Maryland Injury Law Center

Medical malpractice kills 400,000 people a year in this country and injures 4 million more.  The media is now starting to focus on this story, as we just talked about on Monday after the Baltimore Sun’s story on negligence in Maryland hospital.  Stories like this help plaintiffs in medical malpractice cases.  Why?  Because many of us still view doctors as infallible and that wall of invincibility is being to fall.

So, why is it so hard to find a medical malpractice lawyer in Maryland who will take your case?

Joanna Shepherd, a law professor at Emory University, conducted a national survey of medical malpractice attorneys that explored why malpractice attorneys reject cases.   

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The Baltimore Sun published an important front-page article yesterday on hospital errors in Maryland.

The premise of the article is a simple yet different approach to medical mistakes in Maryland hospitals.  It goes like this.  We have about 400,000 patients who are killed every year by medical malpractice.  

How are Maryland hospitals faring?  We don’t know.  There is a major epidemic that kills enough people in this county to fill Camden Yards 10 times a year.  Malpractice that causes serious injury could fill Camden Yards over 100 times (4,000,000) a year.  Yet we have no quality way of estimating how Maryland is faring.  Why is this? The hospitals, doctors, and insurance companies do not provide this data to us.

Said differently, we are all particularly those of us that are young or old – vulnerable to this grave risk.  We face other risks, of course.  Heart disease, cancer, motor vehicle accidents, diabetes, all pose substantial risks of death.  With these risks, we can sift through the data, understand the risks, and do what we can.  We quit smoking, eat better, wear seat belts, and so forth.

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One of the great selling points of caps in medical malpractice cases is that it encourages doctors to come to your state to practice.  Every state, particularly in jurisdictions with rural areas where access and availability to doctors is a prominent concern, want to attract a healthy supply of doctors to their state.  The thinking it is that doctors will flee to states where the litigation climate is more favorable to doctors.   A new study suggests this oft cited canard support tort reform is 100% true.  But not in a good way for patients.

A Notre Dame economist published a study titled “Medical Malpractice Reform, the Supply of Physicians, and Adverse Selection,” Journal of Law and Economics” that found that “when a county’s neighboring state passes a cap on noneconomic damages, the supply of physicians falls by 4 percent” in that county.”   Tort reform advocates are nodding their heads vigorously.

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One hot button issue in Maryland medical malpractice cases today is the circumstances under which defense lawyers can speak to Plaintiff’s treating doctor.  For years, this was not an issue.  If a defense lawyer wanted to talk to a treating doctor, she would just pick up the phone and call.  This was a powerful tool for malpractice defense lawyers because (1) you always want to know what a treating doctor — or any witness — will say before the doctor testifies, and (2) it gives the defense lawyer a chance to take part in shaping the doctor’s testimony.

HIPAA changed all of this in 1996.   HIPAA requires that a doctor “may disclose protected health information in the course of any judicial or administrative proceeding [i]n response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.”  45 C.F.R. § 164.512(e)(1)(i).

So that settles it, right?   In most states, yes.   If this is current, 38 states prohibit ex parte conduct, and another six permit informal interviews with significant restrictions.

Why This Fight Continues in Maryland

Yet in Maryland, the battle still rages.  Defense lawyers argue that under Maryland law once a patient places his or her medical care and treatment at issue in a civil action filed against a health care provider, all health care providers shall disclose all information in medical records and/or health-related information to another health care provider’s legal counsel.   Specifically, Md. Code Health Gen. § 4-306(b)(3) provides a statutory right to ex parte communications.  Actually,  I think the statute provides only for the disclosure of written medical records, as they are defined in Md. Code Health Gen. § 4-301(h).

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In Valentine-Bowers v. Retina Group of Washington, a new medical malpractice case decided by the Maryland Court of Special Appeals,  the plaintiff alleged that her physician failed to monitor a problem with her eye that caused her to lose vision in that eye.  It is a serious injury for a young woman.  But this case is not about the underlying merits of the claim, it is about the things you have to do to get a medical negligence claim to a jury.

The case starts with the defendant serving discovery on the plaintiff.  The plaintiff did not respond in a timely fashion.  Judge Douglas R. M. Nazarian, a relative newcomer to the court, acknowledged this failure is commonplace.

Her failure to comply with the deadline is unremarkable—parties routinely miss this deadline and litigators know that absolute compliance is not always possible (although they do, and should, expect at least a request for an extension and a good faith deadline in return).

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