Articles Posted in Medical Malpractice

Like the rest of the Baltimore community this past week, I was shocked to hear that Dr. Nikita Levy, a gynecologist at Johns Hopkins’ East Baltimore Medical Center, has been accused of secretly videotaping and photographing his patients.

You have heard the allegations if you have access to a newspaper or a television in Baltimore. Dr. Levy, an OB/GYN with an excellent reputation, used a pen camera and other surreptitious devices to photograph and film his female patients. Dr. Levy had worked at the hospital for his entire 25-year career until his dismissal on February 8, when a coworker blew the whistle on the alleged operation after noticing something unusual about the doctor’s examinations four days earlier.

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Last week the Maryland Court of Special Appeals upheld a trial court’s ruling in Smith v. Johns Hopkins Community Physicians.

Before we get into the facts, let’s talk Maryland venue law. Here is the most important thing you would need to know in a just world:

The moving party has the burden of proving that the interests of justice would be best served by transferring the action…and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.

Every now and again I read a publication called “Physician Risk Management.” Billed as a publication to help doctors minimize liability and protect them from lawsuits, it is a well-written publication written by people who do seem to know what they are talking about.

Here is why I don’t like it. It is just not self-conscious enough about its own motives. An example comes from this month’s article “Defend non-compliance with guidelines in the chart.” The article begins by repeating the title. The next sentence is, “The plaintiff’s attorney will use it against you.”

This is all fine and good. Doctors sometimes should deviate from clinical guidelines, and they should explain why they did not conform to them. And, yes, plaintiffs’ medical malpractice attorneys will shove it down their throat if they do not document their deviation and the basis for it.

Fair enough. But could they at least mention in a footnote that what they are faking the doctor to do is also 100% consistent with what you are supposed to do to, you know, properly care for a patient? Isn’t one of the key purposes of medical records in the first place to determine upon the course of care and provide a rationale for that care to both document the treatment and explain the care to future doctors treating the patient?

The article quotes a neonatologist, Dr. Jonathan M. Fanaroff, who is both a physician and a lawyer, to make the point. “It is important to show both your clinical reasoning and also that there was an adequate reason to deviate from the guideline.” (Note to my four children: if you can get a gig as a neonatologist, don’t dampen my joy by becoming a lawyer, too. Please.)

No kidding, really. In fact, as I started reading the article, I thought maybe the doctor was being quoted out of context talking about excellent patient care. But then the doctor describes a Mississippi case from 2006, Vede v. Delta Regional Medical Center 933 So.2d 310 (Miss. Ct. App. 2006), that ostensibly proves this point.

This was a case where the plaintiff developed a decubitus ulcer – a bedsore – allegedly as the result of a hospital’s negligent failure to turn the plaintiff at regular intervals, which the standard of care requires in preventing a bedsore. But the doctors at the hospital had a good reason for failing to turn the patient: they found that he was struggling with airway clearance and were afraid of a fluid volume deficit and an infection from the turning based on the patient’s specific case.

This is such a straw man. We all agree these could all be excellent reasons in a particular case to turn the patient less frequently (although, geez, I wonder about informed consent on a call like that). We can all also agree that writing it down makes it seem less like you are making excuses in hindsight for negligent care if you spell out what you are doing. But couldn’t the article – albeit short – point out that this weapon to fight off medical malpractice lawsuits is not the endgame, but just a fortunate byproduct of properly caring for and treating patients. Continue reading

U.S. District of Judge Richard D. Bennett issued an opinion Monday in Robertson v. Iuliano, an informed consent medical malpractice lawsuit against a neurosurgeon and St. Agnes Hospital.

New Opinion on Apparent Agency and Informed Consent Law in Maryland

The first question you might have is how this malpractice case ended up in federal court instead of Baltimore City Circuit Court, where the claim was filed? Good question, my dear reader. Only a crazy plaintiffs’ med mal lawyer would file in federal court over Baltimore City because Baltimore is just a much better venue.

So what gives? Apparently, after committing an alleged tort in Baltimore City, the doctor moved to Virginia. It seems odd – in fact, crazy – to me that a defendant who commits a tort in Maryland could avail themselves of removal by moving away after the fact. But, in an earlier opinion, the court opined that the plain meaning of the removal statute mandated federal jurisdiction. It is a silly law, but it is the law.

