Medical Malpractice

Maryland Appeals Court Holds Medical Provider Network Not Liable for Negligent Actions of Member Physician – JAI Medical Sys. v. Bradford

December 27, 2012 | Lebowitz & Mzhen

A Maryland appeals court recently heard a case involving a medical malpractice claim against a physician and the managed care organization (MCO) of which he was a member. The court held that the actions of the individual physician do not constitute “apparent agency” and thus that the MCO is not liable for his negligence. This case illustrates the need for a skilled Maryland medical malpractice attorney to identify the liable parties and develop the strongest arguments for the plaintiff’s malpractice case.

In JAI Medical Systems v. Bradford, a jury had reached a verdict for plaintiff Wilhelmina Bradford in the amount of $3,064,000 for negligent medical treatment by Dr. Steven W. Bennett, a podiatrist in the MCO network. Dr. Bennett’s negligence in this case was undisputed; at issue was whether he was acting as an apparent agent for JAI, which would result in JAI’s liability under a theory of vicarious liability.

Vicarious liability is a theory under which one person or entity may be legally responsible for the actions of another person or entity. For example, a corporation may be liable for actions taken by its board of directors or its president, or a retail store might be liable for promises made by its salespersons. Here, the question before the court was whether an MCO may be liable for the negligent actions of one of its member providers. For a plaintiff, vicarious liability is sometimes the key to getting the full amount of compensation for injuries because the individual actor may not have sufficient funds to pay for the extent of injuries.

One way to prove vicarious liability is through the concept of agency. If a person is an agent of another person or entity, then any actions taken by that person—negligent or otherwise—may be imputed to the other person or entity for liability purposes. The court applied the test for agency in this case and found that no reasonable person could have believed that the physician’s actions manifested apparent authority on behalf of JAI. That is, the plaintiff could not have reasonably believed that Dr. Bennett was acting as an agent of JAI. Rather, he was the medical provider, while JAI was merely “an MCO formed solely to act as an administrator of the State Medical Assistance Program.”

Maryland Law Requires Medical Malpractice Plaintiff to File the Claim With the State Before Filing Suit – Haskins v. Washington Adventist Hospital, Inc.

October 2, 2012 | Lebowitz & Mzhen

The U.S. District Court for the District of Maryland granted a defendant hospital’s motion to dismiss a medical malpractice lawsuit, Haskins v. Washington Adventist Hospital, Inc. A woman filed suit as administrator of her late husband’s estate, alleging that inadequate care by hospital personnel caused his death. The court held that she did not comply with the Maryland Health Care Claims Act (MHCCA), which requires plaintiffs to file a claim with a state agency as a condition of filing a lawsuit. It dismissed the suit without prejudice, meaning she is permitted to re-file.

The decedent, Virginia resident Ernest Haskins, checked in to Washington Adventist Hospital (the “Hospital”) in Takoma Park, Maryland on April 9, 2010. He was there to receive treatment, including surgery, for a spinal fracture and metastatic multiple myeoloma cancer of the spine. He allegedly contracted a MRSA infection (methicillin-resistant Staphylococcus aureus) due to the nursing staff’s failure to follow standard of care procedures. MRSA is a bacterial infection that is resistant to common antibiotic treatments. It is usually spread by skin-to-skin contact. Because of the infection and its risk of contagion, Haskins was initially unable to find a nursing home willing to accept him.

Haskins also suffered stage II sacral decubitus ulcers, commonly known as bedsores, during his stay at the Hospital, causing him severe pain and discomfort. After several months in the Hospital, a nursing home in Richmond, Virginia agreed to admit Haskins. A third-party ambulance transferred him there, a five-hour trip over 129 miles. The Hospital allegedly failed to provide the ambulance crew with a full account of the severity of Haskins’ condition, including the bedsores. Haskins’ bedsores therefore went untreated until he arrived in Richmond. He required surgery at Virginia Commonwealth University Hospital on July 2, and he died shortly afterwards.

