Articles Posted in Medical Malpractice

As I have said before, a jury trial is about assigning blame.  The three suspects are the plaintiff, defendant, or “it happens.”  Defense lawyers’ preference is being able to blame the plaintiff.

In medical malpractice cases, the plaintiff often makes choices that put them in the spot of needing treatment or surgery.

The most classic case is a lung cancer misdiagnosis case where the plaintiff smoked two packs of cigarettes a day.  Yes, the guy got cancer because he smoked.  But that does not relieve the doctor of the obligation to see what is there to be seen and uncover his lung cancer if there are signs and symptoms that are there to have been seen.  In Barbosa v. Osbourne, the Maryland Court of Appeals took a more nuanced look at when contributory negligence can be applied to medical negligence cases.

Jury Verdict Research has some interesting statistics on the value of different types of medical malpractice.

Malpractice cases are among the toughest to pick. We have taken great pride in getting verdicts and settlements in malpractice cases that other lawyers have summarily turned down. It really makes you feel super smart when that happens. But I know we have turned down many seven-figure malpractice cases in the last 10 years. Everyone approaches these cases from various angles and sometimes one malpractice attorney sees what another attorney does not.

What These Malpractice Statistics Show?

More often than not, a jury trial in a wrongful death or severe injury case is about assigning blame.  Jurors want someone to blame for the harm that was caused.  Usually, this is either the plaintiff or the defendant.  In medical malpractice cases, jurors may also point to bad luck as the cause.

For defense lawyers, one of the best targets for responsibility is an empty chair, either a dismissed or unnamed defendant.  This is a more substantive target than mere bad luck and it allows the jury to meet its perceived obligation of assigning clear responsibility.  It is also just helpful to point the blame to someone who is not in the room to defend themselves.  In Copsey v. Park, the Maryland high court addressed the question of whether the defendant could point to the empty chair of doctors who had already settled before trial.

Facts of Copsey

The Maryland Court of Appeals granted cert in five cases yesterday.  One of the cases, Davis v. Frostburg Facility Operations, is of interest to Maryland medical malpractice lawyers because it addresses the question of what constitutes an allegation of medical malpractice that invokes the Maryland Health Claims Act.

Facts

Davis is a nursing home type case.  According to the Complaint, the Plaintiff was admitted to Frostburg Village, a nursing rehabilitation center in Allegany County,  following back surgery. Two days later, Plaintiff’s mattress came loose from her bed and “slid off the bed frame, causing Ms. Davis to fall to the floor.”  The facility used a mechanical lift to put the woman back in bed because Frostburg is a no lift facility.  The nurse allegedly used the lift improperly — releasing the net holding the patient too soon — and dropped her on the floor.

Last week, in Henneberry v. Pharoan, the Maryland Court of Special Appeals looked at whether there can be a breach of contract lawsuit that runs concurrently with a medical malpractice claim.  The case clarifies Maryland law on when a breach of contract claim might jibe with a medical malpractice claim.

The Facts

The gist of the plaintiff’s complaint is that the doctor failed to completely resect the entire appendix, which necessitated another surgery.  While undoubtedly a traumatic event for the plaintiff, this is not a serious case by medical malpractice standards.  We have been making it a point to follow every malpractice case that gets filed in Maryland. This is the bottom 10% of medical malpractice lawsuits in Maryland regarding the severity of injury (of non-dental malpractice claims).

Sepsis is a silent killer that should be diagnosed and treated with the same urgency as a heart attack.  But it is not treated with urgency, making it is the one reason why so many medical malpractice lawsuits in Maryland involve either missed sepsis diagnosis or a failure to adequately treat this infection. Sepsis is a catastrophic health problem responsible for over 250,000 deaths per year in this country.  There are over 20,000 cases of sepsis in Maryland hospitals every year. Do you think Donald Trump’s wall is too expensive?  We spend more $20 billion dollars on the diagnosis and treatment of sepsis.  It is the most expensive condition treated in hospitals and a lot of that cost is care rendered after a doctor makes a mistake. Continue reading

Here is an interesting look at the first 20 medical malpractice lawsuits filed in Maryland in 2016 with a brief summary of plaintiff’s allegations in the case.   You can get all malpractice lawsuits filed in Maryland in 2017 up until April on our website.

