Articles Posted in Medical Negligence

It is not uncommon for an injured plaintiff to bring a medical malpractice claim against more than one defendant on differing theories of negligence.  In a March 21, 2017 opinion, the Court of Special Appeals of Maryland reviewed a negligence and wrongful death action brought by the surviving plaintiffs against a doctor, the hospital that employed the doctor, and the member companies of the hospital.  The circuit court subsequently granted summary judgment in favor of the member companies.  On appeal, the plaintiffs argued that its claims against the member companies should have been allowed to proceed under theories of general corporate negligence and apparent agency.heartbeat

The decedent in the case had experienced severe chest pain and was examined by the defendant doctor at the hospital.  On the next day, the doctor discharged the decedent with instructions to take medications as needed and follow up with a cardiology referral for further investigation of his condition.  On the next morning, the decedent passed away.  An autopsy revealed that he died from hypertensive and atherosclerotic cardiovascular disease, with significant blockages in several arteries in his heart.

The plaintiffs first argued that the member companies were liable because they breached their duty to provide emergency room protocols for the evaluation and treatment of emergency room patients with cardiac or cardiac-like symptoms.  However, the appeals court pointed out that such a legal duty would be upon the hospital to ensure the patient’s safety and well-being, rather than its parent corporations, i.e., the defendants.  Furthermore, a parent corporation is generally not liable for the acts of its subsidiaries, absent the piercing of the corporate veil to prevent fraud or to enforce equity.

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The Court of Special Appeals of Maryland reviewed an interesting medical malpractice case on March 17, 2017 concerning a botched appendectomy.  The plaintiff in the case alleged that her doctor failed to completely remove her appendix when he performed the surgery.  She brought suit against the doctor for negligence and breach of contract.  After the circuit court granted the defendant’s motion to dismiss her breach of contract claim, the plaintiff appealed to the higher court.chest-xray-1526779-639x626-300x294

In October of 2011, the plaintiff went to the hospital complaining of abdominal pain.  The defendant diagnosed her with acute appendicitis and recommended that she undergo a laparoscopic appendectomy to remove her appendix.  In performing the surgery, the defendant removed most of the plaintiff’s appendix, but left the “stump” in place.  The plaintiff alleged that by leaving a portion of the appendix in her body, she experienced severe pain and required an additional surgical procedure that she had performed by another doctor.  She argued that the defendant was liable for breach of contract because he had a contractual obligation to perform an appendectomy, which is the removal of the appendix, not a portion of the appendix.

In Maryland, the failure of a physician to exercise reasonable care and medical skill, i.e., medical negligence, is generally not governed by contract law, despite the contractual nature of the doctor-patient relationship.  Rather, to establish a breach of contract claim where the facts relate to a physician’s performance of a medical procedure, the plaintiff must show that the physician made an additional promise or warranty that is separate and apart from the physician’s agreement to properly perform the procedure.  The legal rationale for not imposing any contractual liability on the physician is that, when considering the unpredictability of medical results and the differences in individual patients, it would be unlikely that the physician could in good faith promise a particular outcome.  Therefore, absent unique circumstances, medical malpractice cases are typically viewed under negligence law and not determined by the laws of contract.

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In Maryland, a medical malpractice action must be filed against a health care provider within a certain time period, or it may be dismissed.  In a February 22, 2017 decision, the Court of Special Appeals of Maryland reviewed a negligence claim filed by the plaintiff against her podiatrist, which had been dismissed by the circuit court as barred by the statute of limitations.x-ray-foot-1435088-640x480-300x225

In 2010, the defendant operated on the plaintiff to correct pain in her right foot by placing a screw near her second toe.  After several follow-up visits in which the plaintiff complained of continued pain, the defendant performed a second surgery to remove the screw.  When the plaintiff’s condition did not improve by June of 2011, the defendant referred her to another doctor.  The second doctor diagnosed her with a bunion deformity that could require a third surgery and significant recovery period.  In August of 2014, the plaintiff filed a medical negligence claim against the defendant.  The circuit court granted the defendant’s motion for summary judgment, ruling that the statute of limitations on the plaintiff’s claim began to run in June of 2011.

In Maryland, a civil action for damages against a health care provider must be filed within the earlier of five years from the time the injury was committed, or three years of the date the injury was discovered.  Under the discovery rule, the statute of limitations begins to run when the wrong is discovered, or when it should have been discovered with due diligence.  Under the latter alternative, awareness is implied from knowledge of circumstances which should put a person of ordinary caution on notice.

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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 appeal.hospital 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.

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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 mother.hospital 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 damages.hospital 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 injury.computer

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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