Articles Posted in Medical Malpractice

Expert testimony is essential in many Maryland accident cases. A Maryland appeals court recently issued a decision in part on whether a court was wrong in excluding expert testimony, despite not having reviewed the patient’s relevant medical records. In that case, the plaintiff filed a malpractice claim against a doctor and his practice, claiming that she suffered a permanent loss of feeling in her tongue after the doctor allegedly severed lingual nerves in her jaw while he was taking out her wisdom teeth. She claims the doctor failed to take proper precautions when extracting her teeth, including failing to obtain a CT scan of the plaintiff’s mouth and nerves because she had impacted teeth, by failing to administer steroids immediately after the nerve injury, and by failing to immediately refer the patient to a nerve surgeon specialist.

The judge dismissed the case, in part because he excluded the expert testimony presented by the plaintiff. The plaintiff had two expert witnesses in the case: Dr. Kramer and Dr. Kotikian. The judge found that the opinion of Dr. Kramer was inadmissible in part because he had not reviewed the notes and records from the plaintiff’s treatment. The judge also found the opinion of Dr. Kotikian was inadmissible because he found that inferences of negligence can only be drawn when the alleged injury would not have occurred in the absence of medical negligence. The judge also found the plaintiff was contributorily negligent because she failed to attend follow-up appointments. The plaintiff appealed the decision.

When Is Expert Witness Testimony Necessary in Maryland?

Under Maryland Rule of Evidence 5-702, expert testimony may be admitted in a personal injury case if the court finds that the expert testimony will be helpful in understanding evidence or deciding a fact in the case. A court should determine: if the expert witness is qualified based on knowledge, skill, experience, training, or education; if the expert testimony is appropriate on the issue, and; if there is sufficient factual support for the testimony.

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A Maryland car accident can have significant consequences on a victim’s financial, medical, and psychological standing. Under Maryland’s “at-fault” model of recovery, the “at-fault” party is responsible for compensating the victim for property damage, medical expenses, lost wages, pain and suffering and other economic damages. However, in many cases, the at-fault party refuses to take responsibility for the accident. In those situations, the injury victim’s insurance company is responsible for any property damage. The injured party’s insurance company will attempt to collect from the at-fault party’s insurance company. However, like every aspect of a car accident, unexpected issues often arise, and collecting damages can be a challenging experience.

One of the most frustrating aspects of an accident occurs when insurance coverage does not cover the extent of a person’s losses. This tends to occur after particularly catastrophic accidents. In these cases, the injury victim or their loved ones may go after the at-fault party directly. It is imperative to retain an attorney to assist through this process. An attorney can ensure that their clients recover the damages they deserve.

This is especially important with the rising costs of healthcare in the country. The New York Times recently reported on a tragic case that highlights the impact medical bills can have on a family’s livelihood. In that case, a family with seemingly good health insurance lost their premature daughter after contracting an infection while in the neonatal intensive care unit. A few months after their daughter’s death, they received various medical bills and debt collection notices from insurance companies. The insurance company inadvertently paid the hospital for care and turned to the family to cover their losses. Experts explained that these instances speak to the unpredictability of the American healthcare billing process. In many cases, patients and their loved ones do not understand what their medical costs are until they receive a bill.

Maryland medical malpractice lawsuits have certain requirements that are not necessary for other personal injury claims. Most importantly, before filing a Maryland medical malpractice claim, a claimant must file a certificate of a qualified expert.

What Are the Requirements of a Medical Malpractice Lawsuit in Maryland?

Under MD Cts & Jud Pro Code § 3-2A-04 (2019), a certificate of a qualified expert must be filed within 90 days from the date of the complaint, attesting to the defendant’s departure from the standard of care and that the departure is the proximate cause of the alleged injury. The certificate must be served on all other parties to the medical malpractice claim. The 90-day deadline may also be extended in some circumstances. The requirement to obtain a certificate of a qualified expert is meant to curb meritless medical malpractice claims. If a defendant disputes liability, the defendant is required to file a certificate of a qualified expert within 120 days from the date the claimant or plaintiff served the certificate, which must detail the defendant’s compliance with the standard of care or that the deviance from the standard of care was not the proximate cause of the alleged injury. Failing to follow the state’s requirements for medical malpractice claims can result in the dismissal of the lawsuit.

