Medical Malpractice

Maryland Court Affirms Harsh Sanction for Failure to Comply with Scheduling Order in Medical Malpractice Case

December 7, 2016 | by Foran & Foran, P.A.

In a recent medical malpractice case, the Court of Special Appeals of Maryland considered whether striking a standard of care expert as a sanction for non-compliance with scheduling and discovery orders was an abuse of discretion by the trial court. In Queensbury v. Rafiq (Md. Ct. Spec. App. Sept. 26, 2016), the plaintiff brought a negligence lawsuit against the defendant doctor, alleging that he failed to exercise reasonable care in treating the plaintiff and subjecting the plaintiff to chiropractic procedures, and that he failed to disclose the material risks and alternatives to the treatment. The court set deadlines for the plaintiff to identify his experts according to Maryland rules. After filing his initial designation of experts, all of the plaintiff’s experts withdrew and were replaced with new ones, although the filing deadline had passed. The plaintiff was allowed an extension of discovery deadlines and designating his experts, but he then canceled a scheduled deposition of his expert. The judge subsequently struck the plaintiff’s expert and granted the defendant’s motion for summary judgment, and the plaintiff brought an appeal.

In Queensbury, the scheduling order at issue was entered pursuant to Maryland Rule 2-504. Although the rule doesn’t expressly provide sanctions for scheduling order violations, Maryland courts have held that a judge may issue sanctions for such violations, including in medical malpractice claims. The court may evaluate several factors in considering discovery sanctions in civil cases, such as whether the violation was technical or substantial, the timing of the violation, the reason for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether the resulting prejudice might be cured by a continuance, and the overall desirability of a continuance.

Maryland Court Reviews Evidence of Causation in Medical Malpractice Appeal

October 11, 2016 | by Foran & Foran, P.A.

In order to succeed in a negligence lawsuit, a plaintiff must not only prove that the defendant breached a duty of care but also prove that the defendant’s breach was the cause of the plaintiff’s injury. The Court of Special Appeals of Maryland addressed the issue of causation in a recent medical malpractice action, Hardy v. Advanced Radiology, P.A. (Md. Ct. Spec. App. Aug. 17, 2016). Although the court accepted that the doctor breached the standard of care, it ultimately held that the plaintiff failed to establish the necessary causal link between the doctor’s breach and the plaintiff’s injury.

In Hardy, the plaintiff underwent a CT scan of his abdomen in February 2006. The defendant, a radiologist, interpreted the scan as showing nothing abnormal. The plaintiff sought a second opinion from another hospital 19 days later. Two different radiologists detected a mass, and a surgical consult was ordered. The surgeon reviewed the scan and reported that it looked benign, recommending follow-up CT scans. For the next several years, follow-up CT scans were performed annually. In December 2011, the plaintiff underwent a sixth CT scan, showing that the mass had doubled in size, and a biopsy of the mass led to a diagnosis as a cancerous tumor. The plaintiff filed a medical malpractice lawsuit in January 2013 against his doctors, including the defendant who interpreted his first CT scan.

At trial, the plaintiff’s experts testified that the defendant had breached the medical standard of care by failing to identify the mass in the plaintiff’s abdomen. At the close of evidence, the defendant moved for judgment, arguing that the plaintiff failed to prove that the defendant’s breach caused the plaintiff’s injury. The trial court denied the defendant’s motions. The jury found the defendant negligent and awarded $20,635 in damages. On appeal, the defendant again argued that the plaintiff failed to establish the element of causation.

Imprecise Record-Keeping May Disqualify Experts in Maryland Medical Malpractice Cases Under the Twenty Percent Rule

October 7, 2016 | by Foran & Foran, P.A.

Retaining legally qualified experts to testify in your medical malpractice case is a crucial part of a successful claim. The Court of Special Appeals of Maryland discussed some of these requirements in a recent medical malpractice case, Streaker v. Boushehri (Md. Ct. Spec. App. Sept. 28, 2016).

