Maryland Medical Malpractice Frequently Asked Questions

Commonly Asked Questions from Medical Malpractice Victims.

 

If have suffered a serious injury or the death of a loved and you suspect medical malpractice, it is hard not to be confused. We cannot anticipate every possible question you might have. But these questions might get you started in better understand the road ahead for you and your family.

Big Picture Malpractice Questions

Birth Injuries

How do I know if I have a medical malpractice claim?

       Medical malpractice is where a medical doctor or other health care provider failed to meet the standard of good medical practice in the area in which the medical professional practices. In other words, the health care provider failed to do what a reasonable health care provider would have done under the same circumstances. If malpractice occurred, the health care provider will be liable for any resulting damages that are the direct cause of the malpractice.

       In other words, for a successful personal injury medical malpractice case in Maryland your lawyer must prove two elements. First, an act of medical malpractice (negligence) by a health care provider, usually a doctor, nurse, or hospital. Second, the injury must be the direct result of the above act of medical malpractice. There can be medical malpractice without injury where the health care provider did something wrong but you were not actually injured as a result.

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What is required before a medical malpractice lawyer can file suit on my behalf?

       Maryland's Health Care Malpractice Claims Statute requires that a medical malpractice lawyer filing a claim in a Maryland Circuit Court must first file a claim with the Director of the Maryland Health Claims Arbitration Office. Within 90 days of filing a medical malpractice claim with the Maryland Health Claims Arbitration Office, your malpractice attorney must file a certificate of merit from a qualified expert who has recent experience in the relevant field attesting to failure to meet the standard of care and that the breach was the proximate cause of your injuries. You can find the 7 steps to filing a malpractice case here.

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Is a medical doctor required to testify in a medical malpractice case in Maryland?

       In almost every medical malpractice case in Maryland, medical experts are required to establish the standard of care in the medical community for treating a patient who presented in a similar fashion as the medical malpractice plaintiff. The doctor must also testify in a medical malpractice claim in Maryland that there is a greater than 50% likelihood the plaintiff's injuries would not have occurred if their doctor had not committed medical malpractice. Accordingly, before our medical malpractice attorneys file your case, our attorneys consult with medical doctors who are willing to offer their opinions as to whether he or she believes that medical malpractice has occurred. Because many Maryland doctors are unwilling to give medical malpractice opinions for attorneys in Maryland cases, as they regularly work with the doctors who are suspected of medical malpractice, our lawyers are often required to go outside of Maryland to find impartial doctors who are willing to work with medical malpractice attorneys in offering their opinions on the care and treatment provided. Maryland law requires the applicable standard of care, and any violation thereof, to be proven by expert testimony expressed to a "reasonable degree of probability." This wooden phrase is required to make sure that the expert's opinion is more than speculation or conjecture. (See J. Murphy, Maryland Evidence Handbook, §1404 (2d ed. 1993)). In other words, a malpractice lawyer in Maryland must produce a medical doctor to offer testimony that it is more likely than not that the injury resulted from medical malpractice.

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My doctor knows I'm bringing a malpractice lawsuit? Will he alter or amend my medical records?

        It is unlikely although it happens occasionally. Most doctors who commit medical malpractice are not dishonest people or even bad doctors. For whatever reason, they made a mistake. This is why almost every Maryland doctor has medical malpractice insurance. If doctors do "alter" medical records when they fear a medical malpractice claim, the alteration usually comes in the form of the entry they make on the medical records in the first instance as opposed to altering it after the fact. Moreover, it is often difficult for doctors to change medical records because the information may be in several different records and can be cross-checked. So while records alternations are rare, our medical malpractice lawyers are always aware of the possibility. Accordingly, we look for inconsistencies in the medical records that indicate an alteration.

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Am I running out of time to file a medical malpractice lawsuit in Maryland against my doctor?

       The statute of limitations in medical malpractice cases in Maryland is five years from the time the malpractice was committed or three years from the date the injury was discovered, whichever is shorter. For more details on the Maryland statute of limitations in medical malpractice cases and the relevant Maryland statute, click here. If you are hesitant to bring a medical malpractice action against your doctor you are not alone. Studies show that in most serious medical malpractice cases, the patient, or the patient's family in wrongful death cases, does not bring malpractice action against the negligent doctor.

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I signed an informed consent form? Can I still bring a medical malpractice action?

       Yes. While this form may limit your ability to bring an informed consent case to some degree, your understanding of the risks involved does not mean that you cannot bring a medical malpractice claim against a negligent doctor if he/she fails to perform according to acceptable levels of care.

