Articles Posted in Medical Malpractice

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.

We did the research not for a blog post but for our internal use.  But I thought it would be helpful to give you a head start in your research.  You should verify all of these, of course, and I tried to link to the statute to help you out.

State Attorneys’ Fees
California Sliding scale fees may not exceed 40% of the $50,000, 1/3 of the next $50,000, 25% of the next $500,000, and 15% of damages exceeding $600,000. (Bus. & Prof. §6146)  California, of all states, makes it difficult for plaintiffs both with caps and attorneys’ fees.  It is a no surprise that malpractice is rampant there.
Connecticut Sliding scale fees may not exceed: one third of first $300,000; 25% of next $300,000; 20% of the next $300,000; 15% of the next $300,000; and 10% of damages exceeding $1.2 million. (CGS §52.251c)
Delaware Sliding scale fees may not exceed: 35% of first $100,000; 25% of next $100,000; and 10% of damages exceeding $200,000. (Del. Code Ann Tit. 18 §. 6865)
Florida Separate sliding scales for cases settling before filing an answer or appointing an arbitrator, cases settling before or after going to trial, and cases in which liability is admitted and only damages contested; Florida kicks in 5% extra for cases appealed. (Atty. Conduct Reg. 4-1.5(f)(40(b))
Illinois Sliding scale fees may not exceed one-third of all sums recovered. (Ill. Comp. Stat. Ann. § 110.2.1114) The attorney may apply to the court for additional compensation under certain circumstances. (§ 735.5/2.11 4)
Indiana If before July 1, 2017, plaintiffs’ attorney fees may not exceed 15% of any award that is made from Patient’s Compensation Fund (covers portion of an award that exceeds $100,000). If after June 30, 2017, 32%. (Ind Code Ann. §16.9(5).51)
Maine Sliding scale fees may not be higher than one-third of the first $100,000; 25% of the next $100,000, and 20% of damages that exceed $200,000; for purpose of the rule, future damages are to be reduced to lump sum value. (Me.Rev.Stat.Ann§24.2961)
Massachusetts Sliding scale fees may not exceed 40% of first $150,000, 33.33% of next $150,000, 30% of next $200,000 and 25% of damages that exceed $500,000; further limits if claimants recovery insufficient to pay medical expenses. (Mass. Ann. Laws Chap.231. § 60I)
Michigan Maximum contingency fee for a personal injury action is one-third of the amount recovered. (Mich. Court Rules 8.121(b))
New Jersey Sliding scale fees may not exceed one third of first $750,000, 30% of second $750,000, 25% of third $750,000 and 20% of forth $750,000; and amounts the court approves for damages that exceed $2,000,000; 25% cap for a minor or an incompetent plaintiff for a pretrial statement. (Court Rules §1:21-7)
New York Sliding scale fees may not exceed 30% of first $250,000, 25% of second $250,000, 20% of next $500,000, 15% of next $250,000, and 10% over $1.25 million. (N.Y. Jud. §474-a) The court may allow higher fees upon application of the claimant or his attorney. But lawyers can’t rely on this expectation.
Oklahoma Fee may not exceed 50% of the net judgment. (§5.7)
Tennessee Attorneys’ fees may not exceed one-third of recovery. (Tenn. Code Ann. § 29-26-120)
Utah Contingency fee may not exceed a third of award. (§78B.3.7.411)
Wisconsin Malpractice fees are on a sliding scale may not exceed one-third of first million or 25% of first $1 million recovered if liability is stipulated within 180 days, and not later than 60 days before the first day of trial, and 20% of any amount exceeding $1 million. In special cases, the court may approve a higher fee. (§655.013)
Wyoming If recovery is $1 million or less; one-third if claim settled within 60 days after filing, or 40% if settled after 60 days or if a judgment is entered; if over $1 million, 30%. However, parties may agree to pay more. (Ct. Rules, Contingent Fees R. 5)


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.

maryland certificate of merit
Our attorneys see a lot of parents calling us believing their child was harmed by chorioamnionitis who are trying to find out if they have a birth injury claim.  Chorioamnionitis is a bacterial infection of the fetal membrane and amniotic fluid during pregnancy.  A chorioamnionitis infection occurs when vaginal bacteria transfer into the uterus and spread.  Chorioamnionitis occurs in approximately 2% of all childbirths in the U.S.  It can have a number of adverse effects during pregnancy. A chorioamnionitis infection can block or limit the mother’s ability to pass nutrients to the baby.

If chorioamnionitis is not properly diagnosed and addressed the infection can also spread to the baby resulting in permanent long-term birth injuries such as hypoxic-ischemic encephalopathy, cerebral palsy.  How does it cause a brain injury?   Chorioamnionitis causes an inflammatory response of cytokines that targets specifically the periventricular white matter in the premature infant, causing periventricular leukomalacia or PVL. The periventricular white matter is particularly sensitive to damage.  It is also important to remember that chorioamnionitis is known to cause utero placental insufficiency and to compromise the ability of the placenta to oxygenate the fetus.  Most birthing process brain injuries involve oxygen deprivation.

Chorioamnionitis can also cause premature labor and delivery which can lead to a host of complications for the mother and child.

Medical malpractice occurs when a doctor or health care professional injures a patient with negligent or inappropriate medical care.  The consequences of medical malpractice can be very serious. If an accountant or other professional provides negligent services it typically just costs you money.   Negligent medical care by doctors, however, can result in permanent physical injuries and sometimes death.  In many cases, the harm caused by medical malpractice can never be undone.  Instead, our legal system offers victims of medical malpractice financial compensation.

Elements of a Medical Malpractice Claim in Maryland

Doctors and hospitals are not in the habit of admitting that they committed malpractice.  If you want financial compensation for injuries caused by medical malpractice you will need to show that you are legally entitled to it.  To have a valid claim for medical malpractice you need to be able to prove 2 things:

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.


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.

Continue reading

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.

Continue reading

Contact Information