Medical Negligence

September 18, 2018

Plaintiff Allowed Extension to Meet Procedural Requirements in Maryland Medical Malpractice Case

The procedures for bringing a Maryland medical malpractice action can be complicated in some cases. In a June 28, 2018 decision, the Court of Special Appeals of Maryland considered whether the plaintiff could pursue a claim against his doctor and hospital after the circuit court dismissed his case for failing to comply with requirements of the Maryland Health Care Malpractice Claims Act (Act). The primary issue for the appeals court was whether the lower court’s dismissal was improper.

The plaintiff in the case underwent heart surgery and, following medical complications, was admitted to the intensive care unit. In the ICU, he developed pressure ulcers, which required additional treatment. He filed a claim against the defendants, alleging negligence in failing to implement procedures to prevent the ulcers and failing to treat them.

To initiate a claim under the Act, a plaintiff must first file his claim with the Health Care Alternative Dispute Resolution Office and, within ninety days, submit a certificate of a qualified expert attesting to the alleged negligence. The plaintiff can then waive arbitration and file suit in circuit court. The certificate must meet specific requirements, one of which is to identify the allegedly negligent physician by name. If the certificate is not filed or it is insufficient, the claim will be dismissed, unless a 90 day extension is granted for the plaintiff to submit a valid certificate.

August 30, 2018

Maryland Plaintiff’s Delay in Seeking Medical Care Is No Defense for Doctor Who Subsequently Treated Him

by Foran & Foran, P.A.

Knowing when to seek medical treatment can be a complicated and very personal decision. Whether that decision has any effect on a health provider’s liability for negligence was the issue in an April 26, 2018 Maryland medical malpractice case before the Court of Special Appeals.

The plaintiff in the case filed a medical malpractice claim against his physician, alleging that the physician negligently cut the plaintiff’s bile duct while surgically removing his inflamed gallbladder. Before visiting the physician, the plaintiff had gone to the emergency room for stomach pains. The plaintiff left, however, before the condition could be diagnosed, and he waited an additional 11 days before seeking treatment again from the defendant, who performed the surgery.

The defendant denied any negligence and further alleged, as a defense, that the plaintiff was contributorily negligent in failing to timely seek treatment for severe abdominal pains. The jury ultimately found that the defendant was not negligent. The plaintiff appealed, arguing that the defense was improper because any alleged contributory negligence occurred before he sought treatment from the defendant.

August 23, 2018

Maryland Jury Awards $44 Million for Death of Premature Infant in Medical Negligence Case

by Foran & Foran, P.A.

If medical negligence is suspected in the death of a loved one, a Maryland wrongful death attorney may be consulted to investigate and identify potential legal claims and responsible parties. In a tragic case before the Court of Special Appeals on May 18, 2018, the parents of an infant born via gestational carrier brought a negligence claim against the doctor and fertility clinic that facilitated and supervised the pregnancy. The premature infant survived only 21 days before her death.

The plaintiffs in the case had entered into a gestational carrier contract with a woman who agreed to surrogate their child. The woman failed to disclose her history of pregnancy complications, however, and the defendant-doctor proceeded with an embryo transfer without obtaining the woman’s prior medical records and clearance from the woman’s regular obstetrician. After a successful embryo transfer, the woman became pregnant with the plaintiffs’ child. Just 25 weeks into the pregnancy, the woman developed severe, life-threatening preeclampsia and underwent an emergency C-section delivery. The infant succumbed to an infection and died not long after her birth.

Eventually, a review of the woman’s medical records revealed that during her last pregnancy, also as a gestational carrier, she developed preeclampsia and delivered the baby prematurely. Medical experts testified that preeclampsia is known to worsen with each pregnancy, so the woman’s medical history should have disqualified her from being a gestational carrier. After trial, the jury found the defendants liable for medical negligence. The infant’s estate and the parents were awarded over $44 million in non-economic damages, although that amount was reduced by the statutory cap.

August 16, 2018

Maryland Plaintiff Sues Surgeon and Eye Clinic for Negligence After Suffering Permanent Vision Loss

by Foran & Foran, P.A.

The liability of certain parties may be a complicated issue in some Maryland medical malpractice cases. In an April 27, 2018 opinion, the Court of Special Appeals of Maryland examined the question of whether a medical group was liable for the alleged negligence of an employee other than the physician-defendant. The jury in the case found that the physician was not negligent, but the medical group, through one of its agents, was negligent. The medical group filed the current appeal.

The plaintiff in the case was diagnosed with a retinal tear in his eye and needed surgery. When he suffered permanent vision loss after the operation, he brought suit against the eye clinic and the surgeon who operated on him. Under the Maryland Health Care Act, negligence requires a duty owed by the defendant to the plaintiff, a violation of the standard of care that constitutes a breach of that duty, causation, and injury. In addition, the plaintiff must file a certificate of a qualified expert and report attesting to the defendant’s departure from the standard of care and causation of the alleged injury.

