Articles Posted in Medical Malpractice

caps on malpractice lawyers' fees
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 patients injury and death.

caps on malpractice lawyers' feesIn 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 past $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

Operating-room-pic-4-300x200Plaintiff 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.

As I have said before, a jury trial is about assigning blame.  The three suspects are plaintiff, defendant, or “it happens.”  Defense lawyers preference is being able to blame the plaintiff.

In medical malpractice cases, the plaintiff often makes choices that put them in the spot of needing treatment or surgery.

The most classic case is a lung cancer misdiagnosis case where the plaintiff smoked two packs of cigarettes a day.  Yes, the guy got cancer because he smoked.  But that does not relieve the doctor of the obligation to see what is there to be seen and uncover his lung cancer if there are signs and symptoms that are there to been seen.  In Barbosa v. Osbourne, the Maryland Court of Appeals took a more nuanced look at when contributory negligence can be applied to medical negligence cases.

Last week in Lamalfa v. Hearn, the Maryland Court of Appeals held that medical records could be admitted over hearsay objections when the records are relied on by an expert witness and the records satisfy 4 conditions of Maryland Rule 5-703(b).

Like most states, Maryland has a statutory business records exception to the hearsay rule.   The thinking is that businesses — most businesses, anyway — keep reliable records which makes them more trustworthy than other forms of hearsay.  So admitting hospital records into evidence is a common practice in malpractice and other injury and wrongful death cases.

Facts of Lamalfa

doctor-300x203More often than not, a jury trial in a wrongful death or severe injury case is about assigning blame.  Jurors want someone to blame for the harm that was caused.  Usually, this is either the plaintiff or the defendant.  In medical malpractice cases, jurors may also point to bad luck as the cause.

For defense lawyers, one of the best targets for responsibility is an empty chair, either a dismissed or unnamed defendant.  This is a more substantive target than mere bad luck and it allows the jury to meet its perceived obligation of assigning clear responsibility.  It is also just helpful to point the blame to someone who is not in the room to defend themselves.  In Copsey v. Park, the Maryland high court addressed the question of whether the defendant could point to the empty chair of doctors who had already settled before trial.

Facts of Copsey

The Maryland Court of Appeals granted cert in five cases yesterday.  One of the cases, Davis v. Frostburg Facility Operations, is of interest to Maryland medical malpractice lawyers because it addresses the question of what constitutes an allegation of medical malpractice that invokes the Maryland Health Claims Act.

Facts

Davis is a nursing home type case.  According to the Complaint, Plaintiff was admitted to Frostburg Village, a nursing rehabilitation center in Allegany County,  following back surgery. Two days later, Plaintiff’s mattress came loose from her bed and “slid off the bed frame, causing Ms. Davis to fall to the floor.”  The facility used a mechanical lift to put the woman back in bed because Frostburg is a no lift facility.  The nurse allegedly used the lift improperly — releasing the net holding the patient too soon — and dropped her on the floor.

Last week, in Henneberry v. Pharoan, the Maryland Court of Special Appeals looked at the question of whether there can be a breach of contract lawsuit that runs concurrently with a medical malpractice claim.  The case clarifies Maryland law on when a breach of contract claim might jive with a medical malpractice claim.

The Facts

The gist of the plaintiff’s complaint is that the doctor failed to completely resect the entire appendix which necessitated another surgery.  While undoubtedly a traumatic event for the plaintiff,  this is not a particularly serious case by medical malpractice standards.  We have been making it a point to follow every malpractice case that gets filed in Maryland. This is the bottom 10% of medical malpractice lawsuit in Maryland with respect to severity of injury (of non-dental malpractice claims).

Sepsis is a silent killer that should be diagnosed and treated with the same urgency as a heart attack.  But it is not treated with urgency and it is the one reason so many medical malpractice lawsuits inmalpractice-300x200 Maryland involve either missed sepsis diagnosis or a failure to adequate treat this infection.

Sepsis is a catastrophic health problem that is responsible for over 250,000 deaths per year in this country.  There are over 20,000 cases of sepsis in Maryland hospitals every year. Do you think Donald Trump’s wall is too expensive?  We spend more $20 billion dollars on the diagnosis and treatment of sepsis.  It is the most expensive condition treated in hospitals and a lot of that cost is care rendered after a doctor makes a mistake.

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Medical malpractice cases 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.

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