Recently, the Court of Appeals of Maryland decided a case concerning non-party negligence in a Maryland medical malpractice case. Maryland state law allows those injured by a doctor or other health care professional’s negligence to file a medical malpractice suit against the negligent party to recover for their injuries. Sometimes, when defending against that claim, the defendant will attempt to argue that they were not negligent, but that someone else—a non-party in the case—was negligent, and they caused the injuries.

The recent case provides such an example. According to the court’s written opinion, the plaintiff was found to have a renal tumor in his kidney and an adjacent enlarged lymph node. His urologist removed the cancerous kidney, but did not remove the lymph node because it was thought that it could not be removed safely. The plaintiff’s oncologist also did not think the lymph node could be removed, even though it was likely cancerous. The oncologist treated the plaintiff with a chemotherapy drug instead for several years, and the lymph node shrunk (confirming it was cancerous). During this treatment, a radiologist interpreted various scans of the plaintiff’s lymph node, but never noted any issue of enlargement. However, the original radiologist and another radiologist did note that the scans of the lymph node were not always performed with the best technology, meaning sometimes they were difficult to interpret.

Tragically, it turns out that the lymph node—still cancerous—had increased in size over the years. At this point, it was definitely too big to remove, and the plaintiff underwent cancer treatment. The plaintiff filed suit against the radiologists, alleging that they failed to alert his oncologist of the lymph node’s growth. Had they done so, the plaintiff argues, the oncologist could have removed it safely before it grew too large.

On this blog, we talk about a wide variety of Maryland accidents, including slip and falls, car accidents and medical malpractice cases. The general premise behind all Maryland personal injury lawsuits is the same: state law allows those injured due to someone else’s negligence to recover financially by bringing a personal injury lawsuit against the negligent parties. However, it is important to keep in mind that different types of personal injury lawsuits may be grounded in the same basic idea but subject to very different procedural requirements. This is especially true for medical malpractice cases. Failure to follow the proper requirements could result in a plaintiff’s Maryland medical malpractice suit being thrown out, even if it would otherwise have been a winning case.

For example, take a recent state supreme court case which considered the procedural requirements for filing a medical malpractice suit. The case arose when the plaintiff sued a spa and its employee after allegedly being sexually assaulted during her massage in April of 2014. The plaintiff sued the spa (the massage therapist’s employer) for negligence in the training, supervision, and retention of the massage therapist. The defendant spa, in response, filed a motion for summary judgment. The spa argued that the plaintiff had not met the procedural requirements for filing a medical malpractice suit, since they had not filed the required certificate of good faith with the complaint. The question before the court was whether the common knowledge exception to the requirement applied—whether laypersons, using their common knowledge and without expert testimony, could decide whether the spa was negligent. If so, then the certificate was not needed because the case would not be subject to the requirement. If not, then the certificate was needed to file suit and the plaintiff’s suit must be dismissed. The common knowledge exception is common in many states, including Maryland.

The state supreme court ultimately determined that the common knowledge exception applied because no expert testimony was needed to decide this case. The court noted that the plaintiff was not claiming that the massage therapist negligently performed the massage, used improper technique, used excessive force, or anything of that nature. As such, no expert testimony was needed on the proper standard of care for massage therapists, force to be applied, or techniques. The question is one of sexual assault—which does not involve the technical or specialized knowledge of a medical professional. As such, the defendant’s motion for summary judgment had to be denied, and thus the plaintiff could move forward with her claim.