In Streaker, the plaintiff brought a negligence and breach of contract action against a nurse midwife and her practice. The lower court granted the defendant’s motion to exclude the plaintiff’s expert testimony, finding that the expert devoted more than 20 percent of his professional activity to testifying in personal injury claims. The plaintiff appealed that decision to the higher court.

To file a medical malpractice action in Maryland, a plaintiff must initially file a certificate of a qualified expert, attesting that the defendant departed from the standard of care and that the departure proximately caused the alleged injury to the plaintiff. In medical malpractice cases, a qualified expert is not only measured by education, experience, and expertise, pursuant to Maryland Rule 5-702, but also by an additional statutory threshold. Commonly referred to as the “Twenty Percent Rule,” it provides that qualified experts may not devote annually more than 20 percent of their professional activities to activities that directly involve testimony in personal injury claims.

Maryland Court Explains Tolling Exception for Medical Malpractice Claim of Person with Legally Appointed Guardian

October 6, 2016 | by Foran & Foran, P.A.

In some cases, a medical malpractice claim may be brought after the statutory deadline for filing if it falls under a tolling exception. One of those exceptions may allow a mentally incompetent person to bring an action after the typical filing deadlines. In Kratz ex rel. Kratz-Spera v. MedSource Cmty. Servs., Inc., 228 Md. App. 476 (2016), the adult plaintiff suffered from severe autism and intellectual disability, and he lived in a group home operated by the defendant. In 2008, the plaintiff’s mother and sister were named as his court-appointed guardians. In 2013, after the plaintiff was injured in two separate incidents at the defendant’s group home in 2006 and 2009, his guardians brought suit against the defendant on his behalf. The defendant moved to dismiss the complaint, arguing that it was not timely filed, and the trial court granted the motion.

In general, the Maryland Health Care Malpractice Claims Act provides that a cause of action must be brought against a health care provider within three years of the date the injury was discovered, or in any event no more than five years from the date of the injury. However, in the case of a minor or a mentally incompetent person, the action must be filed within the lesser of three years or the applicable period of limitations after the date the disability is removed. In Kratz ex rel. Kratz-Spera v. MedSource Cmty. Servs., Inc., the plaintiff’s mother knew of the 2006 incident on the day it happened, and she was notified of the 2008 incident on the next morning.

On appeal, the issue for the Court of Special Appeals of Maryland was whether the appointment of a guardian of a mentally incompetent person removes the disability of that person for the purposes of applying the statute of limitations. The court ultimately held that the tolling exception preserves the legal rights of a mentally incompetent individual until a guardian is appointed. Once a guardian is appointed, and he or she gains the requisite knowledge to file a claim on the individual’s behalf, the statute begins to run.

Maryland Court Rules Expert Testimony Required to Establish Plaintiff’s Claim for Lack of Informed Consent

August 18, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently reviewed a personal injury case in which a patient sued her doctor for a failed sterilization procedure. In Tyler v. Judd (Md. Ct. Spec. App. June 30, 2016), the plaintiff sought treatment from her doctor to schedule a tubal ligation. She alleged that the doctor responded to her request by talking to her about Essure, stating that it was a non-reversible, pain free, 100 percent sterilization procedure. Based on that conversation, the plaintiff agreed to undergo insertion of the coils in her fallopian tubes. After the procedure, the plaintiff experienced ongoing abdominal pains and also became pregnant with her third child a short time later. The plaintiff gave birth to a healthy boy and had another doctor remove the coils. The plaintiff then brought suit against the doctor on grounds including lack of informed consent.

At the trial, the plaintiff testified, along with several other witnesses. However, the plaintiff did not call any medical experts to testify in support of her claim. At the close of her case, the defendants moved for judgment, arguing that the plaintiff failed to present expert medical testimony, which is required for a claim of a lack of informed consent. The trial court agreed, ruling that expert testimony is needed to establish the nature of the risks inherent in a particular treatment, and that there was no testimony with respect to medical alternatives or the treatment’s percentage of failure, even the percentage of the Essure failure rate. The plaintiff subsequently appealed.

