Many people are confused about what “medical malpractice” is and what it means in Maryland. The term medical malpractice simply means a negligence case against a health care provider, usually a doctor, nurse, hospital or nursing home. In order to bring a medical malpractice case in Maryland, the plaintiff (the party who files the case) generally must be able to prove (1) that the doctor, hospital or nursing home violated the standard of care; (2) that the doctor, hospital or nursing home was a cause of some injury or damage to the plaintiff; and (3) that the plaintiff suffered injuries and damage, and what the value is of those injuries and damages.
Another type of medical malpractice case in Maryland is an informed consent case. Generally, before a doctor provides non-emergency medical treatment to a patient, the doctor is required to explain the treatment to the patient and to warn of any material risks or dangers of the treatment, so that that patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment. A material risk is one which a doctor knows or should know would be significant to a reasonable person in the plaintiff’s position in deciding whether or not to have the particular medical treatment or procedure. The doctors’ duty to disclose material risks is measured by whether a reasonable person in the position of the plaintiff would have considered the risk to be a material risk. Technically, an informed consent case is not a medical malpractice case. As set forth above, in a true medical malpractice case, the plaintiff proves that the doctor, nurse, hospital or nursing home did not do something or did something improperly. In an informed consent case, however, the treatment and/or procedure may have been performed properly, but the information provided to the plaintiff was not enough for them to make an informed decision, and as a result of making that uninformed decision to have the procedure, the plaintiff was injured.
A medical malpractice case or an informed consent case in Maryland must be proved in court by what lawyers call the “preponderance of the evidence.” To prove something by the preponderance of the evidence means to prove that something is more likely so that no so. In other words, the plaintiff in a medical malpractice case must prove their case to a reasonable degree of probability. A medical malpractice case is a civil case, meaning that the plaintiffs and defendants are fighting over compensation. Generally, most civil cases, such as all medical malpractice cases, must be proved by the preponderance of the evidence. A plaintiff in a medical malpractice case does not have to prove their case “beyond a reasonable doubt.” That is the standard for criminal cases, where someone has been charged with a crime.
In a Maryland medical malpractice case, the plaintiff almost always must present testimony from an expert witness to support their case. An expert is someone who has special knowledge, skill, experience, training or education, and who can assist judge or jury in understanding the issues at trial. Informed consent cases are treated differently. In informed consent cases, expert testimony may come from the defendant or the defendant’s experts.