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I want to sue my nurse practitioner. Is he/she the doctor in charge also responsible?

       Doctors in Maryland are required to supervise physicians' assistants. Nurse practitioners are a different story. Maryland regulations provide that a nurse practitioner may perform independently the following functions under the terms and conditions set forth in the written agreement. (1) Comprehensive physical assessment of patients; (2) Establishing medical diagnosis for common short-term or chronic stable health problems; (3) Ordering, performing and interpreting laboratory tests; (4) Prescribing drugs; (5) Performing therapeutic or corrective measures; (6) Referring patients to appropriate licensed physicians or other health care providers; and (7) Providing emergency care. In other words, nurse practitioners function largely as doctors. Accordingly, there may not be an independent cause of action against the doctor for negligence (although there may be other viable claims). As a matter of trial tactics, nurses are generally easier to sue than doctors because jurors often give doctors the benefit of the doubt in medical malpractice cases in Maryland.

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If a procedure was not successful, is that malpractice?

       In the vast majority of cases, a bad outcome does not mean the doctor committed medical malpractice. Doctors cannot guarantee outcomes. The question is whether the outcome would have been different if the doctor exercised the ordinary standard of care. To succeed in a medical malpractice case in Maryland, the Plaintiff's attorney must show an injury or damages that resulted from the doctor's deviation from the standard of care applicable to the procedure.

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How do I get my medical records?

       In Maryland, a patient has a legal right to obtain copies of his/her medical records. If the patient wants to review them, or have their lawyer review them, the health care provider can charge an amount specified by Maryland statute for the copies. In most cases, our medical malpractice lawyers will get your medical records for you if we agree to investigate your case.

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What is the Maryland Health Care Malpractice Statute?

       The Maryland legislature enacted the statute in 1976 for the purpose of providing a mandatory arbitration system for all medical malpractice claims. The statute requires the submission of certain medical malpractice claims against doctors to an arbitration panel for an initial assessment before the malpractice claim is submitted to a Maryland Circuit Court. The arbitration panel is either a three-person panel consisting of an attorney, a health care provider and a lay person, or, upon agreement of the parties, an arbitrator, in place of the three-person panel. The Maryland medical malpractice statute requires that a person with a medical malpractice claim first file that claim with the Director of the Health Claims Arbitration Office. Plaintiff must also file a certificate of qualified expert attesting to a defendant's departure from the relevant standards of care which proximately caused the plaintiff's injury. As a practical matter, the mandatory arbitration of medical malpractice claims in Maryland did not come to fruition because medical malpractice attorneys in Maryland may waive the arbitration requirement and take the case to court, which malpractice lawyers almost invariably do.

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What is cerebral palsy?

       Cerebral palsy is an umbrella term to describe a functional disorder caused by damage to the brain during pregnancy, delivery, or shortly after birth. The disorder is caused by faulty development of or damage to motor areas in the brain that disrupt the brain's ability to control the body's movements or posture. In some people, cerebral palsy is barely noticeable. Others will be more severely affected. The cause of cerebral palsy is sometimes linked with lack of oxygen during birth as the result of medical malpractice.

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What is Erb's Palsy?

       Erb's palsy (also called Brachial Plexus palsy) is a birth injury that is caused by trauma called shoulder dystocia to the unborn child. Children who suffer from Erb's plasy often suffer loss of control and/or sensation in their neck, shoulders, arm and hands.

        Erb's palsy can be caused by medical malpractice, usually during the delivery of the baby. What often happens is that the child's shoulder gets stuck under the mother's pubic bone following the delivery of the head. Sometimes, the delivering doctor will panic and will apply excessive force on the baby to dislodge the shoulder. When this happens, damage may occur to the nerve bundles located in the shoulder region causing Erb's palsy.

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Are nursing home abuse or neglect injuries and deaths medical malpractice cases?

       The answer to the question of whether a nursing home case is a medical malpractice case depends on the facts of the claim. Nursing home cases in Maryland may be essentially medical malpractice claims, or they may be a different type of claim. Nursing home cases involving mismanagement of the patient's medical condition are very common. They may involve the nursing home medical director, nurses, or other health care providers may be a medical malpractice claim. If this is the case, they are health care providers under Maryland law and our medical malpractice lawyers bring these claims as we would any other medical malpractice case. Other cases of neglect and abuse are not medical malpractice claim.

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