Articles Posted in Medical Malpractice

The Maryland Health Care Malpractice Claims Act (Health Care Act) provides statutory procedures that apply to certain legal claims involving health care and medical treatment.  Recently, the Court of Special Appeals of Maryland decided whether a lower court correctly ruled that the plaintiff failed to follow rules set out in the Act.  The plaintiff filed a negligence claim in circuit court against the owner of a rehabilitation center where she received treatment.  The defendant moved to dismiss, arguing that the plaintiff did not submit her claims for arbitration before filing in the circuit court, as required by the Health Care Act.  The court granted the motion, which led to the plaintiff’s bed

The case arose out of the plaintiff’s stay at a nursing rehabilitation center for her recovery and physical rehabilitation following back surgery.  The plaintiff alleged that the mattress on her bed came loose and slid off the frame, causing her to fall to the ground.  A nurse refused to help the plaintiff stand but instead placed her in a mechanical lift in order to return her to the bed.  The plaintiff claimed that the nurse prematurely released the net, causing her to drop to the floor.  The plaintiff called an ambulance and was eventually moved back into her bed by an EMT.

The Health Claims Act provides that all claims, lawsuits, and actions by a person against a health care provider for a medical injury must be submitted to the Health Care Alternative Dispute Resolution Office for arbitration before maintaining a tort action in the circuit court.  A medical injury under the Act is an injury arising or resulting from rendering or failure to render health care.  On appeal, the plaintiff argued that the Health Claims Act does not apply to her claim because her injuries were not caused by the defendant’s rendering or failure to render health care, but instead they were sustained as a result of ordinary negligence, rather than medical malpractice.

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There are several legal requirements necessary to bring a medical malpractice action in Maryland, one of which is expert testimony. The Court of Special Appeals of Maryland considered the issue of expert testimony in a recent case, Harper v. Calvert Ob/Gyn Assocs. of S. Maryland, LLC (Md. Ct. Spec. App. Dec. 6, 2016). The plaintiff filed a complaint against her obstetrician, alleging medical malpractice and failure to provide informed consent. The trial court granted judgment at the close of the plaintiff’s case, largely based on her failure to secure her own expert witness.


In Harper, the defendant cared for the plaintiff during her two pregnancies in 2002 and 2006. During her first delivery, the plaintiff gave birth to a healthy baby without any shoulder injury, but the baby’s medical chart included contradictory information of a shoulder dystocia and no observed abnormality. Although prior shoulder dystocia can pose an increased risk of a subsequent dystocia, this possibility was not considered in the plaintiff’s 2006 pregnancy because neither the plaintiff nor the defendant was aware of any issue during the 2002 pregnancy, and the defendant did not read the entire 2002 delivery summary document indicating dystocia. During the plaintiff’s 2006 delivery, a shoulder dystocia occurred, and the infant sustained a severe and permanent brachial plexus injury.

Before trial, the plaintiff’s two expert witnesses were unable to testify, due to illness and an unforeseen conflict of interest, and her request to substitute a new expert witness upon short notice was denied. The plaintiff served a subpoena to compel the defendant’s expert to testify in her case, which was quashed by the trial court. At trial, the plaintiff abandoned her medical malpractice claim and pursued her claim for lack of informed consent. The plaintiff called the defendant as an adverse witness, although the defendant was never formally presented as an expert. At the close of the plaintiff’s case, the defendant moved for judgment on the ground that the plaintiff failed to present the expert testimony necessary to sustain her case. The trial court granted the motion.

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In order to hold a defendant liable in a medical malpractice claim, the plaintiff must establish that the defendant owed them a duty of care. In the absence of a doctor-patient relationship, there are rare circumstances under which the law may impose a duty of care to a third party who never received treatment. The Court of Special Appeals of Maryland addressed this issue in Puppolo v. Holy Cross Hosp. of Silver Spring, Inc. (Md. Ct. Spec. App. Nov. 14, 2016), a recent case arising out of the medical treatment of the plaintiff’s bed

In Puppolo, the plaintiff’s mother received treatment at the defendant’s hospital for an intracranial hemorrhage, involving a bedsore on her lower back. The bedsore became a serious health issue that required extensive treatment, and the plaintiff’s mother eventually passed away. The plaintiff sued the hospital, alleging claims of medical malpractice, battery, fraudulent concealment, intentional infliction of emotional distress, and wrongful death. The trial court dismissed the plaintiff’s personal claim for fraudulent concealment, and the plaintiff appealed.

