Medical Malpractice

October 9, 2020

Maryland Appeals Court Grants New Trial for Plaintiffs in Wrongful Death Case

In Maryland, surviving family members may have the right to take legal action against those responsible for the death of a family member. These types of actions are known as Maryland wrongful death claims. In a recent case, the wife and children of the decedent filed a lawsuit against the doctor who had treated him and the medical practice where he sought medical care. At trial, the lower court dismissed the plaintiffs’ wrongful death claims. In a June 22, 2020 opinion, the Maryland Court of Special Appeals reviewed whether dismissal was appropriate.

The decedent had visited the defendant in February of 2013 because he had been experiencing dizziness and pain in his tongue and ear. At that visit, the decedent received a tongue scraping biopsy. Although the biopsy results indicated that the sample was benign, the report also stated that the biopsy was fragmented and small, which limited its findings. When the decedent continued to experience pain over the following year, the defendant performed a second biopsy in July of 2014, which revealed that he had cancer. The decedent underwent various treatments, but eventually succumbed to complications related to oral cancer.

The plaintiffs alleged that the defendants were negligent by failing to properly diagnose the decedent’s cancer when he first sought treatment. At trial, the plaintiffs called a medical expert who testified that if the decedent been diagnosed at the time of the first biopsy, the survival rate would have been between 70 and 80 percent, instead of 50 to 55 percent. The defendants then argued that the plaintiffs had only established a loss of chance of survival, not that the defendants’ negligence caused the decedent’s death. The trial court agreed and dismissed the plaintiffs’ claims without a jury verdict.

June 30, 2020

Appeals Court Allows Plaintiff to Proceeding with Maryland Medical Malpractice Claim Against Nursing Facility Despite Delay

by Foran & Foran, P.A.

Personal injuries arising out of negligent heath care providers may be subject to the Maryland Health Care Malpractice Claims Act. A Maryland medical malpractice attorney can guide you through the requirements and deadlines of the Act. In a June 17, 2020 case, the Court of Special Appeals considered whether the plaintiff’s delay in filing a medical malpractice complaint against a nursing home was grounds for dismissal.

The plaintiff in the case was admitted to the nursing facility for rehabilitation following his hip replacement surgery. He alleged that he developed pressure ulcers in several areas of his body during his stay there, which became infected and ultimately led to a below-the-knee amputation of his right leg.

Almost three years after he left the nursing facility, the plaintiff initiated an action under the Maryland Health Care Malpractice Claims Act. The defendant waived arbitration, which triggered the 60-day window in which the plaintiff must file his complaint in circuit court. The plaintiff missed the deadline, however, and did not file the complaint until five months later. The defendant moved to dismiss, arguing that the delay was inherently prejudicial. The circuit court granted the motion, and the plaintiff appealed.

June 14, 2020

Court Discusses Requirements for Qualified Expert in Maryland Medical Malpractice Case

by Foran & Foran, P.A.

The Maryland Health Care Malpractice Claims Act governs medical malpractice actions in Maryland. To file a claim under the Act, a plaintiff must follow the requirements provided therein. In a May 26, 2020 case, the Court of Special Appeals of Maryland analyzed whether the plaintiff had complied with the certification requirements under the Act. The issue came before the court on appeal by the plaintiff, who had filed a negligence claim against a hospital.

The plaintiff in the case alleged that he suffered injuries as a result of the defendant’s employees negligently dropping him into a chair during the course of his recovery from back surgery. In accordance with the Act’s requirements, the plaintiff filed a Certificate of Qualified Expert and Report. The certificate was completed and signed by a registered nurse. The plaintiff then filed an election to waive arbitration and proceed in circuit court, which was granted.

In circuit court, the defendant filed a motion to dismiss based on the ground that the certificate was deficient because it was signed by a registered nurse, and not by a medical doctor. The trial court agreed with the defendant, finding that the certificate was deficient and dismissed the plaintiff’s complaint. The plaintiff brought the subsequent appeal.

January 30, 2020

Maryland Appeals Court Reversals Dismissal of Medical Malpractice Claim

by Foran & Foran, P.A.

A Maryland medical malpractice claim requires an expert witness to testify in support of the plaintiff’s case. Failure to secure an expert medical witness, or provide admissible expert testimony may result in a dismissal of the claim. In a January 10, 2020 medical negligence case, the Court of Special Appeals of Maryland reviewed whether the testimony of the plaintiff’s expert witness was excluded improperly by the circuit court. That decision resulted in a dismissal of the plaintiff’s case, prompting her subsequent appeal.

