Articles Posted in Medical Malpractice

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judge2Last month in a medical malpractice case in Milwaukee, a judge did something pretty amazing.  Here is the setup.  A woman has both her arms and legs amputated as a result of a Strep A infection and the treatment she received for septic shock, resulting in compromised blood flow.  This is, no question, a stunningly awful tragedy.   A jury believed that medical malpractice caused these injuries and awarded $15.75 million in pain and suffering damages and $9 million economic damages.   But Wisconsin has a $750,000 cap on non-economic damages that the trial judge in this case believed was constitutionally sound.   So that’s that, right?
In a 21-page decision, Judge Jeffery Conen explained that his ruling does not strike down Wisconsin’s $750,000 cap on non-economic awards:

Although the cap may be constitutional as applied to medical malpractice victims as a whole, there is no rational justification for depriving Mrs. Mayo, who is in her mid-fifties, limbless, and largely immobile, and Mr. Mayo of the award the jury decided was appropriate to compensate them for their injuries…”

It is unreasonable to require Mrs. Mayo and her husband, whose lives have been so drastically altered, to bear the brunt of the legislature’s intended tort reform…. there is no rational basis [for slashing the award] in the hopes of marginally improving health care in Wisconsin.

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scheduleScheduling depositions in car accident lawsuits usually is not a complex thing. You call the other side, you agree on dates, and you have your depositions. The key is cooperation. Rather than unilaterally serving a deposition notice, you just call opposing counsel and agree to the place, date, and time. There are rarely issues.

For some reason, and I’m not entirely sure why, scheduling depositions in medical malpractice cases always seems to be an ordeal. Common courtesies that I’m sure many Maryland malpractice lawyers accord each other in the rest of our lives sometimes go out the window. Sometimes, it seems like otherwise ethical lawyers have no qualms about making up excuses for why they or the deponents cannot attend a deposition that are not based in fact. Often, you can figure this out when you depose the witness. Continue reading →

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Medical malpractice kills 400,000 people a year in this country and injures 4 million more.  The media is now starting to focus on this story, as we just talked about on Monday after the Baltimore Sun’s story on negligence in Maryland hospital.  Stories like this do help plaintiffs in medical malpractice cases.  Why?  Because many of us still view doctors as infallible and that wall of invincibility is being to fall.

So, then, why is it so hard to find a medical malpractice lawyer in Maryland who will take your case?

Joanna Shepherd, a law professor at Emory University, conducted a national survey of medical malpractice attorneys that explored, among other things, why malpractice attorneys reject cases.   

Reason for Rejection Case Percent of Respondents
Unclear causation 19.25%
Unclear evidence of malpractice 29.11%
Case is unlikely to settle 0.94%
Insufficient damages expected from trial or settlement 38.73%
Complexity and expense of bringing the claim 11.74
Hospital not involved in medical malpractice 0.23%

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malpractice 4The Baltimore Sun published an important front page article yesterday on hospital errors in Maryland.

The premise of the article is a stunningly simple yet different approach to medical mistakes in Maryland hospitals.  It goes like this.  We have an estimated 400,000 who are killed every year by medical malpractice.  How are Maryland hospitals faring?  We don’t know.  There is a major epidemic that kills enough people in this county to fill Camden Yards 10 times a year.  Malpractice that causes serious injury could fill Camden Yards over 100 times (4,000,000) a year.  Yet we have no quality way of estimating how Maryland is faring.  Why is this? The hospitals, doctors, and insurance companies make no effort to provide this data to us.

Said differently, we are all — particularly those of us that are young or old — vulnerable to this grave risk.  We face other risks of course.  Heart disease, cancer, motor vehicle accidents, diabetes, all pose great risks of death.  With these risks, we have the ability to sift through the data, understand the risks, and do what we can.  We quit smoking, eat better, wear seat belts, and so forth.

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malpractice5One of the great selling points of caps in medical malpractice cases is that it encourages doctors to come to your state to practice.  Every state, particularly in jurisdictions with rural areas where access and availability to doctors is a prominent concern, want to attract a healthy supply of doctors to their state.  The thinking it is that doctors will flee to states where the litigation climate is more favorable to doctors.   A new study suggests this oft cited canard support tort reform is 100% true.  But not in a good way for patients.

A Notre Dame economist published a study titled “Medical Malpractice Reform, the Supply of Physicians, and Adverse Selection,” Journal of Law and Economics” that found that “when a county’s neighboring state passes a cap on noneconomic damages, the supply of physicians falls by 4 percent” in that county.”   Tort reform advocates are nodding their heads vigorously.

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hipaaOne hot button issue in Maryland medical malpractice cases today is the circumstances under which defense lawyers can speak to Plaintiff’s treating doctor.  For years, this was not an issue.  If a defense lawyer wanted to talk to a treating doctor, she would just pick up the phone and call.  This was a powerful tool for malpractice defense lawyers because (1) you always want to know what a treating doctor — or any witness for that matter — is going to say before the doctor testifies, and (2) it gives the defense lawyer a chance to participate in shaping the doctor’s testimony.

HIPAA changed all of this in 1996.   HIPAA requires that a doctor “may disclose protected health information in the course of any judicial or administrative proceeding [i]n response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.”  45 C.F.R. § 164.512(e)(1)(i).

So that settles it, right?   In most states, yes.   If this is current, 38 states prohibit ex parte conduct and another six permit informal interviews with significant restrictions.

