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Articles Posted in Medical Negligence

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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In Maryland, medical malpractice lawsuits are subject to the statute of limitations, which provides the deadline by which an action must be filed, or it may be dismissed as untimely. There are some exceptions to the general rule, however, as explained by the Court of Special Appeals of Maryland in an August 6, 2021 opinion.

The plaintiff in the case had his wisdom teeth removed on May 29, 2015.  The following morning, the plaintiff realized that he had no sensation in his tongue.  The plaintiff immediately contacted the dental center to address the issue and scheduled an appointment with the doctor who had performed the surgery.  The plaintiff alleged that, at the June 11 appointment, the doctor told him that it could take up to one year for his tongue to regain full sensation, but that, with time and the use of pain medication, his tongue would get better.

After consulting with an attorney, on July 17, 2018, the plaintiff filed a claim against the doctor and the dental center, asserting that the doctor had severed the plaintiff’s lingual nerve during the extraction of his wisdom teeth.  The circuit court, finding that the injury accrued on June 11, 2015, dismissed the action as barred by the statute of limitations.

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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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The evidence and testimony presented in a Maryland medical negligence case may be crucial to the outcome.  If one party objects to the evidence offered by an opposing party, the trial court will decide whether it is admissible.  In a July 12, 2021 medical malpractice case, the Court of Special Appeals considered whether or not the lower court had erred in allowing evidence of the informed medical consent process, when the plaintiff had not asserted an informed consent claim against the defendant.

The plaintiff in the case underwent an outpatient hernia repair surgery performed by the defendant.  Five days later, the plaintiff returned to the hospital due to abdominal pain, nausea, and vomiting.  The plaintiff was transferred to the ER, and emergency surgery was performed to repair a colon perforation.  She underwent two subsequent operations the following month.

The plaintiff filed a medical malpractice claim, alleging that her doctor breached the standard of care for failure to inspect for a colotomy and failure to perform the appropriate surgery, among other claims.  Although the plaintiff did not assert an informed consent action, the trial court allowed the defendant to testify about the risks and complications of surgery that he discussed with the plaintiff before her operation.  After the trial, the jury found the defendant was not negligent. 

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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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Some Maryland medical malpractice cases may arise out of a misdiagnosed or undiagnosed condition by a health care practitioner.  In a November 23, 2020 opinion, the Court of Special Appeals of Maryland reviewed a case brought by the personal estate of a cancer patient and her family against the radiologist who treated her.  The matter was on appeal after the trial court entered judgment in favor of the defendant despite the jury’s verdict for the plaintiffs.

The plaintiffs in the case alleged that the defendants were negligent in failing to diagnose the decedent’s breast cancer.  In 2011, the decedent had received a routine breast cancer examination from the defendants, who found no abnormalities.  Six months later, the decedent discovered a lump in her right breast and returned to the defendants’ practice in May of 2012.  After performing a mammogram, the defendants concluded that the lump was benign.

Fifteen months later, the decedent returned for a follow-up examination and mammogram, which showed an abnormality in her right breast.  The decedent underwent a biopsy a month later, which revealed that she had Stage III breast cancer.  Despite two years of chemotherapy and radiation treatment, the cancer spread.  The decedent died in February of 2016 at the age of 56.

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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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A Maryland wrongful death action based on the negligence of police or law enforcement officers generally has a higher burden of proof than a typical negligence claim.  In a September 24, 2020 wrongful death case arising out of a police shooting, the Maryland Court of Special Appeal considered whether summary judgment was properly granted in favor of the police officer.

The defendant in the case attempted to pull over the decedent, who was driving an SUV that matched the description of a vehicle that had eluded the police weeks ago after a high-speed chase.  The decedent sped away, with the defendant following him through a residential neighborhood.  The decedent then got out of the SUV, kicked in the door of a townhouse, and ran upstairs.  The police officer testified that after he ordered the decedent to come down, the decedent rushed down the stairs quickly and aggressively, leading the officer to believe that he was attempting to take his weapon.  The defendant stated that although he fired his weapon at the decedent, the decedent continued down the stairs and grabbed him.  During the struggle, the officer fired several shots, and the decedent ultimately died from a gunshot wound to his chest.

The survivors of the decedent brought a wrongful death claim against the police officer.  The trial court, finding that the officer had acted reasonably, granted judgment in favor of the defendant.  The plaintiffs appealed the decision, arguing that the issue of reasonableness should have been determined by a jury.

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