The case went to trial, at which the plaintiff’s medical expert testified that in his opinion, the surgeon violated the standard of care. When asked about the negligence of the eye clinic, the expert stated that if the surgeon was an employee of the eye clinic, it was his opinion that the eye clinic was also negligent. The jury found that the surgeon did not deviate from the standard of care. The jury further found that the agents and employees of the eye clinic were negligent and awarded $1,000,000 in damages to the plaintiff.

April 27, 2018

Maryland Plaintiff Objects to Admission of Expert’s Testimony in Medical Malpractice Appeal

by Foran & Foran, P.A.

In a civil lawsuit, opposing parties are required to share some information related to their claims and defenses during the discovery process. If a dispute arises, the parties are expected to resolve the matter between themselves and turn to the court for intervention only as a last resort. A January 17, 2018 case before the Special Appeals Court demonstrates how these issues may come up in a Maryland medical malpractice claim.

The plaintiff in the case alleged that the defendants were negligent in performing an upper endoscopy procedure that was necessary to treat the decedent’s esophageal cancer. During the procedure, the decedent’s esophagus was perforated, which the doctor treated with a stent. Two weeks later, the doctor had to perform a second surgery to repair the perforation. In the six months following the surgeries, the decedent suffered from a variety of health problems. She had a preexisting history of chronic pancreatitis that worsened and required surgery on her pancreas. During her recovery from the pancreatic surgery, the decedent developed complications, including sepsis, and died six days later.

The plaintiff filed suit against the hospital, alleging that the doctor was negligent and breached the standard of care when he perforated the decedent’s esophagus and that this breach started the decline that ultimately caused her death seven months later. Following a trial, the jury returned a verdict in favor of the defendant. The plaintiff appealed and challenged the trial court’s decision to admit the defendant’s expert witness and certain evidence into trial. Specifically, he argued that the defendant made an expert witness designation that was not complete and also failed to identify physical exhibits in a timely manner.

April 18, 2018

Failure to Follow the Maryland Health Care Malpractice Claims Act May Lead to Dismissal of Medical Malpractice Action

by Foran & Foran, P.A.

The requirements for filing a medical malpractice lawsuit can be complicated, but a Maryland medical malpractice attorney can help clients avoid dismissal on procedural grounds. A November 6, 2017 case before the Court of Special Appeals illustrates some of the problems caused by failing to comply with the conditions precedent to the filing of a medical malpractice complaint.

The plaintiff in the case filed a lawsuit against his doctor without legal counsel, alleging that the doctor misdiagnosed his cardiovascular disease as acid reflux. The defendant waived arbitration, and the matter was transferred to the circuit court. The defendant moved to dismiss the plaintiff’s complaint for failing to file a certificate of a qualified expert within 90 days of filing his claim, and failing to file his complaint in the circuit court within 60 days of the defendant’s election to waive arbitration and transfer. The circuit court granted the defendant’s motion to dismiss, and the plaintiff appealed.

The Health Care Malpractice Claims Act provides the procedures for all lawsuits by a person against a health care provider for a medical injury with damages in excess of the jurisdictional limit. The Act creates a mandatory arbitration system for all medical malpractice claims. Before bringing a civil action in court, therefore, a plaintiff must first file a claim with the Health Care Alternative Dispute Resolution Office, and they must file a certificate and report of a qualified expert within 90 days.

April 3, 2018

Maryland Court Reverses Verdict in Medical Malpractice Case Based on Improper Jury Instruction

by Foran & Foran, P.A.

If you have been injured by negligent medical treatment, you may be able to bring a Maryland medical malpractice claim against the health care provider who was responsible. In a recent medical malpractice case, the plaintiff won on his claim against his neurosurgeon and was awarded compensation for his losses by the jury. The defendant appealed the matter to the Court of Special Appeals of Maryland, which issued a ruling on September 1, 2017.

The plaintiff in the case had suffered years of neck and shoulder pain and numbness in his right hand. The defendant performed surgery to remove damaged discs from the plaintiff’s cervical spine. The plaintiff’s recovery was difficult, and some five months after the operation, the plaintiff tested positive for a Staph infection. At trial, the plaintiff’s expert witness testified that the defendant and his staff were too slow in diagnosing and treating the infection. The jury returned a verdict in favor of the plaintiff, finding that the defendant was negligent.

The primary issue on appeal was whether the jury instructions were proper. The jury in the case was given instructions in terms of the standard of care that should be employed by a reasonably competent health care provider engaged in a similar practice and acting in similar circumstances. However, in addition, an instruction was provided on the general negligence concept of foreseeable circumstances, describing how a reasonable person changes their conduct according to the circumstances and danger that is known or would be appreciated by a reasonable person. On appeal, the defendant argued that the jury instruction sounding in general negligence principles was prejudicial.

