Baltimore Medical Malpractice Lawyers
Summary of Maryland Medical Malpractice Law
Contributory Negligence
Maryland is one of five jurisdictions in the United States (along with Virginia, Washington D.C., Alabama, and North Carolina) that continues to use contributory negligence instead of comparative negligence in medical malpractice or any other negligence claims in Maryland. Any contributing negligence by the Plaintiff will bar his/her claim. That said, Maryland juries often overlook the Plaintiff’s negligence if it is a relatively insignificant part of the injury. Most Maryland lawyers will tell you that if we had comparative negligence, many jury verdicts in medical malpractice cases would be slightly reduced by the Plaintiff’s comparative negligence, usually for some patient noncompliance. Still, almost every medical malpractice lawyer in Maryland would tell you that comparative negligence is a better and fairer system for malpractice plaintiffs. In 2007, there was a good bit of effort to change Maryland’s contributory negligence law in the Maryland legislature. This effort failed and little effort was made in 2008 to change Maryland’s harsh contributory negligence standard.
Venue Preference
There is no secret that medical malpractice lawyers in Maryland representing victims prefer venue in Baltimore City or Prince George’s County. To varying degrees, other Maryland jurisdictions are more conservative on questions of liability and damages.
Statutes of Limitations
Certificate of Merit
Like most states, Maryland requires that a medical doctor sign off on any medcial malpractice claim. Under Md. Code Ann. Courts and Judicial Proceeding Section 3-2A-04 (b)(4), medical malpractice lawyers must file a qualified expert's statement that the doctor’s care violated applicable standards of care and proximately caused the plaintiff’s injury. In an effort to limit “hired gun” experts, the expert’s statement must come from a doctor who makes less than 20% of his/her income from testimony in personal injury claims. The time counting toward the 20 percent limit is: (1) time spent in, or traveling to or from, court or deposition for testifying, waiting to testify, or observing events in preparation for testifying; (2) time spent assisting an attorney in preparing or responding to discovery; (3) time spent reviewing material and conferring with others after being told he/she would likely be asked to sign an affidavit or testify; and (4) time spent on similar activity with a clear and direct relationship to testimony to be given or preparation to give testimony.
Maryland requires that the certificate of a qualified expert explicitly state the name of the doctor or health care professional who allegedly breached the standard of care.
Admission of Medical Records
Hospital records in medical malpractice cases in Maryland are admissible if expert testimony establishes they are "pathologically germane" to the physical condition which caused the patient to go to the hospital in the first place. A "pathologically germane" statement must fall within the broad range of facts which under hospital practice are considered relevant to the diagnosis or treatment of the patient's condition. Facts helpful to an understanding of the medical or surgical aspects of the case within the scope of medical inquiry are pathologically germane. Therefore, entries in hospital records which are pathologically germane, or relevant to the diagnosis or treatment of the patient's condition, typically fall within the business records exception to the hearsay rule.
For a sample certificate of merit in a Maryland medical malpractice claim, click here.
Informed Consent
Maryland informed consent law is based on the patient's right to exercise control over his own body. The informed consent doctrin imposes on a physician, before he subjects his patient to medical treatment, the duty to explain the procedure to the patient and to warn him of any material risks or dangers inherent in or collateral to the therapy, so as to enable the patient to make an intelligent and informed choice about whether or not to undergo such treatment. There is no bright-line test in Maryland for determining the scope of disclosure required. The test for determining whether a potential peril must be divulged is its materiality to the patient's decision. Accordingly, no expert testimony is required to bring a medical malpractice action claiming lack of patient consent.
Loss of Chance
Maryland is one of 24 states that has rejected the lost of chance doctrine. Accordingly, loss of chance damages are not recoverable in a medical malpractice wrongful death action brought pursuant to the Wrongful Death Act, Md. Code Ann., Cts. & Jud. Proc. § 3-901. To recover under the wrongful death statute, the medical malpractice plaintiff must prove, by a preponderance of the evidence, that the death was caused by the medical malpractice of the health care provider. Fennell v. Southern Maryland Hospital, 320 Md. 776, 580 A.2d 206 (1990). Proof that the medical malpractice defendant's negligence reduced the decedent's chance of survival by twenty to thirty percent - e.g., from eighty percent to between fifty and sixty percent which was the case in Marcantonio v. Moen, 177 Md. App. 664 (2007) - does not show a "probability" that the negligence caused the decedent to die. (This is, we believe, bad law. As the dissent in Moan points out, the 51% math is illogical because the majority's calculation pretends it does not know that the patient died. If you have a 99% chance of living and defendant’s negligence takes you down to 50% and you die, there is a 98% chance you died as a result of the negligence of the defendant. Hopefully, this issue will be addressed by the Maryland Court of Appeals or the Maryland General Assembly.)
