Articles Posted in Medical Malpractice

The Maryland Court of Appeals> overturned a lower court in a 4-3 decision in Goldberg v. Boone, a Montgomery County informed consent case.

Facts of Goldberg v. Boone

Plaintiff underwent a mastoidectomy (an operation on the mastoid bone, which is the prominent bone behind the ear, to remove a cholesteatoma (a rare condition in which skin cells proliferate and debris collects within the middle ear). During the procedure, the doctor accidentally drilled a hole into Plaintiff’s skull.

Sixteen years later, Plaintiff saw the medical malpractice defendant otolaryngologist in Rockville, Maryland. The Defendant doctor determined that Plaintiff had another cholesteatoma and performed an outpatient revisionary mastoidectomy on Plaintiff to remove the second cholesteatoma.

The day after the procedure, Mr. Boone began having trouble reading, remembering names, and recalling words. Subsequent MRI and CT scans revealed hemorrhaging and an opening in his skull.

Plaintiff’ filed a complaint against the subsequent doctor, alleging the doctor committed malpractice by negligently puncturing the Plaintiff’s brain with a surgical instrument during the revisionary mastoidectomy, causing serious and permanent brain damage. The plaintiff also alleged that the defendant’s medical doctor failed to inform him that, because of the hole in his skull, the procedure would be more complex than a standard revisionary mastoidectomy and that there was a risk of sustaining brain damage from the procedure.

The plaintiff alleged that there were surgeons more experienced available to perform the procedure in Maryland than the defendant who had performed only one revisionary mastoidectomy in the past three years.

Jury Award

After two days of deliberations, the jury awarded Plaintiff $113,000 for loss of past and future earning capacity, $355,000 for past and future medical expenses, and $475,000 for non-economic damages. The total award was $943,000.

Maryland Court of Appeals Opinion

The Maryland Court of Appeals’ opinion is long. I think two issues are of particular interest: one just for general interest; the second makes what may not be new law but flushes out the extent to which the decision on what they leave to the jury. The issues are:

(1) Where a retained expert is asked a single cross-examination question about his prior inconsistent testimony when testifying on behalf of one infamous Maryland sniper defendant, does that question warrant reversal of the denial of a mistrial motion?

(2) Whether it is a jury question on informed consent when the defendant medical doctor did not disclose his relative inexperience in performing the procedure and advising the Plaintiff that there were more experienced doctors in Maryland available to perform the procedure. Continue reading

Last week, a Baltimore County jury awarded a $2.3 million jury verdict in a stroke misdiagnosis medical malpractice suit in Towson.

The trial before Baltimore County Circuit Court Judge Dana M. Levitz took six days, and the jury deliberated for seven hours before returning a verdict, according to Plaintiff’s medical malpractice lawyer.

Facts

Yesterday’s USA Today ran a story about the often preventable tragedy of undiagnosed heart attacks. It told the story of James Pettry, who woke early one morning short of breath and sweating profusely. His wife dialed 911. The paramedics gave Mr. Pettry oxygen and aspirin and then used an electrocardiogram machine to examine the heart’s electrical function. They believed he had a heart attack and took him 3 miles to the hospital. The emergency room doctor disagreed. The doctor ran some tests, diagnosed him with anxiety, and sent Mr. Pettry home nearly five hours later.

We all know where this story is going. Mr. Pettry died the next day, joining the list of thousands every year who die every year from heart attacks left undetected. In fact, researchers from New England Medical Center in Boston reported in the New England Journal of Medicine in April 2000 that emergency room doctors mistakenly send home one in 50 heart attack victims. Other studies have documented higher rates of missed heart attack diagnosis.

The defendant says that his patient died from chronic heart disease that had no connection to the symptoms that landed him in the ER.

We have seen an increasing number of recent client calls questioning the quality of the care that a family member or friend is receiving in a nursing home. Over 1.5 million Americans are in nursing homes with 30,000 of them in Maryland. That number is rising fast as America continues to age. Baltimore County alone has 49 nursing homes and 299 assisted-living facilities.

How Much Are Baltimore Nursing Home Cases Worth?

According to Jury Verdict Research, 60 percent of personal injury trials involving nursing home abuse or neglect result in plaintiff verdicts. The median verdict is $192,977. The median verdict alleging malpractice in the treatment of a nursing home patient is $275,000.