In Maryland, the doctrine of informed consent imposes a duty on a physician to explain the procedure to the patient before treatment, and to warn the patient of any serious risks or harm related to therapy, in order to allow the patient to make an informed decision about whether or not to undergo the treatment. This duty to disclose requires a doctor to inform the patient of the nature of the condition, the nature of the suggested treatment, the probability of success of the treatment and any alternatives, and the risk of undesirable consequences associated with the treatment. In bringing a negligence claim for lack of informed consent, therefore, the plaintiff must show a breach of this duty, causation, and injuries.

Maryland Plaintiffs May Bring Wrongful Death Action Despite Successful Personal Injury Claim of Decedent

August 15, 2016 | by Foran & Foran, P.A.

In a newly issued decision, the Court of Appeals of Maryland settled the question of whether surviving family members can bring a wrongful death action based on the same alleged conduct as a personal injury claim won by the decedent before his death. In Spangler v. McQuitty (Md. July 12, 2016), the court ultimately held that the decedent’s beneficiaries are not barred from filing a subsequent wrongful death action, despite a judgment on the merits in the decedent’s personal injury claim. The court further held that when only one joint defendant is released from liability by the injured person, the other defendants are not also discharged. Accordingly, such a release does not preclude a wrongful death action brought by the survivors against other defendants that were not parties to the release.

In Spangler, the mother suffered a placental abruption, causing severe injuries to her child during his birth as well as cerebral palsy. The parents of the minor child sued their obstetrician and medical practice group for failing to secure the mother’s informed consent for treatment. Several of the defendants settled with the plaintiffs before trial. After trial, the jury awarded the child approximately $13 million in damages, including future medical expenses. Although the verdict was upheld, the jury award was ultimately reduced after subsequent appeals.

During the appeal litigation of his personal injury claim, the child died. His parents filed a wrongful death action against the defendants under the Maryland wrongful death statute, based on the same underlying facts as the personal injury action regarding the obstetrician’s failure to obtain informed consent. The circuit court dismissed the case, concluding that it was precluded by the previous judgment. That decision was reversed by the Court of Special Appeals, and the case subsequently came before the Maryland Court of Appeals.

Maryland Court Denies Expert Medical Testimony in Negligence Claim

June 14, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently issued an opinion in a medical malpractice action involving issues of expert testimony. In Abbasov v. Dahiya (Md. Ct. Spec. App. Apr. 29, 2016), the plaintiff brought claims for medical negligence, lack of informed consent, fraud, and loss of consortium against the physician who applied her chemical facial peel. During the trial, the court ruled that the plaintiff’s medical expert could not express an opinion regarding the standard of care for the application of the chemical peel because he was not board certified in a specialty related to the defendant’s specialty, as required by the Maryland Health Care Malpractice Claims Act. The court therefore granted judgment in favor of the defendant at the close of the plaintiff’s case on her medical negligence and fraud claims. The plaintiff appealed that decision, arguing that the court erred by precluding the expert witness from testifying as to the standard of care.

In Maryland, a health care provider may be held liable for medical negligence if the plaintiff establishes that the care given by the health care provider was not in accordance with the standards of practice among members of the same health care profession, with similar training and experience, situated in the same or similar communities. In addition, any health care provider who testifies as to a defendant’s compliance with or departure from the standard of care must have practiced or taught medicine in the defendant’s specialty or field of health care, or a related field of health care to the field in which the defendant provided care to the plaintiff, within five years from the date of the alleged act. That witness must also be board certified in the same or a related specialty.

Maryland Court Reviews Appeal Involving Fraud Claims in Medical Malpractice Case

June 4, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently reviewed a medical malpractice case involving allegations of fraud by misrepresentation and concealment. In Crystal v. Midatlantic Cardiovascular Associates, P.A. (Md. Ct. Spec. App. Mar. 29, 2016), the plaintiff brought a medical malpractice lawsuit against the defendants, claiming that an unnecessary stent was placed in his artery in 2004. The lower court entered summary judgment in favor of the defendants on the fraud claims, which consequently resulted in the dismissal of the medical malpractice lawsuit, which depended on the fraud claims to toll the statute of limitations that had long since run. The plaintiff appealed the decision to the higher court.

