Medical Negligence

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 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 Arbitration Award Affirmed Due to Defendant’s Failure to Follow Procedural Requirements for Appeal

March 27, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently reviewed an appeal involving the arbitration of a medical malpractice claim in Castles of Love Assisted Living Homes, LLC v. Blanks (Md. Ct. Spec. App. Mar. 2, 2016). The issue on appeal was whether the defendant satisfied procedural rules when it sent notice of its rejection of a health care arbitration award by regular mail instead of certified mail.

In Castles of Love Assisted Living Homes, LLC, the plaintiff was a resident of a nursing home facility from 2008 until her death. The plaintiff filed a professional negligence complaint against the facility, alleging that she had sustained numerous injuries and was rendered mute due to an infection from a feeding tube while at the facility. The case was referred to arbitration pursuant to the Health Care Malpractice Claims Act. The arbitration panel found the facility liable for the plaintiff’s injuries and awarded $25,000 in non-economic damages as well as her arbitration costs.

The defendant sent a letter rejecting the panel’s findings and recommendations by certified mail to the Health Care Arbitration Office (HCAO), and a copy by regular mail to the plaintiff’s counsel. The defendant also attempted to vacate the award by filing a motion with the circuit court, which was denied because there was no open case. The HCAO then concluded that the defendant was bound by its decision because the defendant failed to properly serve the plaintiff with its rejection letter. The HCAO then filed a motion with the circuit court to confirm the award, which was granted. The defendant subsequently appealed the circuit court’s ruling.

Maryland Court of Special Appeals Holds Lower Court Erred in Setting Aside $926,000 Jury Award in Medical Malpractice Case

March 17, 2016 | by Foran & Foran, P.A.

In a recent opinion, the Maryland Court of Special Appeals held that a trial court erred in setting aside a jury verdict in favor of the plaintiffs and entering judgment for the defendants in a medical malpractice action. In Gibau v. Falik, (Md. Ct. Spec. App. Dec. 22, 2015), the decedent was hospitalized after suffering an assault and eventually died. The decedent’s survivors brought a wrongful death action based on the alleged medical malpractice of the treating physician. The plaintiffs claimed that the defendant breached the standard of care when he decided not to administer anti-seizure medication to the decedent, and when he failed to transfer the decedent back to the intensive care unit on the morning of his death. The plaintiffs claimed that the alleged medical malpractice caused the decedent to suffer a seizure, which ultimately resulted in his death.

After trial, the jury returned a verdict in favor of the plaintiffs in the amount of $926,640. The circuit court then granted the defendant’s motion for judgment notwithstanding the verdict, but on grounds that were not raised by the defendant. Instead, the circuit court concluded that no reasonable trier of fact could have found that the defendant breached the standard of care in the case, nor that the alleged breach was a causative factor in the defendant’s death.

Maryland Court of Special Appeals Upholds Majority of Million-Dollar Jury Verdict in Medical Malpractice Case

December 9, 2015 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland reviewed a medical malpractice case, Upper Chesapeake Health Center, Inc. v. Gargiulo, et al., in which the survivors and estate of the victim were awarded a total of $908,238.05 in damages by the jury. On appeal, the defendants argued a number of issues, and the plaintiffs presented additional issues in a cross-appeal. Ultimately, the court vacated the judgment with respect to the damages awarded for pain and suffering to the estate, but otherwise it affirmed the judgment in favor of the plaintiffs.

In Upper Chesapeake Health Center, Inc. v. Gargiulo, et al., the patient was admitted to the hospital with infected ulcers, a resulting complication of her multiple sclerosis. The patient’s condition deteriorated during hospitalization, until the doctors informed her family that she was a candidate for hospice care. Later that day, the doctors initiated hospice care, discontinuing the patient’s antibiotics and administering increased doses of painkillers. A few days later, the patient died. The survivors brought a wrongful death suit against the patient’s doctors and the hospital based on medical malpractice, alleging that the patient’s death was caused by the rapid increase of pain medications.

Maryland Court of Appeals Rules Medical Malpractice Suit Barred by Statute of Limitations

August 20, 2015 | by Foran & Foran, P.A.

In a recently published opinion, the Maryland Court of Appeals examined the issue of whether or not the statutory savings clause for medical malpractice actions applies to a voluntary dismissal by stipulation between the parties. The court in Wilcox v. Orellano clarified that the exception to the limitations period does not apply to any voluntary dismissal, including one filed pursuant to stipulation, and held that the plaintiff was barred from re-filing her claim.

In Maryland, the Health Care Malpractice Claims Act (HCMCA) governs actions against a health care provider for a medical injury. A plaintiff must first file the claim with the Health Care Alternative Dispute Resolution Office (HCADRO), and within 90 days, file a certificate of a qualified expert along with a report of the attesting expert. The plaintiff may then arbitrate or file a claim in circuit court.

In Wilcox, the plaintiff filed a claim against her doctor with HCADRO and subsequently filed a certificate of qualified expert, but not a report. The plaintiff choose to proceed with her claim in circuit court, where the defendant-doctor moved to dismiss for failure to include the required report. Since the defendant had already filed an answer, the plaintiff voluntarily dismissed the action by stipulation of both parties. The plaintiff filed a second claim with HCADRO and again chose to proceed in circuit court. However, while the plaintiff’s first action was filed within the period of limitations, her second action was not.

MRI scans can be dangerous

April 21, 2009 | by Foran & Foran, P.A.

There is increasing evidence that MRI scans could pose safety issues for consumers who use nicotine or other drug delivering patches according to the Food and Drug Administration. Apparently, small metal fragments are in several of the patches and can become heated during the scans which creates significant risks of burns. The FDA has issued several alerts about this potential complication. If you are having an MRI make sure to be very careful about any metal that has been inserted in your body from prior surgery or any foreign material attached to your body for any reason. As helpful as an MRI can be as a diagnostic tool, it can also pose significant safety risks depending on circumstances.

Medical negligence and medical devices
04/14/2009 03:01:45 PM

Several lawsuits have alleged that two medical device companies are intertwined with a doctor named in over 100 medical malpractice case. Continue Reading ›

Auto accident fatalities on this rise?

November 20, 2008 | by Foran & Foran, P.A.

Automobile accident fatalities continue to be reported in high numbers across the country. According to the National Highway Traffic Safety Administration, there are about 43,000 people killed in fatal car accidents each year in the United States. About 40% of these fatal crashes are alcohol related.

According to the National Highway Traffic Safety Administration report, Maryland was one of 32 states Continue Reading ›