The Maryland Court of Special Appeals today decided the informed consent medical malpractice case of Mahler v. Johns Hopkins University. The court overturned a Baltimore judge’s decision to grant a motion for judgment notwithstanding the verdict to Johns Hopkins and a defendant doctor.

Here, the Plaintiff underwent plastic surgery to improve the cosmetic appearance of his chin in 1993. The surgery was performed at Johns Hopkins Hospital by the Defendant surgeon. Because of that surgery, he suffered permanent disfigurement. Plaintiff argued that there was no informed consent because the Defendant surgeon did not disclose the material risks of the surgery to him. Plaintiff hired a Baltimore medical malpractice attorney, who sued the surgeon and Johns Hopkins Hospital in Baltimore, Maryland.

This case was tried twice. The first trial ended in a verdict for the Plaintiff and an award of $50,000 in economic damages and $500,000 in non-economic damages. Interestingly, the trial judge, Baltimore City Circuit Court Judge Allen Schwait, believed that he had erred in allowing certain evidence at trial (and because he found it excessive as well). To remedy his error, he reduced the malpractice verdict to $112,500 ($100,000 in non-economic damages and $12,500 in economic damages).

Medical malpractice plaintiffs receive a median award of $934,487 for medical malpractice claims involving surgical negligence and improper medication, according to a recent Jury Verdict Research study that looked at malpractice cases nationally in the last seven years. Plaintiffs have a 36% chance of prevailing in these cases. The following statistics are the likelihood of a successful verdict:

Failed Sterilization 35%

Catheterization 39%

There are a variety of treatment modalities to treat blocked coronary arteries: drugs, bypass surgery, and vessel-clearing procedures like angioplasty. In Elyria, Ohio, doctors are four times more likely to direct patients towards angioplasty. This procedure typically involves threading balloon catheters through arteries and sometimes placing drug-coated stents to unblock them.

Virtually all the procedures at the Elyria hospital are performed by a group of cardiologists who dominate cardiovascular care in Elyria. These doctors have a unique enthusiasm for angioplasties which, relative to the other available treatment options, is the most profitable. Medicare pays Elyria’s community hospital, EMH Regional Medical Center, about $11,000 for an angioplasty involving the use of a drug-coated stent.

There is no medical malpractice action to be had for this high rate of angioplasties which is probably why this practice has gone on unchecked (although the insurance companies and Medicare are growing concerned at the cost of these procedures and have investigated). This reminds me that medical malpractice lawyers in Maryland and around the country serve a great public utility to keep patients safe. You often hear how doctors complain that medical malpractice lawyers make them practice medicine too defensively. This seems like a tough argument because the federal government’s data shows that 100,000 people die from medical malpractice every year. But perhaps this is so. But if this also means that doctors will take a little extra care to avoid committing medical malpractice, I do not care what the motive is. It is a good thing. In fact, one would think even doctors themselves, considering this medical malpractice statistic, would not mind the legal community keeping them on their toes with so many lives at stake.

In Maryland, to bring a medical malpractice complaint against a doctor, you must get a certificate of merit by a medical doctor that the negligent doctor breached the standard of care and caused injury to the injured plaintiff. The qualifications of the medical doctor depend on the subject of the particular claim.

But this there is no getting around this statute.  The certificate of a qualified expert is a required step in pushing a malpractice case forward.  If it does not follow the certificate requirement, the court will dismiss a circuit court action.

Certificate of Merit Hurdle in Maryland

On Friday, I gave a small diatribe about the foolishness of allowing a doctor’s attorneys, after getting hit with a $28 million medical malpractice verdict, to bring back the jurors to essentially cross-examine them on their answers during voir dire. I explained that Maryland lawyers could not pull this stunt under Maryland law and why I thought the law prohibiting the losing lawyers from bringing back jurors after a trial was prudent. I wrote that I hoped the Florida court would treat this case similar to the approach a Maryland court would take.

This was a jinx. The Associated Press reports that Florida Circuit Court Judge Debra S. Nelson ordered the jurors back to court, questioning them about their answers during voir dire. After two hours of argument after this questioning, the judge threw out the $28 million verdict and ordered a new trial because three of the jurors did not respond affirmatively to the Plaintiff’s malpractice attorney’s question during voir dire about prior lawsuits in which they were involved.

Withheld Lawsuits from Judge