To prevail on a claim of fraud in Maryland, the plaintiff must establish that the defendant made a false representation to the plaintiff, its falsity was either known to the defendant or the representation was made with reckless indifference as to its truth, the misrepresentation was made for the purpose of defrauding the plaintiff, the plaintiff reasonably relied on the misrepresentation, and the plaintiff suffered a compensable injury as a result of the misrepresentation. Fraud does not encompass liability for negligent or grossly negligent representations.

In Crystal, the plaintiff’s claim of fraud by intentional misrepresentation was based on expert opinion testimony that the defendant breached the standard of care by inserting a stent without reasonable evidence that it was medically necessary. However, the appeals court found that there was no evidence that the defendant knowingly misstated the level of stenosis in the plaintiff’s blood, nor any evidence that the alleged misrepresentation was made to induce the plaintiff to undergo the operation.

Maryland Court Allows Evidence of Superseding Causation in Medical Malpractice Case

June 2, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently reviewed a medical malpractice case involving issues of admissible evidence to prove superseding negligence. In Copsey v. Park (Md. Ct. Spec. App. Apr. 21, 2016), the surviving family of the decedent brought an action against the treating physician, alleging that the defendant negligently misread the decedent’s MRI six days before he suffered a massive, and ultimately fatal, stroke. The trial court allowed the physician-defendant to present evidence of negligence by other physicians who had treated the decedent after the defendant, and then the court instructed the jury on superseding causation at the end of the trial. On appeal, the survivors contended that the circuit court erred in admitting evidence of the negligence of subsequent treating physicians and instructing the jury on superseding causation.

Medical malpractice, or negligence, is the failure of a medical professional to meet the appropriate standard of care when treating a patient. In order to establish medical malpractice, a plaintiff must also prove that the physician’s negligent conduct caused the injury alleged in the lawsuit. In Maryland, courts have held that evidence of both negligence and causation attributable to a non-party is admissible in medical malpractice actions when the defendant asserts a complete denial of liability. In Copsey, the appeals court held that it doesn’t matter whether the alleged third-party negligence occurred before or after the defendant treated the patient, since without such evidence, the jury would be given a materially incomplete picture of the facts, and the defendant would be denied a fair trial. The court therefore found that the lower court did not err in allowing the defendant to present evidence of negligence on the part of other treating physicians.

Maryland Court of Special Appeals Reviews Standard of Care in Medical Malpractice Case

March 31, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently reviewed a lower court’s decision granting summary judgment in favor of a physician-defendant in a medical malpractice case. In Puppolo v. Sivaraman, the plaintiff’s wife died as the result of the administration of heparin, an anticoagulant used to prevent blood clotting during dialysis. Heparin is not typically administered to patients with platelet levels below 50, since there is a high risk that heparin-induced thrombocytopenia, a serious and sometimes fatal condition, may occur. On December 23, 2008, although the plaintiff’s wife had a platelet level of 1, she was given two doses of heparin, and she died shortly thereafter.

The plaintiff brought a wrongful death claim against his wife’s doctor, alleging that he breached his duty of care by administering the heparin to his wife, or allowing it to be administered to her. In order to establish medical malpractice, the plaintiff must prove that the defendant owed a duty of care to the victim, the defendant breached the duty of care, the defendant’s actions caused the injury to the victim, and damages were incurred. Generally, expert medical testimony is required to prove the standard of care and what constitutes a breach of that standard.

In Puppolo, the evidence indicated that the doctor did not write an order for heparin and that one of the other resident doctors working in the hospital ordered the prescription. The plaintiff nevertheless contended that the defendant was liable for the resident’s breach of the standard of care under the borrowed servant rule. The lower court granted the defendant’s motion for summary judgment, finding that there was nothing to support the plaintiff’s assertion that the defendant ordered, directed, approved, or controlled the ordering of heparin.