Articles Posted in Medical Malpractice

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One 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).

But, obviously, that is not the end.  Two months pass.  Nothing.  So defense counsel sent the usual “c’mon” letter. Then another one.  Then a motion to compel. Then a deposition notice, and she does not appear.  Plaintiff’s counsel really does not respond to the letters or the motion.

What is going on here?  I don’t know.  But Plaintiff’s counsel said that the plaintiff, herself, is to blame by failing to stay in contact with the lawyer.

Let’s assume that is true as Judge Nazarian’s opinion does.  It puts plaintiff’s counsel in a tough spot, to be sure.  I have had clients disappear after I had sent a demand package to the insurance company.   Now, if I come clean with the insurance company and say I can’t find my client, that is a sure tell to them that my client is unlikely to make it through the litigation process.   So what do I do?  I just ignore their calls until I find my client.  It makes me feel like an unprofessional jerk but I don’t really think I have a choice.

But this is a far cry from dealing with an absent client in litigation where the statute of limitations has passed.   Now let’s admit, this opinion does not give us the whole story.  But I think absent compelling circumstances, you can’t just ignore defense counsel in hopes it goes away.  I think the first thing to do is try to get relief from defense counsel.   You can’t just ignore motions and deposition notices.  Second, I think you have to run to the court and say, “Can I get a little latitude here while I try to track down the client?”  Even filing a motion to withdrawal from the case would slow the train down.

In any event, eventually she gets back in touch and they get unexecuted answers to discovery out on the deadline imposed by the court and executed responses a few days later.  Now, I would think that would do it in most cases.   But the P.G. County Circuit Court judge saw it different.   The judge (I’m not sure who it was) correctly applied the five factors articulated by the Court of Special Appeals in Hossainkhail v. Gebrehiwot:

  1. whether the disclosure violation was technical or substantial;
  2. the timing of the ultimate disclosure;
  3. the reason, if any, for the violation;
  4. the degree of prejudice to the parties respectively offering and opposing the evidence;
  5. whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.

These are good rules and both the trial court and later Judge Nazarian dutifully go through these factors as Maryland law requires.   But I don’t think anyone really cares all that much about the factor.  What it boils down to is if the plaintiff completely ignores the discovery process and then finally gets its act together a few days after the court imposed deadline, should that be enough to keep the case alive.  I can see where the court would be more than furious.  I really do.  But I can’t see not giving the plaintiff a chance given that there is no real prejudice.  Both the trial court and the Court of Special Appeals believed that the delay itself is prejudice.  I don’t think they would take the position in a different context.  It is just like how someone you like can say something and it is fine and someone who annoys you says the exact same thing and it drives you mad.  But if we are going to analyze facts honestly, we have to admit that there is no real prejudice here.  I think that should be the touchstone in the decision.  Real definable prejudice, not the speculative prejudice of “memories fade” over time so there could be prejudice.

I also think a double standard applies here.  I don’t think a court would likely give a plaintiff summary judgment under the same exact facts.   Judges loathe to tell defendants that they cannot put on a defense, no matter how bad they screw up in discovery.  I don’t disagree with this really.   It does seem unfair in a way to impose liability on a party because their lawyers royally screwed up their case.  But the same reservations should also apply to dismissing someone’s effort at getting justice.   Here, a part of the problem was the woman was not cooperating with her attorney.  But she just lost vision in her eye.  We are not catching her at a great time in her life.  Let’s cut her a little slack.

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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?

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 →

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shutterstock_135213590I used to write a lot on this blog about the myths that surround medical malpractice in Maryland and throughout this country. I’ve largely jumped off the soapbox because I realized something: no one is really listening. Most readers of this blog that are digging into those kinds of post already either agree or disagree and I’m not changing anyone’s mind. So it just feels like a fool’s errand to keep trying.

Max Kennerly didn’t get this memo and writes a real nice post today shedding more light on the reality of this epidemic, one that we have not made a real dent into in spite of a lot of smart people trying to help solve the problem.

One issues Max talks about is the crazy paradox of doctors saying, “The problem is defensive medicine. I order my patient tests they don’t need and might subject them to harm because I want to cover myself against lawsuits even though I have malpractice coverage.” Here is one saying almost exactly this. It seems like an unbelievably self-incriminating statement that some doctors blithely give all of the time. They could at least throw us a bone and show enough self awareness to acknowledge the insanity of it.

I believe, as Max does, that most doctors put their patients first and order the exact amount of testing and treatment they need. In fact, I think defensive medicine is a problem primarily because doctors care so much for their patients, they want what is best for them regardless of the cost. Is this a problem? Maybe on a macro level. But we have bigger problems than the byproducts of doctors caring too much about their patients.

Doctors also practice defensive medicine because they don’t want to be blamed for hurting their patient outside of the litigation fears. Forget lawsuits, can you imagine being blamed for the death of another person? Whether the accuser is right or wrong, there has to be an unbearable pain that comes with that.

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Last summer, we were talking about the $55 million cerebral palsy malpractice verdict against Johns Hopkins. This summer the verdict – which was reduced to $28 million – is hanging on a thread after the Maryland Court of Special Appeals overturned the verdict. Unless the Maryland high court sees the case different, this case will go back to the trial court in Baltimore to start all over again.

