Medical Malpractice

Court Examines Qualifications of Medical Expert in Maryland Negligence Action

December 11, 2020 | by Foran & Foran, P.A.

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.

Maryland Court Addresses Non-Party Negligence as a Defense in Medical Malpractice Suit

December 10, 2020 | by Foran & Foran, P.A.

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.

Maryland Plaintiff Appeals After Trial Court Precludes Expert from Testifying in Medical Malpractice Case

December 9, 2020 | by Foran & Foran, P.A.

Expert testimony may be crucial to establish a medical malpractice claim in Maryland. A party’s failure to identify a medical expert witness before the discovery deadline may result in sanctions. In a July 7, 2020 Maryland medical malpractice case, the Court of Special Appeals reviewed the decision of a trial court to exclude the testimony of the plaintiff’s expert witness. The plaintiff sought the appeal after judgment was granted in favor of the defendants.

The plaintiff in the case was involved in a car accident and suffered a neck strain. She sought medical treatment from the defendant, a healthcare practice that included chiropractic services, and was treated by two doctors who were also defendants in the case. The plaintiff brought a medical negligence suit against them, alleging that the chiropractic treatments performed by the doctors caused damage to a spinal cord stimulator that was previously implanted in her neck.

Before trial, the plaintiff had timely identified one expert medical witness by the required deadline. At some point after the deadline, the plaintiff realized that her designated medical expert could not testify as to the causation element of her claim. Almost two months after the deadline had passed, the plaintiff sought to add a board-certified neurosurgeon as an expert witness to testify as to causation. The circuit court denied the request, and as a result, the plaintiff was unable to establish a prima facie case for medical malpractice.

Maryland Plaintiff Granted New Trial on Claims for Medical Malpractice and Informed Consent

December 7, 2020 | by Foran & Foran, P.A.

Informed consent is an important part of medical care. If a health care provider fails to disclose certain information to the patient before a procedure or examination, they may face a Maryland medical malpractice claim. In an August 6, 2020 case, the Court of Special Appeals of Maryland considered whether a new trial was necessary after the jury found in favor of the defendant on the claims for informed consent and medical negligence.

The plaintiff in the case sought treatment from the defendant for kidney and ureteral stones. During the appointment, the defendant had the plaintiff completely disrobe. The defendant then performed digital pelvic and rectal examinations, which had no medical value for the purpose of treating the plaintiff’s kidney stones. The plaintiff felt violated and was later diagnosed with anxiety and PTSD.

The plaintiff filed suit against the defendant, alleging claims for negligence and failure to obtain informed consent. The lower court granted summary judgment on the issue of informed consent only with respect to the elements of duty and breach. The issues of causation and damages were then tried before a jury. At trial, the jury was told only that the court had already ruled that the defendant did not obtain informed consent for the treatment of a kidney stone. The jury ultimately found that the plaintiff was not damaged by the lack of consent.

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

October 9, 2020 | by Foran & Foran, P.A.

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.

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

June 30, 2020 | 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.

Court Discusses Requirements for Qualified Expert in Maryland Medical Malpractice Case

June 14, 2020 | 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.

Maryland Appeals Court Reversals Dismissal of Medical Malpractice Claim

January 30, 2020 | 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.

Appeals Court Reviews Maryland Medical Malpractice Action Dismissed on Procedural Grounds

January 25, 2020 | 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.

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

January 3, 2020 | 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.