Articles Posted in Medical Malpractice

Under Maryland law, when a defendant doctor is board-certified in a medical specialty, the plaintiff’s expert testifying to the breach of the standard of care must be board-certified in the same or a “related specialty.” Plaintiff’s medical error attorneys in Maryland have had a lot of sleepless nights over the definition of “related specialty.”

In DeMuth v. Strong, a new opinion decided by the Maryland Court of Special Appeals last week, the plaintiff had a $1.68 million verdict resting in balance of what made up a related specialty under Maryland medical malpractice law. In this Cecil County malpractice case, the plaintiff sued and called as his expert witness a board-certified vascular surgeon, who testified that an orthopedic surgeon breached the standard of care.

Plaintiff’s attorney had a qualified orthopedic expert testify, but wanted to let his causation expert also provide his opinion, probably because it was a strong opinion and maybe because it seems a little odd to the jury when a causation expert does not give his thoughts on damages. But the plaintiff’s malpractice counsel was risking having the case overturned on appeal if the appellate courts did not agree. Continue reading

Runaway juries are a big problem in medical malpractice cases. Juries see a sympathetic plaintiff and, unchecked by reason, they write oversized checks. Liberal judges aid and abet the crime.

This belief has taken deep root in Maryland – and in most states – that has led to the enactment of scores of laws to impede medical malpractice lawsuits. Most notable of these restrictions has been medical malpractice caps. Maryland had an onerous cap that became even more Draconian. Why? Because the Maryland State Medical Society’s (MedChi) very skillfully orchestrated what almost everyone now agrees was a faux crisis.

Trial lawyers have been outsmarted at every turn by doctors and other tort reform proponents. These advocacy groups have smartly turned the focus away from hard facts and have ironically used the quintessential trial lawyer weapons, antidotes, and imagery. Pictures of doctors on highways walking out of the state because of high malpractice premiums. A story about a cute little Doc Hollywood like a country doctor who had to close his practice because of frivolous malpractice suits. They have, repeatedly, won. Their lobbyists and PR people have done a great job. Continue reading

The Connecticut Supreme Court ordered a new trial this week in a medical malpractice case for an interesting reason: the defense expert testified at trial that malpractice lawsuits drive up health care costs by forcing doctors to practice defensive medicine.

The big issue in the case was whether appropriate standard of care required the defendant doctor to order additional radiological tests, such as X-rays, a CT scan, or an MRI, prior to performing the surgery on a young boy to determine whether his tumor had grown since it was first detected. At trial, the defendants’ medical expert testified that ‘‘the standard of care did not require additional radiology tests.” So, this is hardly a case where the doctor is being accused of practicing defensive medicine. But the doctor felt compelled to point out on direct that he would have ordered them himself if he was treating the plaintiff. Gee, doc, why?

Well, a few reasons. One, I am with residents, fellows, and medical students all the time. So, we are ordering a lot of tests on everything so they have the opportunity to read them. And you could say, oh, that’s wasteful, but that is part of being at a teaching institution. One. It is for teaching purposes as much as anything, for they have one more chance to look at just one more—they have another dot in their exposure.

Wait, how many times have I heard about how you should not subject patients – not for nothing, a young boy in this case – to unnecessary radiological testing because it exposes the patient to risk (and the annoyance and hassle of the testing itself)? Yet that risk is of no consequence if, you know, we can show those young whippersnappers and extra MRI. Continue reading

Last week, I wrote about a stunt that a defense lawyer pulled with a defense medical exam in a car accident case. This week’s sneaky defense lawyer trick involves a creative effort to depose plaintiffs’ medical expert twice in a wrongful death medical malpractice case.

Here’s what happened. Shortly after our lawsuit was filed in Anne Arundel County, against Baltimore Washington Medical Center, the hospital’s lawyer noted the deposition of plaintiffs’ expert. We noted the deposition of a key fact witness before the plaintiffs’ expert’s deposition. The defense attorney claimed an apparently inalienable right to depose our expert before any fact witness, and then to get a second crack at the expert down the road after he reviewed the fact witness’ deposition. So defense counsel filed “Defendant’s Motion to Compel the Deposition of Dr. [Expert’s Name] and Request Protective Order for the Deposition of [Fact Witness Nurse] and Rule 2-432 Certificate.” Can we agree this motion should be denied on the goofy title alone?

