of germs to a vulnerable area is usually the culprit for causing osteomyelitis. A patient may contract osteomyelitis during orthopedic surgery, especially if hardware is used to fix a fractured bone. Osteomyelitis can also occur if bacteria from major local infections such as cellulitis or necrotizing fasciitis enter the blood stream. Perhaps unsurprisingly, one of the most common sources of osteomyelitis is staphylococcus aureus, which are bacteria commonly found on skin and mucous membranes. If an injury results in broken or punctured skin, staphylococcus aureus has a direct pathway into the body. This means that deep puncture wounds like dog bites can lead to osteomyelitis if not properly treated.

Once the bone is infected, white blood cells are attracted to the infected area. In an attempt to kill the infection, these cells (called leukocytes) release enzymes that actually attempt to destroy the bone. Since bones are highly vascular, pus from the immediate infection disrupts the blood flow to local vessels causing bone death. Luckily, the human immune system fights bone death by sending osteoblasts to repair the damaged bone.

These cells create new bony structures that are very visible as bone deformities on diagnostic tests such as x-rays. This is a classic way of distinguishing between chronic and acute osteomyelitis, as chronic osteomyelitis creates more deformities.

Who is at Higher Risk for Contracting Osteomyelitis?

Those who have experienced the following are at a higher risk of contracting osteomyelitis:

  • Recent trauma or fracture to a bone
  • Recent orthopedic surgery (especially open reduction internal fixation of bone with hardware)
  • Recent major skin infection (especially cellulitis or necrotizing fasciitis)
  • Recent skin ulcerations or open wounds
  • Peripheral vascular disease
  • History of diabetes
  • Individuals with compromised immune systems

What are the Signs and Symptoms of Osteomyelitis?

Signs and symptoms of osteomyelitis include:

  • Pain in the area of the infection
  • Fever or chills
  • Irritability or lethargy in children
  • Swelling, warmth, and redness in the area of the infection
  • It is important to note that sometimes there are no direct signs of immediate infection.

How is Osteomyelitis Diagnosed?

Osteomyelitis is commonly diagnosed by blood tests, diagnostic imaging, and bone biopsy.

Blood tests

By far the most common way to diagnose osteomyelitis is through a CBC blood test. If an infection is occurring, the test will likely reveal an elevated white blood cell count (WBC).

White blood cells are responsible for fighting off most infections in the body. Normal levels range from 4,500 – 10,000 white blood cells per microliter. Any number above this may be indicative of an infection

Diagnostic imaging

X-rays are a very effective tool for diagnosing osteomyelitis. Generally speaking, it is cheaper to get an x-ray considering nearly every healthcare facility has an x-ray machine nearby. Moreover, despite their limitations in revealing damage to soft tissue, x-rays are very good at visualizing bony structures. However, damage may not be visible until osteomyelitis has been present for several weeks.

More expensive tests can also be used to provide detailed images. Computerized Tomography (CT scans) and Magnetic Resonance Imaging (MRI) can provide detailed images of the bone and the surrounding soft tissue.

Bone biopsy

A bone biopsy can reveal what particular organism is causing the osteomyelitis and is another important tool for determining what antibiotics should be used for treatment.

How is Osteomyelitis Treated?

Osteomyelitis is usually treated with antibiotics and surgery. Hospitalization and a course of IV antibiotics for around ten weeks are required. If a large area of the bone has died or the infection has spread, surgery may be required to drain the infected area, remove diseased bone and tissue, and restore blood flow. There have also been instances when a surgeon was required to amputate the infected area to stop the infection from spreading.

When is the Failure to Diagnose or Treat Osteomyelitis Medical Malpractice?

Medical malpractice typically occurs when a physician fails to recognize or respond to the signs and symptoms of osteomyelitis. On many occasions a simple reading of a patient’s medical records can reveal if they are at higher risk for osteomyelitis. A patient with a recent history of trauma, infection, or orthopedic surgery would fall into this category.

Commonly, the patient presents with symptoms of severe pain, redness, and swelling in the location of the infection. Medical malpractice may occur if the physician fails to diagnose osteomyelitis by performing the appropriate diagnostic testing or fails to treat the condition by prescribing the appropriate antibiotics. Surgery can be avoided with the timely administration of IV antibiotics, making it essential for the physician to pay close attention to the patient’s symptoms.