1. Hall v. Genesis Healthcare, LLC (filed on January 4, 2016): This is a bedsore case in Prince George’s County. Genesis Healthcare fails to take the proper precautions to prevent bedsores from developing on the woman’s body. Woman dies, and her two surviving sons bring a wrongful death lawsuit.
2. Stanford v. United States – (January 5, 2016): This is a cancer misdiagnosis lawsuit in U.S. District Court in Baltimore. Biopsy performed with an inadequate specimen. A better specimen would have revealed Stage I cancer that is usually curable by surgery. Stage III cancer discovered three years later. Prognosis is death within five years.

Johns Hopkins is quite possibly the greatest hospital in the history of the world.  People come from all over the world to get the best medical care that Hopkins can provide.

Delayed removal response means the claim against Hopkins will be in federal court

The U.S District Court in Baltimore decided this week a case involving a woman who traveled from Kuwait to get treatment at Hopkins to get cancer treatment only to lose her leg.  She believes she lost her leg because the doctors at Hopkins committed malpractice.  The question in the case is whether this medical malpractice lawsuit against Johns Hopkins should be heard in federal court on in state court.

I don’t know if negligence caused this woman to lose her leg.  But I do know that as great of a hospital as Johns Hopkins is, mistakes do happen there that cause severe injuries and death.  Like any hospital, Hopkins has bad doctors and good doctors that sometimes make poor decisions.

This case is not about what happened to the patient.  Instead, the question is whether this medical malpractice lawsuit against Johns Hopkins will be heard in federal court on in state court.  In a blow to the Plaintiff, the court ruled that this case will be heard by a federal judge and jury.

• Video discussing medical malpractice lawsuits against Johns Hopkins

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Would you rather sue a healthcare provider for negligence in Health Claims as a medical malpractice case or would you rather file a simple negligence case in Circuit Court?

If your answer was Health Claims, you need to get your head examined. Filing in Health Claims in Maryland just creates more hoops that you need to jump through.  Are they manageable?  Absolutely.  But when it comes to Byzantine rules and conditions precedent, sign me up for the path of least resistance wherever possible.

Is it Negligence or Medical Malpractice?

The determination of whether a claim against a health care provider belongs in Health Claim is based on whether the claim involves a “medical injury” as defined by MD. CODE ANN., CTS. & Jud. PROC. § 3-2A-01(g)  The statute states a “medical injury” is an “injury arising or resulting from the rendering or failure to render health care.”  Not every tortious injury inflicted on a patient by a healthcare provider is medical malpractice.  The distinction between ordinary negligence and malpractice hinges on whether the mistake involves a matter of medical science or act requiring special skills not possessed by laypersons. So if the negligence or lack thereof can be assessed based on the common everyday experience of the jury, it is not a medical malpractice case.

What constitutes a “medical injury” in Maryland? This has been the subject of a few Maryland appellate cases.  It is clear that intentional torts like assault and battery are not subject to Health Claims.  So if a doctor intentionally hits a child while removing stitches, that claim will not be subject to health claims. But we are talking about classic assault and battery.  You can’t just call it assault and battery if it is actually a medical injury.

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A new study on emergency room malpractice was released today that looks at why ER doctors are so frequently sued in misdiagnosis claims.

The study was conducted by The Doctors Company, which is a big insurer of doctors, hospitals, and physician groups.  It is easy to roll your eyes because you know these folks come with an agenda. And of course, their conclusions are euphemistic distortions or maybe downright fictions, but I take most of the data at face value because I can’t see the point of cooking the relative malpractice incidence rates.

The study looked at 332 closed emergency room malpractice claims.  Four types of cases made up the lion’s share of the cases:

• Misdiagnosis: 57%
• Improper Management: 13%
• Improper Treatment: 5%
• Failure to Order Medications: 3%

Misdiagnosis is the biggest culprit.  The study says 57%; I would have put this number at 75 percent. Misdiagnosis includes failing to make a differential diagnosis and failing to consider all the symptoms of the patient’s condition.  I would love to see data on “just didn’t know” versus “just didn’t take the time” because my very unscientific guess is that they are probably equally balanced.  But the study takes a roundabout shot at trying to answer this question, breaking up misdiagnosis cases like this:

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