Maryland Court of Special Appeals Dismisses Medical Malpractice Case Due to Lack of Qualified Expert

September 1, 2012 | Lebowitz & Mzhen

A trial court dismissed a man’s medical malpractice suit against three doctors, ruling that he did not file a certificate of qualified expert (“Certificate”) that comported with state law. The plaintiff in Hinebaugh v. Garrett County Memorial Hospital, et al appealed on both the substance of the dismissal and on the question of whether the court could dismiss the suit before the parties had conducted any discovery. The Maryland Court of Special Appeals affirmed the dismissal, finding that the plaintiff’s Certificate was inadequate, and that formal discovery was not necessary for the plaintiff to meet the statutory requirements for qualifying an expert witness.

The plaintiff sustained injuries to his left cheek and jaw on August 12, 2006 after being hit in the face when he was a 22 year-old inmate in a local jail. He was first seen by Dr. P. Daniel Miller, an osteopath practicing family medicine, who ordered simple x-rays of his facial bones. Dr. Miller and two radiologists, Drs. H. Stan Lambert and James K. Benjamin, examined the x-rays and reportedly found no “radiographic abnormalities.”

After the plaintiff was released from jail, he went to a different doctor on August 27. That doctor ordered a maxillofacial CT scan and found a “left supraorbital fracture with displacement.” He referred the plaintiff to an Oral and Maxillofacial Surgeon (OMS). The plaintiff eventually underwent surgery on his cheek and jaw.

The plaintiff filed a claim in the state’s Health Care ADR Office in August 2009 against Drs. Miller, Lambert, and Benjamin. He alleged various breaches of the doctors’ standards of care, including failure to order a CT scan or consult with specialists. He claimed that these breaches caused him to need “extensive intrusive surgical procedures” and sought compensation for medical expenses, past and future lost wages, and pain and suffering. The plaintiff filed a Certificate and a report by John Mitcherling, D.D.S., identifying him as an OMS specialist with at least five years’ clinical experience similar to that of the three respondent doctors. Dr. Mitcherling stated an opinion that the doctors had breached various standards of care by failing to perform certain diagnostic tests.

Lawsuit Alleges Prison Nurse Denied Emergency Medical Care to Inmate.

August 7, 2012 | Lebowitz & Mzhen

A woman in Minnesota is suing several registered nurses (RNs) over the death of her son, who died while in the custody of the Minnesota Department of Corrections (MDOC). The lawsuit alleges that a nurse employed by the prison withheld emergency medical care from her son, who had a history of seizures, because of “protocols” established by the private contractor hired to provide medical care for the state’s inmates.

Xavius Scullark-Johnson, age 27, was an inmate at the state prison in Rush City, Minnesota with only three months left on his sentence. According to the Minneapolis Star Tribune, the prison has not had 24-hour medical staff since 2002. Doctors, all of whom are employed by health contractor Corizon, Inc., only work Monday through Friday until 4:00 p.m. Nurses at the prison are state employees who work seven days a week, but their shifts end at 10:30 p.m. Corizon and MDOC closely monitor all medical-related expenses, including ambulance trips.

Scullark-Johnson reportedly suffered multiple seizures during the evening of June 28. An on-duty nurse, Linda Andrews, found him on the floor of his cell, “soaked in urine” and “in an altered state of consciousness.” She covered him and left orders to the guards to check on him regularly. Several hours later, a guard called the on-call doctor, Sharyn Barney, informing her that Scullark-Johnson had a seizure the previous evening, and that his cellmate could not wake him. She reportedly advised the guard to monitor him overnight and report his condition to the medical staff in the morning. No one had access to Scullark-Johnson’s medical records at the time because the prison health center was closed for the night. The guard called Barney again several hours later, and the doctor agreed that the guard should call for an ambulance.

Family of Maryland Man Who Died in Police Custody Dismisses Suit Against Police, May Still Sue Hospital

February 27, 2012 | Lebowitz & Mzhen

Police went to the Greenbelt, Maryland home of Lynda Sheppard on the morning of May 26, 2010 with an arrest warrant for her son, Michael Mang. Sheppard had a protection order against her 41 year-old son and had requested a warrant for his arrest, saying he had threatened and assaulted her. Police arrested Mang, and hours later he was dead.