This appeal hinged on the decision by Baltimore City Circuit Judge Marcus Z. Shar – considered a top judge by plaintiffs and defendants alike – to exclude evidence of the negligence of the midwife before the baby got to Hopkins in the first place. The judge’s logic was that it really did not matter why the child was in a tough spot: it is the fact that he was that matters. So whether the crisis was created by another health care provider or not, the ultimate issue is whether Hopkins could have saved the child from these awful injuries if it had not deviated from the standard of care. Judge Shar found that:

    [T]he defense was not prevented and did, in fact, present evidence that the midwife’s conduct was dangerous under the circumstances, why it was dangerous under the circumstances that it caused the damages, and how it caused the damages.

    Defense was free to vigorously argue that the midwife’s conduct was the proximate cause. They were, however, prevented from characterizing the conduct as “negligent.” Telling the jury that a nonparty is negligent as opposed to how the conduct affected what happened to the plaintiff would have been prejudicial and not relevant to the case.

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>We have been compiling jury verdict information on our website recently so I have been looking though a number of jury verdicts.

Someone needs to do a study of the statistical differences in outcomes in medical malpractice lawsuits against foreign doctors and those born in the United States. I’m telling you, I might be looking at this in an unscientific, way but the difference just seems to jump off the pages at you.

Okay, so why is this? The first theory is that American colleges and medical schools are just better and they are putting out better doctors than those schooled abroad. I’m sure this is true to a point. But I’ll bet you if you thin sliced it further, you would find that the same non-American doctors who went to college and medical school here still perform worse at trial than American born physicians.

It is a pretty depressing commentary, really.

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Last week, the Court of Special Appeals of Maryland reinstated an award of $1.1 million in the case of Barnes v. GBMC. This appeal focused on the certificate requirements of the Healthcare Malpractice Claims Act (HMCA) in addition to other procedural questions surrounding the case.

First the facts. Plaintiff sees his primary care physician because he is experiencing weakness and numbness in his right hand, arm, and side. The doctor thinks Plaintiff is having a stroke and sent him to Greater Baltimore Medical Center or, as we all call it, GBMC. He is not sent to the emergency room but to the urgent care department which typically gets, as you would think, less urgent cases. This is the origin of a lot of lawsuits to be sure.

Plaintiff’s note from his original doctor is misplaced during this process so the initial assessment of a potential stroke was lost. So instead of getting the care he needs, Plaintiff is worked up for his wrist and diagnosed with carpel tunnel syndrome.

Plaintiff goes home. Admitting nurse realizes the mistake and calls Plaintiff and tells him to come back. It is determined that Plaintiff needed a medical evaluation by an attending physician. The Kaiser physician never appears and Plaintiff is discharged at 1:00 a.m. the next morning. Total mess, right? Later that day, Plaintiff suffered a full stroke.

Case goes to trial five years later in February, 2010. Remember that massive storm we had where you lost your power? Plaintiff had the bad luck to have his case in the middle of that storm. So there is a mistrial and the second trial is set for March, 2011.

At trial – finally, six years later – the case goes to trial. Plaintiff’s key expert witness testifies regarding the breach of the standard of care as the proximate cause of Plaintiff’s injury. This expert testimony is that if Plaintiff had been properly evaluated, he would have been placed in the emergency department where a physician could have delayed or prevented the stroke, a fact that seems pretty obvious to all of us. Twice during trial defendant moved for judgment as a matter of law on causation grounds. Both motions were denied and the jury found for the Plaintiff. Damages were over $1.1 million.

After the trial, Defendant moved for a post-trial JNOV. The circuit court granted the motion on causation grounds. The court found that Plaintiff’s expert witness did not establish a sufficient nexus between the violation of the standard of care and the subsequent stroke.

I think the court did a smart thing and let the case go to verdict before kicking the verdict. I don’t like the ruling and, as you will see, the Maryland Court of Special Appeals did not either. But you do both parties a disservice by dismissing the case and making them try it all over again if you get it wrong. Here, the judge gets is wrong but it all works out from a judicial economy standpoint because this case was getting appealed either way.

The Court of Special Appeals took up three questions on this malpractice appeal. First, did the circuit court err in denying GBMC’s motion to dismiss for failure to file a legally sufficient report from a qualified expert? Second, did the circuit court err in granting defendant’s motion for JNOV based on insufficient causation evidence? Finally, did the circuit court err in denying GBMC’s motions for judgment based on insufficient evidence?

To the first issue, Plaintiff’s medical malpractice claim requires a physician certificate because it falls under the Health Care Malpractice Claims Act. Where a plaintiff fails to provide a certificate of a qualified expert, the case will be dismissed without prejudice. So the question is whether the certificate in this case was deficient.

Here, the certificate was properly filed but defendant claimed that the report lacked sufficient detail regarding the deviation from the standard of care and how GBMC caused the plaintiff harm. The court found the argument to be meritless because the expert properly supplemented the written report with testimony thus fully explaining his opinion on the case. Also, GBMC had access to this expert testimony from the mistrial before the second trial. This means that once the second trial began, any problems with the initial testimony or report were fixed essentially because they were supplemented. Additionally, the court noted that defendant waited six years to raise this issue. Wisely, the court refused to reward the sandbagger. Continue reading →