Articles Posted in Medical Malpractice

Defendants in medical malpractice cases will frequently defend themselves by pointing the finger of blame at another doctor who was involved in the plaintiff’s treatment.  Sort of.   They talk about but rarely do they put on the case with expert testimony.  They just make a lot of rumblings about it in discovery.

Usually, the doctor who gets blamed is not a defendant in the malpractice case. I call this defense strategy “blaming the empty chair.” This defense strategy can be very effective in certain situations. Juries often feel sympathetic for injured plaintiffs, but may be reluctant to condemn the defendant doctors. The empty chair defense offers jurors a tempting “scapegoat” in this context.  It is always so much easier to blame the guy who is not in the room.  We do it all the time in our personal lives. (Clint Eastwood is a huge fan.)

American Radiology v. Reiss

Chronic inflammatory demyelinating polyradiculoneuropathy (CIDP) is an uncommon neurologic condition causing impairment of the arms and legs. CIDP is a condition that is frequently misdiagnosed leading to harmful delays in treatment or unnecessary treatments. If you have been harmed by a misdiagnosis of CIDP you may be entitled to bring a malpractice case and get compensation.

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I got a call Thursday night from a woman alleging medical malpractice.  My first question is always when did this happen because I need to determine if she has either missed Maryland medical malpractice statute of limitations. I also need to know if she is so close to it that there is not time to marshal the evidence to bring a claim before the deadline.

In this case, this poor woman had surgery and continued to experience problems after the surgery. The doctor continued to treat her for two years for complications, telling her that they were expected risks of the procedure. After a second opinion earlier this year, she came to believe that the complication was not a known risk of the medical procedure and resulted from medical negligence.

I do not think this potential medical error client has a case on the merits. The complication is a known and common risk of the procedure that would not be caused by a medical mistake.  You can’t sue health care professionals for bad outcomes just because they are awful and tragic.  But her case raises the legal question she could bring a malpractice action in Maryland.

UPDATE:

• New Maryland appellate ruling on Statute of Repose in medical malpractice cases.

Continuous Treatment Rule

Like most states, we have a “continuous treatment rule,” under which, “if the treatment by the doctor is a continuing course and the patient’s disease or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute [of limitations] does not commence running until treatment by the medical man for the particular disease or condition involved has terminated, unless during the course of treatment the patient learns or should reasonably have learned of the harm, in which case the statute runs from the time of knowledge, actual or constructive.”

Discovery Rule

Maryland also has a discovery rule which says that the time to file does not run until the harm is known or should have been known.  The purpose of providing three-year limitations is to give people the time to investigate whether they have a claim.  But plaintiffs’ counsel often screws up what this really means.

Victims are charged under the law with the responsibility to perform a diligent investigation.  That investigation should begin when the victim has knowledge of circumstances that ought to put a person of ordinary prudence on notice.  So, as a matter of law, the victim has inquiry notice of an injury the moment she possesses the “knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry” to investigate the cause of an injury.

Too many lawyers and unrepresented victims take liberties with this rule and assume it is when they knew.  It is not.  The rule is when they should have started investigating to figure it out.

The Five Year Leash (Maryland’s Statute of Repose)

But the law puts a leash on how long these exceptions can be applied in Maryland Courts and Judicial Proceedings § 5-109, the Maryland statute that addresses limitations in medical malpractice cases.  The limitations period in health care negligence claims is five years from the time the injury was committed or three years from the date the injury was discovered, whichever is shorter. This law imposes a sort of statute of repose on medical malpractice cases in Maryland. But what sort of claims can be brought that are over three years old but less than five?

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The cap on pain and suffering damages that can be recovered in Maryland medical malpractice cases increased on Wednesday, January 1, 2020.

What is the malpractice cap in Maryland in 2020?  It is $830,000 for a living plaintiff or a wrongful death case where there is only one wrongful death beneficiary.  If there are two or more wrongful death beneficiaries, the malpractice cap rises to what we call “a cap and a quarter” or $1,037,500.   Keep in mind, this is the cap only for pain and suffering damages, not economic losses.

I explain the 2020 malpractice cap and other complexities of the cap in this video.

The Maryland Court of Special Appeals decision last week, in Choudhry v. Fowlkes 2019 WL 5677904 (Md. App., Nov. 1, 2019) is probably the most significant new development in Maryland personal injury law in 2019. Choudhry articulates a new 3-part rule for when plaintiffs in wrongful death cases can recover economic damages for loss of “household services.”

I love this case because it is a virtual treatise about how to put together a loss of household services case in Maryland.  I don’t love the case because I think it raises the bar higher for making such a claim than most Maryland Circuit Court judges have been applying.

