Maryland Injury Law Center

Southern Maryland News has an article about a serious problem: the shortage of doctors in Southern Maryland. This is a good issue that needs attention. I’ve written about this on the Maryland Injury Law Center in the past in a post titled “Doctor Shortage in Maryland? A Doctor in Southern Maryland Says There Is a Shortage of Doctors.”

Yet, bizarrely, the article focuses on medical malpractice insurance, profiling the ostensibly tragic story of Dr. Charlene Letchford who was forced by the “skyrocketing cost of medical malpractice insurance” to join a group of doctors at Calvert Memorial. Apparently, the bill “recently jumped from $11,000 to $16,000 a year.”

Now, is it possible – just possible – that this $5,000 was not the deal-breaker? Are there other alternatives to explain why her practice was unsuccessful other than the additional $13.70 she has to pay every day for malpractice coverage?

The article also points to the insurance company reimbursement rates, which are increasingly defeating attorneys in the battle to be the archenemy of Maryland doctors. But it is troubling the extent to which doctors seek to bundle up all of their problems and place them at the doorstep of medical malpractice lawsuits.

The article includes the following bizarre quotes from Dr. Barry Aron, an OB/GYN in La Plata (Charles County):

Even if the case is dismissed the lawsuit still counts against you with the insurance carrier. It’s a losing situation. Even if a doctor wins a case the insurance company still pays out money.

It’s all a game to the lawyers involved. It’s kind of a shame. The way the system works is that pain and suffering brings in a lot of money.

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In an awful decision this week in a wrongful death medical malpractice case, the Michigan Court of Appeals overturned a lower court’s ruling which would have prevented ex parte communications between defense counsel and a Plaintiff’s treating physician from being entered into evidence, because HIPAA privacy rules already prohibit medical malpractice defense lawyers from meeting ex parte with plaintiff’s physicians even if the Plaintiff has executed a HIPAA authorization.

This Michigan Court of Appeals opinion relies on the fact that the Plaintiff executed a HIPAA authorization for the defense counsel. In Maryland, there is no mechanism to require a Plaintiff to waive HIPAA rights before they file a lawsuit. Based on a quick review of Belote v. Strange, another Michigan Court of Appeals case, I think Michigan interprets HIPAA to protect oral interviews with doctors if there is no executed HIPAA authorization. So I extrapolate from this that plaintiffs are required to sign a HIPAA form to pursue a medical malpractice case in Michigan.

Our lawyers never allow our clients to sign HIPAA authorizations for defense counsel use in personal injury or medical malpractice cases. Many of us, as attorneys, want to be considered cooperative lawyers and feel bad denying these requests. But the lesson learned here is that if you compromise your client’s rights under HIPAA, you are leaving your client open to unforeseeable consequences.

Dr. Henry M. Learner, an instructor in Obstetrics and Gynecology at Harvard, writes an article in this month’s OBG Management called “Rebuff Those Malpractice Lawyers’ Traps and Tricks.” Dr. Learner is also the president of Shoulder Dystocia Litigation Consultants, a group that works with defense lawyers, medical malpractice insurance company case managers, and hospital risk managers in shoulder dystocia-related injuries and litigation.

I hate to give up one of my own but I’m sure Dr. Learner is a double agent. Because the advice he gives in this article is obvious (“know the specifics of your case”) or downright counterproductive. One piece of advice is to pull a Sarah Palin: “you don’t necessarily have to play by the rules for answering questions….” That cracks me up. But this one is even better:

Never allow an attorney to bully you in the courtroom or at a deposition. If the attorney begins to use such behavior, call it by its name and demand that it be stopped. Your lawyer will likely have raised the objection before you do; if she does not, protest such inappropriate behavior yourself. Never allow an attorney who is questioning you to raise his voice or speak to you sarcastically or rudely.

In January, I wrote about Marcantonio v. Moen, an Anne Arundel County medical malpractice lawsuit that the trial court dismissed on summary judgment. The malpractice lawsuit alleges wrongful death as the result of an OB/GYN’s misinterpreting a sonogram and failing to order sufficient tests to follow up on the woman’s symptoms.

Because of this failure to diagnose, the Plaintiff claims that his wife’s chances of survival went down from 80% to 50%-60%. The Maryland Court of Special Appeals found that there has to be a 51% likelihood that the person would have died but for the negligence. So in this case, she would have to have a 29% chance of living because of the negligence to recover an award. So while she was statistically likely to defeat cancer even with the malpractice, she died.

The post focused on Judge Timothy E. Meredith’s dissent, who contended that the requirement that the decedent’s chance of survival should not—as a matter of fundamental mathematics—revolve around whether there was a 51% decrease in the likelihood the decedent would survive. Because if you had a 90% chance of living and the defendant’s negligence takes you down to 60% and you die, there is a 75% chance you died because of negligence.