Articles Posted in Medical Malpractice

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.  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 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.

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Here is an interesting look at the first 20 medical malpractice lawsuits filed in Maryland in 2016 with a brief summary of plaintiff’s allegations in the case.   You can get all malpractice lawsuits filed in Maryland in 2017 up until April on our website.

  1. Hall v. Genesis Healthcare, LLC (filed on January 4, 2016): This is a bed sore case in Prince George’s County. Genesis Healthcare fails to take the proper precautions to prevent bed sores from developing on woman’s body. Woman dies, and her two surviving sons bring a wrongful death lawsuit.
  2. Stanford v. United States – (January 5, 2016): This is a cancer misdiagnosis lawsuit in U.S. District Court in Baltimore. Biopsy performed with an inadequate specimen. A better specimen would have revealed Stage I cancer that is usually curable by surgery. Stage III cancer discovered three years later. Prognosis is death within five years.shutterstock_60007435

I got a page on Thursday night. The caller was a woman alleging medical malpractice.  She 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 procedure and was the result of medical negligence.

How long do you have to file a medical malpractice lawsuit in Maryland?

How long do you have to file a medical malpractice injury or wrongful death lawsuit in Maryland?

I do not think this potential medical error client has a case on the merits because I believe that the complication is, in fact, a known risk of the procedure that would not be caused by a medical mistake.   You can’t sue 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 (or in other states with a similarly worded statute).

What the Law Is in 2017

Under Maryland’s statute of limitations that applies to most tort cases, a lawsuit suit must be filed within three years of the date on which the wrongful act occurs.  It is a harsh rule that is even harsher in medical malpractice cases.  Maryland created two rules to soften that effect.

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 begin to 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 is intended to begin when the victim has knowledge of circumstances which 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

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 or repose on medical malpractice cases in Maryland. But what sort of claims can be brought that are more than three years old but less than five?

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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.

New Trial in Baltimore Birth Injury Case

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

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.

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.

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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.

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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:

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