Facts of Robertson v. Iuliano

Anyway, I know little about the underlying facts. But the case sounds weak to me. The plaintiff claims he would not have undergone back surgery to repair a disc at L4-L5. He suffered from moving a dryer for a customer while working at Lowe’s Home Improvement had he known that he might get an infection from the surgery.

St. Agnes and Neurosurgery Services, LLC and St. Agnes Healthcare, Inc. were also sued. Still, the court ruled in their favor and found that they could not be held liable for Dr. Iuliano’s actions because they were not responsible for ensuring their doctors adequately informed their patients of the risk and because there was no actual or apparent agency. The court dismissed the informed consent argument because Maryland law is clear that the duty to obtain informed consent is the doctor’s job. There is no duty to the patient from the hospital unless they “specifically assumed the duty.” I’m not sure why this would be the law. But it is.

Efforts to Amend Complaint Failed

Before the trial, Robertson filed a motion to amend his complaint to clarify that the lack of informed consent included the failure to disclose alternative forms of treatment. He also wanted to increase the amount stated in his complaint. However, the court has denied his motion to amend the complaint.

Why?  According to the Federal Rules of Civil Procedure, an amendment to a pleading should only be denied if it would cause prejudice to the opposing party, there was bad faith on the part of the person making the amendment, or if the amendment would be considered futile. The U.S. Court of Appeals for the Fourth Circuit has interpreted this rule to mean that amendments should be freely allowed as long as justice requires it.

The court agrees with this but says there are limits.  The judge underscored that the deadline to amend the pleadings had already passed and that to be approved, the amendment must satisfy both the “good cause” standard and the standard set by Rule 15(a)(2) of the Rules of Civil Procedure. The court found that Robertson did not satisfy the “good cause” standard and determined that the amendment would be prejudicial to the doctor. The court concluded that allowing the amendment on the eve of a trial would be unfair to the doctor because discovery has been conducted concerning informing the plaintiff of alternative treatment methods. The amendment would essentially add a new claim to the complaint. So that makes sense.

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Anyone who can blithely throw together a joint tortfeasor release in a malpractice or another complicated tort claim without reading the case law 10 times is an absolute expert on these releases or suffers from an extreme case of irrational confidence. Usually, in my experience, it is the latter.

The job of the Maryland appellate courts in dealing with this unavoidably complicated maze is to give Maryland attorneys clear and concise rules in navigating the path. Given a chance to do this in Mercy Medical Center v. Julian, the court took what I think – and more important the dissent thought – is a different path that might lead to more confusion or, maybe better put, lack of trust that the settling parties know the ramification of the settlement. If I’m right about this, it will have a chilling effect on parties settling in a case with multiple defendants.

This case involved a lawsuit alleging that medical malpractice caused cerebral palsy and the ultimate death of a child. Just awful. (I wanted to throw up a picture with this post but I could not think of one even remotely appropriate.) Plaintiffs and Mercy Hospital settled out before trial. The release – called in Maryland a “Swigert Release” – with Mercy provided for a pro-rata reduction of any judgment against doctor defendant if Mercy was found to be a joint tortfeasor.

Before trial, the doctor’s attorney sought and received the production of the release with Mercy. The doctor did not cross-claim, third-party, or otherwise, make any effort to have a determination made whether Mercy was liable. The jury hit the doctor with an $8,000,000 verdict, reduced to just under $2.2 million by the cap on non-economic damages.

So who pays what? Shockingly, a disagreement ensued so everyone sued everyone again. The doctor sued Mercy for contribution. The plaintiffs – who just want their money – sue the doctor again, asking the court to rule that he is not entitled to contribution. The doctor, seeking a declaration that he was not entitled to contribution. The Maryland Court of Special Appeals lessened this train wreck a little by appropriately merging the two actions.  Continue reading

There is an interesting medical malpractice case on appeal in Ohio – Longbottom v. Mercy Hospital – that I thought deserved a quick blog post today. The case poses some interesting questions on how far outside the box of the case a jury can go in making inferences that were not directly raised by the parties.

