Articles Posted in Medical Malpractice

In some situations, a health care provider may violate the standard of care by not informing a patient of the potentially serious side effects of a medication.  In a September 24, 2021 case, the plaintiff brought claims for medical malpractice and lack of informed consent against his doctors, alleging that he was not properly informed of the high infertility risks of his prescribed medication.  The case came before the Court of Special Appeals of Maryland on review of the lower court’s decision granting summary judgment in favor of one of the defendants.

In March of 2010, when the plaintiff was in his mid-20s, he was hospitalized for cough and shortness of breath.  Thereafter, the plaintiff sought treatment from a pulmonologist, who prescribed increasing dosages of Cytoxan.  The plaintiff’s care was assumed by a second doctor in February of 2011, who continued treatment with Cytoxan, without significant improvement, until the plaintiff was fully weaned off the medication in May of 2013.

In 2016, the plaintiff was diagnosed with infertility due to Cytoxan toxicity.  The plaintiff brought a medical malpractice action in 2018 against the two doctors who treated him.  The plaintiff alleged that he was not properly informed of the high infertility risks of Cytoxan, and as a result, he did not have his fertility monitored or take any other action to preserve his ability to have children.  The circuit court granted summary judgment as to the claims of the first doctor as time barred.  The plaintiff appealed that decision.

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Whether a hospital may or may not be held liable for the negligence of a physician or staff member depends on a number of factors, including whether the doctors are employees of the hospital, or independent contractors.  In a July 20, 2021 opinion, the Court of Special Appeals of Maryland reviewed a medical malpractice claim against a hospital for the alleged negligence of its doctors under an apparent agency theory.

The plaintiff in the case was badly injured in a car accident on the Capital Beltway.  He was transported to the hospital in an ambulance, during which time the plaintiff testified that he was in and out of consciousness.  It was undisputed that the doctor who treated the plaintiff at the hospital’s trauma center was an independent contractor.  Ultimately, after multiple surgeries, the plaintiff’s legs were amputated above the knee, and his left arm was permanently damaged.

The plaintiff brought claims against the doctor and hospital, alleging that the doctor was negligent in providing medical and surgical care, and that the hospital was vicariously liable for the doctor’s alleged negligence under a theory of apparent agency.  Following a trial, the jury returned a verdict against the doctor, finding that he committed medical malpractice, and against the hospital, finding that the doctor was its apparent agent.  The plaintiff was awarded economic and noneconomic damages of over 6 million dollars.  The trial court, however, granted judgment notwithstanding the verdict in favor of the hospital as to the issue of apparent agency.  The plaintiff then sought review from the appeals court.

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In Maryland, expert testimony is generally required to establish a medical malpractice claim.  In a May 26, 2021 opinion, the Court of Special Appeals of Maryland considered whether evidence of negligence, which included opinions of two medical experts, was sufficient to survive a summary judgment motion in a medical malpractice case.

The plaintiff in the case was receiving prenatal care from the defendants during her pregnancy.  At 38 weeks, she reported decreased fetal movement at a routine prenatal visit.  She was referred to the hospital for further evaluation, where she received care from a delivery nurse and physician.  Ultimately, the physician diagnosed her with gestational hypertension and discharged her the same day.  Four days later, the plaintiff was admitted to the hospital with high blood pressure and had an emergency Caesarean section.  Her son was born with multiple health conditions, including a brain disorder.

The plaintiffs filed medical malpractice claims, alleging negligence against the doctor for failing to deliver her son four days earlier, against the nurse for failing to initiate the hospital’s chain of command policy, and against the hospital.  After the trial court granted summary judgment in favor of the nurse and hospital, the plaintiffs sought review of the decision on appeal.

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In Maryland, performing surgery on a patient without their informed consent may be grounds for a medical malpractice suit.  Generally, a medical expert is required to provide evidence of a doctor’s alleged negligence.  In a March 15, 2021 opinion, the Court of Special Appeals of Maryland reviewed a lawsuit against a surgeon for performing an allegedly unnecessary procedure on the plaintiff without her informed consent.  The matter came before the court on appeal after a jury ruled in favor of the plaintiff.

The plaintiff in the case had sought medical treatment from the defendant for low back pain radiating through her left leg and foot.  After several examinations, the defendant recommended surgery on both the left and right side of the spine, despite the lack of any symptoms on the plaintiff’s right side.  Following the laminectomy and bilateral laminectomy, the plaintiff experienced physical and neurological pain and disability.  The plaintiff then brought a medical negligence suit against the defendant, alleging that the surgery to the right side of her spine was performed unnecessarily and without informed consent.

Before the trial, the court granted the plaintiff’s motion to preclude any evidence or testimony concerning disciplinary action taken, and later overturned, against the plaintiff’s expert medical witness.  In so doing, the trial court found that such evidence was irrelevant to the credibility of the expert witness and that questions about it would be prejudicial.  The case was then tried over several days, after which the jury returned a verdict in favor of the plaintiff.

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A Maryland medical malpractice claim based on the lack of informed consent can be complicated in some cases, particularly when the patient is a minor.  In a February 1, 2021 opinion, the Court of Special Appeals of Maryland analyzed the duty of healthcare professionals and the doctrine of informed consent in Maryland.

