Articles Posted in Medical Malpractice

Published on:

By

Johns Hopkins is quite possibly the greatest hospital in the history of the world.  People come from all over the world to get the best medical care that Hopkins can provide.  The U.S District Court in Baltimore decided this week a case involving a woman who traveled from Kuwait to get treatment at Hopkins to get cancer treatment only to lose her leg.  She believes she lost her leg because the doctors at Hopkins committed malpractice.  The question in the case is whether this medical malpractice lawsuit against Johns Hopkins should be heard in federal court on in state court.

New Trial in Baltimore Birth Injury Case

Delayed removal response means claim against Hopkins will be in federal court

I don’t know if negligence caused this woman to lose her leg.  But I do know that as great of a hospital as Johns Hopkins is, mistakes do happen there that cause people severe injuries and death.  Like any hospital, Hopkins has bad doctors and good doctors that sometimes make bad decisions.

This case is not about what happened to the patient.  Instead, the question is whether this medical malpractice lawsuit against Johns Hopkins will be heard in federal court on in state court.  In a blow to the Plaintiff, the court ruled that this case will be heard by a federal judge and jury.

Continue reading →

By
Published on:
Updated:
Published on:

By

Would you rather file a lawsuit against a healthcare provider for negligence in Health Claims as a medical malpractice case or would you rather file a simple negligence case in Circuit Court?

If you answer was Health Claims, you need to get your head examined.  Filing in Health Claims in Maryland just creates more hoops that you need to jump through.  Are they manageable?  Absolutely.  But when it comes to byzantine rules and conditions precedent, sign me up for the path of least resistance wherever possible.

Is it Negligence or Medical Malpractice?

gavelThe determination of whether a claim against a health care provider belongs in Health Claim is based on whether the claim involves a “medical injury” as defined by MD. CODE ANN., CTS. & Jud. PROC. § 3-2A-01(g) which states a “medical injury” is an “injury arising or resulting from the rendering or failure to render health care.”  Not every tortious injury inflicted on a patient by a healthcare provider is medical malpractice.  The distinction between ordinary negligence and malpractice hinges on whether the mistake involves a matter of medical science or act requiring special skills not possessed by laypersons.  So if the negligence or lack thereof can be assessed on the basis of common everyday experience of the jury, it is not a medical malpractice case.

What constitutes a “medical injury” in Maryland has been the subject a few Maryland appellate cases.  It is clear that intentional torts like assault and battery are not subject to Health Claims.  So if a doctor intentionally hits a child while removing stitches, that claim will not be subject to health claims.  But we are are talking about classic assault and battery.  You can’t just call it assault and battery if is is actually a medical injury.

Continue reading →

By
Published on:
Updated:
Published on:

By

Medical malpractice case involving a stroke can be a challenge.  Stroke cases are difficult to prove. Can they be a case?  Yes.  doctors with medicals

This post is for lawyers who are getting stroke misdiagnosis cases but do not know whether the claim is viable.

There are common threads that run through most successful stroke misdiagnosis/failure to treat cases.   Cases that result in a settlement or a jury verdict for the plaintiff are usually are one of these two breeds: Failing to prevent a stroke and failing to treat a stroke once it has occurred.

Continue reading →

By
Published on:
Updated:
Published on:

By

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:

Continue reading →

By
Published on:
Updated:
Published on:

By

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.

Continue reading →

By
Published on:
Updated:
Published on:

By

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.

Continue reading →

By
Published on:
Updated:
Published on:

By

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.

Continue reading →

By
Published on:
Updated:
Published on:

By

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.

By
Published on:
Updated:
Published on:

By

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.

By
Published on:
Updated:
Published on:

By

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:

Continue reading →

By
Published on:
Updated: