Maryland Injury Lawyer Blog

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.

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. 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 "$1.1 Million Malpractice Verdict Against GBMC Reinstated" »

The Maryland Court of Special Appeals issued a new opinion in Nance v. Gordon, a medical malpractice case in which, once again, the defendant won a trial court victory, by getting an entire case struck on micro form over structure. Thankfully, the Court of Special Appeals rescued this one.

A certificate of merit before a medical malpractice lawsuit in Maryland allows a certificate from someone of a different specialty than the defendant. But the statute requires, as it should I think, that it be signed by someone from the same "or related" specialty.

Let's run though the facts real quick. Man goes to the emergency department complaining of blood in his urine. The hospital performs a urinalysis, which reveals blood and protein in the plaintiff’s urine. Afterwards, the plaintiff gets antibiotics for a urinary tract infection (“UTI”) and sent home. Around two months later, the plaintiff revisits the emergency department with the same complaint. This time, however, he also complains of fever, a sore throat, and right flank pain. The plaintiff is examined by a physician’s assistant, who discusses the plaintiff’s condition with the defendant urologist over the phone. The plaintiff is sent home again with more antibiotics for treating a UTI. He is never evaluated in person by an actual physician. Nearly two years later, the plaintiff returns to the emergency department, this time complaining of spitting up blood. Tests reveal that his kidneys were no longer functioning. A renal biopsy indicates that he has a severe irreversible kidney disease.

Continue reading "New "Related Specialty" Maryland Malpractice Opinion: " »

Like the rest of the Baltimore community this past week, I was shocked to hear that Dr. Nikita Levy, a gynecologist at Johns Hopkins’ East Baltimore Medical Center, has been accused of secretly videotaping and photographing his patients.

You have heard the allegations if you have access to a newspaper or a television in Baltimore. Dr. Levy, an OB/GYN with a good reputation, used a pen camera and other surreptitious devices to photograph and film his female patients. Dr. Levy had worked at the hospital for his entire 25-year career until his dismissal on February 8, when a coworker blew the whistle on the alleged operation after noticing something unusual about the doctor’s examinations four days earlier.

Continue reading "Dr. Nikita Levy: Potential Lawsuits Against the Doctor and Johns Hopkins" »

Jury Verdict Research has some interesting statistics on the value of different types of medical malpractice.

Malpractice cases are among the toughest to pick. We have taken great pride in getting verdicts and settlements in malpractice cases that other lawyers have summarily turned down. It really makes you feel super smart when that happens. But the truth is that I know we have turned down many seven figure malpractice cases in the last 10 years. Everyone approaches these cases from different angles and sometimes one malpractice attorney sees what another attorney does not.

Anyway, this data provides two things: median verdict (as opposed to the average) and a probability range of verdict. The probability range is a telling statistic. It charts the top and the bottom of the middle 50 percent of all awards. Said different, it is the 25th percentile and the 75th percentile of the malpractice verdicts in the survey. If you are an average lawyer, I think the median is a good number to use. But I think for the best malpractice lawyers who know how to pick the right cases and know how to try a good case, I think the 75th percentile is a better number to use. But that comes with a lot of caveats. The biggest one: what you can get a jury to give you is very different from what you can collect in Maryland because of the cap on non-economic damages. We have tried a lot of wrongful death cases where you can't even get to that 25th percentile because of the chasm between what a jury thinks is fair and what Maryland law.

Anyway, these are the numbers:

Last week the Maryland Court of Special Appeals upheld a trial court’s ruling in Smith v. Johns Hopkins Community Physicians.

Before we get into the facts, let's talk Maryland venue law. Here is the most important thing you would need to know in a just world:

The moving party has the burden of proving that the interests of justice would be best served by transferring the action…and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.

(Admittedly, I'm being a little hyperbolic with the "just world" talk. But stay with me here.)

This comes from the Maryland Court of Appeals in Leung v. Nunes. It is still good case law except no one really seems interested in applying it as the law is written. Instead, far too often, trial judges go and make their decisions based on their world view of whether plaintiffs should be allowed to bring their claims in jurisdictions that are traditionally more favorable. Appellate courts are letting judges do this at their pleasure under the guise of the whole, "trial judge discretion" cure all that allow judges to basically rewrite the law to be whatever they want it to be.

I'm not saying that's how it went down in this case. In fact, it probably didn't. But it happens. It happens all of the time. Typically, it is not a liberal versus conservative decision. Some judges just don't like plaintiffs picking their court when maybe the case has stronger ties somewhere else. It just rubs them the wrong way. Without strong, binding guidance from our appellate courts, they can do just that.

