Articles Posted in Medical Malpractice

In Muti v. University of Maryland Medical Systems, the Maryland Court of Special Appeals returned to a subject that, until recently, has gotten little attention by our appellate courts: “use plaintiffs” in wrongful death cases.

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

Tragic anyway you look at it but, so far, nothing out of the ordinary in a medical malpractice case. Until, in deposition testimony that apparently surprised lawyers on both sides, the sons testified that their father had a third adopted son. The hospital and the doctors jumped on this, move to dismiss for failure to join a necessary party. Baltimore City Circuit Court Judge Evelyn Cannon dismissed the plaintiffs’ wrongful death claims without leave to amend, finding that in applying the law the court should not look to see “whether or not this will make it difficult for one party or the other.” This barred the wrongful death claim because the three-year statute of limitations had passed. Continue reading

There is an interesting opinion last week in a medical malpractice case involving federal diversity in U.S. District Court in Baltimore.  Most tort lawyers are not litigating in federal court often unless they are doing mass torts.  We have never had a malpractice case in federal court.  But we have products liability, admiralty law, and truck accident cases in federal court and we always have to take a deep breath when considering all the issues that are uniquely federal.  Like diversity.

In Robertson v. Iuliano, Plaintiff sued St. Agnes and another in-state defendant and against a neurologist who lives in Washington, D.C. Diversity shouldn’t have been a problem because there is not complete diversity. But Plaintiff’s malpractice lawyer served the out-of-state doctor first, which allowed the doctor’s lawyer to remove the case to federal court. The District Court, in an opinion by Judge Richard D. Bennett, denied Plaintiff’s motion to remand the case back to Baltimore City Circuit Court.

This rule prevents the gamesmanship of plaintiffs’ lawyers who join defendants they never intend to defeat diversity. But the rule creates more gamesmanship by defense lawyers who quickly remove a case that does not belong in federal court just because service is effectuated first on the out-of-state defendant.

I’m squinting my eyes but I still cannot get the correlation between the national debt and limiting medical malpractice lawsuits. This Huffington Post commentary points out the insanity of including medical malpractice reform on our “to do” list to tackle the national debt. The “Bristol Palin as America’s Next Sweetheart” like stretch: if doctors made more money, it would reduce medical costs and Medicare would be cheaper.

If the Baltimore Orioles would get better baseball players, the city’s residents would become happier and more productive. Baltimore could not contain these good vibrations to its own borders. The economy would improve, more people would pay taxes, and we could reduce the national debt.

How is that logic different from the idea that reducing malpractice lawsuits would reduce the national debt?

You are a lawyer looking for an expert in a medical malpractice case in Maryland. You find one you think is perfect. She has firm opinions, a great reputation, and will communicate well with the jury.

You have just one problem. Although your expert is intimately familiar with the care/procedure at issue, she is board certified in a different practice area. (I would like to dedicate this paragraph to basketball analyst Hubie Brooks, who virtually invented this talking in the second person style.)

Malpractice lawyers deal with this quandary all the time and often feel compelled to err on the side of caution and find an expert in the same specialty as the doctor suspected of malpractice. You err on this side because you just know that the defense lawyers on the other side will move to dismiss your case. Best-case scenario, you have a hassle on your hands.  Worst-case scenario, you run into the wrong judge who dismisses your case.

This scenario played itself out in a medical malpractice suit filed in U.S. District Court in Greenbelt. Defendants’ malpractice lawyers sought to dismiss the Plaintiffs’ malpractice lawsuit against three of the four defendants because the Plaintiffs’ certifying expert is a pediatrician and not an emergency room doctor or an internist (there was also a pediatrician defendant who had no basis to join in the dismissal).

The Defendants’ argued that having a pediatrician was the exact purpose of the statue in the first place, to heel “hired gun experts from freely roaming outside of their chosen fields, and opining on standards of care that they cannot possibly address, based on the scope of their training and certifications.”