Police allegedly entered Sheppard’s house that morning, woke Mang, and then hit him and tasered him. Mang reportedly suffered bruising, a broken nose, and a broken rib.

Police took Mang to the hospital, where he was reportedly alert and cooperative. After several hours, though, Mang began to complain of chest pains and allegedly requested a cardiac examination. Instead, the hospital allegedly released him to police. He was reportedly held at the hospital from 5:37 a.m. to 9:20 a.m., when police took custody of him and took him to the police station. They found him lying unconscious in the station’s processing area at about 9:55 a.m. and returned him to the hospital. He was reportedly pronounced dead at the hospital at around 10:46 a.m.

An investigation by the medical examiner found evidence of alcohol consumption, but no drugs. They also found marks on his lower back that resembled taser marks. The medical examiner concluded that Mang died of natural causes stemming from a heart condition. He reportedly had a coronary blockage that raised suspicion of a heart attack.

Sheppard filed a federal lawsuit in July 2011 against the city of Greenbelt, alleging that the arresting officers caused Mang’s death by using unnecessary and unreasonable force in arresting him. The petition detailed Mang’s injuries and the timeline of events leading up to his death. She demanded $10 million in damages.

The city denied any connection between Mang’s injuries and his death. An internal police investigation concluded that the arresting officers used appropriate force against Mang because he fought back. The city’s attorney told the Greenbelt Patch that Mang’s injuries could simply have been the result of fighting with police.

Sheppard dismissed the lawsuit without prejudice on February 15, 2012. “Without prejudice” means that she can re-file the claim within the original statute of limitations. The Greenbelt police chief described the suit as frivolous and said that the internal investigation vindicated the city’s defense to the suit, that Mang’s injuries at the hands of police did not cause his death.

Medical Malpractice: A Surgeon’s Perspective

February 6, 2012 | Lebowitz & Mzhen

An article in a recent issue of General Surgery News, a trade publication for surgeries, examines the impact of medical malpractice litigation on general surgeons and several specialty areas of surgery. The article looks at recent statistics and discusses the merits of fighting malpractice lawsuits versus settling them quickly. It concludes that doctors are usually better off, in the long run, fighting lawsuits. The analysis tends not to be favorable towards medical malpractice plaintiffs and their attorneys, but it does offer a good glimpse of how surgeons might approach a malpractice claim.

A recent survey by the American Medical Association reportedly found that five percent of respondents had faced a malpractice claim of some sort during the previous year. Another study published in the New England Journal of Medicine in 2011 found that, after neurosurgeons and thoracic surgeons, general surgeons have the next-highest rate of malpractice claims. The study reviewed twenty-four surgical specialties. In an average year, it found that 15.3% of general surgeons will have at least one claim brought against them.

Doctors rarely have the exclusive authority to decide whether to settle a case, as a doctor’s malpractice insurance carrier will typically handle the expense of legal representation. The author of the article advises surgeons against settling in most cases. He notes that, first and foremost, settlement can be interpreted as an admission of fault, even if the settlement’s purpose is to avoid even costlier litigation. Many settlement agreements include a clause specifying that the defendant does not admit liability, but settlement agreements do not get publicity beyond the parties to a dispute. Settling a lawsuit can also lead to problems further down the road, as the board of medicine of a doctor’s state may wish to review the matter itself, and the doctor’s name may appear in databases that catalog malpractice claims.

Of particular note to personal injury attorneys is the discussion of how surgeons can avoid lawsuits. There is little to no correlation, the article states, between the degree of risk in a surgical procedure and the rate of malpractice claims. In other words, riskier procedures are not necessarily at the greatest of a claim. Rather, it is a matter of the doctor’s relationship with the patients and the patient’s family. The better the communication between patient and doctor, the less likely the patient is to claim malpractice.

