Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
In Maryland, as of 2016 non-economic (pain and suffering) damages in medical malpractice damages were capped at $755,000, to be increased by $15,000 annually. The cap applies to all defendants in a case arising from the same injury, and to wrongful death cases with only one plaintiff. In a wrongful death case with more than one plaintiff, the cap is increased to 125% of the current non-economic damages cap.
Joint and Several Liability
In Maryland, when more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. In Maryland, the collateral source rule does not apply in cases of medical negligence.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. The statute of limitations for Maryland medical malpractice actions is the later of five years from the date of the act or omission underlying the claim, or three years from the date of reasonable discovery. For minors under the age of eleven, the statute of limitations starts to run when the minor reaches the age of eleven. If the malpractice involves an injury to the reproductive system of a child under the age of sixteen, or from a foreign object negligently left inside the body of a child under the age of sixteen, the statute of limitations starts to run on the minor's sixteenth birthday.
Additional rules affecting malpractice litigation in the State of Maryand include:
Alternative Dispute Resolution
In Maryland, the arbitration of medical malpractice claims is normally required. Arbitration may occur at any time before the hearing of a malpractice claim, through the Health Care Alternative Dispute Resolution Office. Cases are arbitrated before three-member panels comprised of a health care professional, a lawyer, and a member of the public. The parties may agree to waive the arbitration of the claim.
Limits on Attorney Fees
If a legal fee is in dispute, an attorney may not charge or collect compensation for services rendered in association with an arbitration claim unless the compensation is approved by the arbitration panel, or is approved by the court in the event that an action to nullify a panel determination is filed with the court.
Certificate of a Qualified Expert
In Maryland, within 90 days of filing a claim for arbitration, the claimant must file a certificate from a qualified expert that asserts that the specifically named defendant did not meet the applicable standard of care when providing services to the claimant, and that the defendant's negligence proximately caused the claimant's injury. Failure to file a certificate from an expert will result in dismissal.
Prior to trial, on a schedule defined by statute, the parties must exchange supplemental certificates that include information about their expert witnesses, including their qualifications, the basis of their anticipated testimony and their position on the defendant's compliance with or noncompliance with the applicable standard of care.
Medical Expert Witness Restrictions
In order to testify as an expert in a Maryland medical malpractice case in relation to a defendant's compliance with or failure to comply with the governing standard of care, an expert must have clinical experience, provided consultation relating to clinical practice, or taught medicine within the defendant's speciality or a related field of health care, or within the field of health care in which the defendant provided care to the plaintiff, within five years of the date of the act or omission alleged to have caused injury to the plaintiff. In most cases, if a defendant is board certified, the expertmust be board certified in the same area of specialty as the defendant, or in a related area. Exceptions arise if the defendant was providing care to the plaintiff outside of the area in which the defendant was board certified, or if the proposed expert witness taught medicine within the defendant's specialty or a related field of health care.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. In a Maryland malpractice case, an expression of regret or apology made by or on behalf of the health care provider, including an expression of regret or apology made in writing, orally, or by conduct, is inadmissible as evidence of an admission of liability or as evidence of an admission against interest. However, an admission of liability or fault that is included within any such statement of apology or regret remains admissible.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.