In her complaint, the plaintiff alleged that the defendant intentionally concealed the existence of the bedsores and its failure to treat those bedsores, thus placing undue and unnecessary mental strain on the plaintiff. The necessary elements for fraudulent concealment are:  (1) the defendant owed a duty to the plaintiff to disclose a material fact; (2) the defendant failed to disclose that fact; (3) the defendant intended to defraud or deceive the plaintiff; (4) the plaintiff took action in justifiable reliance on the concealment; and (5) the plaintiff suffered damages as a result of the defendant’s concealment.

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The Court of Special Appeals of Maryland recently reviewed a jury award of $185,000 to a plaintiff for negligent conduct in a medical malpractice case. In Luecke v. Suesse (Md. Ct. Spec. App. Oct. 28, 2016), the plaintiff sued her doctor and her practice group, alleging that they were negligent in failing to arrange a biopsy and render timely treatment for a mass in her breast. The plaintiff’s condition eventually required extensive medical treatment and major surgery. Before trial, the court denied the defendants’ motion to exclude testimony regarding the plaintiff’s chance of survival. The jury ultimately returned a verdict in favor of the plaintiff, awarding $35,000 in past medical expenses and $150,000 in non-economic IV

On appeal, the defendants argued that the trial court erred in allowing evidence of the plaintiff’s probability of survival, contending that it was irrelevant and highly prejudicial. In particular, the defendants objected to testimony that the plaintiff’s chances of getting a more serious, invasive cancer have increased and that her life expectancy has the potential to be decreased. The defendants contended that the reduced probability of survival was also not compensable under Maryland law as an element of damages because the plaintiff retained a greater than 50% probability of survival. The plaintiff responded that the evidence was relevant to her claim for emotional distress and distinguished it from loss of chance of survival.

In Maryland, a reduction in survival percentage is not compensable and not an element of damages when the patient retains a greater than 50 percent probability of survival. As a result, the appeals court agreed that loss of chance of survival was not an appropriate claim in Luecke. The court went on to address the plaintiff’s claim for recovery for emotional damages, noting that it must arise out of tortious conduct. Specifically, to recover emotional distress damages for fear of contracting a latent disease, a plaintiff must show that (1) she was actually exposed to a toxic substance due to the defendant’s tortious conduct, (2) which led her to fear objectively and reasonably that she would contract a disease, and (3) as a result of the objective and reasonable fear, she manifested a physical injury capable of objective determination.

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In a recent medical malpractice case, the Court of Special Appeals of Maryland considered whether striking a standard of care expert as a sanction for non-compliance with scheduling and discovery orders was an abuse of discretion by the trial court. In Queensbury v. Rafiq (Md. Ct. Spec. App. Sept. 26, 2016), the plaintiff brought a negligence lawsuit against the defendant doctor, alleging that he failed to exercise reasonable care in treating the plaintiff and subjecting the plaintiff to chiropractic procedures, and that he failed to disclose the material risks and alternatives to the treatment. The court set deadlines for the plaintiff to identify his experts according to Maryland rules. After filing his initial designation of experts, all of the plaintiff’s experts withdrew and were replaced with new ones, although the filing deadline had passed. The plaintiff was allowed an extension of discovery deadlines and designating his experts, but he then canceled a scheduled deposition of his expert. The judge subsequently struck the plaintiff’s expert and granted the defendant’s motion for summary judgment, and the plaintiff brought an appeal.gavel

In Queensbury, the scheduling order at issue was entered pursuant to Maryland Rule 2-504. Although the rule doesn’t expressly provide sanctions for scheduling order violations, Maryland courts have held that a judge may issue sanctions for such violations, including in medical malpractice claims. The court may evaluate several factors in considering discovery sanctions in civil cases, such as whether the violation was technical or substantial, the timing of the violation, the reason for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether the resulting prejudice might be cured by a continuance, and the overall desirability of a continuance.

