JAMES P. KOCH
1101 SAINT PAUL STREET
BALTIMORE, MD 21202
TEL. 410 539 7816
FAX 410 539 3957
MEDICAL MALPRACTICE, HOSPITAL AND NURSING HOME NEGLIGENCE
FREQUENTLY ASKED QUESTIONS
What evidence is needed to prove a medical malpractice claim?
The basis of every meritorious malpractice case is serious injury caused by a health care provider's negligence, or deviation from the standard of care. This means that in every case the plaintiff must produce sufficient evidence that establishes the applicable standard of care, the defendant's breach of the standard of care, and the action the defendant should have taken in order to meet the standard of care.
The plaintiff must also produce evidence that establishes that the health care provider's negligence caused the plaintiff's injury.
The kinds of medical mistakes that justify a lawsuit often involve:
Failure to timely diagnose and treat, or misdiagnosis of, a serious medical condition, such as cancer, appendicitis, infection, or impending heart attack or stroke;
Surgical mishap resulting in injury to organs, blood vessels, or nerves, especially when not immediately recognized and treated at the time of surgery;
Patient neglect in hospitals, skilled nursing facilities, and nursing homes resulting in medication errors, falls, pressure sores (decubitus), etc.
No. Even if the health care provider's negligence could have caused an injury, there is no legal case if the error did not cause an injury. Instead of suing the health care provider, the patient might consider filing a complaint with an appropriate regulatory agency, such as the health care provider's licensing board or the Maryland Office of Health Care Quality.
Can I sue if I suffered a serious injury as the result of medical treatment?
Possibly, but a bad result is not a sufficient basis for filing a lawsuit. In some cases, the patient's injury, even if it is serious, is a known risk of treatment which can occur even when the health care provider adheres to the standard of care. No matter how serious the injury, in every case the plaintiff must prove that the health care provider's negligence caused an injury.
Who is a health care provider under Maryland medical malpractice law?
Maryland has enacted special rules applicable to claims against health care providers. These rules specify the qualifications of experts who are qualified to testify about the standard of care, the kinds of evidence that must be produced in support of the claim, and the amounts of damages which a plaintiff can recover.
Under Maryland law, health care providers include hospitals, skilled nursing facilities, medical day care centers, hospice care programs, assisted living programs, freestanding ambulatory care facilities, physicians, osteopaths, optometrists, chiropractors, registered or licensed practical nurses, dentists, podiatrists, psychologists, licensed certified social workers, and physical therapists
What is contributory negligence?
Contributory negligence is a plaintiff's failure to exercise reasonable care that causes or contributes to the injuries alleged in the malpractice case. An example of contributory negligence in the malpractice context is the patient's failure or refusal to follow the doctor's medical advice. Maryland is one of the few remaining states which follows the rule that contributory negligence, if proven at trial, is an absolute bar to the recovery of any damages.
How much does it cost to file a malpractice case?
Malpractice cases are usually accepted on a contingent fee basis. If there is no recovery, there is no fee. In most cases, we can advance the costs of prosecuting the case. Costs are then deducted from the settlement or recovery at the end of the case.
Damages recoverable in a malpractice case
Non-economic damages: These include pain and suffering, inconvenience, physical impairment, disfigurement, and loss of consortium (i.e., damage to the marital relationship).
Caps on non-economic damages: Maryland has enacted limits on awards for non-economic damages in personal injury cases, including medical malpractice cases. The date on which a legal cause of action arises determines the amount of the damage cap. The cap on non-economic damages in a lawsuit against a health care provider is as follows:
If the cause of action arises on or after the damages cap is
Limits on non-economic damages in wrongful death and survival cases against health care providers: In a wrongful death and survival action involving a single claimant, the aggregate cap on non-economic damages is as indicated above. In cases involving two or more claimants, the aggregate award for non-economic damages, to be divided among all beneficiaries, may not exceed 125% of the cap applicable to individual claimants.
Economic damages: Economic damages include incurred medical expenses and any future medical, custodial care, and similar expenses that can be proven with reasonable certainty. A claimant is also entitled to compensation for lost wages, as well as any loss of earning capacity. In a wrongful death case, damages may include the financial loss that the claimant incurs as the result of the death.
Statute of Limitations
In Maryland, actions against health care providers generally must be commenced within within three (3) years after the injury is discovered, or five (5) years after the injury occurs, whichever is sooner. Even an experienced attorney can sometimes have difficulty determining when an injury was "discovered" or when an injury "occurred". Anyone thinking about filing a medical malpractice case should promptly seek legal advice if there is any concern about the statute of limitations.
Injuries to minors: If the child is less than 11 years old when the injury occurs, then the above three (3) and five (5) year time periods start when the child reaches age 11; and if the child is less than 16 years old when the injury occurs, then the these periods start when the child reaches age 16.
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 is covered the health care provider's fraud.
Wrongful death action. A case 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. This rule applies even if the claimant is a minor when the decedent dies.
How long will it take to resolve my case?
Before we can file a lawsuit, we must investigate to determine the underlying facts and legal merits of the claim. The investigation involves, among other things, gathering medical records and consulting with medical experts. The investigation process can take several months or longer to complete. In most cases, trial is scheduled about a year to 18 months after commencement of the case. However, trial postponements and other delays are not uncommon.
Will I have to go to court?
We try to settle every case in order to avoid the expense and uncertainty of trial. Most, but not all, cases are settled prior to trial. If your case can not be settled, you will have to appear at trial and testify.
Prior to trial, you will have to attend any court ordered pre-trial settlement conference or mediation. You will also have to attend your own deposition, at which the defendant's attorney will ask you questions under oath about the facts of your case. You may, but are not required to, attend the deposition of any other party or witness in the case.
Reasons why a case may be turned down
We can not pursue a medical negligence case if we can not find a qualified expert who is willing to testify in support of the plaintiff's case. Without an expert, we can not prove in court that the health care provider deviated from the standard of care, or that the health care provider's negligence was the legal cause of the plaintiff's injury.
It costs many thousands of dollars to litigate a medical malpractice claim. These are among the most expensive kinds of cases to litigate. In many cases, the cost of litigation is disproportionate to the likely amount of recovery. In these cases, it is not economically feasible to pursue the case. This is why we usually can pursue only cases which involve grievous or permanent injuries, or death.