Articles Posted in Medical Malpractice

I had a great morning. I arrived excited and ready to attack the day. This was the email in my in-box:

Let’s start with the petty. We have a guy whose email address is his job as an emergency room doctor. Proves nothing. But it makes you wonder if Dr. Hossfeld is just a little too excited about being Mr. Doctor. People like that scare me. I’m not a fan of summarizing my life in an email address or a bumper sticker. If I did, it would have the names of my family and friends on it and that would be too long to type.

Let’s move on from the petty to the substantive because I could read too much into an email address. We have four sentences, so let’s break them down and over analyze them to get ready for the NFL pre-game shows on Sunday. We will leave out the “hysterical laughter at every attempt at a joke from everyone in the studio” part: Continue reading

In another big informed consent opinion, the Wisconsin Supreme Court in Bubb v. Brusky overturned the trial court and an intermediate Wisconsin appellate court in finding that a doctor had to inform his patient of the treatment options if the medical community is split as to the course. This case strikes me as a cousin of McQuitty v. Spangler, the Maryland high court informed consent opinion that I wrote about yesterday. Every Maryland malpractice lawyer should read this opinion along with McQuitty. But while these are long, complicated opinions, we can distill both down to this: informed consent requires doctors to inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. Period. The take-home message I get from these cases is that defendants’ malpractice lawyers can save the circuitous legal arguments that run afoul of this common-sense notion.

Here, lawyers on both sides agreed that a highly stenosed carotid artery puts a patient at greater risk for having a stroke and that a Doppler evaluation was a reasonable option that would have diagnosed the stenosed carotid artery in this case. But the doctor’s lawyer argued that a consulting doctor has no duty to inform a patient and that there was no apparent consensus in the medical community on whether the standard of care required carotid Doppler ultrasounds to detect artery blockage in patients suffering a TIA.

The trial court agreed, refusing to allow jurors to consider an informed consent claim that the doctor should have advised the Plaintiff of alternative treatment options.

Big summer for the Maryland Court of Appeals in personal injury/medical malpractice appellate opinions. The latest in a recent spate of Maryland high court opinions, McQuitty v. Spangler, involves a tragic case of a boy who was born with severe cerebral palsy.

Facts of this Birth Injury Case

The plaintiff’s lawyer argued at trial in Baltimore County that the doctor breached the duty to obtain her informed consent.  The allegation is that when he failed to inform the mother, who was hospitalized for a partial-placental-abruption, of risks and available alternative treatments related to material changes in her pregnancy: a second partial-placental-abruption, oligohydramnios, and intrauterine growth restriction. A partial placental abruption is the premature separation of a portion of a woman’s placenta from the interior wall of her uterus. Partial placental abruptions vary in degree but the larger the separation, the greater the risk to the unborn child.

The mother faced an awful choice: either take the baby early or assume the risks that come. No one should have to even have the option of making such an awful decision. The informed consent argument in this malpractice case was that material facts were learned about the degree of separation on which a reasonable person could have made a different decision, and the doctor allegedly did not communicate these facts to the patient.

At trial, which found the doctor did not commit medical malpractice, the jury could not reach a verdict on the question of informed consent. In a second trial held two years later, the jury awarded the family over $13 million. Even in a cerebral palsy case, that is a big verdict in a Baltimore County, a place plaintiffs’ lawyers universally believe is a challenging jurisdiction. Continue reading

How many medical malpractice trials have there been in Washington D.C. this year? Ummm, let’s see, medical malpractice lawsuits are out of control. I know this because I read the Forbes article repeating the “malpractice lawsuits are running amok and medical malpractice lawyers are the problem” mantra. So how many do you guess? 150? 250? The correct answer, according to a report given by the D.C. Superior Court, is six.

The score is 3-3, three malpractice verdicts for the plaintiff and three defense verdicts. It must be that the juries are handing out whopping malpractice verdicts. We know this because we have heard it so many times before. So, back to the guessing game theme for today, how much did the juries award in these three malpractice jury verdicts? $20 million? $40 million? The answer is $366,775.24. But even that number is misleadingly high. The largest verdict – $131,775.45—was taken away by the trial judge. So the total amount of malpractice jury awards in Washington, D.C. in 2009 is $235,000.

Ladies and gentlemen, I present to you, your medical malpractice crisis.