The sixteen-year-old plaintiff in the case had been diagnosed with early-onset preeclampsia during the second trimester of her pregnancy.  The medical team met with the plaintiff and her mother to discuss the treatment options, which included terminating the pregnancy, inducing labor for vaginal delivery, or cesarean section.  Although her doctors continued to recommend a cesarean section for the wellbeing of the fetus, the plaintiff repeatedly confirmed her decision to avoid the procedure.  In addition, the plaintiff signed two consent forms explicitly declining a cesarean section with the understanding that inducing vaginal delivery would impose additional stress on the fetus and that the infant would have a better chance of survival if a cesarean section was performed.  Following induced vaginal labor, the baby was born with severe mental and physical disabilities that require life-long dependent and medical care.

The plaintiff filed suit against the hospital, claiming that the hospital had violated her right to informed consent with respect to her delivery options.  The jury found in favor of the plaintiff and awarded damages of approximately 230 million dollars.  The hospital appealed on the grounds that the evidence was insufficient to support the jury’s findings on the issue of breach of informed consent.

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Testimony of a medical expert may be crucial to succeed in a Maryland medical malpractice lawsuit.  In a September 2, 2020 case, the Court of Special Appeals of Maryland reviewed whether the opinion of the plaintiff’s medical expert met the requirements of the Maryland Civil Rules.  The issue was raised by the defendants, who appealed a jury verdict in favor of the plaintiff for almost $300,000.

In the case, the defendants had performed a total hip replacement on the plaintiff.  Shortly after the surgery, the plaintiff began to experience severe pain and discomfort.  The defendants ordered x-rays several days later, which revealed that the prosthetic had perforated through the plaintiff’s femur and into the muscles of his thigh.  The plaintiff subsequently underwent another surgery to correctly place the prosthetic.

The plaintiffs filed a medical malpractice suit against the surgeon and the hospital, alleging that the defendants failed to diagnose and correct the misplaced prosthetic during or after the first surgery.  At trial, the plaintiff’s medical expert testified that the defendants did not meet the standard of care because they had failed to use x-rays during the surgery or order x-rays following the surgery.  After the jury found the defendants negligent, the defendants appealed.

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One of the elements of a Maryland medical malpractice claim requires the plaintiff to establish that the defendant’s actions fell below the standard of care of a medical professional practicing under the same circumstances.  To prove this element, the plaintiff must present a qualified medical expert to testify that the defendant breached the standard of care.  In an October 2, 2020 case, the Court of Special Appeals of Maryland considered whether the testimony of the plaintiff’s medical expert was precluded by the “twenty-percent rule,” which generally bars experts who spend more than twenty percent of their professional activities directly involved in testifying as exert witnesses.

The plaintiff in the case was the surviving wife of the decedent, who had died from complications following back surgery.  She brought a medical malpractice lawsuit against the doctor who treated the decedent and the doctor’s practice group.  The plaintiff filed a certificate of qualified expert, as provided under the Maryland Health Care Malpractice Claims Act.  The certificate indicated that the plaintiff’s medical expert, an orthopedic surgeon, would testify that the defendant violated the standard of care by failing to recognize that the decedent was a high-risk patient and by not opting for alternative treatments to surgery.  The certificate also contained the required statement that no more than twenty percent of the expert’s activities were related to testifying as an expert witness.

At trial, the defendant argued that the plaintiff’s expert had not produced sufficient evidence of compliance with the twenty percent rule, and moved to disqualify him.  The trial court denied the motion, and the jury returned a verdict for the plaintiff in excess of $900,000.  After trial, the defendant renewed its objection as to the expert.  The trial court reconsidered the issue, finding that it had erred in allowing the expert to testify, and entered judgment notwithstanding the verdict in favor of the defendant.  The plaintiff then appealed the ruling.

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In most Maryland medical malpractice cases, the negligence of a physician must be established by the testimony of an expert witness.  A rare exception to the general rule requiring expert testimony is made only when such medical negligence is obvious and within the common knowledge of an ordinary person.  In an August 24, 2020 case, the Court of Appeals of Maryland considered whether expert testimony was also required to establish the medical negligence of a non-party physician.  The defendant in the case raised the issue of a non-party physician’s medical negligence as part of his defense.

The plaintiff in the case was diagnosed with a kidney tumor and enlarged lymph node in August 2011.  The defendant surgically removed the plaintiff’s kidney, but did not remove the lymph node as planned because of its proximity to a vital blood vessel.  Following surgery, the plaintiff was treated by an oncologist, who ordered periodic CT scans of the lymph node.  In 2015, a biopsy was performed, which indicated that the lymph node was cancerous and had increased in size, rendering it inoperable.

The plaintiff brought medical malpractice claims against multiple physicians involved in his treatment, with the exception of his oncologist.  The plaintiff alleged that, had the defendants either removed the lymph node in the 2011 surgery, or alerted his oncologist that the lymph node was increasing in size, it could have been safely removed earlier.  At trial, the court permitted the jury to consider the issue raised by the defendants of the oncologist’s alleged medical negligence, although no expert testimony was presented to support the defendants’ assertions.  The jury returned a verdict in favor of the defendants, and the plaintiffs appealed.

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