Articles Posted in Medical Malpractice Law in Maryland

Lack of informed consent can also be a basis for these cases involving hospitals, doctors and their patients. The doctrine of “informed consent” in Maryland requires that, prior to performing any type of medical procedure on a patient, a doctor must disclose to the patient a number of things to assist the patient in making an informed choice about whether to undergo the procedure. For example, Maryland case law states it is the duty of the physician to explain the procedure to the patient, warn him of the dangers associated with performing, advise of the probability of success of the procedure and advise of the alternatives to the procedure. The doctor or hosptial may even be required to advise the patient of “other factors,” such as whether there are more experiended physicians who do the procedure in the patient’s georgraphic area. Providing adequate informed consent is a requirement of all doctors and hospitals, and Johns Hopkins Hospital is no exception.

Medical negligence is not the only basis for a medical malpractice lawsuit in Maryland. Lack of informed consent can also be a basis for these cases involving hospitals, doctors and their patients. The doctrine of “informed consent” in Maryland requires that, prior to performing any type of medical procedure on a patient, a doctor must disclose to the patient a number of things to assist the patient in making an informed choice about whether to undergo the procedure. For example, Maryland case law states it is the duty of the physician to explain the procedure to the patient, warn him of the dangers associated with performing, advise of the probability of success of the procedure and advise of the alternatives to the procedure. The doctor or hosptial may even be required to advise the patient of “other factors,” such as whether there are more experiended physicians who do the procedure in the patient’s georgraphic area. Providing adequate informed consent is a requirement of all doctors and hospitals, and Johns Hopkins Hospital is no exception.

In a Maryland medical malpractice case, the “Statute of Limitations” governs how long a person has to file a claim or lawsuit. In Maryland, most medical malpractice cases involving adults must be filed within 3 years from the date the injury would have been discovered by a reasonable person. In an adult case, the 3 year deadline may be extended up to 2 additional years , but never more than five years from the date of the injury.

In Maryland, when a person dies wrongfully, certain family members have the right to sue for “Wrongful Death.” A Wrongful Death case is a type of personal injury case that usually arises in medical malpractice and other major injury matters such as those involving automobile collisions, product liability, etc.

In 2004, the Maryland legislature enacted a statute that prevents a plaintiff or plaintiff’s lawyer from mentioning to a jury in a medical malpractice case that a doctor apologized or expressed regret, if the purpose of the plaintiff in seeking to tell that to the jury is to prove liability or use it as an admission of the doctor’s liability. The statute, however, does not protect a doctor’s admission of liability or fault that is part of or in addition to an apology or expression of regret.

The Maryland Court of Appeals has issued a new decision on the law of informed consent in Maryland medical malpractice cases. According to the court, doctors must inform patients not only of the risks of procedures but also the potential consequences of forgoing a medical procedure. The decision is a victory for patient’s rights.

Maryland has enacted significant limitations on the ability of Plaintiffs to use expert witnesses in Maryalnd medical malpractice cases. In 1976, the Maryland Health Claims Arbitration Act was enacted to help address a perceived medical malpractice insurance crisis. In 1986, the legislature further amended the Act to include a certificate of qualified expert requirement. As proposed in Senate Bill 559, an expert only would be qualified to sign a certificate if he or she did not receive 50 percent or more income from testimony and other activities related to personal injury claims. That language was amended to become the 20 Percent Rule; i.e., in order to qualify, a certifying expert cannot devote more than 20 percent of his or her professional activities to activities directly involving testimony in personal injury claims. The dichotomy that the General Assembly sought to reconcile was the desire, on the one hand, to exclude certain “professional witnesses” from the “pool of eligible experts” available to sign certificates of merit, while on the other, it did not want to “shrink” the size of that pool so as to “deny the parties the ability to pursue and defend these [malpractice] claims.” This balance was achieved by the aforementioned language changes which “keyed the critical numerical measurement to time, instead of income,” and narrowing the activities described as “related to” personal injury claims to the more circumscribed world of activities “directly involving testimony in personal injury claims.”

When most people think of a medical malpractice case, they think about the kind of case in which the plaintiff (the party bringing the case) claims that a doctor of hosptial has acted below the standard of care and caused significnat injury in a patient. Another type of medcial malpractice case, however, inolves what is called “informed consent.” In the seminal case of Sard v. Hardy, the Maryland Court of Appeals held that the doctrine of informed consent follows logically from the universally recognized rule that a physician treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient. The fountainhead of the doctrine of informed consent is the patient’s right to exercise control of his own body. In order for the patient’s consent to be effective and “informed,” it must have been one that is given after the patient received a fair and reasonable explanation of the contemplated treatment or procedure.

Many of my Maryland medical malpractice clients ask me whether there is any possibility that they can claim or recover punitive damages in their cases. The answer in every case is no. In Maryland, in order to recover puntive damages, the Maryland Court of Appeals (Maryland’s “Supreme Court”) decided in the 1992 case of Owens-Illinois, Inc. v. Zenobia, that a person must prove that the defendant acted with “actual malice.” Actual malice has been defined to mean intent to injury, ill will, or fraud. In a medical malpractice case, I have never seen a case where a physicain intended to injure a patient, or where there was ill will toward a patient that caused injury. Similarly, I have never seen a case of fraud in a medical malpractice case that injure a patient. While I suppose it could happen, it almost never does.