(Hired gun experts. Funny hearing that from defendants’ malpractice lawyers. The experts the defendants’ attorney retained are not hired gun experts. They are just exceptional doctors and great humanitarians, who, like Derek Jeter, would play for free. The hundreds of thousands of dollars they make testifying is a mere byproduct of their excellent work.) Continue reading

Jury Verdict Research published a study this month that found that medical malpractice plaintiffs receive an average of $983,769 for being “incorrectly diagnosed with a serious illness resulting in fear or unnecessary treatment.” For once, the median is not far behind the average. The median misdiagnosis verdict was $843,362.

To provide a contrast, the study also provided the most recent national data for medical malpractice verdicts. The average medical malpractice verdict in the United States over the last 11 years is $713,457. The median malpractice verdict is $196,500. Approximately 15% of malpractice awards exceed $1,000,000 which inflates the average, although several verdicts are not collectible because of either caps on noneconomic damages or because the doctor did not maintain malpractice insurance.

The Maryland Court of Appeals affirmed the dismissal of a medical malpractice lawsuit against a doctor for procedural reasons in a 4-3 opinion issued this morning.

Filed in Anne Arundel County, this wrongful death malpractice claim alleged that a dermatologist failed to perform a timely biopsy of a mole that later proved to be melanoma and caused a man’s death.

It is a long opinion. It spends a good bit of time on the “law of the case” doctrine and the unique application of that doctrine in this case where the Court of Appeals grabbed the case before the Court of Special Appeals hears the arguments. Pretty boring. The highlights are, however, of importance to every medical malpractice lawyer in Maryland:

• A certificate of merit must include an expert report. Period. But then I think arguably the court left the door a little ajar whether the certificate itself can meet the report. The court writes that there is no evidence how the doctor breached the standard of care, noting that “the certificate does not otherwise meet this requirement….” If it had, would that have made a difference? I’m not sure. The take-home lesson for Maryland malpractice lawyers: never be the lawyer who finds out the answer to this question.
• Malpractice lawyers do not need to specifically allege who it was that breached the standard of care if it is otherwise obvious as it is in the single defendant case. The substance is elevated over form, at least on this sub-issue.
• The certificate of merit’s job is to block claims that lack merit. A certificate of merit in Maryland need not state the qualification of the expert or certify that the expert spends less than 20% of their time on forensic activities.
• Certificates of merit do not have to be expressed in terms of “reasonable degree of medical probability.” An expert’s testimony at trial needs to include the magic language but it does not have to be in the certificate of merit.
• Doctors do not waive their rights to challenge a certificate of merit by waiving out of health claims arbitration. The court noted their own silence on whether there could be conditions under which a doctor could waive their rights.
• It was not an abuse of discretion for the trial judge to refuse to extend the deadline to file a certificate of merit that complied with Walzer.

Defendant’s lawyer moved to dismiss 18 months after the plaintiffs’ filed their malpractice lawsuit. Why wait 18 months? The court’s finding precipitated the defendant’s lawyer’s motion in Walzer v. Osborne just a month before. Every plaintiffs’ medical malpractice lawyer in Maryland thought Walzer imposed new requirements to file a medical malpractice lawsuit in Maryland. Defense lawyers did too, waiting to make these procedural arguments until just after Walzer. Even Maryland’s high court seems to agree, noting the “not coincidental” timing between the doctor’s motion and Walzer. But Walzer was not the first time, nor will it be the last, that an appellate court calls its ruling existing law and practicing lawyers believe it to be a new law. The Supreme Court does it all the time too. It is the nature of the beast. It is just like having an answer to a math problem in the back of the book and then creating the answer. The only thing that makes this a little different is the court seems to acknowledge that Walzer too a lot of attorneys by surprise when it noted the timing of the doctor’s motion. Continue reading

Both doctors’ groups and medical malpractice lawyers are preening about a new study that shows that the cost of medical malpractice in the United States is 2.4% of annual health care spending.