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In order to succeed in a negligence lawsuit, a plaintiff must not only prove that the defendant breached a duty of care but also prove that the defendant’s breach was the cause of the plaintiff’s injury. The Court of Special Appeals of Maryland addressed the issue of causation in a recent medical malpractice action, Hardy v. Advanced Radiology, P.A. (Md. Ct. Spec. App. Aug. 17, 2016). Although the court accepted that the doctor breached the standard of care, it ultimately held that the plaintiff failed to establish the necessary causal link between the doctor’s breach and the plaintiff’s

In Hardy, the plaintiff underwent a CT scan of his abdomen in February 2006. The defendant, a radiologist, interpreted the scan as showing nothing abnormal. The plaintiff sought a second opinion from another hospital 19 days later. Two different radiologists detected a mass, and a surgical consult was ordered. The surgeon reviewed the scan and reported that it looked benign, recommending follow-up CT scans. For the next several years, follow-up CT scans were performed annually. In December 2011, the plaintiff underwent a sixth CT scan, showing that the mass had doubled in size, and a biopsy of the mass led to a diagnosis as a cancerous tumor. The plaintiff filed a medical malpractice lawsuit in January 2013 against his doctors, including the defendant who interpreted his first CT scan.

At trial, the plaintiff’s experts testified that the defendant had breached the medical standard of care by failing to identify the mass in the plaintiff’s abdomen. At the close of evidence, the defendant moved for judgment, arguing that the plaintiff failed to prove that the defendant’s breach caused the plaintiff’s injury. The trial court denied the defendant’s motions. The jury found the defendant negligent and awarded $20,635 in damages. On appeal, the defendant again argued that the plaintiff failed to establish the element of causation.

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Retaining legally qualified experts to testify in your medical malpractice case is a crucial part of a successful claim. The Court of Special Appeals of Maryland discussed some of these requirements in a recent medical malpractice case, Streaker v. Boushehri (Md. Ct. Spec. App. Sept. 28, 2016).medical malpractice

In Streaker, the plaintiff brought a negligence and breach of contract action against a nurse midwife and her practice. The lower court granted the defendant’s motion to exclude the plaintiff’s expert testimony, finding that the expert devoted more than 20 percent of his professional activity to testifying in personal injury claims. The plaintiff appealed that decision to the higher court.

To file a medical malpractice action in Maryland, a plaintiff must initially file a certificate of a qualified expert, attesting that the defendant departed from the standard of care and that the departure proximately caused the alleged injury to the plaintiff. In medical malpractice cases, a qualified expert is not only measured by education, experience, and expertise, pursuant to Maryland Rule 5-702, but also by an additional statutory threshold. Commonly referred to as the “Twenty Percent Rule,” it provides that qualified experts may not devote annually more than 20 percent of their professional activities to activities that directly involve testimony in personal injury claims.

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In some cases, a medical malpractice claim may be brought after the statutory deadline for filing if it falls under a tolling exception. One of those exceptions may allow a mentally incompetent person to bring an action after the typical filing deadlines. In Kratz ex rel. Kratz-Spera v. MedSource Cmty. Servs., Inc., 228 Md. App. 476 (2016), the adult plaintiff suffered from severe autism and intellectual disability, and he lived in a group home operated by the defendant. In 2008, the plaintiff’s mother and sister were named as his court-appointed guardians. In 2013, after the plaintiff was injured in two separate incidents at the defendant’s group home in 2006 and 2009, his guardians brought suit against the defendant on his behalf. The defendant moved to dismiss the complaint, arguing that it was not timely filed, and the trial court granted the motion.laboratory form

In general, the Maryland Health Care Malpractice Claims Act provides that a cause of action must be brought against a health care provider within three years of the date the injury was discovered, or in any event no more than five years from the date of the injury. However, in the case of a minor or a mentally incompetent person, the action must be filed within the lesser of three years or the applicable period of limitations after the date the disability is removed. In Kratz ex rel. Kratz-Spera v. MedSource Cmty. Servs., Inc., the plaintiff’s mother knew of the 2006 incident on the day it happened, and she was notified of the 2008 incident on the next morning.