The plaintiff in the case had received medical treatment from the defendant after suffering fractures to her pelvis and arm. The plaintiff alleged that the defendant failed to timely diagnose and treat an oral infection, which led to pain, an inability to eat, and weight loss. To support her medical malpractice claim, the plaintiff presented an expert medical witness to testify.

After the deposition of the plaintiff’s expert witness, the defendant moved to exclude his testimony, arguing that he had failed to define the standard of care during his deposition. The plaintiff sought leave of court to recall her expert and have him clarify his standard of care testimony. The circuit court did not specifically address the plaintiff’s request, but ruled that the testimony would be excluded because he never specifically stated the standard of care. The case was then dismissed, as he was the plaintiff’s sole expert witness.

January 25, 2020

Appeals Court Reviews Maryland Medical Malpractice Action Dismissed on Procedural Grounds

by Foran & Foran, P.A.

To file a medical malpractice claim in Maryland, a plaintiff must follow certain procedural rules and deadlines provided under the law. In a November 27, 2019 opinion, the Court of Special Appeals of Maryland addressed the consequences of failing to comply with these rules. The plaintiff in the case had brought a medical malpractice claim against her doctor and the hospital following her cataract surgery, alleging that she suffered a loss of vision in her left eye.

To bring a medical negligence lawsuit under the Health Care Malpractice Claims Act, when the amount sought is more than $30,000, a plaintiff must first file a claim with the Director of the Health Care Alternative Dispute Resolution Office. Within 90 days after filing a claim, the plaintiff must file a certificate of a qualified expert along with a report from that expert. The certificate and report must attest to the defendant’s departure from the relevant standard of care, which proximately caused the plaintiff’s injury.

There are exceptions to the requirement that a certificate be filed within 90 days. In general, an extension may be granted if the failure to file the certificate was not willful or a result of gross negligence, or for good cause shown by the plaintiff.

January 3, 2020

Court Orders New Trial for Breast Cancer Patient in Maryland Medical Malpractice Suit

by Foran & Foran, P.A.

In a July 25, 2019 opinion, the Court of Special Appeals of Maryland revisited a medical negligence case for the second time on appeal. The plaintiff had filed a Maryland medical malpractice lawsuit against her doctors, alleging that they failed to timely biopsy and diagnose a mass on her right breast. The plaintiff claimed that that as a result of their negligence, she underwent a bilateral mastectomy instead of a less-invasive lumpectomy and suffered painful and permanent injuries.

After a trial, the jury awarded the plaintiff past medical expenses in the amount of $35,000 and $150,000 in non-economic damages. The defendants appealed, arguing the trial court had erred by allowing the plaintiff to testify about her distress regarding her fear of death. In the first appeal, the court agreed, finding that the plaintiff’s chance of survival was at least 88 percent and that the testimony would have an obvious effect on the jury. The judgment was reversed, and the case was remanded for a new trial.

The trial court, however, ordered that the new trial be limited to non-economic damages only. The defendants then filed a motion to preclude the plaintiff’s expert from testifying as to whether the plaintiff needed a mastectomy on her right breast due to the alleged delay in diagnosis, and as to the plaintiff’s left breast mastectomy, since it was not medically necessary. After the motion was granted, the defendants moved for summary judgment based on the plaintiff’s lack of any causation expert, which was also granted. The plaintiff then filed the current appeal.

December 30, 2019

Maryland Court Examines Non-Party Negligence Defense in Medical Malpractice Case

by Foran & Foran, P.A.

To succeed in a Maryland medical malpractice action, the plaintiff must show that the treatment he received from his doctor fell below professional standards, and as a result, caused the plaintiff’s injury. In some situations, the defendants may argue that the negligence of non-parties contributed to the plaintiff’s injuries, as in a June 26, 2019 case before the Court of Special Appeals of Maryland. However, the defense of non-party negligence must be properly supported by evidence before it can be presented to a jury.

In the case, a cancer patient brought a medical malpractice action for the defendants’ failure to remove a cancerous lymph node before it became inoperable. The plaintiff had received medical care from multiple doctors before the diagnosis and during the course of his treatment, but eventually pursued his claims against two radiologists and their employer.

