Articles Posted in Medical Negligence

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.

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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.

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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.

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Family members may have legal recourse against someone who negligently caused their loved one’s serious injury or death.  In a May 2, 2017 opinion, the Court of Special Appeals of Maryland reviewed a jury verdict in favor of the plaintiff in a medical malpractice and wrongful death action.  After her son committed suicide, the plaintiff filed suit against his doctor and the hospital, alleging that they had negligently discharged her son from involuntary inpatient psychiatric treatment and caused his death by suicide.

Following the trial, a jury awarded the plaintiff $6,112 in economic damages and $2,300,000 in non-economic damages, which were capped at $695,000, the statutory limit on non-economic damages imposed by Maryland law.  Despite the jury’s verdict, however, the trial court entered a judgment notwithstanding the verdict in favor of the defendants.  The plaintiff appealed.

In order to prevail on a claim of medical malpractice in Maryland, a plaintiff must prove the applicable standard of care, that the standard of care was violated by the defendant, and that the violation proximately caused the injury for which damages are sought.  The duty of care in a medical malpractice action is to exercise the degree of care or skill expected of a reasonably competent health care provider in the same or similar circumstances.  Generally, the nature and scope of the duty owed and whether the standard of care was breached is proven by expert testimony.

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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.

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.

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.

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.

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.

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.

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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