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.
As the court explained the facts, the plaintiff went to a spa to get a neck massage. The plaintiff claimed that, during the massage, the defendant massage therapist compressed the plaintiff’s vagus nerve. This caused the plaintiff to lose consciousness and strike her head and shoulder on the ground.
Two-and-a-half years after her injury, the plaintiff filed a negligence claim against the massage therapist. The jurisdiction where the case was filed requires medical malpractice claims be filed within two years from the date of injury. The massage therapist argued that the plaintiff’s case should be dismissed because it was based on medical malpractice and was brought after the applicable statute of limitations. The trial court agreed with the massage therapist and dismissed the plaintiff’s claim. The plaintiff filed an appeal.
On appeal, the case was reversed in favor of the plaintiff. Citing relevant statutory law, the court explained that medical malpractice cases are those that allege a violation of a “professional” duty. The question the court had to answer was whether a massage therapist is a “professional” under the medical malpractice statute.
The court concluded that massage therapists are not considered “professionals” under the terms of the statute and thus, the plaintiff’s case did not trigger the medical malpractice procedural requirements. In so holding, the court relied primarily on the relatively lax requirements to become a massage therapist compared to the more rigorous education and licensing requirements needed to become a doctor or lawyer. The court explained that massage therapists did not require “long and intensive training or preparation, including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, which would be comparable to that of a college degree.” Thus, the court held that the plaintiff’s case should be permitted to proceed to trial.
Have You Been Injured in a Maryland Accident?
If you or someone you care about has been injured in a quasi-medical setting, do not be intimidated or deterred. At the Maryland personal injury law firm of Lebowitz & Mzhen, LLC we represent clients in Maryland medical malpractice claims as well as other personal injury cases. With over 20 years of experience handling all types of personal injury and medical malpractice cases, our dedicated team of attorneys is ready to help you pursue a claim for compensation base on the injuries you have sustained. To learn more, call 410-654-3600 to schedule a free, no-obligation consultation today.