The facts are awful, and it pains me to write them out. A nine-year-old boy suffered a head injury at his home. He went to the emergency room. The doctors there checked him out but did not give him a CT scan even though, you know, it is nine-year-old boy with potentially a serious head injury. He went home and went to sleep. The boy woke up in the middle of the night, throwing up and gasping for air. He suffered brain damage and now walks with a limp because of a blood clot.

The big issue was whether the decision not to order a CT scan was a breach of the standard of care. Simple malpractice case, really. The plaintiffs’ experts did not offer opinion testimony whether the doctor had properly instructed the parents on monitoring the child or that such a failure was the proximate cause of the injuries.

But here is the thing: juries do the craziest things. Again, the plaintiffs tried the case on the sole theory that the ER doctor should have ordered a CT scan during the emergency room visit. The jury rejected this argument but substituted its own new theory that the ER doctor failed to instruct the plaintiffs about head injuries. The jury awarded plaintiffs $2.7 million. Continue reading

The Georgia Court of Appeals issued an opinion last Thursday on an interesting issue in a wrongful death malpractice claim that we see all too frequently: botched laparoscopic gallbladder surgery.

Quick facts in this classic malpractice case. Defendant performs a lap chole procedure on a man. The man returns to the hospital the next day with an infection. ER calls treating surgeon/defendant who does not go to the hospital to personally examine the man. Instead, he just says “I’ll see you in three days at your scheduled appointment.” (I’m guessing plaintiff will make hay of this arguably benign fact at trial because it has real reptile jury appeal.) Two days later, the man collapses at this home and dies.

The wife/plaintiff files a wrongful death action The autopsy showed his death was from an acute bacterial infection caused by thermal burns in the area where Jensen had performed the lap chole procedure. Continue reading

Do you need an affidavit/certificate of merit in an informed consent case? Last week, the 3rd Circuit said that you need a certificate under New Jersey law in Mulholland v. Thomas Jefferson University Hospitals. This blog post is about this case and how the result would likely be different under Maryland law.

But that is a different question from whether you need a certificate.  Let’s look at this case.

Facts

Crazy facts. Plaintiff had kidney problems and a co-worker, the unsung hero of the story, offered to give him one of his. Plaintiff had the HHV-6 virus, a herpes virus. Plaintiff alleged that his doctors neglected to tell him he had herpes and how that would affect the risks and benefits associated with the success of the transplant surgery.

That sounds bogus enough. You needed a kidney, right? But the plaintiff further alleged that the donor had the CMV virus. What is the CMV virus? Let’s just say you might have it and not know it. It is easily transmittable but rarely a problem for anyone. But plaintiff argued that if he had been advised by the defendants of the donor’s positive CMV blood test result or his own positive HHV-6 result, he would have received a kidney from his wife instead of his co-worker.

So your wife would have given you a kidney, but you took one from a co-worker instead? Did the co-worker know that when he offered you the kidney? Crazy. Court TV needs to do an “Inside the Lines” type story in this case. Continue reading

The 8th Circuit affirmed a defense verdict in a medical malpractice action this week in Avichail v. St. John’s Mercy Health System. The case had a few interesting legal issues: a Batson challenge and a dispute over whether a witness could use an interpreter. So, given the Maryland appellate courts’ inability to come up with much interesting for us this summer, let’s turn to Missouri.

This was a permanent brain injury case involving a young girl who had Beckwith–Wiedmann Syndrome, an aliment that causes macroglossia, which causes the tongue to be abnormally large. Plaintiff’s counsel alleged that during a surgical procedure to reduce the size of her tongue, her oxygen levels were unattended for hours during which her oxygen saturation plummeted from 94% to 50%, causing permanent brain damage. Just an awful case any way you slice it. Continue reading

Yesterday, I was lamenting the lack of interesting Maryland appellate opinions to write about on this blog. But, I let one slip by last month: the Court of Special Appeals’ opinion in Schneider v. Little.

This is a medical malpractice case that was initially tried in Harford County in 2010 and resulted in a verdict of over three-and-a-half million dollars ($3,557,398.00). That’s a large verdict anywhere, and an excellent verdict in this relatively conservative county.

The plaintiff’s injuries warranted the verdict—during the surgery she lost the equivalent of her entire body’s blood volume, and after the surgery, she suffered a major injury to her spinal cord. In fact, she was permanently paralyzed from the waist down, with little ability to control her bladder or bowel. Continue reading