Articles Posted in Medical Malpractice

Under Maryland Courts and Judicial Proceedings Section 3-2C-02, a Maryland medical malpractice claim “shall be dismissed … if the claimant fails to file a certificate of a qualified expert with the court.” This requirement was initially implemented to deter the filing of frivolous medical malpractice lawsuits and to ensure that meritorious claims are heard expediently. However, over time the requirement has become the focus of significant litigation as medical professionals routinely attempt to use it as a defense to any claim made against them.

Earlier this month, a state appellate court issued a written opinion in a personal injury case discussing the expert-affidavit requirement. Ultimately, the court concluded that the alleged negligence of the medical professional was not “directly involved” or “proximate” to the procedure the plaintiff was undergoing. Thus, the court held that the requirement did not apply.

The Facts of the Case

According to the court’s opinion, the plaintiff was scheduled to have a hysterectomy. Before the surgery began, the defendant anesthesiologist attempted to intubate the plaintiff. However, while the defendant was in the process of intubating the plaintiff, the power went out. While the lights were out, the defendant allegedly dropped a medical tool on the plaintiff’s tooth, chipping it.

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In Maryland medical malpractice lawsuits, the plaintiff must follow certain procedures that are not required of other personal injury plaintiffs. Primarily, this consists of filing a compliant certificate of merit.

Under Maryland Code section 3-2C-01, the certificate of merit must contain a statement from an expert who is “knowledgeable in the accepted standard of care in the same discipline as the licensed professional against whom a claim is filed.” The affidavit must contain a statement that the defendant doctor’s care was a departure from the applicable standard of care and that the defendant’s breach of this duty was the cause of the plaintiff’s injuries.

The objective of the certificate of merit requirement is to ensure that only meritorious claims are filed and pursued. However, occasionally, the requirement can get in the way of even meritorious claims. As a recent opinion illustrates, a simple misstep by a plaintiff can result in the dismissal of their lawsuit.

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Earlier this month, a state appellate court issued a written opinion in a medical malpractice case illustrating the importance of complying with all procedural rules in medical malpractice cases. Indeed, the point is especially important for Maryland medical malpractice plaintiffs to understand because very similar requirements apply under Maryland state law.

The Facts of the Case

The plaintiff was the parent of a child who was born with serious injuries and birth defects. The defendant was the delivering physician. The plaintiff filed a medical malpractice lawsuit against the defendant, arguing that the care provided by the defendant fell below the generally accepted level of care and that this lapse was the cause of her child’s injuries.

Under state law, the plaintiff had 60 days to file an affidavit of merit from a qualified expert in the field. However, due to an admitted lapse on the plaintiff’s attorney’s part, the affidavit was not filed. The defendant filed to dismiss the case based on the plaintiff’s failure, and the court granted the defendant’s motion. The plaintiff appealed to a higher court.

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All Maryland personal injury cases must be brought within a certain amount of time, as outlined in the relevant statute of limitations. In most Maryland medical malpractice cases, the statute of limitations requires that the case be filed before three years has elapsed since the injury.

While determining the applicable statute of limitations is often an easy task, determining when the cause of action accrued – and thus, when the “clock” starts ticking – can be a more difficult task. A recent appellate opinion in a medical malpractice case wrestles with the issue of when a plaintiff’s cause of action accrues.

The Facts of the Case

The case involved two sets of parents, each of whom received in-vitro fertilization procedures provided by the defendant doctor. In each case, the defendant implanted a fertilized egg from a donor into the wife. The wives were later determined to be pregnant, and they gave birth to seeming healthy children. One couple had a single child, and the other couple had twins.

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Earlier this month, an appellate court in Montana issued an opinion presenting an interesting issue dealing with the amount of time a victim has to bring a claim against a medical professional. The question posed in the case is relevant to anyone considering bringing a Maryland medical malpractice lawsuit because Maryland courts, like the court that authored the opinion, apply a strict statute of limitations in medical malpractice cases.

The Facts of the Case

The plaintiff suffered from chronic knee pain after twisting her knee at work in 2007. The plaintiff sought medical care from the defendant orthopedic surgeon. The defendant performed a small surgery on the plaintiff, and in so doing noticed that her ACL was partially torn. Initially, the defendant did not believe that the risks of surgery to repair the ACL were worth the potential gains, but in 2008, the defendant performed ACL surgery on the plaintiff.

There is conflicting evidence as far as the plaintiff’s condition after the second surgery. The defendant’s notes indicate that the surgery went well and that the plaintiff was recovering as expected. However, the plaintiff testified that she was in constant pain and that she was not sure why. Eventually, the defendant performed a third knee surgery on the plaintiff.

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Earlier this month, a state appellate court issued a written opinion in a personal injury case that illustrates the importance of proper expert witness selection in Maryland medical malpractice cases. The case illustrates the importance of selecting an expert whose methodologies are reliable and generally accepted in the medical community.

Expert witnesses are crucial in medical malpractice lawsuits. Indeed, within 90 days of filing a case, medical malpractice plaintiffs are required to consult with an expert and obtain a certificate of merit stating that, in the expert’s opinion, the defendant’s conduct fell below the generally accepted standard of care.

Once a certificate of merit is obtained, an expert’s services are still almost always required at trial to establish that the care provided by the defendant was inadequate. This is because most jurors do not have the necessary knowledge of the field of medicine or the medical profession to make an educated decision on such scientific and specialized issues. However, like all evidence, an expert’s testimony must meet certain criteria in order to be considered.

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The document that initiates a Maryland medical malpractice lawsuit against a defendant is called the complaint. Under Maryland law, a plaintiff’s complaint must be drafted according to guidelines. For example, a complaint must contain sufficiently specific allegations to put the defendant on notice regarding the lawsuit and how they were alleged to have been negligent. A recent case illustrates how one plaintiff’s failure to draft a sufficiently specific complaint resulted in a jury verdict in her favor being reversed.

The Facts of the Case

The plaintiff, a breast cancer survivor, was scheduled to have reconstructive surgery performed by the defendant. However, due to the radiation used to treat the cancer, there were risks involved with the procedure. The defendant discussed the risks with the plaintiff, and initially the plaintiff agreed to proceed with surgery on both breasts.

The plaintiff claims that she later changed her mind and revoked consent to operate on her left breast, citing concerns over the radiation. The plaintiff still wanted to proceed with reconstructive surgery on her right breast.

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Over the last century, the development of modern medicine has resulted in not just a decrease in the mortality rate of infants but also in the ability to determine whether an unborn child will suffer from a serious, life-altering abnormality. Through diligent testing and a thorough analysis of a couple’s medical history, doctors are now able to advise parents about which, if any, conditions their offspring may be at risk of developing.

Given the advances made in the medical field and the current ability to intervene to avoid the birth of a child who will suffer from a debilitating, life-long incurable disease, the duty physicians owe to their patients has grown to include advising patients about their specific risks. If a physician fails to advise a patient of these risks, and the patient gives birth to a child with a serious disease that would have been detectable through proper testing, a wrongful birth lawsuit may be appropriate. A recent case illustrates what a wrongful birth case is and how a plaintiff can go about proving one.

The Facts of the Case

The plaintiffs were a couple who gave birth to a child with severe disabilities. During the pregnancy, an ultrasound was conducted that displayed congenital abnormalities; however, the plaintiffs’ doctor failed to inform the plaintiffs about these defects. The plaintiffs claimed that they would have chosen to terminate the pregnancy had they been made aware of the risks involved with carrying the pregnancy full-term.

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