Loss of Household Services

Gallagher v Mercy Medical, a new malpractice case handed down this week by the Maryland Court of Appeals,  is the most recent decision from our high court in which a plaintiff’s medical malpractice claims against Mercy Hospital were barred under the “one satisfaction” rule. This rule makes it tough to bring both an auto tort and a medical malpractice case related to the same accident.  If you are handling car accident cases and there might be a malpractice element to it, you want to read this case (or at least this blog post). The law here his not intuitive because it leads to something the law should not — injustice.

In short, the malpractice claims against Mercy related to treatment for injuries the plaintiff sustained in an auto accident. The plaintiff had already sued the at-fault driver and received settlements from his insurer and a UIM settlement from her own insurance company.

The Court of Appeals held that the settlements from the auto tort action constituted “full satisfaction” for the plaintiff’s alleged injuries and, therefore, her subsequent malpractice claims for those injuries were barred by the one satisfaction rule.

The Michigan Supreme Court came out a few weeks ago with a very interesting opinion in favor of the Plaintiff in a malpractice claim that most likely would fail in Maryland.

The doctor’s malpractice attorneys argued that the allegation that the doctor’s negligence reduced the risk of stroke from 10 to 20 percent to less than 5 to 10 percent was not enough to get the claim to a jury because the loss did not meet the burden of proof on proximate causation. The doctor argued that Michigan law is whether the opportunity to achieve a better result was greater than 50 percent. Under this law, if the plaintiff could not prove that receiving the alleged appropriate treatment would have decreased his risk of injury by 50%, the plaintiff’s claim would fail.

Thankfully, a divided Michigan high court found that this is not the law and that malpractice cases such as this should be decided under a simple principle: the plaintiff is required to prove that the doctor’s negligence more probably than not caused the plaintiff’s injury.

Regrettably, Maryland goes in a different direction on these types of cases as I have previously discussed. One thing Maryland has Michigan beat on is collegiality among the judges on the court. Battles in the Michigan Supreme Court are both political and personal in a way that would shock Maryland lawyers. Judges quoting political statements made by other judges to the press, the judge that wrote the majority opinion writing separately to refute one judge’s personal attack – if you have no interest in this issue it is worth reading the opinion just to get a taste of what this different world is like.

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Anesthesia malpractice claims in Maryland have declined.  That is right.  Something good is happening.  Anesthesiologists have gotten better at delivering the appropriate amount of sedation. Why have they gotten better?  I would say malpractice lawsuits.  Anesthesiologists were forced to improve because their malpractice premiums were through the roof.  Today, they do not even rank in the top 10 specialties. Still, there are too many mistakes that anesthesiologists make that cause patient injury and death.

Quick Overview

Anesthesia is a medication that is added to a patient’s body prior to a surgical procedure to keep the patient relaxed and comfortable during the process. There are generally three subsets of anesthesia: the first being general anesthesia, the second being local anesthesia, and the third being regional anesthesia. General Anesthesia is used to cause a patient to become unconscious during the procedure while local anesthesia is used to numb a small area of the body where the procedure is being performed via an injection of medication. Regional anesthesia is very similar to local anesthesia where an injection of medication is used to numb a part of the body, but regional anesthesia different from local anesthesia concerns a larger part of the body, such as from the waist down.

In recent years, we have been picking up more malpractice cases — primarily birth injury cases — in jurisdictions outside of Maryland and D.C.  We have handled claims close to home like Pennsylvania and West Virginia and we have also handled (and settled) cases as far away as Oregon.

To do this, we needed to get up to speed on the basics of malpractice calls in that jurisdiction.  Not so much to handle the case — we have local counsel for that — but to screen the case to evaluate whether it is a viable claim to bring.   It is important, of course, to know if the state has caps on malpractice cases and we have done that research.

But, honestly, you also need to know whether there are significant caps on attorneys’ fees because it has a real impact.  Taking a birth injury case in New York, for example, is a very tough play economically because you are only getting 10% of everything over $1 million.

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I look at every medical malpractice case that gets filed in Maryland.  It is incredible to me how many lawyers wait until the last minute to file a lawsuit.  In Dunham v. University of Maryland Medical Center, a bedsore case decided a few weeks ago by the Maryland Court of Special Appeals, underscores the hot water you can get in when you wait until just before the statute of limitations to bring your claim.

Facts of Dunham

Plaintiff originally sued his health care providers for medical malpractice based on failure to prevent and treat pressure sores. The case was initially filed in the Health Care Alternative Dispute Resolution Office (“HCADRO”) then transferred to Circuit Court. All medical malpractice actions in Maryland must be supported by an expert certificate that complies with certain conditions. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04(b) (2013 Repl. Vol.). If the expert certificate does not satisfy the requirements, the case must be dismissed unless the plaintiff obtains one of the statutory time extensions.