Sample Settlements and Verdicts

To give you an idea of how juries rule in osteomyelitis cases, we pulled some plaintiff’s verdicts at random. These are a fairly mixed-bag of cases and facts, so you should not consider these as the ultimate arbiter of your case’s worth. Still, consider this one tool to use when evaluating the value of your case.

  • 2015, Virginia: $600,000 Settlement – After suffering from severe back pain, a 64 year-old man presents to the emergency room. He is diagnosed with a lumbar strain and told to take ibuprofen. Three days later, the man presents again, complaining of similar pain. No physical examination was given, and the patient is, once again, told to continue taking ibuprofen. He returns again the following day, only to be diagnosed with several infections including osteomyelitis. He is eventually transferred to Johns Hopkins, where he is treated for various illnesses including encephalitis and the other infections. Other doctors suggest that a CT scan and administration of IV antibiotics would have prevented the severe illnesses suffered by the plaintiff. As a result, he sues the original hospital, settling the claim prior to trial.
  • 2014, Pennsylvania: $3,500,000 Verdict – A man with a history of diabetes has to undergo surgery to treat his Cauda Equina Syndrome. After the surgery, the man develops pressure sores throughout his body, with the worst being on his feet. The man also develops sores on his coccyx from being left in a bedpan for significant amount of time. After also developing MRSA and other infections, the patient undergoes a total of 18 surgeries. He then develops osteomyelitis in his foot, causing him to undergo amputation surgery to further prevent the spread of infection. The man sues the hospital claiming that the negligent care caused the infections and subsequent surgeries. The defense drew attention to the man’s elevated risk of developing infection, claiming that they did all that they could to prevent infection. The jury disagreed and awards a $3,500,000.
  • 2013, Maryland: $869,082 Verdict – A 56 year-old man presents to the hospital emergency room. He had undergone neck surgery 10 years earlier, putting him at high risk for developing osteomyelitis. Over the first 4 days of hospitalization he complained of persistent neck pain. However, no one examined his neck or performed an x-ray. He was simply given morphine. On the fifth day, a cardiologist performed a cardiac catheterization. Following the procedure, the man somehow fractured his neck and spent the next 41 days on life support until he passed away. An x-ray following the catheterization revealed that the man had been suffering from osteomyelitis. The Plaintiff contended that a simple x-ray would have led to a diagnosis prior to the catheterization. The Plaintiff also contended that once the diagnosis was made, the application of a soft collar would have guarded against a neck fracture. After deliberating for several hours the jury returned a verdict of $869,082.
  • 2006, Maryland: $1,000,000 Settlement – A woman goes to an orthopedist for a cervical laminectomy. Following the surgery, she returns to the orthopedist for treatment because the surgical incision was painful, red, and draining pus. The orthopedist cultures the fluid and finds evidence of Staphylococcus areus. He prescribes an oral antibiotic but the patient sees no improvement. The infection spreads and she eventually needs additional surgeries, including a total right hip replacement. The woman sues the orthopedist, contending that he was negligent in failing to consult with an infectious disease specialist at the time of the culture and that he should have prescribed IV antibiotics. The case settled prior to trial for $1,000,000.
  • 2004, Maryland: $2,200,000 Settlement – In this tragic case, a 71 year-old man presents to the hospital with severe back pain. He sees an orthopedist that diagnoses him discitis and prescribes pain medications. 17 days later, the man is discharged. He follows up with the same orthopedist on two additional occasions over the next several weeks complaining of severe back pain, neck pain, and feeling sensations of electrical shocks down both arms. Each time the orthopedist fails to diagnose the condition. A few days later, he goes to the hospital. Within hours, the man loses the ability to move his arms and legs. An MRI revealed he had been suffering from osteomyelitis. Due to the orthopedist’s negligence in failing to diagnose and treat the condition, the man is permanently paralyzed. The case settled prior to trial for $2,200,000.
  • Get more verdict information and more details on these cases.

Medical Malpractice Claims in Maryland: Getting Help

If you think you have a potential wrongful death malpractice claim for someone you loved because a doctor failed to diagnose osteomyelitis, call 800-553-8082 or get a free no obligation case evaluation.