The motion begins with the perfunctory arguing of the merits of the case and the requisite taking the facts out of context. What this has to do with the merits of the motion is anyone’s guess. The motion then advances to the ridiculous argument that the defense lawyer can conduct discovery based on the Certificate of Merit. I give them credit for boldness: they come out and admit they want a second deposition of the expert if he intends to testify at trial.

Here comes the tricky part. To support their argument, defense counsel attached orders from Baltimore County Judge John F. Fader, and Prince George’s County Judges Thomas Smith and Leo E. Green, that purportedly issue similar orders in other malpractice cases to the one that defendant seeks here. I say “purportedly” because who knows what the facts of those cases are? That is why precedent is not made from reading orders, but reading the entire opinion so we can understand why the court ruled as they did and what facts were germane to the ruling. Continue reading

This week, in University of Maryland v. Multi, Medical Systems, the Maryland Court of Appeals reversed the Court of Special Appeals on a topic that has gone relatively untouched until recently: “use plaintiffs” in wrongful death cases.

This appeal involved a medical malpractice wrongful death and survival action claim brought by two men who alleged that University of Maryland Medical Systems (“UMMS”) doctors negligently tore their father’s trachea during an intubation procedure after he had an acute myocardial infarction. Plaintiffs’ malpractice attorneys’ alleged the doctors failed to timely treat the torn trachea which led to complications that caused their father’s death.

Baltimore City Circuit Court Judge Evelyn Cannon dismissed this plaintiffs’ wrongful death claim with prejudice after the hospital filed a motion seeking dismissal because a long lost adopted son of the decedent was not named as a use plaintiff on the Complaint. When I wrote about the Maryland Court of Special Appeals opinion last year, I thought the plaintiffs’ lawyers learned of the adopted son in deposition. But this was flushed out in oral arguments. The plaintiffs’ lawyers told the court that counsel knew of the adopted son but could not find him (or even knew if he was alive). The Court of Special Appeals reversed the trial court, finding an abuse of discretion in now allowing the plaintiffs leave to amend the complaint to add the use plaintiff. Continue reading

The Baltimore Sun had an interesting front page article yesterday on Maryland hospitals referring patients with malpractice claims to specific medical malpractice lawyers. I think this is a terrible idea.

First, everyone means well. The hospitals know they have made a mistake and want to (1) get the clients to a competent malpractice lawyer, and (2) get a deal going where the attorneys’ fees are reduced by as much as a fourth of what they would otherwise be. The lawyers who get the referrals are trying to maximize the value of the case and try to get the client as much as possible.

But there are some cases where the appropriate strategy- or the client’s wish – is just to wage war. It is hard to wage war against someone where your relationship is such that they are recommending you to people they just malpracticed. If you repeatedly go scorched earth and decide that early resolution is not the answer, and a lawsuit is, you can expect these referrals to dry up pretty quickly. You can’t fault the hospitals if they stop referring patients to that “wage war” malpractice lawyer. It is just the way of things.

The hospital is not referring to every potential medical malpractice case. I’m sure these are the “Oh, gosh, we totally screwed up, let’s make it right” malpractice cases. The only remaining question issue is damages. But, as Jerry Seinfeld would say, that’s a pretty big matzo ball hanging out there. Ninety percent of the car accident cases we have in suit are admitted liability cases where the only dispute is damages. Establishing liability is only half of the equation. In serious injury cases, very reasonable people see the values of cases differently, which is why we need the adversarial system to operate at its fullest.

The conflict here is not just a problem for the bad guys, but also for good, honest malpractice lawyers. The big picture colors your thinking even when you specifically are trying hard not to let it. History of man reminds us over and over that self-interest colors the calculations of even the good guys.

