Maryland Injury Law Center

Really tough opinion for medical malpractice plaintiffs in Maryland was issued in U.S. District Court last week.

Tangent #1: Why Isn’t This Case in State Court?

Technicalities are abound in malpractice cases

As a preliminary matter, it is complete garbage that this case is in federal court in the first place. The plaintiff, in this case, is, euphemistically, a guest of the state of Maryland. The defendant is a Missouri corporation under contract with the state to provide health care services to inmates. No one says they should get hugs, but we can all agree our prisoners need competent medical care?

I can’t figure out why the health care providers were not sued individually. But it seems crazy that a corporation can come to Maryland and perform health care services and not be amenable to suit in state court. Couldn’t the state require corporations who are treating Maryland patients to consent to jurisdiction in state court? I realize we are talking about prisoners and most people in Maryland and too busy fuming that they get to watch cable television, but this is a larger question. Moreover, are there not any Maryland corporations who could do this work?

Tangent #2: We Butcher Our Prisoners and We Know It

Anyway, this is a failure to diagnose his cancer that caused Plaintiff to require surgery and, more importantly, a colostomy bag. That’s an actual case. You know, we – our law firm – largely blows off these prisoner malpractice cases because you usually have an unsympathetic plaintiff who, let’s be honest, is more likely to lie about what the records will show when you first speak to them on an intake. This is probably a smart move for us in terms of resources but a terrible choice in the overall arc of justice because you are kidding yourself if you don’t think prisoners are not being butchered by medical malpractice all over this country.

Okay, Let’s Talk About the Actual Case

Okay, I need to stop the tangents and get back to the case. Plaintiff filed suit in Health Care Alternative Dispute Resolution Office and filed an expert report and certificate of merit by a qualified doctor. He then waived out of arbitration, which is the customary practice, and filed suit in federal court.

The defendant moved, as malpractice defendants are wont to do, to dismiss the suit because Plaintiff’s certificate of merit and report were insufficient because it did not articulate the appropriate standard of care or detail how the health care providers departed from it.

I’m not sure that is entirely true. The expert report says:

It is my opinion that a more thorough investigation of [Plaintiff’s] complaints should have been performed in early 2005, and that had such an investigation been performed, it likely would have revealed a developing colon cancer, allowing for more prompt intervention and treatment. The delay in diagnosis also delayed treatment and allowed [Plaintiff’s] cancer to progress during the intervening period and therefore caused him some injury.

But the court agreed that a more precise statement was required and dismissed the case.

Can We All Agree Maryland Law on This Is Dumb, Right?

As a threshold, we are about to debate a dumb law that places form well ahead of substance. If justice were a part of the equation, this case is a no-brainer and the case would either go on or the plaintiff would be required to provide a more detailed report.

What I wrote about this case – and what I wish I could write – is that this kind of insanity could not be what the Maryland legislature had in mind. But, let’s be honest: it might be exactly what they had in mind. Hat tip to MedChi lobbyists everywhere. Well played. Continue reading

I used to write a lot on this blog about the myths that surround medical malpractice in Maryland and throughout this country.

I’ve largely jumped off the soapbox because I realized something: no one is listening. Most readers of this blog are digging into those kinds of posts they already either agree or disagree with, and I’m not changing anyone’s mind. So it just feels like a fool’s errand to keep trying.

Max Kennerly’s Blog Post

Max Kennerly didn’t get this memo and writes a really nice post (that is no longer available) today shedding more light on the reality of this epidemic, one that we have not made a real dent into despite a lot of smart people trying to help solve the problem.

One issue Max talks about is the crazy paradox of doctors saying, “The problem is defensive medicine. I order my patient tests they don’t need and might subject them to harm because I want to cover myself against lawsuits even though I have malpractice coverage.” Here is one saying almost exactly this. It seems like an unbelievably self-incriminating statement that some doctors blithely give all the time. They could at least throw us a bone and show enough self-awareness to acknowledge the insanity of it.

I believe, as Max does, that most doctors put their patients first and order the exact amount of testing and treatment they need. In fact, I think defensive medicine is a problem primarily because doctors care so much for their patients; they want what is best for them regardless of the cost. Is this a problem? Maybe on a macro-level. But we have bigger problems than the byproducts of doctors caring too much about their patients.

(2023 Update: There is better data now on the idea that doctors are performing unnecessary tests. So maybe some of my “doctors are good people who would not provide unnecessary tests of people to protect themselves” optimism may have been a bit ill-founded.)

Doctors also practice defensive medicine because they don’t want to be blamed for hurting their patients outside of the litigation fears. Forget lawsuits, can you imagine being blamed for the death of another person? Whether the accuser is right or wrong, there has to be an unbearable pain that comes with that.

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Last summer, we were talking about the $55 million cerebral palsy malpractice verdict against Johns Hopkins. This summer the verdict – which was reduced to $28 million – is hanging by a thread after the Maryland Court of Special Appeals overturned the verdict. Unless the Maryland high court sees the case different, this case will go back to the trial court in Baltimore to start all over again.

New Trial in Baltimore Birth Injury Case

This appeal hinged on the decision by Baltimore City Circuit Judge Marcus Z. Shar – considered a top judge by plaintiffs and defendants alike – to exclude evidence of the negligence of the midwife before the baby got to Hopkins.

The judge’s logic was that it really did not matter why the child was in a tough spot.  So whether or not another health care provider created the crisis, the ultimate issue is whether Hopkins could have saved the child from these awful birth injuries if it had not deviated from the standard of care. Judge Shar found that:

[T]he defense was not prevented and did, in fact, present evidence that the midwife’s conduct was dangerous under the circumstances, why it was dangerous under the circumstances that it caused the damages, and how it caused the damages.

Defense was free to vigorously argue that the midwife’s conduct was the proximate cause. They were, however, prevented from characterizing the conduct as “negligent.” Telling the jury that a nonparty is negligent as opposed to how the conduct affected what happened to the plaintiff would have been prejudicial and not relevant to the case.

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