Articles Posted in Medical Malpractice

On July 11, 2019, a federal appellate court issued a written opinion in a case that raises an interesting and important issue for those who are considering filing a Maryland medical malpractice case. Specifically, the case required the court to determine whether the plaintiff’s evidence proved that the defendant’s conduct breached the duty he owed to the plaintiff’s daughter.

According to the court’s opinion, the plaintiff was the mother of a baby who was born with severe brain damage. Evidently, when the baby was born, she exhibited signs of respiratory distress. The hospital where the baby was born did not have a neonatal intensive care unit (NICU). Thus, it was common for hospital staff to transfer babies in need of serious medical attention to the nearest NICU.

The doctor overseeing the baby’s care, however, determined that the baby could be appropriately cared for at the hospital’s “Max Care Nursery.” After monitoring the baby for a few hours with no improvement, the doctor consulted with another specialist. The specialist took the baby under his care and eventually transferred the baby to the nearest NICU. As a result of respiratory distress, the baby suffered severe brain damage. The plaintiff filed claims against all doctors who treated her child, as well as the hospital. However, only the doctor overseeing the baby’s care remained, as all other defendants settled with the plaintiff.

While all personal injury cases are subject to certain procedural rules, the rules that apply to medical malpractice cases are perhaps the strictest. For example, Maryland medical malpractice cases are subject to strict timelines and require plaintiffs to provide an expert affidavit explaining that the plaintiff’s claim has merit.

Because Maryland medical malpractice cases are subject to strict rules, there is often litigation as to whether a plaintiff’s claim is being brought under a theory of medical malpractice or if it is a claim of simple negligence. In almost all cases, the plaintiff will claim that the case is one of simple negligence, while the defendant will argue the case involves a claim of medical malpractice. If a defendant can convince the court that the plaintiff’s claim is one of medical malpractice, it may be too late for the plaintiff to comply with the procedural requirements, thereby defeating the claim entirely.

While the specific factors used by the courts to resolve these disputes are complex, the determination essentially comes down to whether the plaintiff is making a claim of professional negligence and, if so, whether the claims present issues that are beyond the common understanding of most jurors. A recent opinion illustrates that it is not always easy to determine whether a case is brought under a theory of medical malpractice or traditional negligence.

Among a judge’s many roles is the responsibility to instruct the jury on the applicable law of the case. Generally speaking, a judge has discretion in how the jury is instructed; however, a judge’s instructions must accurately state the law. A recent Maryland medical malpractice case presented to the Maryland Court of Appeals illustrates the broad discretion trial judges have when deciding how to instruct the jury.

The Facts of the Case

According to the court’s opinion, the plaintiff visited the defendant doctor, complaining of numbness in two of his fingers. The doctor recommended surgery, and the plaintiff agreed. The defendant doctor performed the surgery, however, afterward the plaintiff developed a serious infection at the surgical site. The infection resulted in long-term pain and a reduced range-of-motion.

The plaintiff filed a medical malpractice lawsuit against the defendant doctor. After the conclusion of both party’s evidence, the trial judge instructed the jury on several issues, including the law governing the plaintiff’s medical malpractice claims against the defendant. The court began by providing the jury with the general negligence instructions, and the followed with the more specific medical malpractice instructions on the issue of informed consent. The defendant objected to the judge providing the general negligence instructions, arguing that it only misled the jury because the plaintiff’s case was not based on a theory of traditional negligence.

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Recently, a state appellate court issued an opinion in a case illustrating the importance of meticulously following the procedural requirements of a Maryland medical malpractice lawsuit. Specifically, the case involved a plaintiff’s failure to provide sworn expert testimony.

The Facts of the Case

According to the court’s recitation of the facts, the plaintiff scheduled a knee surgery at the defendant medical center. Shortly after the operation was completed, the plaintiff began to suffer shortness of breath. One of the defendant doctors placed the plaintiff on oxygen and ordered an X-ray. The plaintiff was subsequently discharged. A few days later, the plaintiff returned complaining of shortness of breath. The plaintiff was diagnosed with pneumonia and exhibited signs that she had suffered a stroke.

The plaintiff filed a medical malpractice case against several of the medical providers, as well as the medical center. The defendants moved for summary judgment based on the plaintiff’s failure to attach any sworn expert testimony. The plaintiff responded by providing the name of an expert witness she expected to testify and a brief unsworn summary of what the expert’s testimony would cover. The defendants argued that the unsworn summary was not sufficient, and sought dismissal of the plaintiff’s case.

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Under Maryland Courts and Judicial Proceedings Section 3-2C-02, a Maryland medical malpractice claim “shall be dismissed … if the claimant fails to file a certificate of a qualified expert with the court.” This requirement was initially implemented to deter the filing of frivolous medical malpractice lawsuits and to ensure that meritorious claims are heard expediently. However, over time the requirement has become the focus of significant litigation as medical professionals routinely attempt to use it as a defense to any claim made against them.