End rant. Let's get back to this case. The surviving spouse and children of a man brought a wrongful death medical malpractice claim. Plaintiffs' lawyers did what smart plaintiffs' attorneys do: they filed in Baltimore City if venue is proper in Baltimore City and Baltimore County. You can call this forum shopping. I call it legal malpractice if you don't file it in Baltimore City. The doctor filed a Motion to Transfer from Baltimore City to Baltimore County. The trial judge granted the defendant’s request on the grounds of forum non conveniens.

Just a quick summary in case you are confusing forum non conveniens with the question of whether venue is proper. Forum non conveniens is when a party asks the judge to transfer the case from one court to another because the first location is not convenient. Maryland law allows for the transfer of a case from a legally proper but inconvenient location to another legally proper but more convenient location when the transfer is for the convenience of the parties, witnesses, or in the interests of justice. But, again, the burden is supposed to be heavy to make the transfer.

But the Maryland Court of Special Appeals has crafted an exception to this rule. In Stidham v. Morris, the court issued an exception that if the plaintiff does not live in the forum he initially chooses, the plaintiff's choice of forum is entitled to "little deference and thus little weight."

Why make this exception? What is wrong with suing somewhere different from where you live? What is the point of having a choice if you only have the choice to pick one option?

Which is what this court hangs their hat on in this case. The plaintiff in this case did not live in Baltimore City. She lived in Baltimore County. The doctor's office where the patient was seen was in the country. Let's be honest, Baltimore County is a "more convenient" venue if you are viewing the issue in a very narrow sense.

The court takes it even further, citing law that I could not disagree with more:

The statements in the case law about the deference to be given to a plaintiff's choice of forum, moreover, are guidelines for the trial judge and not a standard of appellate review.

So the law should guide the trial court but they are not really bound by it? I just don't get it. So the court can say, "Ah, I completely disagree but let trial judges make these calls." (To be clear, that's not what happened here. Judge Moylan is almost nominating the trial judge for Jurist of the Year in this case. Read the end of the opinion. But my scenario is more common than this one.)

Why is this so awful? Because let's face it: venue matters. If the plaintiffs' malpractice lawyer told you that the value of this malpractice case was twice as much in Baltimore City as Baltimore County, would that sound crazy to you? Of course not. If this is the case, should we allow justice to be so unevenly distributed based on the proclivities of the motions judge? Shouldn't we create hard and fast guidelines and make them stick to it so the case does not largely rest on what judge you draw to hear the motion?

The opinion closes with Judge Moylan saying that a "forum conveniens is always to be preferred over a forum non conveniens. First, I think it is impossible to suggest that Baltimore is inconvenient is the vernacular: it is right next door. But I don't think that is what the law really is or what is should be. If there is more than one proper forum, plaintiff should get the choice unless there are compelling reasons otherwise.

The real farce here, of course, is that we are talking about convenience as if that matters to anyone. Plaintiffs could not care less about convenience in this case. We would travel by foot in a blizzard to get to Baltimore City over Baltimore County in the vast majority of personal injury cases. I can admit that. But the defendants don't care either. They are forum shopping, too, just like we are.

Ultimately, the law that gives plaintiff the preference on venue- and the right to an immediate appeal that the defendants don't get - is there for a reason. If we keep chopping down that rule, we might as well stop pretending that giving deference to plaintiff's choice is even a policy goal in deciding venue.

Every now and again I read a publication called "Physician Risk Management." Billed as a publication to help doctors minimize liability and protect them from lawsuits, it is a well written publication written by people who actually do seem to know what they are talking about.

Here is why I don't like it. It is just not self-conscious enough about its own motives. An example comes from this month's article "Defend non-compliance with guidelines in chart." The article begins by repeating the title. The next sentence is, "The plaintiff’s attorney will use it against you."

This is all fine and good. Doctors sometimes should deviate from clinical guidelines and they should explain why they did not conform to them. And, yes, plaintiffs' medical malpractice attorneys are going to shove it down their throat if they do not document their deviation and the basis for it.

Fair enough. But could they at least mention in a footnote that what they are aking the doctor to do is also 100% consistent with what you are supposed to do to, you know, properly care for a patient? Isn't one of the key purposes of medical records in the first place to determine upon the appropriate course of care and provide rationale for that care to both document the treatment and explain the care to future doctors treating the patient?

The article quotes a neonatologist, Dr. Jonathan M. Fanaroff, who is both a doctor and a lawyer, to make the point. “It is important to show both your clinical reasoning and also that there was an adequate reason to deviate from the guideline." (Note to my four children: if you can get a gig as a neonatologist, don't dampen my joy by becoming a lawyer, too. Please.)

No kidding, really. In fact, as I started reading the article, I thought maybe the doctor was being quoted out of context talking about good patient care. But then the doctor goes on to describe a Mississippi case from 2006, Vede v. Delta Regional Medical Center 933 So.2d 310 (Miss. Ct. App. 2006), that ostensibly proves this point.

This was a case where the plaintiff developed a decubitus ulcer - a bed sore - allegedly as the result of hospital's negligent failure to turn the plaintiff at regular intervals, which the standard of care requires to prevent a bed sore. But the doctors at the hospital had a good reason for failing to turn the patient: they found that he was struggling with airway clearance and were afraid of a fluid volume deficit and an infection from the turning based on the patient's specific case.

This is such a straw man. We all agree these could all be good reasons in a specific case to turn the patient less frequently (although, geez, I wonder about informed consent on a call like that). We can all also agree that writing it down makes it seem less like you are making excuses in hindsight for negligent care if you spell out what you are doing in the first place. But couldn't the article - albeit short - point out that this weapon to fight off medical malpractice lawsuits is not the endgame, but just a happy byproduct of properly caring for and treating patients.

Continue reading "Physician Risk Management: Is a Doctor's Purpose Just to Avoid Malpractice Lawsuits?" »

U.S. District of Judge Richard D. Bennett issued an opinion Monday in an informed consent medical malpractice lawsuit against a neurosurgeon and St. Agnes Hospital.

The first question you might have is how did this malpractice case end up in federal court as opposed to Baltimore City Circuit Court where the claim was filed. Good question. Only a crazy plaintiffs' lawyer would file in federal court over Baltimore City because Baltimore is just a much better venue.

So what gives? Apparently, after committing an alleged tort in Baltimore City, the doctor moved to Virginia. It seems odd - in fact, crazy - to me that a defendant who commits a tort in Maryland could avail themselves to removal by moving away after the fact. But, in an earlier opinion, the court opined that the plain meaning of the removal statute mandated federal jurisdiction.

Anyway, I don't know much about the underlying facts. But the case sounds weak to me. The plaintiff claims that he would not have undergone back surgery to repair a disc at L4-L5 he suffered moving a dryer for a customer while working at Lowe’s Home Improvement had he known that that he might get an infection as a result of the surgery.

St. Agnes sought summary judgment arguing that (1) they were not responsible for making sure their doctors adequately informed their patients of the risk and because there was no actual or apparent agency.

Continue reading "New Maryland Federal Court Malpractice Opinion on Informed Consent and Apparent Agency" »

There is an interesting medical malpractice case on appeal in Ohio - Longbottom v. Mercy Hospital - that I thought deserved a quick blog post today. The case poses some interesting questions on how far outside the box of the case a jury can go in making inferences that were not directly raised by the parties.

The facts are awful and it pains me to write them out. A nine year old boy suffered a head injury at his home. He went to the emergency room. The doctors there checked him out, but did not give him a CT scan even though, you know, it is nine year-old boy with potentially a serious head injury. He went home and went to sleep. The boy woke up in the middle of the night, throwing up and gasping for air. He suffered brain damage and now walks with a limp as a result of a blood clot.

The big issue was, not surprisingly, whether the decision not to order a CT scan was a breach of the standard of care. Simple malpractice case, really. Plaintiffs' experts did not offer opinion testimony as to whether the doctor had properly instructed the parents on monitoring the child or that such a failure was the proximate cause of the injuries.

But here is the thing: juries do the craziest things. Again, the plaintiffs tried the case on the sole theory that the ER doctor should have ordered a CT scan during the emergency room visit. The jury rejected this argument but substituted it own new theory that the ER doctor failed to instruct the plaintiffs about head injuries. The jury awarded plaintiffs $2.7 million.

Continue reading "Can a Jury Make Up Their Own Theory of Negligence?" »

Appellate Opinion in Lap Chole Case

The Georgia Court of Appeals issued an opinion last Thursday on an interesting issue in a wrongful death malpractice claim that we see all too frequently: botched laparoscopic gallbladder surgery.

Quick facts in this classic malpractice case. Defendant performs a lap chole procedure on a man. The man returns to the hospital the next day with an infection. ER calls treating surgeon/defendant who does not go to the hospital to personally examine the man. Instead, he just says "I'll see you in three days at your scheduled appointment." (I'm guessing plaintiff will make hay of this arguably benign fact at trial because it has real reptile jury appeal.) Two days later, the man collapses at this home and dies.

The wife/plaintiff files a wrongful death action The autopsy showed his death was from an acute bacterial infection caused by thermal burns in the area where Jensen had performed the lap chole procedure.

Continue reading "New Appellate Opinion on "Relates Back" in a Lap Chole Case" »

New 3rd Circuit Informed Consent Opinion.

Do you need an affidavit/certificate of merit in an informed consent case? Last week, the 3rd Circuit said that you do under New Jersey law in Mulholland v. Thomas Jefferson University Hospitals. This blog post is about this case and how the result would likely be different under Maryland law.

Crazy facts. Plaintiff had kidney problems and a co-worker, the unsung hero of the story, offered to give him one of his. Plaintiff had the HHV-6 virus, a herpes virus. Plaintiff alleged that his doctors failed tell him that he had herpes and how that would impact the risks and benefits associated with the success of the transplant surgery.

That sounds bogus enough. You needed a kidney, right? But plaintiff further alleged that the donor had the CMV virus. What is the CMV virus? Let's just say you might have it and not know it. It is easily transmittable but rarely a problem for anyone. But plaintiff argued that if he had been advised by defendants of the donor’s positive CMV blood test result or his own positive HHV-6 result, he would have chosen to receive a kidney from his wife instead of his co-worker.

So your wife would have given you a kidney, but you took one from a co-worker instead? Did the co-worker know that when he offered you the kidney? Crazy. Court TV needs to do an "Inside the Lines" type of story this case.

Continue reading "Do You Need a Certificate in an Informed Consent Case?" »

New Medical Malpractice Opinion

The 8th Circuit affirmed a defense verdict in a medical malpractice action this week in Avichail v. St. John's Mercy Health System. The case had a few interesting legal issues: a Batson challenge and a dispute over whether a witness could use an interpreter. So, given the Maryland appellate courts' inability to come up with much interesting for us this summer, let's turn to Missouri.

This was a permanent brain injury case involving a young girl who had Beckwith–Wiedmann Syndrome, an aliment that causes macroglossia, which causes the tongue to be abnormally large. Plaintiff's counsel alleged that during a surgical procedure to reduce the size of her tongue, her oxygen levels were unattended for hours during which her oxygen saturation plummeted from 94% to 50%, causing permanent brain damage. Just an awful case any way you slice it.

Continue reading "Defense Verdict in Malpractice Case Affirmed" »

New Malpractice Opinion: Evidence and Discovery Sanctions

Yesterday, I was lamenting the lack of interesting Maryland appellate opinions to write about on this blog. But, I let one slip by last month: the Court of Special Appeals' opinion in Schneider v. Little.

This is a medical malpractice case that was originally tried in Harford County in 2010, and resulted in a verdict of over three and-a-half million dollars ($3,557,398.00). That’s a large verdict anywhere, and a really good verdict in this relatively conservative county.

The plaintiff’s injuries certainly warranted the verdict—during the surgery she lost the equivalent of her entire body’s blood volume, and after the surgery it was clear that she suffered major injury to her spinal cord. In fact, she was permanently paralyzed from the waist down, with little ability to control her bladder or bowel.

Continue reading "Schneider v. Little: Recent Evidence Rulings From a Hartford County Medical Malpractice Case" »

One of the largest malpractice verdicts in Maryland history was handed down yesterday by a Baltimore City jury that awarded $55 million in a cerebral palsy medical malpractice case. The actual award will be reduced by Maryland's medical malpractice cap to less than $30 million. Hopkins is expected to appeal. I'm not sure of the grounds but in a complicated birth injury case, there are always potential issues.

Plaintiff's lawyer Gary Wais said after the verdict that the parents are "relieved that they're going to have the economic resources to take care of their child, not only for their own natural lives, but for their child's." This is the big fear of almost any parent in a birth injury case. When I/we die, who is going to take care of my child? Must be one of the the worst fears imaginable.

The Baltimore Sun has a story on the verdict.

Under Maryland law, when a defendant doctor is board certified in a medical specialty, plaintiff's expert testifying to the breach of the standard of care must be board certified in the same or a “related specialty.” Plaintiff's medical malpractice lawyers in Maryland have had a lot of sleepless nights over the definition of "related specialty."

In DeMuth v. Strong, a new opinion decided by the Maryland Court of Special Appeals last week, the plaintiff had a $1.68 million verdict resting in balance of what constituted a related specialty under Maryland medical malpractice law. In this Cecil County medical malpractice case, plaintiff brought a lawsuit and called as his expert witness a board certified vascular surgeon, who testified that an orthopedic surgeon breached the standard of care.

Plaintiff's attorney had a qualified orthopedic expert testify as well, but wanted to let his causation expert also provide his opinion, probably because it was a strong opinion and maybe because it seems a little odd to the jury when a causation expert does not give his thoughts on damages. But plaintiff's malpractice lawyer was running the risk of having the case overturned on appeal if the appellate courts did not agree.

Continue reading "Maryland Court Defines "Related Specialty" Under the Maryland Health Care Malpractice Act" »

Metro Verdicts Monthly's cover graph is failure to diagnose breast cancer settlements and verdicts in Maryland, Washington, D.C., and Virginia.

By some estimates, between 8% and 12% of cancer cases are initially misdiagnosed. It is hard to call one type of cancer misdiagnosis case more tragic than another. Every misdiagnosis is going to decrease the chance of treating and defeating the cancer. But, many cancer misdiagnosis cases are not medical malpractice cases because the cancer is so aggressive, but breast cancer misdiagnosis cases are fueled by tragedy because breast cancer is often extremely manageable when caught early, and often fatal when missed.

Continue reading "Breast Cancer Misdiagnosis Verdict/Settlement Statistics" »

Runaway juries are the big problem in medical malpractice cases. Juries see a sympathic plaintiff and, unchecked by reason, they start writing oversized checks. Liberal judges aid and abet the crime.

This belief has taken deep root in Maryland - and in most states - that has led to the enactment of scores of laws to impede medical malpractice lawsuits. Most notable of these restrictions has been medical malpractice caps. Maryland had a onerous cap that became even more draconian. Why? Because the Maryland State Medical Society’s (MedChi) very skillfully orchestrated what almost everyone now agrees was a a faux crisis.

Trial lawyers have been pretty much outsmarted at every turn by doctors and other tort reform proponents. These advocacy groups have smartly turned the focus away from hard facts and have, ironically, effectively used the quintessential trial lawyer weapons, antidotes, and imagery. Pictures of doctors on highways walking out of the state because of high malpractice premiums. A story about a cute little Doc Hollywood like country doctor who had to close his practice because of frivilous malpractice suits. They have, repeatedly, won. Their lobbyists and PR people have done a great job.

Continue reading "Malpractice Statistics: New Study" »

Max Kennerly writes a really good post telling the story of how a defendant's medical malpractice lawyer tried to bully the plaintiffs' expert by writing the expert's hospital to express the concern that the expert's testimony might expose the hospital to significant liability.

Malpractice defense lawyers learned this trick at the feet of the master: pharmaceutical companies make a concerted effort to use its influence at major universities to blackball anyone who testifies against them.

At least this story has a happy ending. The trial judge sanctioned the defense lawyer.

UPDATE: I fixed the broken link. Sorry about that.

The Connecticut Supreme Court ordered a new trial this week in a medical malpractice case for an interesting reason: the defense expert testified at trial that malpractice lawsuits drive up health care costs by forcing doctors to practice defensive medicine.

The big issue in the case was whether appropriate standard of care required the defendant doctor to order additional radiological tests, such as X rays, a CT scan, or an MRI, prior to performing the surgery on a young boy to determine whether his tumor had grown since it was first detected. At trial, the defendants’ medical expert testified, of course, that ‘‘the standard of care did not require additional radiology tests." So, this is hardly a case where the doctor is being accused of practicing defensive medicine. But, for some reason, the doctor felt compelled to point out on direct that he would have ordered them himself, if he was treating the plaintiff. Gee, doc, why?

Well, a few reasons. One, I am with residents, fellows, and medical students all the time. So, we are ordering a lot of tests on everything so they have the opportunity to read them. And you could say, oh, that’s wasteful, but that is part of being at a teaching institution. One. It is for teaching purposes as much as anything, for they have one more chance to look at just one more—they have another dot in their exposure.

Wait, how many times have I heard about how you should not subject patients - not for nothing, a young boy in this case - to unnecessary radiological testing because it exposes the patient to risk (and the annoyance and hassle of the testing itself)? Yet that risk is of no consequence if, you know, we can show those young whippersnappers and extra MRI.

Continue reading "Defense Expert Preaches About Defensive Medicine: Appellate Court Orders New Trial" »

The year is still young but Maryland appellate courts have already provided three important medical malpractice opinions. I have summarized the three cases:

• University of Maryland Medical Systems v. Gholston: affirms birth injury verdict in Baltimore City
• Spangler v. McQuitty: Maryland high court affirmed informed consent birth injury verdict, 17 years after the child was injured
• Muti v. University of Maryland Medical Systems: Maryland high court opinion that really flushes out the maze of rules dealing with "use plaintiffs" in wrongful death/survival action cases in Maryland

You can find more 2012 personal injury related opinions here.