Many peole ask what type of damages they can get in a medical malpractice / medical negligenc cases. One type is lost wages. Maryland courts have repeatedly acknowledged the legitimacy of lost wage claims in negligence cases. For instance, in Adams v. Benson, 208 Md. 261, 270-271, 117 A.2d 881, 885 (1955), the Court of Appeals recognized: “That in an action for personal injuries caused by the negligence of the defendant, the plaintiff may recover not only for the consequences which have actually and naturally resulted from the tort, but also for those which may certainly or reasonably and probably result therefrom as proximate consequences, but not for consequences which are speculative or conjectural.” The Court then recognized that in a personal injury action, a plaintiff may claim: “damages for (1) resulting loss of time and loss of earnings; (2) loss or diminution of earning capacity sustained by being temporarily deprived of her capacity to perform her ordinary labor, and (3) loss of future earnings, if shown with reasonable certainty and not merely speculative in character”. Id., 208 Md. at 271, 117 A.2d at 885.

Generally, recovery in Maryland for malpractice against a physician/psychiatrist is allowed only where there is a relationship between the doctor and patient. This relationship may be established by contract, express or implied, and the fact that a physician does not deal directly with a patient does not necessarily preclude the existence of a physician-patient relationship.

Complaints of malpractice and intentional infliction of emotional distress with regard to third parties have been reviewed by Maryland Courts. In the case of Dehn v. Edgecombe, 384 Md. 606 (Md. 2005), Mr. Dehn underwent a vasectomy. According to Mr. Dehn, his primary care physician advised him that he could resume engaging in unprotected intercourse with his wife without fear of pregnancy, despite the fact that requisite tests had yet to be performed. Mrs. Dehn subsequently became pregnant and sued her husband’s primary care physician, claiming that the physician had negligently counseled her husband. The Court held that there was no independent cause of action for a patient’s wife against a doctor who acted negligently while treating her husband because there was no relationship or direct interaction with the wife.

There are exceptions to this rule. For example, when a physician undertakes to act gratuitously or in an emergency situation, a duty may be created, but such exceptions are rare, particularly when the doctor never provided any treatment to the person alleging negligence. Dehn v. Edgecombe, 384 Md. 606 (Md. 2005). Therefore, this case does not appear to fall within one of these exceptions.

“The common law duty of care owed by a health care provider to diagnose, evaluate, and treat its patient ordinarily flows only to the patient, not to third parties. Thus, it has often been said that a malpractice action lies only where a health care provider-patient relationship exists and there has been a breach of a professional duty owing to the patient.” Dehn v. Edgecombe, 384 Md. 606 (Md. 2005).
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A New York trial judge has ordered a new trial on damages in the malpractice case of a businessman left permanently paralyzed after a stroke. The plaintiff was awarded $5 million in April after a jury trial. The judge, however, set aside the verdict last week with respect to damages, finding that the award was too low. The judge then entered judgment for approximately $18.4 million. Specifically, the judge found that the jury’s award of $1 million each for past and future pain and suffering to the plaintiff and his family deviated materially from what would be fair compensation, and thus increased the award to $5 million each. The plaintiff contended in the case that doctors at a hospital failed to diagnose what they called “classic symptoms” of a brain aneurysm that led to the stroke.

The Massachusetts Supreme Court issued a written decision yesterday in a medical malpractice case, finding that doctors can be held liable for medical negligence that reduces a patient’s chance of survival, even if the patient’s probability for recovery was already less than 50 percent. The Massachusetts Supreme Court’s ruling came in a closely watched medical malpractice case. In 2004, a jury awarded $1 million to the family of a man whose cancer was overlooked by a doctor. The court upheld the jury’s award in its decision, ruling that Massachusetts law is such that if a doctor’s negligence reduces or eliminates the patient’s chance for recovery, the doctor still is liable for damages. A copy of the article regarding the case can be found here.

Under Maryland Rule 2-501(a), summary judgment is only appropriate where there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. Therefore a motion for summary judgment should be denied where the opposing party has shown that “there is a genuine dispute as to a material fact by proffering facts which would be admissible as evidence.” Beatty v. Trailmasters Products, Inc., 330 Md. 726, 737 (1993). “A material fact is a fact the resolution of which will somehow affect the outcome of the case.” Carter v. Aramark Sports and Entertainment, 153 Md.App. 210, 224 (2003) (quoting Sterling v. Johns Hopkins Hosp., 145 Md.App. 161, 167 (2002), cert. denied, 371 Md. 264 (2002)).

“When ruling on a motion for summary judgment, a court must view the facts, including all inferences drawn therefrom, in the light most favorable to the opposing party.” Carter, 153 Md.App. at 224, (citing Sterling, 145 Md. App. at 168, quoting Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 676 (2001)). “The moving party bears the burden of establishing the absence of a genuine issue of material fact.” Carter, 153 Md.App. at 224, (citing Sterling, 145 Md.App. at 168, citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)), therefore the Defendant must show the absence of disputed facts. Furthermore, the standard is such that the trial court is not to draw inferences in favor of the moving party. Rather, if the facts are undisputed, but these facts “are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law.” Carter, 153 Md.App. at 225, (citing, Porter v. General Boiler Casing Co., 284 Md. 402, 413 (1979), quoting Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138 (1970)).
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