Articles Posted in Medical Malpractice

The Maryland Court of Special Appeals recently handed down its opinion in Rosebrock v. Eastern Shore Emergency Physicians.  The opinion makes defense attorney’s jobs a little easier when it comes to admitting testimony in medical malpractice cases, of what the doctor usually does when the doctor has no recollection of the care provided to the patient.   This post addresses this case and whether this ruling is significant to Maryland medical malpractice law.  I’ll also talk a little about an off the beaten path issue related to agency and personal representation.

Habit testimony in Maryland malpractice cases

This is a medical malpractice case where a nurse’s aide slipped and fell, while on duty, at Ruxton Nursing Home located in Denton, Maryland.  After the fall, she complained of hip, knee, and back pain. EMTs arrived and immobilized the woman, then place her on a backboard. She went to the emergency room at Shore System’s Memorial Hospital in Easton, Maryland.  The ER doctor orders an x-ray of the patients’ knees and hips, but there is no record of her examining the patient’s back; even though she complained about her back to the triage nurse.  The x-rays come back negative, prompting the doctor to discharge the patient with minor knee and hip contusions.

Later on, the patient is still experiencing significant pain, resulting in another doctor ordering an MRI. The MRI showed a degenerative disk in the patient’s back, which is later revealed to be a burst/fractured vertebrae. Obviously, this is a bit more serious than a minor contusion, and the patient has to get spinal fusion surgery. Unfortunately, the surgery results in an infection, causing the patient to suffer a brain injury and enter a vegetative state.

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Nearly a quarter of a million Americans undergo total hip replacement surgery.  All of them do so reluctantly.  This invasive orthopedic surgery is a major operation.  Everyone agrees that there are unavoidable risks involved in the procedure.  These risks include a foot drop (also called peroneal nerve palsy or drop foot), sciatic nerve injuries, and, many believe, RSD even when the surgery is performed properly. There is no doubt that the fact that it is a known complication of hip replacement surgery does not make for a straightforward malpractice case no matter how egregious the facts are.  I’m telling you that the surgeon could do the operation with a machete while wearing a Groucho Marx mask and any Maryland insurance company would still mount a defense.  But that does not answer the question posed, which is whether it can be medical malpractice when a patient has a foot drop after a total hip replacement. Continue reading

Bringing a medical malpractice case in Maryland is not something that most lawyers are competent to do.  Maryland law makes you jump through a lot of administrative hoops when filing malpractice cases.  Experienced malpractice lawyers have screwed up the procedural requirements for bringing a claim.  Maryland law and its courts are more than willing to hold a victim’s feet to the fire on technical details that really would not be of consequence if the system was truly interested in allowing victims access to justice.

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A U.S. federal court judge made a ruling on some motions that would interest Maryland medical malpractice attorneys.  They deal with a motion for summary judgment and a pet interest of mine, holding the defendant’s feet to the fire when they give garbage answers to requests for admission.

This is a birth injury claim against Defendants Calvert Memorial Hospital of Calvert County, that hospital’s emergency room and emergency room doctor, and the United States.  The government is a defendant for the care given at Andrews Air Force Base.

Plaintiff got prenatal care on Andrews Air Force Base.  A month before delivering, the mom-to-be presented with high blood pressure and had laboratory studies with elevated proteins, symptoms that show some risk of preeclampsia.  Three weeks later, the woman gives birth to her daughter at Calvert Memorial Hospital.

Most malpractice lawsuits in Maryland are resolved after negotiating through adversarial bargaining.  At the end of the day, our clients only have two options: settle or go to trial. Sometimes, they do not even have two options.  We have tried medical malpractice cases where there was no settlement offer.

Is There a Formula to Determine the Value of Medical Malpractice Cases?

There is a settlement formula to determine the value of a medical malpractice claim.   The formula has four parts:

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Most of the medical malpractice cases Miller & Zois handles come from cases that are referred from other Maryland attorneys.  These cases come from other lawyers who do not focus their practice on medical malpractice cases, or the size and the expenses in the case or the specific issues presented are such that getting other counsel involved makes the most sense.

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The medical malpractice arm of our law firm has continued to grow over the last 10 years.   I think it is interesting to see who the defense lawyers are in these cases.  It matters who you draw as defense counsel.  You would think, as a plaintiff’s lawyer, you would like to draw the least competent counsel as possible.

There is some truth to this.  Lazy and incompetent counsel sometimes miss key defenses and critical arguments that the health care providers should make.   But this rule has a lot of exceptions.  Defense lawyers who get behind the eight ball sometimes make it even harder on us.  Because it is impossible to schedule depositions, get discovery responses, and otherwise push the case forward.  You usually get to the same place in the end, but sometimes the workload doubles just because the other side is so unresponsive. Sometimes, particularly if you have a quality liability case, you are best served by having quality defense lawyers who do what it takes to properly defend the case.

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Medical malpractice kills 400,000 people a year in this country and injures 4 million more.  The media is now starting to focus on this story, as we just talked about on Monday after the Baltimore Sun’s story on negligence in Maryland hospital.  Stories like this help plaintiffs in medical malpractice cases.  Why?  Because many of us still view doctors as infallible and that wall of invincibility is being to fall.

So, why is it so hard to find a medical malpractice lawyer in Maryland who will take your case?

Joanna Shepherd, a law professor at Emory University, conducted a national survey of medical malpractice attorneys that explored why malpractice attorneys reject cases.   

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