Articles Posted in Medical Malpractice

The Illinois Supreme Court has approved a new plan that requires medical malpractice parties in two Illinois counties to seek mediation before suing in medical malpractice cases.

The hope is that both sides can come to an agreement to resolve the case without the necessity of lengthy (and costly) discovery and trial.

I hope this works, but I think most malpractice attorneys are skeptical. The problem in medical malpractice cases is that it is sometimes difficult to judge the strengths and weaknesses of the case, regarding both damages and liability, until extensive discovery has been done. Plaintiff’s lawyers often fume at the insurance companies’ unwillingness to make offers before they file suit, but this is often the best course for both parties.

The Baltimore Sun reports that the extension of a state program that subsidizes doctors’ malpractice insurance premiums is no longer in need considering a $68.6 million surplus reported by the state’s leading malpractice insurer, Medical Mutual Liability Insurance Society of Maryland.

Earlier this week, the new state Insurance Commissioner, Ralph S. Tyler, ordered Med Mutual not to proceed with plans to pay out the $68.6 million as a dividend until they determine how much should the State of Maryland receive to repay the $80 million paid out to subsidize doctors.

The Baltimore Sun reports that medical malpractice payouts in Maryland peaked in 2003 and have declined every year since 2003. The number of paid medical malpractice claims in Maryland has dropped 32 percent in the past three years, 50% more than the national average.

The debate over medical malpractice tort reform in Maryland has always been sung to the same tune: “Do we need to limit runaway juries by impeding their ability to award damages they deem appropriate?” The question implies that justice is not being served because juries are (1) wrongly siding against doctors on the question of medical negligence, and (2) awarding more in damages that justice requires. Both the doctors and their insurance companies and the medical malpractice lawyers and victim’s advocates argue their respective points through examples.

In this battle to tell the story that tells the story, the doctors will prevail because they illustrate the easiest of scenarios to latch onto mentally – excessive verdicts. It is hard to extrapolate anything from a zero verdict in a serious medical malpractice case because you would have to determine whether there was negligence. This would take way too much time for Joe Public.

(I do not say this condescendingly; there are lots of societal issues where I am the rather lazy Joe Public myself. We are cannot spend our time getting our minds around every issue of the day. Nor should we. We should, however, all be investing the time to figure out what is going on in Iraqi. Joe Public has not spent time on this issue either, and for this, he deserves scorn. I would continue on but I’m already digressing way more than I normally do or should.)

The District of Columbia Court of Appeals recently upheld a $3.5 million malpractice verdict after a 12-day jury trial against a Bethesda, Maryland obstetrician/gynecologist and Sibley Memorial Hospital in Washington, DC. After the verdict against both the doctor and the hospital, Sibley settled with the Plaintiff, but the doctor appealed.

The case stemmed from a dilation and curettage (D&C as it is commonly called) during which the OB/GYN inadvertently perforated the Plaintiff’s uterus, causing over three quarts of toxic bowel content to leak into her peritoneal cavity. The leakage caused her internal organs to be “continually bathed,” as the court called it, in infectious material, which led to multiple permanent complications.

• Get malpractice verdicts and settlements in D.C. (updated January 10, 2019)

The Maryland Daily Record reports on a Carroll County electrician who was recently awarded $2.3 million in a medical malpractice case by a Baltimore City jury. After a weeklong trial, the jury found the defendant doctor negligent for piercing the plaintiff’s spinal cord during a pain relief procedure.

Steroid Injections at Issue

Doctors have used therapeutic steroid injections for years.  The standard of care requires that any injectable substance that a physician puts into a patient is safe, sterile, and prepared to accepted industry standards. The standard of care also requires the doctor to know where the needle is going in the patients, which should be far removed from the spinal cord itself.

The Maryland State Bar Association annual meeting had a discussion group on a topic entitled, “A Cure for the Courts: Are Health Courts the Rx for Maryland?” The idea behind health courts is that specially trained judges would hear medical malpractice cases in Maryland, without juries present, deciding damages based on “schedules” for non-economic damages.

