Articles Posted in Medical Malpractice Law in Maryland

In Maryland medical malpractice cases, there generally are two types of claims that can be asserted. The first is a garden-variety medical malpractice claim that alleges that a physician provided negligent care (care that fell below the standard of care), which caused injuries and damages to the patient. The second is called lack of “informed consent” claim, through which a patient alleges that the physician failed to properly, appropriately and/or fully explain the treatment to the patient and to warn of any material risks or dangers of the treatment so that the patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment.

Understandably, one of the questions that we get asked most often when we first meet with new clients is “what is my case worth?” The law divides personal injury awards into two categories: economic damages and non-economic damages. While the facts of each particular case dictate which types of damages can be recovered, the following is a broad discussion of some of the types of damages available.

In the context of any kind of medical malpractice lawsuit, there are generally two types of damages that can be claimed by the Plaintiff and/or ultimately awarded by a judge or jury: Non-Economic Damages and Economic Damages. Many times, our clients struggle with understanding the differences between these two types of damages and it is important to understand the distinction.

Most medical malpractice, wrongful death and personal injury lawyers in Maryland are hired by clients through a contingency fee agreement. In such an arrangement, the law firm generally is paid a legal fee based upon a percentage of the total amount recovered in the case plus expenses. If there is no recovery, there is no legal fee or expense. But what happens when the client fires the lawyer before there is any recovery.

In Maryland, the doctrine of informed consent requires a physician, before a patient undergoes a non-emergency medical procedure, to explain the proposed medical procedure to the patient including warning the patient of the benefits, risks and alternatives. The District Court for the District of Maryland recently had the occasion to review this law in the case of Robertson v. Iuliano, et al.

Popular movies and television shows involving lawyers and lawsuits sometimes create misperceptions about how the justice system actually works. For one thing, while courtroom drama makes the most riveting entertainment, in reality the vast majority of cases end with amicable agreements between the parties involved. Actual trials are certainly more an exception than a rule.

In an opinion reported on November 27, 2012, the Court of Appeals of Maryland held that a settlement agreement executed in a Maryland medical malpractice case involving Mercy Medical Center was not effective to end the hospital’s liability. A copy of the Court of Appeals opinion can be found here.

In a decision handed down by the Court of Special Appeals on June 6, 2012, Maryland’s intermediate appellate court clarified section 3-2A-02(c)(2)(ii)1B of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland, which sets forth the requirement that, if the defendant in a medical malpractice action is board certified in a specialty, any expert witnesses who testifies that the defendant violated the standard of care must be board certified in the same or a “related” specialty. A copy of the Court of Special Appeals opinion can be found here.

A recent study conducted by Massachusetts General Hospital in Boston reviewed over 10,000 medical malpractice claims filed across the country and found that plaintiffs rarely win medical malpractice cases that go all the way to a jury verdict. An article discussing the study can be found here.

A recent Court of Appeals decision, issued on January 27, 2012, involved a case that began over ten years ago and determined that awards for future medical expenses cannot be voided after the death of the personal injury plaintiff. A copy the judicial opinion regarding the case can be found here.

The Court of Appeals recently ruled in University of Maryland Medical Systems Corp v. Muti, a case involving the appropriate interpretation of the Maryland’s Wrongful Death Statute found in Sections 3-901 to 3-904 of the Courts and Judicial Proceedings Article of the Maryland Code. A copy of the case can be found here.

In recent appellate opinion, a catastrophic injury case, Yiallouro v. Tolson, was reviewed for error concerning expert testimony. Yiallouro was severely injured in a car accident while in the scope of his employment, causing him to ultimately lose his job because he could no longer perform his previous tasks and there was no “light duty” work available. When Yiallouro brought suit against Tolson, the driver of the other vehicle, the Montgomery County jury who heard the case awarded Yiallouro $925,000.00 in damages: $32,000.88 for past medical expenses, $35,191.80 for past lost wages, $409,787.00 for loss of future wages, $224,010.16 for pain and suffering, and $224,010.16 for loss of consortium. However, after the verdict, the judge determined that the he had erroneously permitted one of plaintiff’s experts to testify because the testimony was too speculative and lacked an adequate factual basis for opinion under Maryland Rules 5-702 and 5-703. The expert in question was a vocational rehabilitation expert who testified that Yiallouro’s future lost wages were over $400,000.00. A copy of the Court of Special Appeals opinion, filed on March 2, 2012, can be found here.

A study published in June 2011 provided a somewhat unexpected result – doctor’s offices and hospitals are equally as likely to be sued for medical malpractice. This finding is surprising because the majority of patient safety initiatives focus on inpatient care at hospitals. The finding of this study, however, indicates a need for the focus to shift to outpatient settings as well. The Journal of the American Medical Association study can be found here.

A recurring controversy in the military is a legal doctrine – called the “Feres Doctrine” – which forbids any active-duty personnel from filing a medical malpractice case against military doctors. In the past, the United States Supreme Court declined to hear any challenges to the doctrine, but that might change as soon as this week. The Supreme Court decision of whether the Justices will hear a case could come as early as this week.