The case went to trial. During the closing argument, the defendants argued that the plaintiff’s injuries resulted from the conduct of three non-party physicians, and not from any negligence on the part of the defendants themselves. The jury ultimately found that the defendants were not negligent. The plaintiff appealed, asserting that the trial court had erred by allowing the issue of non-party negligence to go to the jury without expert testimony of same.

December 25, 2019

Court Evaluates Certificate of Qualified Expert in Maryland Medical Malpractice Appeal

by Foran & Foran, P.A.

The requirements for filing a Maryland medical malpractice claim are different than those for a typical personal injury case. If the procedural rules are not followed, the claim could be delayed or even dismissed. In a May 22, 2019 opinion, the Maryland Court of Special Appeals considered whether or not a plaintiff’s medical malpractice lawsuit should have been dismissed by the trial court.

The case was brought by the estate of a deceased patient. The patient had undergone heart surgery and, following the procedure, complained of nausea, vomiting, and other symptoms. The defendant in the case was the cardiologist who provided treatment for her symptoms. After examining the patient, the defendant discontinued three of her medications. Shortly thereafter, the patient was hospitalized for severe congestive heart failure. She underwent another surgery, but her health continued to decline and she died later that day.

The plaintiff filed a medical malpractice claim with the Health Care Alternative Dispute Resolution Office and attached a Certificate of Qualified Expert from a cardiothoracic surgeon. The parties waived arbitration and the claim was then brought in the circuit court. The defendants moved to dismiss the case, arguing that the Certificate of Qualified Expert failed to meet the requirements of the Maryland Health Care Malpractice Act. The circuit court agreed, and the plaintiff filed an appeal.

December 22, 2019

Plaintiff Brings Maryland Medical Malpractice Claim for Car Crash Injuries After Settling with Auto Insurer

by Foran & Foran, P.A.

When multiple parties contribute to a plaintiff’s injuries, the plaintiff may benefit from the guidance of a Maryland personal injury attorney. In these types of cases, Maryland law allows the plaintiff to recover the amount of damages that fully compensates the plaintiff for his or her injuries, and no more. Once that amount has been completely satisfied, the plaintiff cannot pursue compensation from other tortfeasors for the same injuries.

This issue was recently addressed in an April 29, 2019 case decided by the Court of Appeals of Maryland. The plaintiff in the case brought a medical malpractice action against the hospital that treated her for injuries she suffered in car accident. After undergoing surgery for injuries caused by the accident, the plaintiff developed an infection. The antibiotics were given through a Peripherally Inserted Central Catheter (“PICC line”), which was inserted into her left arm. During the insertion, however, the PICC line punctured the plaintiff’s brachial artery. As a result, the plaintiff underwent vascular surgery to repair her brachial artery.

The medical malpractice suit was filed after the plaintiff had settled a prior action against her insurance company and the negligent driver that caused the accident. As a result of the settlements, the plaintiff received compensation for the injuries she suffered in the accident. The question for the court was whether the plaintiff was therefore barred by the one satisfaction rule from recovering compensation from the hospital on her medical malpractice claim.

April 9, 2019

Maryland Court Upholds Verdict for Plaintiff in Medical Malpractice Lawsuit Against Neurosurgeon

by Foran & Foran, P.A.

In a Maryland medical malpractice case, the jury instructions are generally important for members of the jury to understand and apply the law to the evidence presented at trial. Sometimes, the instructions provided to the jury may be grounds for appeal. In January 25, 2019 opinion, the Court of Appeals of Maryland considered whether it was improper for the trial court to give instructions on both the standard of care for general negligence and the higher standard of care for a physician in a medical malpractice case.

The plaintiff in the case had sought medical treatment from the defendant after he experienced numbness in his fingers and intermittent neck and shoulder pain. The defendant recommended surgery to remove damaged discs from the plaintiff’s spine and fused vertebrae in his neck. After the defendant had performed the surgery, the plaintiff developed an infection at the location of the operation. The plaintiff was hospitalized as a result of the infection, and remained hampered by a severely limited range of motion.

The plaintiff sued the defendant for medical negligence and failure to obtain informed consent. At trial, the court gave the jury a general instruction on negligence using the reasonable person standard, i.e., that negligence is failing to use the caution, attention, or skill of a reasonable person would use under similar circumstances. The court also gave an instruction that specifically addressed the negligence of a health care provider, which read: a health care provider is negligent if he does not use that degree of care and skill which a reasonably competent health care provider engaged in a similar practice and acting in similar circumstances would use. The jury returned a verdict in favor of the plaintiff on the first count for medical negligence.