Dentist Pleads Guilty to Medicaid Fraud, Using Paper Clips Instead of Dental Supplies

January 30, 2012 | Lebowitz & Mzhen

A former Massachusetts dentist, Michael Clair, pleaded guilty to Medicaid fraud and a number of other charges stemming from allegations that he used paper clips while performing root canals instead of the stainless steel posts normally used. He will serve one year in jail. Medicaid reportedly suspended the 53 year-old dentist in 2002, but he continued to file claims under different names belonging to other dentists in his practice until 2005. Massachusetts suspended Clair’s dentistry license in 2006, and he is reportedly not currently licensed to practice in any state. He has resided in Maryland for several years.

Numerous patients also reported infections, pain, and other problems stemming from his treatments. One patient, a teenager, had to have his tooth removed after a root canal performed by Clair in 2005. The tooth turned black and caused him severe pain. The teen’s mother claimed that Clair also performed shoddy dental work on her other children.

Prosecutors accused him of defrauding Medicaid of around $130,000 for his claims made using other dentists’ names. They also charged him with assault and battery in connection with his root canal procedures and other practices, illegally prescribing medications, and witness intimidation. Clair reportedly pleaded guilty to all or most of the charges. Prosecutors had asked the court for a sentence of five to seven years. The judge sentenced him to one year in prison, citing Clair’s guilty plea and willingness to accept responsibility, his lack of a prior criminal history, and “certain mental health issues.” The judge did not elaborate on that last factor. Clair will serve his sentence at the Bristol County House of Correction in North Dartmouth, Massachusetts.

Clair’s use of paper clips in root canals is a particularly egregious breach of the trust placed in dentists by the law and by society in general. Dentists, just like medical doctors and other medical professionals, undergo a considerable amount of training and education. As a result, they are entrusted with a great deal of responsibility over their patients. A dentist has a duty to provide diligent and competent service to all his or her patients, and to obtain informed consent for all treatments and procedures. A root canal, known more formally as endodontic therapy, is a complicated procedure. Few laypeople understand how the procedure works, and tend to trust dentists to perform the work. Using common items like paper clips in the procedure in place of specially-designed materials intended for the procedure puts patients at unreasonable risk of infection and worse. This is a clear breach of a dentist’s duty of care.

When a “Never Event” Occurs at a Hospital, It Frequently Goes Unreported

December 5, 2011 | Lebowitz & Mzhen

Hospitals often refer to tragedies that should not happen in a medical setting as “never events.” These may include patients dying during routine procedures or major medication errors. Saying that they should not happen does not mean that they do not, unfortunately, and few resources are available to track just how frequently “never events” occur.

Any effort to track this type of event is dependent upon reporting by hospitals and other medical providers, who often have both legal and business reasons to prefer not reporting. Hospitals may wish to keep such information private for fear that it could be used against them in litigation. While this may not be an unreasonable worry, it does nothing to alleviate concerns about public safety. Furthermore, any such information that directly pertains to a claim for medical malpractice should be relevant information available through discovery. It turns out that the discovery process may remain the main method for medical malpractice attorneys to obtain information on specific errors.

Hospitals may also cite fear of losing business as a reason to keep “never event” information private, as people would take their business elsewhere, or they might avoid care entirely. The argument that a patient might forgo care rather than risk seems reasonable to an extent, but the interest in having accurate information seems greater.

Finally, patient privacy laws may prevent reporting of specific information on errors. Privacy protections are available, through which hospitals can submit reports with redacted patient information.

Congress passed the Patient Safety and Quality Improvement Act of 2005 (PSQIA) in order to address some of these concerns, but the law does not directly address the issue of public availability of information. The law encourages hospitals to report dangerous conditions, adverse events, and near misses to a system of patient safety organizations (PSO), also created by this law. It also provides for confidentiality of what it defines as “Patient Safety Work Product.” The definition of Patient Safety Work Product is quite broad, encompassing almost all features of an error report, and disclosure is only permitted in strictly-defined circumstances. These circumstances do not seem to include litigation, except after an extensive process of “nonidentification.” The PSQIA also created a national database that allows information to be shared among the PSO’s, obviously subject to the strict disclosure requirements. However, the PSQIA does not require hospitals to report adverse events to the nearest PSO. All reporting under this law is strictly voluntary

