Articles Posted in Medical Malpractice

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.

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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.

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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.

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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.

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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.

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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.

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The Maryland Health Care Malpractice Claims Statute may apply to claims alleging negligent dental care as well as medical care.  In a February 8, 2019 Maryland medical malpractice action, the plaintiff sued her oral surgeon for dental malpractice and lack of consent.  The case went to trial before a jury.  At the close of the plaintiff’s case, the court granted the defendant’s motion for judgment, which prevented the issues from going to the jury.  The plaintiff ultimately succeeded on appeal in having the judgment reversed on her malpractice claim.

The defendant in the case removed the plaintiff’s wisdom teeth.  After the surgery, the plaintiff noticed that she could no longer taste food on the left side of her tongue and had lost sensation in that area.  She was evaluated by a neurologist, who diagnosed her with a serious injury to her left lingual nerve.  The plaintiff subsequently filed a lawsuit against the defendant.

At trial, the plaintiff’s expert witness testified that nerve damage such as hers may be caused by sectioning the tooth, a procedure that requires cutting a small bone between the roots of the tooth.  He explained that if the surgeon cuts too deep, he may hit a lingual nerve.  The plaintiff’s dental records, however, did not state whether or not the defendant sectioned her tooth.  The defendant then testified that he may or may not have sectioned the tooth.  The trial court later granted a judgment for the defendant on the malpractice claim, reasoning that the plaintiff’s expert did not specifically provide an opinion as to how the nerve was injured.

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