Collateral Source
The Maryland's collateral source rule permits a medical malpractice victim to recover the full amount of his/her damages "regardless of the amount of compensation which the person has received for his injuries from sources unrelated to the tortfeasor." Haischer v. CSX Transp., Inc., 381 Md. 119, 132, 848 A.2d 620, 628-29 (2004).
Mandatory Arbitration
Maryland technically has mandatory arbitration in medical malpractice cases. The Maryland Health Care Malpractice Claims Statute, Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04 (2008), requires that medical malpractice arbitrate their claims before the Health Care Alternative Dispute Resolution Office as a condition precedent to bringing a lawsuit in Circuit Court. But malpractice lawyers in Baltimore regularly waive arbitration as the may under the statutory scheme at any time after filing the certificate of qualified expert by electing to waive arbitration.
If you live in the Baltimore Washington area and believe you have been a victim of medical negligence in Baltimore, click here and our lawyers will be happy to discuss your case with you over the phone (800-553-8082), in person, or by email.
For Medical Malpractice Victims
Medical Malpractice Cases in Baltimore (information for lawyers and vicitims)
Medical Malpractice Frequently Asked Questions (answers to questions posed by many Baltimore medical malpractice victims)
Settlement and Trial Values of Medical Malpractice Case (verdict and settlement study that gives you some indication of what your medical malpractice case may be worth in Baltimore and around the country)
Medical Malpractice Recovery Rates for Surgical Negligence and Improper Medication (information on how medical malpractice plaintiffs fare in surgical negligence cases)
Medical Malpractice Claims in Maryland for Missed Diagnosis of Heart Attacks (why doctors often miss obvious signs and symptoms of a heart attack)
Requirements for Certificate of Merit in Baltimore Malpractice Cases (what is required to bring a medical malpractice action in Baltimore)
Maryland Medical Malpractice Statute of Limitations (details about the nuances of the statute of limitations in Baltimore medical malpractice cases)
Hospital Malpractice/Negligence Cases in Maryland (information on what our lawyers do in hosptial malpractice cases)
Informed Consent in Maryland (what is necessary to bring an informed consent case in a Baltimore medical malpractice case)
Birth Injuries Generally (issued involved in birth injury cases in Baltimore such as cerebral palsy, brachial plexus palsy, erbs palsy, shoulder dystocia)
More on Medical Malpractice Cases in Baltimore (Maryland Lawyer Blog on malpractice)
More on Medical Malpractice Cases in Baltimore (Maryland Injury Lawyer Blog on malpractice)
For Medical Malpractice Lawyers
Sample Attorney Deposition of Medical Malpractice Doctor (example of defendant doctor's deposition)
Sample Attorney Deposition of Plaintiff's Medical Expert (example of Plantiff's medical malpractice expert)
Sample Medical Malpractice Complaint (sample Baltimore medical malpractice legal complaint the begins the lawsuit process)
Baltimore Medical Malpractice Lawyer Blog (blog on medical malpractice issues)
Requirements for Certificate of Merit in Maryland Malpractice Cases (what is required to bring a medical malpractice action in Baltimore)
Maryland Medical Malpractice Statute of Limitations (details about the nuances of Maryland statute of limitations in medical malpractice cases)
Bringing Medical Malpractice Claims in Maryland (what a certificate of merit requires to bring a medical malpractice action in Baltimore)
Example Certificate of Merit (sample certificate of merit in a medical malpractice case in Baltimore)
Another Example Certificate of Merit (sample certificate of merit in OB/GYN case in Baltmore)
Example Waiver of Health Claims Arbitration (sample pleading to waive arbitration and file in Baltimore Circuit Court)