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The Washington Post has an article today about doctors who seek pledges from their patients not to complain on websites about the health care services they receive.

Let’s set aside the obvious for a second that these agreements are very unlikely to be enforceable, either legally or practically. First, wouldn’t you be embarrassed to ask? I think expressing concern before a patient has so much as opened their mouth and said, “Ahhhhhh” just gets the doctor-patient relationship off on the wrong foot.

Still, it is disconcerting that anyone can leave—with no filter—any comment that they want about anyone, be it on Facebook or some other social network, or reviews of doctors and lawyers. Psychologically, it takes a lot of positive comments to make up for one negative review. I was looking at which Kindle to buy recently and Amazon gives you all the consumer reviews, including the one that other consumers found the most helpful. Both Kindles I was looking at received positive reviews. But I could not help but focus on the few negative minority reports that I read. Continue reading

The Maryland Daily Record reports that a Frederick County jury awarded nearly $4 million to a boy in a birth injury malpractice lawsuit. The gist of the lawsuit was that the child’s cerebral palsy was caused by his doctors’ failure to properly monitor his heartbeat before delivery.  The fetal heart monitor is the baby’s way of communicating with us.  If the doctors and nurses do not listen, tragedy often follows.

The jury’s verdict was against an ER doctor and an obstetrician. Three nurses, a third doctor – another ER doctor – and Frederick Memorial Hospital were not found liable.

Facts of the Cerebral Palsy Case

The nature of the claims for at least two of the doctors (I’m not sure of the claims against the third) that were allegedly a substantial contributing factor in the child’s cerebral palsy was different. The emergency room doctor ostensibly shared his concern about the mother at 5:45 a.m. but did not see or evaluate her. The obstetrician allegedly was told about the concerns with the patient at 7:00 a.m. but did not see her or order that she be sent to labor and delivery.

Yet all three doctors were represented by the same attorney. As I have written before, Defendants’ lawyers are moths to the flame of presenting a united front against Plaintiffs. But I would think the obstetrician would have liked to say, “No one did anything wrong but, sure, I relied in part on the fact that I assumed the ER doctor would have looked at the problem if there were immediate concerns.”

Now, that exact defense might be inapplicable to the facts of this malpractice case but some derivative version of that defense is almost invariably applicable when a medical malpractice lawsuit makes allegations against different doctors.

Again, I do not know all the relevant facts and there could be other facts present in this cerebral palsy case that would make one lawyer handling the claims of all three doctors an understandable strategy. This is obviously Monday morning quarterbacking after a bad medical malpractice verdict – which is easy to do. We consider the attorney who represented the doctors one of the best medical malpractice lawyers in Maryland.

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They wrote an opinion of interest to attorneys who receive referrals from other Maryland lawyers in malpractice cases.

This case involves a Maryland lawyer who referred a cancer misdiagnosis case involving an allegedly misread mammogram to a lawyer that handles medical malpractice cases, agreeing to a fee split. Before referring the case out, the original lawyer filed the malpractice lawsuit.

The Defendant sought summary judgment, claiming the statute of limitations had tolled because the alleged failure to diagnose cancer occurred over three years after limitations had passed. Plaintiff prevailed on summary judgment. The opinion does not say, but I assume it was a discovery rule issue—the patient did not know of the malpractice until after it had occurred.

Then things got interesting. The malpractice case settled the claim for $225,000, far less than the referring lawyer had hoped. Allegedly, the medical malpractice lawyer sold the clients on the settlement by “deliberately misle[ading] the [Plaintiffs] into settling by telling them limitations remained a ‘serious concern’”; “telling them that they had been victims of malpractice by [the referring lawyer]”; and “suggesting to them that they sue [the referring lawyer] for malpractice.” Continue reading

Maryland’s nursing homes had an “off year” according to Jay Handcock’s blog for the Baltimore Sun.

The Government Accountability Office reports that citations in Maryland for inflicting residents with “actual harm” or putting them in “immediate jeopardy” were given to 17% of Maryland’s 234 nursing homes last year. This is more than a 100% increase from last year.

There is a bill in the Maryland House of Delegates that would require Maryland nursing homes to give people the choice of installing cameras to monitor their loved ones. What would that cost these assisted care facilities? Nothing. The patients or their families would pay for the camera themselves.