Journey of a Medical Malpractice Claim

Maryland medical malpractice claims are filed by an attorney on behalf of the patient, who is known as the plaintiff. In some instances, the plaintiff is a legally authorized person, such as the patient’s parent or guardian, acting for the patient.If the patient has died, the plaintiff is the administrator or executor of the dead patient’s estate. The lawsuit is then called a wrongful death lawsuit.

A Maryland medical malpractice claim is brought against the patient’s health care provider, who is called the defendant. The term “health care provider” usually refers to a doctor or dentist, but can include non-physician staff members, such as nurses, lab technicians, therapists and physician assistants.

Both the plaintiff and the defendant are described in court documents as the “parties” to the case.

Maryland state law requires that the patient’s attorney obtain a certificate of merit, in which a medical doctor who is not part of the lawsuit states that the patient appears to have been injured by actions resulting from a breach of the standard of care by the patient’s health care provider. (http://law.justia.com/codes/maryland/2005/gcj/3-2A-04.html)

Medical Malpractice Theories

Non-physicians, such as nurses, sometimes argue that they were only “following orders” when engaging in medically negligent conduct.

In a 2003 case, Columbia Medical Center of Las Colinas v. Bush, 122 S.W. 3d 835 (Tex. 2003), several nurses and a paramedic knowingly obeyed a doctor’s order to administer the wrong medication. The court ruled that “following orders” does not always protect non-physician health care staff from liability for negligent acts.

Patients can also bring Maryland medical malpractice claims against health care institutions – clinics, managed care organizations, hospitals and medical corporations. These institutions can be held responsible for the behavior of their medical staff using two legal theories.

The direct corporate negligence theory suggests that a medical institution is responsible for coordinating the care provided by different types of health care workers using its facility. The vicarious liability theory states that employers are responsible for misconduct by employees that is carried out while employees are at work.

What Must a Patient Prove in Court?

• A plaintiff patient must prove four elements to support a successful Maryland medical malpractice claim:
• The health care provider or institution had a legal duty to provide treatment and care for the patient
• The health care provider failed to conform to the relevant standard of care, also known as breaching his duty, whether through negligence, reckless or wanton misconduct or other failures to use the relevant standard of care
• The breach of duty was the primary cause of the patient’s injury
• The breach of duty caused serious emotional or physical harm to the patient, entitling the patient to receive financial compensation, referred to legally as “damages.”

Types of Damages

A patient plaintiff’s damages can include punitive damages and compensatory damages.

Punitive damages payments are awarded when a health care provider has engaged in reckless and wanton misconduct.

Compensatory damages exist in two forms. Economic damages are payments to assist the patient with past and future financial losses from lost wages (lost earning capacity), life care expenses and medical expenses

Non-economic damages are payments for the physical and emotional harm sustained by the patient, including emotional distress, a lost limb, extreme pain or a loved one’s death. If a patient commits suicide, physicians, especially psychiatrists, can be found negligent, and may be held responsible for damages resulting from the patient’s death. Physicians are held to a higher standard in instances of suicide than other defendants.

Discovery and Settlement

The patient’s attorney files the lawsuit in a court that has authority, also known as jurisdiction, over people living in the patient’s geographic home area. If a patient lives in Baltimore or was injured in Baltimore, he may wish to retain a Baltimore medical malpractice attorney.

In the interval between filing the case and the trial, the attorneys for the patient and the health care provider must share information with each other about the case under the court’s supervision, a process called discovery.

The discovery process includes replies to sets of questions, called interrogatories, document requests for items such as the patient’s hospital records, and depositions, in which the patient or the health care provider is questioned about the facts by the other party’s lawyer.

If both parties and their lawyers agree, a case can be settled through negotiations before the trial. A settlement is a written document spelling out an agreement between the parties, sometimes involving payments to the patient. The trial is then canceled.

When the patient, the health care provider and their respective lawyers cannot negotiate a settlement, both parties then go to trial.

Malpractice Trial

The patient plaintiff is required to prove all four elements of medical malpractice, a requirement known as the burden of proof. The amount of evidence must satisfy an additional standard known as the preponderance of evidence, meaning that the evidence presented by the patient must be sufficient to convince a judge or jury that the patient’s claim is likely to be true.

The persons deciding whether the patient has proven his case – the judge or a jury – are known as fact-finders and must decide whether the patient’s or the health care provider’s evidence is more believable.

Expert Witnesses

Both the patient and the health care provider will almost always bring in experts to discuss the normal standard of care in a medical situation similar to the patient’s, including issues such as types of equipment, treatment plans and medication.

The court reviews experts’ qualifications, including their education, training, knowledge and experience, to see if the expert witness knows enough about an issue in a medical malpractice case to give a reliable opinion.

Courts subject expert witnesses’ testimony to complex legal tests created by numerous past court decisions, such as the U.S. Supreme Court court’s decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

A 2009 Maryland case, UMMSC. v. Waldt, 983 A.2d 112 (2009), upheld a lower court’s decision to exclude an expert physician witness. The lower court decided, and was upheld by Maryland’s highest court, that the witness did not have the necessary background to offer an informed opinion on a particular issue within the case.

The witness was also excluded because 20.66 percent of his professional time was spent on issues directly related to being an expert witness, and Maryland’s rules for expert witnesses require them to spend no more than 20 percent of their professional time on such activities.

The case was of especial interest to Baltimore medical malpractice attorneys as the original trial took place in the Circuit Court for Baltimore City.

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The Verdict

After both parties have been heard, the judge or jury will issue a verdict for the party that the fact-finder found most convincing, known as the prevailing party.

If the patient wins the case, the fact-finder will set damages to be paid to the patient. The judge then issues a written opinion, summarizing the case facts and the damages.

The party who loses the case may request a new trial, or appeal the trial court’s decision to a higher state court.

Maryland courts have rejected the idea of additur, in which a patient who feels payments set by the court’s decision are too small then asks for a larger amount. A patient who is dissatisfied with the amount of money awarded by the court must ask for a new trial.

If a health care provider thinks that the amount awarded to the patient is too high, the provider can file a motion for remittitur, asking that the amount be reduced. The health care provider can also ask for a new trial.