Really tough opinion for medical malpractice plaintiffs in Maryland was issued in U.S. District Court last week.
Tangent #1: Why Isn’t This Case in State Court?
As a preliminary matter, it is complete garbage that this case is in federal court in the first place. The plaintiff, in this case, is, euphemistically, a guest of the state of Maryland. The defendant is a Missouri corporation under contract with the state to provide health care services to inmates. No one says they should get hugs, but we can all agree our prisoners need competent medical care?
I can’t figure out why the health care providers were not sued individually. But it seems crazy that a corporation can come to Maryland and perform health care services and not be amenable to suit in state court. Couldn’t the state require corporations who are treating Maryland patients to consent to jurisdiction in state court? I realize we are talking about prisoners and most people in Maryland and too busy fuming that they get to watch cable television, but this is a larger question. Moreover, are there not any Maryland corporations who could do this work?
Tangent #2: We Butcher Our Prisoners and We Know It
Anyway, this is a failure to diagnose his cancer that caused Plaintiff to require surgery and, more importantly, a colostomy bag. That’s an actual case. You know, we – our law firm – largely blows off these prisoner malpractice cases because you usually have an unsympathetic plaintiff who, let’s be honest, is more likely to lie about what the records will show when you first speak to them on an intake. This is probably a smart move for us in terms of resources but a terrible choice in the overall arc of justice because you are kidding yourself if you don’t think prisoners are not being butchered by medical malpractice all over this country.
Okay, Let’s Talk About the Actual Case
Okay, I need to stop the tangents and get back to the case. Plaintiff filed suit in Health Care Alternative Dispute Resolution Office and filed an expert report and certificate of merit by a qualified doctor. He then waived out of arbitration, which is the customary practice, and filed suit in federal court.
The defendant moved, as malpractice defendants are wont to do, to dismiss the suit because Plaintiff’s certificate of merit and report were insufficient because it did not articulate the appropriate standard of care or detail how the health care providers departed from it.
I’m not sure that is entirely true. The expert report says:
It is my opinion that a more thorough investigation of [Plaintiff’s] complaints should have been performed in early 2005, and that had such an investigation been performed, it likely would have revealed a developing colon cancer, allowing for more prompt intervention and treatment. The delay in diagnosis also delayed treatment and allowed [Plaintiff’s] cancer to progress during the intervening period and therefore caused him some injury.
But the court agreed that a more precise statement was required and dismissed the case.
Can We All Agree Maryland Law on This Is Dumb, Right?
As a threshold, we are about to debate a dumb law that places form well ahead of substance. If justice were a part of the equation, this case is a no-brainer and the case would either go on or the plaintiff would be required to provide a more detailed report.
What I wrote about this case – and what I wish I could write – is that this kind of insanity could not be what the Maryland legislature had in mind. But, let’s be honest: it might be exactly what they had in mind. Hat tip to MedChi lobbyists everywhere. Well played.
But what is incredible is that the courts have taken an unjust law and instead of narrowly construing a statute that changes the common law, they have made it even more Draconian. I live in a very blue state. Yet I feel like I need to vote for Dennis Kucinich’s more radical little brother just to have a level playing field in medical negligence cases.
Let’s Look at This Honestly
Let’s look back at the expert’s language. Let’s first admit a few things. It is a little vague. It is short on specifics and it does not specifically mention the standard of care. Arguably, saying you should have done something is a step short of saying you breached the standard of care.
Still, in a fair world, that’s enough, right? Or is it? Again, I think the battle here is a dispute between what should be and what is. The statute is unjust and the case law interpreting it is actually worse. Certainly, the heart of this is accurate: a doctor made a mistake and it caused an injury. If the problem is to “help weed out non-meritorious claims”, I don’t think fighting in the weeds over the minor details without a chance to redress technical deficiencies is a good solution. This does not weed out the bad cases, it just weeds out cases. Which I’m sure is the intended purpose for many of the legislatures and judges who have the political bent against malpractice cases.
If I was the federal court judge hearing this case, I would have sent a certified letter to the Maryland Court of Appeals asking a simple question: Just how dumb are your malpractice laws, anyway?