Medical malpractice lawyers say the study shows that medical malpractice tort reform would have little impact on our health care costs. Doctors’ groups point to the fact that 2.4% equals $55.6 billion a year, a daunting number even in the post-TARP era when $500 billion is a mere half of a stimulus package.

But here is how the numbers break out:

• Indemnity payments: $5.72 billion, of which $3.15 billion represents payment for economic damages; $2.4 billion for noneconomic damages; and $170 million for punitive damages. This includes the attorneys’ fees of medical malpractice lawyers who represented the plaintiffs.
• Administrative expenses: $4.13 billion, which includes $1.09 billion in fees to defense attorneys; and $3.04 billion in overhead expenses. (Estimated fees to plaintiffs’ attorneys were $2 billion, but that amount is included in indemnity payments.)
• Defensive medicine costs: $45.59 billion, of which $38.79 billion was estimated as the cost of hospital services and $6.80 billion as physician services.

There is something incredible in these numbers that no one is talking about. The researchers said their estimate includes $45.59 billion in defensive medicine care where doctors prescribe treatment and tests that may harm or expose the patient to risks because they want to avoid medical malpractice lawsuits. So health care providers spend $45 billion in additional costs (from which they often profit) to protect themselves from $6 billion in risk? If I hired a team of lawyers to oversee everything, our law firm does to make sure we are not committing legal malpractice and then complained about the cost…this analogy is not working. Let me try another: imagine hand grenade manufacturers swatting flies with hand grenades and then complaining about the rising cost of hand grenades. (That does not entirely work either, but at least it is closer. Because somehow you have to add that flies landing is actually harm that is fully insured. But you get the point without my metaphors.) Don’t these doctors’ groups feel a little odd parading this around? And why is no one pointing this out? This is right up there with Stonehenge on my list of great mysteries. Continue reading

Medical malpractice lawyers are just looking for a deep pocket to sue. Every time something bad happens to anyone, they sue. It is always only about money.

Largely, these generalizations are just plain false. Usually, in a malpractice case, the doctor has insurance, so the pockets are deep enough. Here in Maryland, where we have caps on non-economic damages in medical malpractice cases, the pockets are almost always deep enough. Study after study has shown that only a tiny percentage of malpractice that results in a wrongful death leads to a lawsuit or settlement. (I think I saw a study that said 4% but don’t hold me to that. Both sides of the tort reform issue argue that true victims don’t receive adequate compensation.) And while medical malpractice lawsuits are about money, it would amaze cynics at how often the desire to appropriately assign liability is more important to the client than how much money they recover from the lawsuit.

Yet, a significant percentage of people in the country would agree with the first paragraph of this post instead of the second. I really believe that a big reason for this is the inferences people draw from what happens when something happens to someone famous.

Why is it that every time something happens to a celebrity there is a lawyer ready and willing to sue no matter how ridiculous the circumstances are? I know exactly why. Lawyers enjoy the status and notoriety they get when they represent a celebrity.

How do I know this? I’ve fallen prey to it myself. Ten years ago, when I was just starting a plaintiffs’ personal injury practice after being a defense lawyer, I filed a medical malpractice lawsuit against the New England Patriots. The claim against the Patriots settled, and I believe it was a meritorious claim. Did I enjoy it when ESPN and CNN picked up the story? I can tell you I’m far past that point in my life now, but then? Yeah, I did. After that, I handled other high-profile media cases that brought attention to myself that; I have to admit, I would never have gotten involved in if I was not (1) flattered to have been asked and (2) the plaintiff was not famous or the case was not high profile.

Like I said, I’m far past that now. I just want to be the best lawyer I can be and get the best results possible for our clients and I don’t want attention for the mere filing of a lawsuit which is the ultimate Paris Hilton/Kim Kardashian “get notoriety for doing absolutely nothing” without the consolation prize of at least being very attractive while doing it. Continue reading