Remember when Justice Antonin Scalia came under fire for not recusing himself in a case involving Vice President Dick Chaney, after the pair had recently hopped on Air Force Two for a little hunting trip. Who have you ever gotten on a plane with, and went on a trip with that you were not tight with? Seriously. If I’m getting on a plane with you, we are tight. Scalia’s retort: “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the nation is in deeper trouble than I had imagined.” It is a good line (give him credit, Scalia has lots of good lines). But just because Scalia was not aware of how such a bias could influence him on his ultimate thinking and decision from the bench, it does not mean that it does not exist. Continue reading

The Maryland Court of Appeals issued an opinion Friday in Spangler v. McQuitty, ending this cerebral palsy medical malpractice case that began 17 years ago. I first wrote about this case two years ago when the Maryland Court of Appeals heard this tragic case involving a boy born with severe cerebral palsy.

Facts of McQuitty

Ms. McQuitty was pregnant with her son.  She had preexisting hypertension and a prior C-section. Twenty-eight weeks into her pregnancy, Mrs. McQuitty’ had profound vaginal bleeding.  She went to Franklin Square Hospital Center, Inc. and came under the care of the defendant OB/GYN.  A
Sonogram revealed a partial placental abruption.  It is determined she needed a C-section for delivery which is very common with placental abruption.  The question is when to perform the C-section.

The doctor told the parents of the possibility of immediate delivery by cesarean section if Ms. McQuitty’s condition did not promptly stabilize.  If that happened, the OB said the likelihood was the child would die.  A neonatologist at Franklin Square was more sanguine, telling the parents that the prospects for survival were “encouraging.”  I know doctors can have different opinions, but it is so frustrating when you are the patient in that situation.

The parents went with the OB and delayed the C-section.  The mother suffered a second abruption.  Ultimately, the child suffered intrauterine growth restriction, “IUGR”, which the result of the decrease in the perfusion of nutrients to the baby resulting from the placental abruptions.

The doctor did not update the parents that this led to new choices and a new risk assessment.  Plaintiffs’ Maryland malpractice lawyers argued at trial (in Baltimore County) that the doctor breached the duty to obtain the mother’s informed consent when he failed to give her an informed choice of her options to either take the baby early or assume the risks that come with letting the delivery play out. A Sophia’s choice. But it was the mother’s choice. The jury – to the tune of $13 million – agreed, and found that that the risks and benefits of these options should have been communicated to the patient, but were not. Continue reading

Malpractice attorneys representing doctors famously prefer to elevate form over substance and tactics over strategy. This is not partisan. It is fact. The doctors’ malpractice attorneys really don’t disagree. They would call it taking advantage of the grab bag of opportunities to fight the details that the law and inexperienced malpractice counsel provides. It is called fighting aggressively for their clients, right?

Fair enough. But the fact remains that at least as a practical matter, doctors’ attorneys try to use technicalities at a ratio of 20-1 to patients’ counsel. Sure, I’m making that up. But it is probably something like that, if not higher.

Consistent with this “tactics over strategy” worldview, forests in Maryland have been lost by defense lawyers’ micro interpretations of Maryland’s Health Claims Arbitration Act (Maryland Courts & Judicial Proceedings, 3-2A-01-3-2A-09), distorting any semblance of what was actually contemplated by the Maryland legislature.

In Willison v. Pandey, an opinion decided last week in the U.S. District Court of Maryland, the doctor’s malpractice lawyers faithlessly upheld this tradition, attempted to exclude Plaintiff’s medical expert under the strict locality rule, arguing that a doctor has to know the local standard of care to offer testimony. The doctors lawyers relying upon language in the health claims statute that a medical malpractice expert must give testimony that the care given by the defendant doctor “is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities” at the time of the alleged medical malpractice. Here, the Plaintiff’s medical expert was from New York testifying about the breach of the standard of care of a Cumberland, Maryland urologist. He knew little about the practice of medicine in western Maryland. Continue reading