Why This Fight Continues in Maryland

Yet in Maryland, the battle still rages.  Defense lawyers argue that under Maryland law once a patient chooses to place his or her medical care and treatment at issue in a civil action filed against a health care provider, all health care providers shall disclose all information in medical records and/or health related information to another health care provider’s legal counsel.   Specifically, Md. Code Health Gen. § 4-306(b)(3) provides a statutory right to ex parte communications.  Actually,  I think the statute provides only for the disclosure of written medical records, as they are defined in Md. Code Health Gen. § 4-301(h).

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shutterstock_97357133In Valentine-Bowers v. Retina Group of Washington, a new medical malpractice case decided by the Maryland Court of Special Appeals,  the plaintiff alleged that her physician failed to monitor a problem with her eye that caused her to lose vision in that eye.  It is a serious injury for a young woman.  But this case is not about the underlying merits of the claim, it is about the the things you have to do to get a medical negligence claim to a jury.

The case starts with the defendant serving discovery on the plaintiff.  The plaintiff did not respond in a timely fashion.  Judge Douglas R. M. Nazarian, a relative newcomer to the court, acknowledged this failure is commonplace.

Her failure to comply with the deadline is unremarkable—parties routinely miss this deadline and litigators know that absolute compliance is not always possible (although they do, and should, expect at least a request for an extension and a good faith deadline in return).

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malpractice claims

Justice in Malpractice Cases Is Expensive

Every single day we get phone calls from prospective clients who want to bring a medical malpractice case.   We probably do a full investigation in 5% of these cases and file suit in half of those cases.

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U.S. District Court Judge Ellen Hollander issued an interesting ruling today in Lopez-Krist v. Salvagno that deals with actual and apparent agency in the classic context of the independent contractor doctor at the hospital.

This is a tragic case where a 14 year-old boy suffered a broken leg. There was concerns about the blood supply to the leg. They called in an orthopedic doctor who, of course, did not identify himself as an independent contractor.

You really can’t fault the doctor for this, right? He is talking to a parent of an injured boy. They don’t want to hear about the nuances of who the doctor works for. Just get my boy better.

The doctor recommends going in and trying to reduce the fracture and realign the bone. Parent signs informed consent form with the hospital’s name and logo on it that generally makes agency unclear. After the surgery, the boy returned to the hospital and the doctor did not order a CT or an angiogram or seek a vascular consult. There’s more but you know by now what matters. The boy ends up losing his leg.

Both parties filed summary judgment motions on agency.

Interrogatory Goof Up

The hospital argued plaintiffs’ response to agency interrogatory provided nothing to support their contention of an apparent or actual master-servant relationship between the hospital and the orthopedic doctor. Yet plaintiffs came armed with all sort of affidavits and other evidence when it came to be time for the summary judgment motion.

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Really tough opinion for medical malpractice plaintiffs in Maryland was issued in U.S. District Court last week.

Tangent #1: Why Isn’t This Case in State Court?

Technicalities are abound in malpractice cases

Technicalities are abound in malpractice cases

As a preliminary matter, it is complete garbage that this case is in federal court in the first place. The plaintiff in this case is euphemistically a guest of the state of Maryland. The defendant is a Missouri corporation under contract with the state to provide health care services to inmates. No one says they should be getting hugs but we can all agree our prisoners need competent medical care?

I can’t figure out why the health care providers were not sued individually. But it seems crazy that a corporation can come to Maryland and perform health care services and not be amenable to suit in state court. Couldn’t the state require corporations who are treating Maryland patients to consent to jurisdiction in state court? I realize we are talking about prisoners and most people in Maryland and too busy fuming that they get to watch cable television but this is a larger question. Moreover, are there not any Maryland corporations who could do this work?

Tangent #2: We Butcher Our Prisoners and We Know It

Anyway, this is a failure to diagnose his cancer that caused Plaintiff to require surgery and, more importantly, a colostomy bag. That’s a real case. You know, we – our law firm – largely blows off these prisoner malpractice cases because you usually have an unsympathetic plaintiff who, let’s be honest, is more likely to lie about what the records are going to show when you first speak to them on an intake. This is probably a smart move for us in terms of resources but a bad choice in the overall arc of justice because you are kidding yourself if you don’t think prisoners are not being butchered by medical malpractice all over this country.

Okay, Let’s Talk About the Actual Case

Okay, I need to stop the tangents and get back to the case. Plaintiff filed suit in Health Care Alternative Dispute Resolution Office and filed an expert report and certificate of merit by a qualified doctor. He then waived out of arbitration, which is the customary practice, and filed suit in federal court.

The defendant moved, as malpractice defendants are wont to do, to dismiss the suit because Plaintiff’s certificate of merit and report were insufficient because it did not articulate the appropriate standard of care or detail how the health care providers departed from it.

I’m not sure that is entirely true. The expert report does say:

It is my opinion that a more thorough investigation of [Plaintiff's] complaints should have been performed in early 2005, and that had such an investigation been performed, it likely would have revealed the presence of a developing colon cancer, allowing for more prompt intervention and treatment. The delay in diagnosis also delayed treatment and allowed [Plaintiff's] cancer to progress during the intervening period and therefore caused him some injury.

But the court agreed that a more precise statement was required and dismissed the case.

Can We All Agree Maryland Law on This Is Pretty Dumb, Right?

As a threshold, we are about to debate a completely dumb law that places form well ahead of substance. If justice were a part of the equation, this case is a no-brainer and the case would either go on or the plaintiff would be required to provide a more detailed report.

What I started to write about this case – and what I wish I could write – is that this kind of insanity could not be what the Maryland legislature had in mind. But, let’s be honest: it might be exactly what they had in mind. Hat tip to MedChi lobbyists everywhere. Well played. Continue reading →