There are scores of problems with health courts. The most obvious is that the pesky little Seventh Amendment which guarantees a right to a jury. The guiding principle behind citizen juries is regular people deciding what constitutes acceptable behavior and what the damages should be for a person’s injuries. Because medical malpractice cases are frequently catastrophic injury cases, this is all the more reason the community values matter so much in achieving a fair outcome. Government chosen “experts” made specialized health court decisions that do not reflect the values of the local community regarding either liability or damages. The framers of our Constitution feared these kinds of concerns, reflected in the Seventh Amendment right to a jury trial.

I understand this panel was sparsely attended. This is not surprising. There is virtually no interest in health courts in Maryland, not even from medical malpractice defense lawyers, who you might have thought would have attended this discussion in droves.

Yesterday, an article by Brendan Kearney in the Maryland Daily Record reported on an insurance company’s plan to require its doctors to have patients sign waivers that limit both their rights and the amount of their damages. It starts out like this: “Eugene Rosov is passionate about what he does. ‘I live for this. It is the most important thing on the planet for me,’ Rostov said. ‘Pray God I’m not wrong.’ Was he talking about global warming or the war on terror? Try medical malpractice insurance. Rosov thinks the current method of settling malpractice claims is unfair… and jurors are not educated enough to understand the issues.”

Okay, where do I begin? The most important thing on the planet is medical malpractice policies that require doctors to limit patients’ rights? I’m speechless. Not just does this show a stunning lack of perspective, but it underscores the degree to which our opponents are fighting to limit the rights of medical malpractice victims.

Equally insane is the notion that juries are not smart enough to decide medical malpractice cases. Juries are too stupid to decide whether a doctor has committed medical malpractice, but are smart enough to consider whether the rule of reason should apply to an antitrust case or whether there has been a patent infringement. This stuff is all easy, right? I wonder if Mr. Rosov thinks juries should be able to decide which criminals to put to death.

This is one of the more depressing reports on medical malpractice that you will read. A recent study from Johns Hopkins has found that hospital staff members do not spot the vast majority of errors in pediatric chemotherapy until they have affected the child. According to the study, doctors and other health care providers failed to identify errors in dosage or administration of drugs 85 percent of the time. The figures drastically underestimate the number of errors in treating these sick children. But this does not mean that the child is not impacted by these medical mistakes. Many complications are never attributed back to chemotherapy because the child is so sick and at risk for so many complications.

Chemotherapy patients are vulnerable to these medical mistakes because there is no usual dose. The amount of chemotherapy received usually depends on body weight. Body sizes affect pediatric dosages. Chemotherapy exacerbates the problem because it is practically poison. Coming from someone who has taken chemotherapy, it is poison. For example, if you take three times the amount of OxyContin, you will sleep a little longer than you like, but no actual harm occurs. With chemo, this margin of error does not exist.

The Maryland Personal Injury Lawyer blog specifically avoids being trite or preachy. But let’s put that aside, just for today. Doctors and other health care providers have to be more careful in treating some of the sickest and our most innocent patients.

The Virginian-Pilot had an interesting article (the link is now lost) on Saturday regarding the punishment that the Virginia Board of Medicine gave to a Virginia Beach doctor who had admitted fabricating a patient’s vital signs during minor bunion surgery at Sentara Bayside Hospital. He prewired the oxygen saturation levels and EKG readings before her surgery.  Bunion surgery.  And she is dead.

The reason we know this little shortcut is that the patient, a mother of four boys, suffered catastrophic brain injuries during surgery, slipped into a coma and died.  A mother of four kids for no reason.  How frustrating it must be for the family to experience this tragedy.   They might at least think they would protect someone else’s mother.

Medical malpractice is the country’s third-leading killer behind heart disease and cancer. Decent doctors, who made unintentional medical errors while trying to do the best they could for the patient, cause most of these deaths.

A recent study by the “Journal of General Internal Medicine” found that doctors are loath to admit medical mistakes. Virtually every doctor in the study of 538 doctors surveyed – 97 percent – agreed that they would report a theoretical medical error. But only 41 percent said they had disclosed a minor medical error they made.

Half the doctors surveyed believe they have never made even a minor medical mistake. “It seems fair to assume that all of us have made at least a minor error, if not a major error, sometime in our careers,” Dr. Lauris Kaldjian, a University of Iowa professor of internal medicine said, stating the obvious to the Kansas City Star.

This study conjures up memories of the doctor Alec Baldwin’s character Jed Hill pretended to be in the movie “Malice”. Do this many doctors really believe they have never made even a minor mistake in their entire careers?