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Articles Posted in Medical Malpractice

The conversation surrounding the #MeToo movement on social media has made many reconsider inappropriate behavior inside and outside of professional environments. The much-publicized trial of disgraced former USA Gymnastics doctor Larry Nassar – and his conviction on seven counts of sexual abuse– shed light on the kind of incidents experienced by many female patients. Here’s what you need to know about sexual assault by a treating medical professional.

What Do We Consider Sexual Assault?

Sexual assault is sexual contact made without the other party’s consent. This can include unwanted touching, kissing or bodily penetration. Child molestation, coerced sexual intercourse, and rape all fall under the umbrella of sexual assault.

A Cesarean section, commonly called a “C-section”, is often performed when the baby or the mother is in distress. A C-section enables a doctor to remove the infant immediately in order to prevent an injury and then allows the doctor to provide treatment as soon as possible. Sometimes, however, there may be a delay in performing a needed c-section.

The standard of care when delivering a baby requires the obstetrician or midwife to correctly assess the fetal monitor tracings and to recognize any non-reassuring patterns. If the baby is in trouble, doctors need to take action quickly. A timely performed C-section is often the best path to protecting the child from a loss of oxygen that can lead to a brain injury or death.

There is some debate among obstetricians as to when a C-section is appropriate.  There is no dispute that the standard of care calls for cesarean sections in many cases, including, repeat C-sections,  multiple births, a labor and delivery which is expected to be challenging, when the child’s expected size is disproportionate to the mother’s pelvis, uterine tumor obstructions, or breech or transverse presentation of the neonate. Obstetricians also agree that there are cases of fetal distress or maternal disorders that mandate a C-section.

Meconium is the baby’s first bowel movement. It is probably not what you expect. These first feces consists of debris and cells from the intestinal tract and mucus and slimy fluids. Meconium is green and has no smell.

What is Meconium Aspiration Syndrome?

Meconium Aspiration Syndrome (MAS) causes respiratory distress as a result of meconium entering the respiratory tract below the vocal cords and presenting in the tracheal bronchial tree. When the baby makes an attempt to breathe in utero, before the baby is delivered, the baby can inhale meconium material into the lungs. The fear is the meconium blocking the airways.  Oxygen is critical to life for all of us.  But, during the birthing process, it is critical to have a smooth flow of oxygen to the brain and other vital organs.

Any discussion of how much money a medical malpractice case in Maryland is worth begins with our cap on non-economic damages in malpractice.  The pain and suffering cap for 2018 in Maryland medical negligence cases is $800,000.  This same $800,000 cap applies to wrongful death cases where there is only one surviving family member.  If there are two or more surviving family members, then the non-economic damage cap rises to $1 million.

What Maryland’s Damage Cap Means and Does Not Mean

Does Maryland’s medical malpractice cap mean that you cannot get more than $800,000 or $1 million as the maximum possible recovery in a medical malpractice case?  No.  What it does mean is that this is the cap limit on non-economic damages.

Hypoxic-Ischemic perinatal encephalopathy (“HIE” for short) is loss of oxygen to the brain.  In slightly less than half of the cases, HIE can cause death or brain injuries.

What Causes HIE?

Obviously, the brain is the key to neurological function.  The brain commands and controls all of our essential actions and reactions.  This includes sending messages via neurotransmitters to control all of a person’s essential cognitive and physical functions.

This blog has been nominated for inclusion in the Lexis-Nexis Litigation Community’s Top 25 Tort Blogs for 2011!

It’s certainly gratifying to see that the blog’s reputation is continuing to grow nationwide. So if you like the blog, sign up and vote!

You can do that here.

This one is courtesy of Dorothy Clay Sims. We often see expert witnesses with resumes three feet thick, full of impressive-sounding credentials like faculty appointments, society memberships, and consulting gigs. But how accurate is that expert’s C.V.?

Often, it pays to ask. Just recently, I found three inaccuracies on a defense expert’s C.V.

First, he listed himself as an instructor at a national judicial college and a guest lecturer at a local law school from “1990-present.” So I did some research. I found out that the national judicial college hadn’t even offered the course he taught in the last two years. I found out that the law school did not list him in the faculty directory (where even part-time and adjunct faculty are listed). When asked, he admitted that he hadn’t done either of these things in at least the last five years.

Yesterday I spent some time doing a little year-end trimming of my internet favorites list.

Like most people, I keep a fairly extensive favorites list of websites that I use (or think I will). Some sites turn out to be extremely valuable, and I use them all the time. others seem promising, but end up only being sporadically useful. I make cuts at the end of the year, taking sites that are rarely used off the list.

Here are some sites that made it onto my keeper list:

Picture this: You need a medical procedure, for example, having your gall bladder removed. You arrive at one of the area’s fine local hospitals, where you are seen by a doctor and told “Sure, we can help you, as long as you sign this form giving up your right to sue us for damages if you are injured by malpractice.”

Sounds like a great deal for them and a terrible deal for you, right? The Cato Institute has issued a paper advocating that agreements like this, in one form or another, should be allowed and upheld by the courts. Surely they can’t be serious? Yes, they are, and no, I won’t stop calling you Shirley. RIP, Leslie Nielsen.

Contracts like this are generally unenforceable. They are called “contracts of adhesion”, and are not allowed because of the extreme inequality in the bargaining positions of the patient and doctor, among other reasons.

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One thing I do every month is read the list of sanctioned physicians published each month by the Maryland Board of Physicians. It can be found online here, and usually comes out in the middle of the month, covering the preceding month. Every personal injury lawyer should do this. It’s not schadenfreude. There is a very good reason.

In the last year alone, I have discovered that two of my clients’ treating physicians have had significant licensure problems during the period of treatment. In one case, the doctor’s license was suspended the whole time she treated my client. If you are planning to rely on a treating doctor as a witness, it is best to know about these kinds of problems. In my case, I was able to name a different doctor as my expert witness. I run any doctor I am considering naming as a witness through the “Practitioner Profiles” database to avoid these kinds of problems. If you start looking, you will be surprised at how often this happens.

It is definitely worth the effort, unless you’d rather find out your expert was unlicensed during the defense attorney’s cross-examination.

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