Most people know that when someone is injured in a Maryland accident of any kind, state law allows them to file a lawsuit against the negligent party. These personal injury suits can arise from car accidents, defective products, slip and fall accidents, or even dog bites. One type of claim is called a medical malpractice lawsuit, which arises from negligence on the part of a medical professional. For instance, if a surgery goes poorly because the surgeon was reckless, or if a medical professional fails to follow safety protocol when administering medication, they may be held liable in a medical malpractice lawsuit. These claims, however, can sometimes be more procedurally complicated, which can create barriers for plaintiffs if they do not follow procedural requirements carefully.

For example, take a recent state appellate case concerning the procedural requirements for filing a medical malpractice suit. According to the court’s written opinion, the plaintiff was the personal representative of the deceased’s estate. The deceased was in treatment at a hospital and receiving seven medications when she was transferred to a residential treatment facility. The hospital provided the treatment facility with the prescriptions for the medications, but not the medications themselves. The facility did not administer any of the drugs, and four days after the transfer, the patient died—allegedly from “a severe withdrawal syndrome.” The plaintiff brought suit against the hospital and the facility, alleging that they were negligent and either knew or should have known that suddenly failing to administer the medications was likely to cause severe withdrawal symptoms, including heart arrhythmias and seizures that could lead to her death.

In response, the defendants filed a motion to dismiss the plaintiff’s complaint for failing to comply with the requirements of a medical malpractice action. Many states have specific procedural requirements that a plaintiff must meet to file a medical malpractice suit. The defendants argued that the plaintiff did not meet these requirements, but the plaintiff in response argued that they did not need to meet these requirements because they were filing a claim for ordinary negligence, not medical malpractice. The trial judge denied the motion to dismiss, agreeing with the plaintiff that the complaint could be for ordinary negligence. On appeal, however, the appellate court reversed. The court found that a medical malpractice suit is one that arises from an act directly related to medical care or services, and that required the use of professional judgment or skill. In this case, the plaintiff’s claims clearly arose from such acts—the failure to render medical care or services. Because the court found that the claim was a medical malpractice one, and not an ordinary negligence one, the plaintiff was required to conform to other procedural requirements. The motion to dismiss was thus granted, since the plaintiff failed to do so.

In a Maryland malpractice case, a plaintiff may be able to bring a suit against a provider’s employer under the doctrine of respondeat superior, or vicarious liability. Vicarious liability allows an employer to be held liable for the acts of its employees, even without any fault on the part of the employer. Rather, the employer may be held liable based solely only on the employer-employee relationship. Generally, an employer may be held liable for the wrongful acts of an employee if the employee is acting in the scope of their employment. The doctrine is intended to hold employers accountable and because many times they can bear the financial burden better than an individual employee.

A state court recently heard a medical malpractice case involving the alleged vicarious liability of two different employers. In that case, the plaintiff underwent laparoscopic abdominal surgery at a hospital. She was admitted to the hospital after the surgery and her condition deteriorated. A second surgery was conducted, during which time they discovered a perforation in the plaintiff’s small bowel. She suffered catastrophic injuries that required her to undergo multiple surgeries and to be hospitalized for five months.

The plaintiff filed a medical malpractice lawsuit against the surgeon, the hospital, and the university that employed the surgeon. The plaintiff argued that the surgeon had perforated her small bowel during the first surgery, and that the staff failed to timely diagnose her condition and begin treatment. The university argued that the surgeon did not deviate from the standard of care during the surgery. It also argued that even if the surgeon did deviate from the standard of care, the plaintiff’s injuries were a result of the hospital staff’s failure to timely administer antibiotics.

When someone is injured or hurting in some way and needs surgery to fix it, it is important that they can trust their doctor to perform the surgery safely and skillfully. For the most part, surgeries in Maryland go off without a hitch. However, doctors are people just like everyone else, and sometimes they may be careless and make mistakes while performing the surgery, which can lead to serious injuries or even death. In these cases, Maryland state law allows the individuals injured, or their family if the victim dies or is otherwise incapacitated, to file a medical malpractice suit against the negligent doctor.

