Articles Posted in Medical Malpractice

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maryland-lawA U.S. federal court judge made a ruling on some motions that are of interest to Maryland medical malpractice attorneys.  They deal with a motion for summary judgment and, a pet interest of mine, holding defendants feet to the fire when they give garbage answers to requests for admission.

This is a birth injury claim against Defendants Calvert Memorial Hospital of Calvert County, that hospital’s emergency room and emergency room doctor, and the United States.  The government is a defendant for care given at Andrews Air Force Base.

Plaintiff  got prenatal care on Andrews Air Force Base.   A month before delivering, the mom-to-be presented with high blood pressure and had laboratory studies with elevated proteins, symptoms that indicate some risk of preeclampsia.  Three weeks later, the woman gives birth to her daughter at Calvert Memorial Hospital.

Five days later, she presents back to the hospital with high blood pressure,  headache, nausea, “tingly” feeling, and feeling light headed. She was evaluated by the defendant emergency department doctor.  He gave her a head  CT which was thought to be normal and they found no protein in her urine.  She was discharged with instructions to follow up with her OB/GYN which she did the very next day because she was still doing poorly.

The woman went to the OB/GYN at Andrews with a blood pressure of 181/93 and she still had a headache. Her OB  treated the pressure symptoms by prescribing an anti-hypertensive.  She was discharged.  Again. That night, she went to the ER at Andrews and had a seizure in the waiting room.

What happened? She had a brain hemorrhage from preplampsia.

A lawsuit follows.  Many, many medical malpractice lawsuits are contentious.  But malpractice claims like this where there are multiple target defendants almost always lead to World War III.  And this case has delivered as promised: motions to compel answers to requests for admission, oppositions to request for more time, failed mediation, battles of ex parte communications with doctor, Facebook discovery battles, motions to seal exhibits, and so forth.  It is one of those “who loses the slowest” pieces of litigation.

Summary Judgment

The big issue the court was addressed with for this opinion is whether to grant defendant’s motion for summary judgment.  Plaintiff had just one causation expert and one standard of care expert.

This battle on summary judgment is fought deep in the weeds.  They claim the plaintiff’s standard of care expert only testified to his own standard of care, not what the doctor had an obligation to do.  How do they do this?  But nitpicking word choice.  The court did not have much to say about this issue.  Presumably, the court was not going to raise silly technicalities over the clear substance of the expert’s testimony.

The bigger claim was that even assuming the doctor was able to get the patient’s blood pressure down, the plaintiffs’ own causation expert could not say that the alleged negligence caused the injury.   This is one of those things that absolutely terrifies you when you get the motion.  But this is just one of the expert’s opinions and what the defendant did was take one statement out of context and try to get the entire case dismissed as a result. [I got half way through the details but hit delete because it was too specific for the scope of this post.  It is fair to say that the defense had a point… until you considered the full context.]  It is pretty hard to blow these kinds of arguments past a federal court judge.

Requests for Admission Battle

Requests for admission are a good tool for parties in malpractice cases and they are a good tool for judicial economy.  Why more attorneys do not use them is a mystery to me. Actually, it is not entirely a mystery.  One reason no one uses them is that getting anything other than obstructionist answers is near impossible.  But this plaintiffs’ lawyer did what he should do and held plaintiffs’ feet to the fire.  So they modified their ridiculous “vague and overbroad” objections to something more substantive that was still not remotely substantive.   He filed a motion to compel.

Most of the requests were to narrow down the plaintiffs’ medical history.

It is not worth getting too deep into the details of these requests either. But  most of the requests went something like this:

Q: Admit that, prior to the pregnancy, Ms. Ford did not have a history high blood pressure?

A:  This Defendant lacks sufficient information to either admit or deny the information set forth in this request insofar as this Defendant has not been provided with mental health records dating back to adolescence for Angela Ford and therefore denies the same.

The court found that the defendants really could not know with certainty the answer and qualified it appropriately. I’m eager to disagree with the court on this but it is hard.  I think the question could have been better framed by saying “you have no evidence that” because it is a little hard to prove that negative.

It will be interesting to hear how this case resolves.

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malpractice 2Most malpractice lawsuits in Maryland are resolved after negotiating through adversarial bargaining.  At the end of the day, our clients only have two options: settle or go to trial. Sometimes, they do not even have two options.  We have tried medical malpractice cases where there was no settlement offer.

Is There a Formula to Determine the Value of Medical Malpractice Cases?

There is a settlement formula to determine the value of a medical malpractice claim.   The formula has four parts:

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lawyers2Most of the medical malpractice cases Miller & Zois handles come from cases that are referred from other Maryland attorneys.  These cases come from other lawyers who do not focus their practice on medical malpractice cases, or the size and the expenses in the case or the specific issues presented are such that getting other counsel involved makes the most sense.

In these cases, we do 70%-30% fee split with the referring law consistent with Maryland Rule 1.5 in medical negligence cases. Our firm fronts and bears the risk on all costs and expenses. I put that 70%-30% number right out there because fee splits always seem cloaked in mystery. The only information on line that involves fee splits comes from appellate opinions. So we want to get it out there.

This post talks about how this works in Maryland, why this is actually a good system for victims, and discusses a Maryland Court of Special Appeals case pending on this issue.  If this post reminds potential referring lawyers that we handle medical malpractice cases and invites lawyers to refer cases to our law firm, all the better.

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lawyersThe medical malpractice arm of our law firm has continued to grow over the last 10 years.   I think it is interesting to see who the defense lawyers are in these cases.  It matters who you draw as defense counsel.  You would think, as a plaintiff’s lawyer, you would like to draw the least competent counsel as possible.

There is some truth to this.  Lazy and incompetent counsel sometimes miss key defenses and critical arguments that the health care provide should make.   But this rule has a lot of exceptions.  Defense lawyers who get behind the eight ball sometimes make it even harder on us.  Because it is impossible to schedule depositions, get discovery responses and otherwise push the case forward.  You usually get to the same place in the end but sometimes the workload doubles just because the other side is so nonresponsive.  Sometimes, particularly if you have a quality liability case, you are best served by having quality defense lawyers who do what it takes to properly defend the case.

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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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