Earlier this month, a state appellate court issued a written opinion in a personal injury case discussing the expert-affidavit requirement. Ultimately, the court concluded that the alleged negligence of the medical professional was not “directly involved” or “proximate” to the procedure the plaintiff was undergoing. Thus, the court held that the requirement did not apply.

The Facts of the Case

According to the court’s opinion, the plaintiff was scheduled to have a hysterectomy. Before the surgery began, the defendant anesthesiologist attempted to intubate the plaintiff. However, while the defendant was in the process of intubating the plaintiff, the power went out. While the lights were out, the defendant allegedly dropped a medical tool on the plaintiff’s tooth, chipping it.

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In Maryland medical malpractice lawsuits, the plaintiff must follow certain procedures that are not required of other personal injury plaintiffs. Primarily, this consists of filing a compliant certificate of merit.

Under Maryland Code section 3-2C-01, the certificate of merit must contain a statement from an expert who is “knowledgeable in the accepted standard of care in the same discipline as the licensed professional against whom a claim is filed.” The affidavit must contain a statement that the defendant doctor’s care was a departure from the applicable standard of care and that the defendant’s breach of this duty was the cause of the plaintiff’s injuries.

The objective of the certificate of merit requirement is to ensure that only meritorious claims are filed and pursued. However, occasionally, the requirement can get in the way of even meritorious claims. As a recent opinion illustrates, a simple misstep by a plaintiff can result in the dismissal of their lawsuit.

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When a Maryland nursing home resident is injured due to the alleged negligence of a nursing home employee, the injured resident and their family may be entitled to monetary compensation for the injuries sustained. However, depending on the circumstances surrounding the accident that caused the injury, the victim may need to file the case as a Maryland medical malpractice case.

Generally speaking, under Maryland’s Health Claims Act, claims based on a “medical injury” filed against a “health care provider” must comply with certain additional requirements to which other Maryland personal injury cases are not subject. Essentially, the question is whether the claim arose from the provision of health care or health care-related services. However, it is not necessarily clear whether a specific claim fits within this class of cases. A recent case illustrates one Maryland court’s attempt at resolving a dispute involving a nursing home resident’s fall.

The Facts of the Case

The plaintiff was a resident at the defendant nursing home. One day, while lying in bed, the plaintiff fell off the bed because the mattress was not secured to the bed frame. The plaintiff remained on the floor for approximately 45 minutes before a nursing home employee arrived to assist her.

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Earlier this month, a state appellate court issued a written opinion in a medical malpractice case illustrating the importance of complying with all procedural rules in medical malpractice cases. Indeed, the point is especially important for Maryland medical malpractice plaintiffs to understand because very similar requirements apply under Maryland state law.

The Facts of the Case

The plaintiff was the parent of a child who was born with serious injuries and birth defects. The defendant was the delivering physician. The plaintiff filed a medical malpractice lawsuit against the defendant, arguing that the care provided by the defendant fell below the generally accepted level of care and that this lapse was the cause of her child’s injuries.

Under state law, the plaintiff had 60 days to file an affidavit of merit from a qualified expert in the field. However, due to an admitted lapse on the plaintiff’s attorney’s part, the affidavit was not filed. The defendant filed to dismiss the case based on the plaintiff’s failure, and the court granted the defendant’s motion. The plaintiff appealed to a higher court.

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All Maryland personal injury cases must be brought within a certain amount of time, as outlined in the relevant statute of limitations. In most Maryland medical malpractice cases, the statute of limitations requires that the case be filed before three years has elapsed since the injury.

While determining the applicable statute of limitations is often an easy task, determining when the cause of action accrued – and thus, when the “clock” starts ticking – can be a more difficult task. A recent appellate opinion in a medical malpractice case wrestles with the issue of when a plaintiff’s cause of action accrues.

The Facts of the Case

The case involved two sets of parents, each of whom received in-vitro fertilization procedures provided by the defendant doctor. In each case, the defendant implanted a fertilized egg from a donor into the wife. The wives were later determined to be pregnant, and they gave birth to seeming healthy children. One couple had a single child, and the other couple had twins.

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Earlier this month, an appellate court in Montana issued an opinion presenting an interesting issue dealing with the amount of time a victim has to bring a claim against a medical professional. The question posed in the case is relevant to anyone considering bringing a Maryland medical malpractice lawsuit because Maryland courts, like the court that authored the opinion, apply a strict statute of limitations in medical malpractice cases.

The Facts of the Case

The plaintiff suffered from chronic knee pain after twisting her knee at work in 2007. The plaintiff sought medical care from the defendant orthopedic surgeon. The defendant performed a small surgery on the plaintiff, and in so doing noticed that her ACL was partially torn. Initially, the defendant did not believe that the risks of surgery to repair the ACL were worth the potential gains, but in 2008, the defendant performed ACL surgery on the plaintiff.

There is conflicting evidence as far as the plaintiff’s condition after the second surgery. The defendant’s notes indicate that the surgery went well and that the plaintiff was recovering as expected. However, the plaintiff testified that she was in constant pain and that she was not sure why. Eventually, the defendant performed a third knee surgery on the plaintiff.

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