Articles Posted in Medical Malpractice

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

Joanne Doroshow from the Center for Justice and Democracy writes a blog post for AOL the Huffington Post arguing that medical malpractice tort reform will increase the national debt.

A few weeks ago, I observed that no one was saying anything new on the subject of tort reform. There is an editorial a week on tort reform but nothing new. The AMA is relentless in what has to be a systematic effort to push new malpractice award limits and other curbs on malpractice lawsuits.

Ms. Doroshow has something new to say. Fundamentally, Ms. Doroshow contends that limitation on malpractice lawsuits will increase our national deficit because hospitals and doctors will lose the incentive to provide the safeguards necessary to protect patients. From this, the increase in injuries and deaths from medical malpractice will increase the societal burden of supporting patients who are brain-damaged, mutilated, or rendered paraplegic. She explains her thinking further:

CBO notes that one study finds such tort restrictions would lead to a .2 percent increase in the nation’s overall death rate. If true, that would be more than 4,000 additional Americans killed every year by medical malpractice, and that’s on top of the hundreds of thousands of additional patients who survive their injuries. How could this possibly be an acceptable trade-off?

It can’t be. Like I said last week, we get no bang for our buck on malpractice reform. In exchange for our end run around the 7th Amendment and for trampling on the rights of people that need justice, we get nothing tangible back economically. Continue reading

John T. Sly and Christina N. Billiet from Waranch & Brown write an article for the Maryland Defense Counsel newsletter about how to best attack plaintiffs’ experts out of the gate. One key tactic they advise is trying to get two depositions of the plaintiffs’ medical expert. Interestingly, they name drop the judges they say have approved this tactic and ordered plaintiffs’ experts to sit through two depositions: Judges Leo E. Green and Thomas P. Smith, both in Prince George’s County.

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It kills me how so many folks hold up the New England Journal of Medicine as the gold standard for anything and everything until it speaks up about preemption or medical malpractice reform. Then they become hacks for… well, nobody, really. Just hacks.

The NEJM put out a recent article that looked at traditional malpractice tort reform:

Our review yielded two main conclusions. First, evaluations of traditional tort reforms have remained heavily focused on metrics related to liability costs, with most care-related measures receiving relatively short shrift. Second, the evidence reveals that, with few exceptions, traditional tort reforms have not proved to provide many improvements in these liability metrics.

So we have decided as a society in many jurisdictions, including Maryland, to limit how its citizen juries can award and deprive malpractice victims sometimes what we would all agree to be the fair value of the injuries or death because of the case’s true value exceeds the malpractice cap. Oh, yeah, we also look the other way on the Constitution’s due process and equal protection requirements. Continue reading

Judge Roger W. Titus handed down a new opinion last week on the interplay between Maryland health claims arbitration and medical malpractice cases in federal court. The nutshell: regardless of what you may have thought, there is no interplay. At all.

Willever v. United States is a medical malpractice wrongful death claim, alleging medical negligence at the National Naval Medical Center in Bethesda after the death of a U.S. Army captain. Plaintiffs, who lost their husband/father, sought summary judgment because the government did not file a certificate of a qualified expert with an attached report saying the hospital and its employees complied with the standard of care or that any departure was not the cause of death. We all have jobs to do, but you can’t go home feeling good after filing that motion, can you?

Judge Titus denied the motion, finding:

• Maryland’s health claims arbitration rules conflict with the Federal Rules of Procedure and cannot be applied in Federal Court
• Maryland’s health claims arbitration system rules are procedural, rather than substantive, which means they don’t apply in federal court in Maryland.
• Sovereign immunity prevents the U.S. government from being subject to the certificate and other statutory requirements for malpractice cases in Maryland.
• Even if none of these three rules listed above were not the law, Maryland’s health claims arbitration statute merely allows summary judgment for Plaintiffs at the court’s discretion and the court would not exercise such discretion in this case. (This makes the opinion bulletproof on appeal.)

In Mayo-Parks v. United States, 384 F. Supp. 2d 818 (D. Md. 2005), the court came to a very different conclusion, finding that Maryland health claims arbitration rules have some substantive aspects that federal courts must honor. Judge Titus disagrees, taking this opinion head-on: “This Court has carefully reviewed the opinion as well as the original court file in the Mayo-Parks case, and concludes both that the holding in that case was dictum and that the reasoning was unsound.” So there. Continue reading

The Maryland Court of Special Appeals decided on a new malpractice case in Wantz v. Afzal.

Facts

Wantz is a Frederick County fatal medical malpractice case involving a staph infection following spinal fusion surgery after a slip and fall that allegedly caused the death of the plaintiff’s 77-year-old mother.

At issue was the medical treatment for her ankylosing spondylitis and osteopenia. The patient was admitted to the hospital under the care of a doctor who ordered a CT scan that showed a fracture of the T10 vertebra and a possible fracture of the T9 vertebra with associated hematoma and malalignment.

The radiologist who interpreted the results recommended immobilization and an MRI, but neither was ordered by the doctors. The patient’s condition worsened, and she was transferred to another hospital for immediate spinal fusion surgery. The patient developed an infection after the surgery and ultimately died.

The patient’s surviving child filed a wrongful death and survival action against the doctors, the radiologist, and the hospital.

Expert Discovery

During discovery, Plaintiffs’ malpractice lawyer proffered three medical experts: (1) a neurosurgeon who testified in a videotaped trial deposition as to the cause of the woman’s paralysis and her likelihood of recovery, (2) a board-certified doctor in internal and geriatric medicine to testify on causation, and (3) a radiologist who testified that had the woman been properly immobilized her paralysis and subsequent infection would not have happened.

Before trial, the defendants moved to strike or preclude the testimony of three of the plaintiff’s expert witnesses. The trial court granted the defendants’ motions and subsequently granted their motion for judgment, which the plaintiff appealed.

Maryland Rule 5-702 Governs This Case

Maryland Rule 5-702 governs the admissibility of expert testimony, and it provides three requirements to determine if such testimony is admissible.

The first requirement is that the witness is qualified as an expert, the second requirement is that the testimony is appropriate on the particular subject, and the third requirement is that a sufficient factual basis exists to support the expert testimony.

Appellate Opinion

The CSA, in an opinion by Judge James R. Eyler, unanimously disagreed on all three experts, finding that on each expert, the trial court abused its discretion.

The doctors argued that the neurosurgeon was not qualified to testify because his only 50 years of experience in neurosurgery was not enough to qualify him as an expert.

I’m just kidding, even Med Mutual is not making these kinds of arguments. I’m just making sure you are paying attention. The doctors’ objection was more thin-sliced: the expert’s relative inexperience with performing spinal fusion surgery or following patients after such surgery did not provide the experience to offer testimony in this malpractice case. Continue reading

Good medical malpractice lawyers in Maryland read every high court opinion about medical malpractice. Yet I think everyone can skip the Maryland Court of Appeals opinion released today in Neustadter v. Holy Cross Hospital.

Neustadter is a malpractice/wrongful death case involving the death of a 91-year-old Holocaust survivor. Another interesting factoid: the decedent chose Holy Cross because it is a Catholic hospital which he believed to be compatible with his Orthodox Jewish beliefs for medical treatment. Continue reading