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COVID-19: Maryland Laws, Policies and Legal Resources from Miller & Zois. Includes information and updates on Maryland and Federal laws and regulations impacting Maryland residents and businesses.

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This post will go over some basic legal concepts that you need to know about doctor-patient confidentiality.

Confidentiality between patients and physicians is a fundamental tenet of modern healthcare and medical practice. Knowing that your doctor will keep your personal information confidential is absolutely necessary for effective medical evaluation, diagnosis, and treatment. Without this safeguard, patients would not feel free to disclose certain things to their doctors.

Most people are generally aware of the concept of doctor-patient confidentiality. We sort of just expect our doctors to keep our personal information confidential and we understand that there are some ethical rules that require them to do that. But few people are very familiar with the legal underpinnings of doctor-patient confidentiality. Confidentiality is more than just an ethical ideal that physicians are supposed to adhere to for their patients.  Patients have an affirmative legal right to confidentiality. In fact, most states have statutory laws protecting patient confidentiality.

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In Thomas v. Shear, the Court of Appeals held in an unreported opinion that a malpractice claim alleging a surgical clip was left inside a patient in 2000 was barred by the statute of limitations. Although the surgical clip was not actually discovered in the plaintiff’s body until 14 years later, her own expert witnesses offered testimony suggesting that her statute of limitations began to run in 2006 at the latest.

Facts of Thomas v. Shear

This medical malpractice case began in May 2000.  The plaintiff underwent a surgical procedure performed by the defendant surgeon at GBMC.

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In Williams v. Baltimore City, the Court of Special Appeals of Maryland examined the establishment of actual or constructive notice. The court found that the mere fact that a municipality knows of a defective hydrant does not ordinarily include notice of a particular danger. Rather, there must be actual or constructive notice of a particular defect that caused the injury. The court concluded that there was no error in granting summary judgment in favor of the municipality because the plaintiff failed to produce sufficient evidence that a leaking hydrant created a dangerous roadway condition that caused her accident, even though the plaintiff did provide evidence that the hydrant itself was defective.

Factual Background

This is a car accident case.  The plaintiff hit her brakes as another car pulled in front of her on Franklin Square Drive near its intersection with Balistan Street in Baltimore City.  Her car swayed and she lost control and her car ended up on its side.  The fire department had to cut her out of the vehicle. She sought immediate treatment at Franklin Square Hospital .

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Just as protests over the death of George Floyd under the knee of a Minneapolis police officer were erupting around the country, Maryland’s Court of Appeals issued a very timely decision regarding a racially charged police shooting. In Blair v. David Austin, Maryland’s high court reinstated a $200,000 verdict against a Baltimore City Police officer who shot an unarmed black man during a 2015 traffic stop. Specifically, the court held that the Court of Special Appeals erred when it overruled a jury’s decision based on the court’s own independent evaluation of the video evidence. The court explained that whether a video shows excessive police force is a question for the jury, not the court.

Fact Summary

This case arose from an all too familiar event.  My gosh, we are all sick of it.  In February 2015, Baltimore City Police officer attempted to pull over a man (with the last name Blair) for running a red light. Mr. Blair did not immediately pull over and ran another red light before eventually stopping on Freemont Ave. A nearby security camera recorded the stop. The video shows Mr. Blair gets out of his car and move toward Office Austin.

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The Maryland Court of Appeals is still working during the coronavirus shutdown.  The court put out a new opinion Monday in Nationwide v. Shilling that addressed the question of when the 3-year statute of limitations begins to run on a claim for underinsured motorist benefits.

The gist of the court’s holding is good for plaintiffs.  The court found that a claim for underinsured motorist benefits is basically a breach of contract action. So the statute of limitations begins to run when the insurance carrier breaches the contract by denying the insured’s UIM claim.  Our lawyers have always interpreted the law this way.  But we always pretended that the statute of limitations was not extended because even having to fight this issue and win is not worth the trouble of not fighting the issue at all.

But this case has dicta that has two big problems that are very troubling with respect to the insurance company’s ability to modify the statute of limitations in uninsured motorist cases by putting a different statute of limitations in their contracts.  This would be a disaster and lead to a ton of litigation over any issue that is well understood by everyone.

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Leg and arm amputation cases attract personal injury and malpractice lawyers in any jurisdiction, but particularly in states where there is a cap on noneconomic damages.  This is because there are great economic costs associated with artificial limbs and the injuries often have an impact on the victim’s ability to earn a living.  In most states, these costs are not subject to a cap on damages.

Life with a Limb

Fortunately, most of us do not have experience with what life is like living without a limb.  Our lawyers have seen what victims endure up close.  You can look at this day in the life video that our client has kindly allowed us to post.  This will give you some ideas.  But, really, it was one of those things you really can’t KNOW unless you are living it.

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Our lawyers spend a lot of time trying to make our community a better place and we do pro bono work helping victims.  For us, this often involves helping clients whose cases we cannot take. We do things like fighting for children to help them get the help they need from the school system or assisting victims who are trying to manage the damages from their car accident case.  We spend hundreds of hours a year on this type of pro bono work for the community.

One question we occasionally get from prospective clients is whether we accept personal injury cases on a pro bono basis. The answer to this question is no.  If you google “pro bono personal injury lawyer Baltimore”, the response you get is crickets.

People are sometimes surprised to hear that.  It is not that personal injury and malpractice lawyers don’t care about helping people in need. I know we care very much about that. Fighting for the “little guy” is the underlying theme of our law practice. We love to go out and battle with big insurance companies to get financial compensation for our hard-working clients.

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Maryland nursing home lawyers have been battling arbitration clauses for years. These clauses deny nursing home residents the right to take nursing homes to court for harm that they cause to the residents such as physical abuse and neglect and sexual assault.

Almost everyone realizes nursing homes force these agreements on residents as a precondition of admission. They are just not fair.

In 2016, the Maryland Court of Special Appeals decided Peeler v. FutureCare, which was a Miller & Zois case. In this case, FutureCare tried to use the arbitration clause to prevent a wrongful death claim. Our firm won at the trial level and won before the appellate court, making new clear law that a nursing home agreement cannot compel wrongful death beneficiaries to arbitrate. This new case pushes Maryland law further from enforcement of these Draconian agreements.

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Defense lawyers in love blaming empty chairs.  A jury trial is about assigning blame and the easy out for the defense is to get the jury to blame another doctor who is not named at trial.  (This is also why plaintiffs’ lawyers get maligned over naming too many defendants — sometimes there is no choice.)

Usually, the doctor’s lawyer will not provide expert testimony to blame the doctor.  Normally,  the allegation is made indirectly with the hope that the jury blames a non-defendant doctor on their own.

This is a good strategy.  Jurors like reaching their own conclusions without getting beat over the head and most malpractice defense lawyers do not try to directly blame the empty chair for fear of running afoul of Maryland law.

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You are hurt. You are having a baby.  You need surgery.  You want to pick the best possible hospital in Maryland to treat you, right?   To make the right choice, you need some idea of the quality of the hospital that is treating you.

The Leapfrog Group, a non-profit watchdog organization, conducts biannual analysis and provides safety grades of health care systems found in each state across the country.

Leapfrog has done so since 2012. But the Leapfrog rankings excluded Maryland until 2017.

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