Like other personal injury cases, medical malpractice suits require the plaintiff to prove four main elements. First, that the defendant doctor or medical professional being sued owed the plaintiff a duty of care. In many cases, this is easily established because doctors generally owe their patients a duty of care. Second, that the defendant breached that duty of care, which typically is more difficult to prove and requires expert testimony. Third, that the breach was the proximate cause of the victim’s injuries. Lastly, that real damage occurred as a result, usually proved through medical bills and expert testimony. Failure to prove even just one of these four elements will typically result in the plaintiff’s suit being dismissed, leaving the plaintiff unable to recover for the harm they suffered.

A recent state appellate case provides an example of when a suit may be dismissed. The plaintiff suffered from temporomandibular joint syndrome, commonly referred to as TMJ, and visited the defendant oral surgeon. After several treatments did not work, the defendant performed intraoral surgery on the plaintiff. Part of the operation required using an oscillating saw, which could in some cases overheat and burn patients. Immediately after the surgery, the defendant noticed that the plaintiff’s face and lips were bruised and swollen, but assumed it was the normal swelling that occurs after surgery. However, when the plaintiff’s condition did not improve, it was discovered that she was suffering from second to third-degree burns.

The brachial plexus is a network of nerves between a person’s neck and shoulders that control one’s chest, shoulders, arms, and hands. A brachial plexus injury occurs if the nerves are stretched, compressed, or torn. A brachial plexus injury can occur during a birth, and a brachial plexus birth injury occurs in about one to three of every one thousand births. An injury can cause a loss of muscle function and even paralysis of the upper arm. Brachial plexus injuries can be the basis for a negligence claim in some Maryland birth injury cases.

A state appellate court recently decided a case involving brachial plexus injury that occurred during the course of a delivery. In that case, the mother was being treated by an obstetrician for her pregnancy. The obstetrician advised inducing labor because the mother was diabetic, in order to minimize any possible issues. The mother went forward with the elective induction. During the delivery, the doctor found that the baby’s shoulder was lodged against the mother’s public bone, and that the umbilical cord was wrapped around the baby’s neck. The obstetrician performed maneuvers to dislodge the baby’s shoulder in order to deliver the child, and the baby suffered a permanent brachial plexus injury.

A claim of negligence was filed by the parents against the obstetrician. They argued that the obstetrician failed to exercise ordinary care while delivering the plaintiffs’ baby, thereby causing the baby’s brachial plexus injury. The jury found the obstetrician was negligent and awarded the family $2.7 million in damages. However, before and after the trial, the obstetrician argued that the parents had to prove the higher standard of willful and wanton negligence because the obstetrician was providing emergency medical care at the time. Under a state statute, in cases involving the provision of emergency medical care, a plaintiff is required to prove willful and wanton negligence.

In a recent case before a state appellate court, the court considered whether a spouse could be added to a wrongful death claim after the statute of limitations had expired. In that case, a man was transported to a hospital via ambulance after he began bleeding from the area where he was receiving dialysis treatment. He died three days later. The man’s wife initially did not want to participate in the lawsuit and the man’s children sued several medical providers for wrongful death. The defendants argued that the case should be dismissed because the spouse was not a plaintiff in the suit. Under the state’s wrongful death statute, children can only bring a wrongful death claim if the deceased person does not have a surviving spouse. After the statute of limitations had passed, the plaintiffs attempted to add the wife to the claim. The trial court dismissed the suit against certain defendants because the wife had not filed the claim, but allowed it to continue against the providers.

The appeals court ruled that the court should have allowed the wife to be added. The court held that in this case, the amendment adding the spouse to the lawsuit after the expiration of the statute of limitation related back to the original complaint because it arose out of the same occurrence and the defendant would not be prejudiced. The court stated that a delay in filing was not enough to deny the amendment of the spouse. Therefore, the trial court should have added the wife to the case, and the court reinstated the case.

Possible Plaintiffs Under Maryland’s Wrongful Death Statute

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