Articles Posted in Medical Malpractice

In this post, I will explain how to go about checking to see if a particular doctor has ever been sued for medical malpractice or had a malpractice claim filed against them.

A lot of prospective patients want to know about prior malpractice suits when they are shopping for a new doctor. Others become interested in a medical practitioner’s prior malpractice history after they have a bad experience and are considering whether to pursue their own medical malpractice lawsuit.

Before we get into the nuts and bolts of checking out a doctor’s malpractice history, I feel obligated to offer at least a little cautionary wisdom. Just because a doctor has previously been sued for medical malpractice does not mean that they are a bad doctor. The simple reason for this is that medical malpractice lawsuits are common.

On this page, we will look at medical malpractice cases involving misdiagnosis or delay in diagnosis of bowel cancer. We will examine the typical allegations of medical negligence in these cases and what their average settlement compensation value is.

About Bowel Cancer

Bowel cancer is a general term for cancer that originates in the large bowel. The large bowel (large intestine) includes both the colon and rectum which together form the last part of the human digestive system. The bowel plays a key role in final waste removal from the body by turning liquified food waste from the small intestine into solid waste. It is basically like the body’s trash compactor.

In Billing v. Moulsdale, the Maryland Court of Special Appeals overturned a defense verdict and granted the plaintiff a new trial in malpractice lawsuit on damages only.

What the doctor was found to have done as a matter of law is pretty gross doctor are pretty gross.  Essentially, and you can read the case if you want all the details, the doctor performed a breast and vaginal exam on a patient that was completely unrelated to the care he was providing.

Was this a onetime thing?  It never is.  Dr. Moulsdale surrendered his medical license after more women than just the plaintiff accused him of performing unwarranted and unnecessary breast, pelvic and rectal examinations on several female patients.

In Adventist Healthcare Inc. v. Mattingly, the Maryland Court of Special Appeals (COSA) was asked to consider whether a mother’s decision to cremate her son’s remains amounted to the destruction of evidence in a subsequent lawsuit for medical malpractice. The COSA ruled that having remains cremated does not constitute spoliation of evidence in a subsequent malpractice case. The Court held that family members have no duty to preserve evidence from the body or allow potential malpractice defendants to examine the body independently.

Facts of Adventist Healthcare Inc. v. Mattingly

The decedent (Mattingly) underwent surgery to reverse a colostomy at Adventist Hospital in Takoma Park, Maryland. Five days after the surgery, Mr. Mattingly died while still in the hospital. Mattingly’s mother was with him at the hospital when he died, and she immediately suspected that the doctors and staff had been negligent. She wanted an autopsy performed to learn the cause of her son’s death, but she didn’t trust anyone at the hospital to give her an honest opinion.

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

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.

medical malpractice statute limitations

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. 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.

What the Deadline to File a Malpractice Lawsuit in 2021?

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 claims.  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 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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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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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.

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