August 10, 2017

Maryland Plaintiff Pursues Medical Malpractice Claim Arising from Hip-Replacement Surgery

by Foran & Foran, P.A.

The timing of a Maryland medical malpractice case is important. If filed too late, the defendants may invoke the statute of limitations to prevent the action from proceeding. In a July 20, 2017 case, the Court of Special Appeals of Maryland decided whether the lower court correctly dismissed the plaintiff’s case as barred by the statute of limitations.

The defendant had performed hip-replacement surgeries on the plaintiff in 2005 and 2010. Although the plaintiff experienced significantly worse pain after the 2010 procedure, the defendant never informed her that her symptoms were anything other than normal results of a successful surgery. The plaintiff consulted another orthopedic surgeon on December 6, 2010, who informed her that she would need a corrective surgery. On January 7, 2011, the plaintiff opened a letter from her insurance company, advising that there had been a recall of certain prosthetic hip components, and it was likely that she had received one of the recalled components when the defendant performed her right hip replacement in April 2010. The plaintiff filed her malpractice claims against the defendant on January 2, 2014.

In Maryland, the statute of limitations requires professional liability claims against health care providers to be filed within the earlier of: (1) five years from the time the injury was inflicted; or (2) three years from the date the injury was discovered. The key issue in the case was when the plaintiff became aware of facts that would have caused a reasonable patient to investigate a potential malpractice claim against the defendant. That issue was complicated by the fact that, in the field of medicine, an unsuccessful result alone does not necessarily establish negligence on the part of the health care provider. Instead, to establish a claim of medical injury, a plaintiff must prove not only a bad result but also a breach of the standard of care that was a proximate cause of the bad result.

August 7, 2017

Maryland Appeals Court Affirms Jury Verdict in Favor of Plaintiff in Medical Negligence Claim Against Hospital

by Foran & Foran, P.A.

Faulty medical care can result in further injuries, expenses, and stress for the patient. Some plaintiffs take legal action by filing a medical malpractice claim, as in a May 31, 2017 case decided by the Court of Special Appeals of Maryland. The plaintiff in the case brought a medical negligence action against a hospital, based solely on vicarious liability, alleging that her physician negligently performed a laparoscopic hysterectomy and caused an injury to her uterus. The plaintiff won at trial, and the jury awarded her approximately $425,000 in damages. The hospital filed an appeal.

The primary issue for the appeals court to decide was whether the plaintiff could lawfully bring her negligence claim against the hospital based on the doctrine of respondeat superior after she had voluntarily dismissed her claim against the doctor with prejudice. Respondeat superior is a legal doctrine that holds an employer vicariously liable for a tort committed by its employee while acting within the scope of his employment. In Maryland, the plaintiff may sue an employer based on the wrongful conduct of its employee without suing the employee as well. To establish the liability of the employer in such cases, the plaintiff need only prove that the employee committed the tort and did so while acting within the scope of his employment.

There are, however, two situations under Maryland law in which the settlement of a claim against the employee will preclude vicarious liability on the part of the employer: (1) the exoneration of the employee; and (2) the plaintiff’s release of her claim against the employee. On appeal, the hospital argued that the dismissal of the plaintiff’s claim against her doctor with prejudice constituted a release of liability against both the doctor and the hospital. The issue is one that has not been decided uniformly across the country.

August 4, 2017

Maryland Court Holds That Defendants May Present Evidence of Non-Parties’ Negligence in Medical Malpractice Actions

by Foran & Foran, P.A.

The Court of Appeals of Maryland recently explained its position regarding evidence of superseding causes of injury by non-parties in a medical malpractice case decided on May 24, 2017. The family of a deceased patient sued several doctors and hospitals that had treated the patient before his stroke. Before trial, the plaintiffs had settled with or dismissed their claims against all of the defendants except one radiologist and his employer. The plaintiffs alleged that the doctor was negligent when interpreting the patient’s radiological images, leading to the patient’s fatal stroke six days later. After the trial, the jury found in favor of the defendants, and the plaintiffs appealed.

The key question for the Court of Appeals was whether the defendant could present evidence of negligence on the part of non-party doctors who had subsequently treated the patient as intervening and superseding causes of harm to the patient. The plaintiffs argued that evidence of the non-parties’ negligence was irrelevant and immaterial to the issue of whether the defendant violated the standard of care in his treatment of the patient, and the evidence tended to mislead the jurors into believing the non-parties who had settled were the responsible parties, rather than the defendant. The plaintiffs also contended that the trial court improperly applied the doctrine of intervening and superseding causes in the context of a medical negligence action involving acts of multiple concurrent tortfeasors.

The four elements required for a negligence action are duty, breach, causation, and damages. Causation-in-fact may be found if it is more likely than not that the defendant’s conduct was a substantial factor in producing the plaintiff’s injuries. However, the issue of superseding causation is not even relevant unless the antecedent negligence of a third person is a substantial factor in bringing about the injury and could not have been anticipated by the defendant.