LAW OFFICES
DETERMINING WHETHER YOU HAVE A MALPRACTICE CASE
MARYLAND MEDICAL MALPRACTICE LAW HIGHLIGHTS
Filing a Malpractice Claim/ Health Claims Arbitration Office
Required Certificate of Qualified Expert
Filing a Health Care Malpractice Claim
In Maryland, a malpractice claim against a health care provider must initially be filed in the Health Claims Arbitration Office. However, a claimant may elect to waive arbitration after filing the required certificate of qualified expert. If arbitration is waived, the case will be tried in the Circuit Court where either party is entitled to trial by jury.
Most malpractice claims in Maryland result in one side or the other waiving the arbitration process. Only 1.1% of malpractice claims are decided through arbitration, with arbitration being waived in 79.9% of claims filed. The remaining 19% of claims are dismissed.
Required Certificate of Qualified Medical Expert
A claimant in a medical malpractice case in Maryland must file a certificate of merit signed by a qualified medical expert. A certificate of merit must be filed for each defendant named in the lawsuit. The certificate must state that the defendant health care provider deviated from the standard of care, and that the deviation was the proximate cause of the alleged injury. Failure to file a certificate of merit within the statutory time limit is grounds for dismissal of the lawsuit.
As the result of 2005 legislative amendments, a medical expert, in order to be qualified to sign a certificate of merit, must have relevant experience in the defendant's specialty or a related field of health care. Furthermore, if the defendant is board certified in a specialty, then the medical expert must also be board certified in the same or a related specialty. If more than 20% of the expert's professional time is devoted to activities that involve testimony in personal injury cases, the expert is not qualified to sign a certificate of merit.
As part of our claim investigation process, we routinely locate and employ a qualified medical expert as a consultant prior to filing suit.
Maryland has enacted limits on awards for non-economic damages in personal injury cases. Non-economic damages include pain and suffering, inconvenience, physical impairment, disfigurement, loss of consortium (i.e., damage to the marital relationship), and other non-pecuniary loss. These limits do not apply to economic damages, e.g., medical expenses and lost earnings. The date on which a legal cause of action arises determines the amount of the damage cap:
If the cause of action arises the damage cap is
On or after 10/1/01 $605,000
On or after 10/1/02 $620,000
On or after 10/1/03 $635,000
On or after 10/1/04 $650,000
On or after 1/1/09 $675,000
Wrongful death and survival actions arising prior to 1/1/05.
In Maryland, an eligible family member (generally a wife, husband, parent, or child) may file an action for the wrongful death of a loved one when the victim dies as the result of medical malpractice. Non-economic damages which may be recovered in a wrongful death action include, for example, mental anguish; emotional pain and suffering; loss of society, companionship, comfort, protection, and care.
If a wrongful death case involves two or more claimants, their aggregate recovery for non-economic damages may not exceed 150% of the maximum amount that an individual claimant could recover in a personal injury action. For example, if the decedent died on 1/1/03, the maximum award for non-economic damages, to be divided among all beneficiaries, would be $930,000 ($620,000 X 1.5).
In addition to the wrongful death action, the personal representative of the decedent's estate may file a survival action to recover compensation for the decedent's injury and loss, including pain and suffering experienced by the decedent prior to death. Non-economic damages in the survival action are subject to the to the limits indicated above, but in cases arising prior to 1/1/05 are in addition to damages which may be recovered in a wrongful death action.
Wrongful death and survival cases arising after 1/1/05:
As the result of recent legislative enactments, the cap on non-economic damages recoverable in medical malpractice cases arising between 1/1/05 and 12/31/08 is $650,000. This is the aggregate amount that may be recovered as the result of a single medical injury, and applies in the aggregate to the wrongful death and survival actions. In wrongful death cases involving two or more claimants, the aggregate award for non-economic damages, to be divided among all beneficiaries, may not exceed $812,500 (125% of $650,000).
In Maryland, actions against health care providers generally must be commenced within five (5) years after the injury was committed, or within three (3) years after the injury was discovered, whichever is sooner.
Injuries to minors: In Pisselli v. 75th Street Medical, the Maryland Court of Appeals held that the three and five year time periods for filing a lawsuit do not commence running until the minor attains the age of 18.
Ignorance of cause of action caused by fraud. If the health care provider uses fraud to prevent a claimant from discovering a cause of action (for example, by concealing facts which would alert the patient that he had received negligent care), then the cause of action accrues when the claimant discovers or should have discovered the health care provider's fraud.
Wrongful death actions against health care providers must be filed within three (3) years after the date of death. The statute of limitations in a wrongful death action commences when the decedent dies, not when the injury resulting in death is discovered. The three-year rule applies even if the claimant was a minor at the time of the decedent's death.
Determining Whether You Have A Case
In order to prove medical malpractice in court, you must be able to show
(1) that the health care provider deviated from the standard of care; i.e., was negligent, and
(2) that this negligence caused injury.
Not every patient who sustains an injury as the result of medical treatment is the victim of malpractice. For example, some injuries are known risks of treatment, and can occur even in the absence of negligence. Therefore, in every case we first need to know, "what did the health care provider do that was negligent or "below the standard of care"? or, "what did the health care provider negligently fail to do that he/she should have done?"
We also need to know whether the health care provider's negligence was the proximate cause of the injury. If causation can not be proven, then the malpractice case is not viable. For example, if the injury would have occurred anyway even if the health care provider had complied with the standard of care, then the health care provider's negligence is not the cause of injury, and there is no malpractice case.
Likewise, if the injury is attributable to another cause, such as a pre-existing medical condition, and the health care provider's negligence did not cause injury, then there is no malpractice case.
Finally, the amount of damages caused by the health care provider's negligence must be estimated. Damages may include economic losses such as past and future medical expenses; and lost income or earning capacity. Damages may also include non-economic losses, such as pain and suffering, and loss of consortium (i.e., damage to the marital relationship). A medical malpractice case costs thousands of dollars to prosecute. Expenditures of this magnitude are justified only in cases involving serious injury. Usually, this means some kind of permanent injury or impairment, or death.