Outsourcing of Radiology Raises Concerns About Quality of Care

November 3, 2011 | Lebowitz & Mzhen

The word “x-ray” may still conjure images of doctors standing before backlit panels reviewing transparent x-ray scans and arguing over diagnoses. This bears little resemblance to the reality of modern x-rays. In a practice known as teleradiology, doctors and hospitals outsource x-rays and similar procedures to companies who may be located on the other side of town or the other side of the world. Doctors and technicians employed by these companies review the x-rays and issue a report. This practice, while perhaps increasing efficiency, also increases risks of misdiagnosis or even simple miscommunication, with potentially serious consequences.

A recent article published by MSNBC tells the story of a Pennsylvania woman who went to the hospital on a Friday night in 2005 complaining of a severe headache. The emergency room doctor thought it might be a cerebral hemorrhage, a potentially fatal condition, so he ordered a CT scan. The hospital electronically sent the CT scan data to a radiologist located across the state. The radiologist diagnosed a possible tumor rather than a hemorrhage. Since a tumor was not immediately life-threatening, the hospital sent her home with painkillers.

The woman returned to the hospital by ambulance about seven hours later, in even worse pain. The ER doctor ordered a more detailed CT scan, which was sent to a different radiologist. While the radiologist had a Pennsylvania medical license, his office was in Hong Kong. The radiologist identified an abscess around the mass in the woman’s brain, a condition that is very frequently fatal if not caught in time. The radiologist did not note the significance of his finding, i.e. its likelihood to be fatal, in his report to the hospital. Another radiologist at the Pennsylvania company also noted the abscess but did not report its significance.

The woman went home again, and later collapsed when the abscess ruptured. She spent eleven weeks in a coma while doctors tried to drain the fluids from her brain. She survived with permanent brain damage affecting memory and daily functions. The hospital settled a lawsuit with her family for a confidential amount.

Family Files Wrongful Death Lawsuit Against California School Over Death of 12 Year-Old

October 19, 2011 | Lebowitz & Mzhen

The parents of a 12 year-old boy who died in September 2010 from acute cardiac arrest have filed suit against the school district where the child was enrolled, the child’s P.E. teacher, and two doctors who treated him. The lawsuit alleges negligence against the school district and teacher for failing to exercise reasonable care in the child’s physical education, and it alleges that the doctors were negligent in their prescribed restrictions on the child’s physical activities.

The child suffered from hypertrophic cardiomyopathy, a condition that causes thickening of the heart muscle, according to court documents. This makes it more difficult for the heart to pump blood efficiently. The congenital condition can result in sudden cardiac arrest and death, and is a leading cause of heart-related death among young athletes. The lawsuit alleges that, while temperatures in Los Angeles were at a record high of 107 degrees in September 2010, the school and P.E. teacher required the child to participate in physical education classes. The school and teacher allegedly knew about the child’s heart condition. The child allegedly suffered cardiac arrest on the morning of September 28, 2010 during his physical education, while under the teacher’s supervision. He died shortly afterwards.

The primary claim of the lawsuit is negligence. To prevail on a claim of negligence, a plaintiff must prove four elements: (1) the defendant owed a duty of care, (2) the defendant breached that duty, (3) the breach caused injury to the plaintiff, and (4) plaintiff has suffered damages as a direct result. The plaintiffs have also claimed negligence by medical professionals, which is a higher standard of negligence. Ordinarily, a negligence claim requires proof of a duty of care for a reasonable person. Medical malpractice imposes a higher standard of care on doctors and other medical professionals because of their specialized training. Since the school district and teacher named in the lawsuit care for children in the course of their daily professional duties, a court might apply a higher standard of care to them than it might to a person not accustomed to dealing with children. The lawsuit specifically alleges failure to follow the requirements of Section 504 of the Rehabilitation Act of 1973, which addresses protection of children with disabilities.