On appeal, the issue for the Court of Special Appeals of Maryland was whether the appointment of a guardian of a mentally incompetent person removes the disability of that person for the purposes of applying the statute of limitations. The court ultimately held that the tolling exception preserves the legal rights of a mentally incompetent individual until a guardian is appointed. Once a guardian is appointed, and he or she gains the requisite knowledge to file a claim on the individual’s behalf, the statute begins to run.

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The Court of Special Appeals of Maryland recently reviewed a personal injury case in which a patient sued her doctor for a failed sterilization procedure. In Tyler v. Judd (Md. Ct. Spec. App. June 30, 2016), the plaintiff sought treatment from her doctor to schedule a tubal ligation. She alleged that the doctor responded to her request by talking to her about Essure, stating that it was a non-reversible, pain free, 100 percent sterilization procedure. Based on that conversation, the plaintiff agreed to undergo insertion of the coils in her fallopian tubes. After the procedure, the plaintiff experienced ongoing abdominal pains and also became pregnant with her third child a short time later. The plaintiff gave birth to a healthy boy and had another doctor remove the coils. The plaintiff then brought suit against the doctor on grounds including lack of informed consent.medical negligence

At the trial, the plaintiff testified, along with several other witnesses. However, the plaintiff did not call any medical experts to testify in support of her claim. At the close of her case, the defendants moved for judgment, arguing that the plaintiff failed to present expert medical testimony, which is required for a claim of a lack of informed consent. The trial court agreed, ruling that expert testimony is needed to establish the nature of the risks inherent in a particular treatment, and that there was no testimony with respect to medical alternatives or the treatment’s percentage of failure, even the percentage of the Essure failure rate. The plaintiff subsequently appealed.

In Maryland, the doctrine of informed consent imposes a duty on a physician to explain the procedure to the patient before treatment, and to warn the patient of any serious risks or harm related to therapy, in order to allow the patient to make an informed decision about whether or not to undergo the treatment. This duty to disclose requires a doctor to inform the patient of the nature of the condition, the nature of the suggested treatment, the probability of success of the treatment and any alternatives, and the risk of undesirable consequences associated with the treatment. In bringing a negligence claim for lack of informed consent, therefore, the plaintiff must show a breach of this duty, causation, and injuries.

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In a newly issued decision, the Court of Appeals of Maryland settled the question of whether surviving family members can bring a wrongful death action based on the same alleged conduct as a personal injury claim won by the decedent before his death. In Spangler v. McQuitty (Md. July 12, 2016), the court ultimately held that the decedent’s beneficiaries are not barred from filing a subsequent wrongful death action, despite a judgment on the merits in the decedent’s personal injury claim. The court further held that when only one joint defendant is released from liability by the injured person, the other defendants are not also discharged. Accordingly, such a release does not preclude a wrongful death action brought by the survivors against other defendants that were not parties to the release.wrongful death

In Spangler, the mother suffered a placental abruption, causing severe injuries to her child during his birth as well as cerebral palsy. The parents of the minor child sued their obstetrician and medical practice group for failing to secure the mother’s informed consent for treatment. Several of the defendants settled with the plaintiffs before trial. After trial, the jury awarded the child approximately $13 million in damages, including future medical expenses. Although the verdict was upheld, the jury award was ultimately reduced after subsequent appeals.

During the appeal litigation of his personal injury claim, the child died. His parents filed a wrongful death action against the defendants under the Maryland wrongful death statute, based on the same underlying facts as the personal injury action regarding the obstetrician’s failure to obtain informed consent. The circuit court dismissed the case, concluding that it was precluded by the previous judgment. That decision was reversed by the Court of Special Appeals, and the case subsequently came before the Maryland Court of Appeals.

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