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.
In Powell v. Wurm, a Maryland Court of Special Appeals case decided last week, Maryland’s intermediate appellate court said there was a limit to just how hypertechnical we will let medical malpractice defense lawyers get in defending these claims. I really want to report that this is a big win for plaintiffs. But I’m depressed we are really letting these form of substance battles burn so many trees when we should get to the justice part of the thing: did this doctor negligently cause this woman harm? This woman’s family (she died) ought to just bring their case and the doctor ought to defend himself. But somehow, we ended up here and everyone just accepted it. I hate to get preachy on here. I try so hard to avoid it. I really do. But how did we even get to this point?
A woman went in for an operation to help treat her chronic pulmonary emboli. Her doctor performed a procedure at Southern Maryland Hospital for an inferior cava filter placement to address her problem. During the procedure, the filter perforated the wall of the inferior vena cava because it was not positioned where it should be. Allegedly, the doctor said he had made a big mistake by using the wrong vessel because it was too small for the device. Apparently, the doctor even drew a picture explaining what had happened. The doctor’s version is different. He said the filter did not properly expand, which is a risk that can happen in the absence of negligence. (Again, my point would be: fair enough. Let’s let the jury decide, not a judge on some technical filing details.)
Whatever the cause, the results were not good. The poor woman had revision surgery, which led to infection and more complications. Her abdominal wound became necrotic. More surgeries were required. She reportedly and expectedly spent the next year of her life in pain. I don’t think she died from the complications. But what is the value of suffering over the last year of your life? I don’t know what my number is, but it is more than the Maryland cap on non-economic damages in medical malpractice cases.
The woman’s family brought a medical malpractice suit against the radiologist in Prince George’s County. The claim included, as Maryland law requires, a certificate of a qualified expert, which stated that there was a breach of the standard of care and that the breach caused the woman’s injuries. His attached report echoed this sentiment:
In my opinion, [the doctor] violated the applicable standards of care in the placement of an inferior vena cava filter in that he failed to exercise appropriate care and technique and thereby perforated the wall of the inferior vena cava and deposited the filter in an extravascular location, thus necessitating the subsequent surgery to remove the filter and repair the caval laceration.
Okay, the guy did not exactly write a novel.
Prince George’s County Judge Albert W. Northrop concluded that the Attesting Expert’s Report just restates the claim in the certificate and included no real details to support the allegation of negligence and causation in the certificate required by Walzer.
What is Walzer? This unfortunate case, Walzer v. Osborne, created more technical requirements for what must be in the report. The court concluded in Walzer that since Maryland law requires both a certificate and a report, it must be that the Maryland legislature could not have meant for the two documents to say the same thing. Now, I would love to quiz ten random legislators from that time for what they intended. I’ll bet only one of the ten even has a clue. So, essentially, the report should explain. But I think we can agree that the report, under Maryland law that I think is unfair, is that there should be some additional information in the report explaining how the defendant doctor allegedly departed from the standard of care.
What the Court Said
Essentially, the court said that it is not counting words when determining whether the report complies with Maryland law. This report, while concise and shorter than it should have been, says what it needed to say to meet the requirements of Maryland law. Why do I say that it should have been more substantive even after the court found for the Plaintiff? Because look at all that has come out of it when instead this case should have just moved forward and saved everyone the time and expense. But it meets the requirement, albeit probably not by much.
The court said something else, too, in dicta that is important. It said you could look at these documents — the report and the certificate — together to satisfy the statute.
Is this a step back from Walzer? I’d like to think so. The big problem with Walzer is that it hurt victims who have lawyers who are not well versed in the way of medical malpractice cases. The victims are already behind the 8 ball because they hired a Maryland malpractice lawyer who may not know exactly how to best get the case from point A to point B, evidenced because they are not going the extra mile that the law requires. I’d love to see the Maryland high court affirm this case with sweeping language. “Hey, you know, no one really knows what the Maryland legislature intended on this one. So let’s back off a little on creating even more hoops in derogation of the common law.” Do I see this happening? No.
You can find the opinion in Powell v. Wrum here.