Medical Malpractice FAQs

Medical malpractice is a type of professional negligence committed by a doctor or another licensed healthcare professional or facility, such as a nurse, therapist, or hospital. Medical malpractice occurs when medical care is provided that falls below the recognized “standard of care.” The standard of care can be defined as the process a competent, average healthcare professional would follow in a given situation.

To have a successful claim, you must be able to prove that a healthcare professional violated the standard of care. You have to show that you were harmed because the doctor failed to do what a reasonable healthcare professional would have done under the same circumstances. In other words, there must be evidence to support two basic requirements:

1. A doctor or other healthcare provider made a mistake or rendered negligent care; and
2. Your injuries were a direct result of the mistake or negligent care.

The first requirement focuses on the quality of care you received and whether it satisfied the standards of good medical practice. The second requirement looks at your alleged injuries and whether or not they were caused by your doctor’s negligent care. Even if a doctor was blatantly negligent, you cannot bring a lawsuit if that negligence did not cause you any harm. A seasoned medical malpractice lawyer can help you figure out what happened and determine if you have a case.

Doctors are not automatically considered negligent when a medical procedure is not successful or has a bad outcome. Even when the highest level of care is provided, doctors cannot guarantee results. In order to have a malpractice claim, the bad outcome must be the result of a doctor’s deviation from the standard of care.

In Maryland, the statute of limitations on medical malpractice is three years. However, this time limit is flexible depending on the situation. For example, if an injury is not discovered right away, victims have three years from the date the injury was detected in order to file suit. Additionally, minors who were the victims of medical malpractice have until their twenty-first birthday to file regardless of how old they were when the injury happened. If at all possible, it is best to file sooner rather than later to have the best chance at a successful case.

It depends on what caused your injury. If failing to comply with your doctor’s instructions was the cause of your injury, defense lawyers will be able to make a strong case against you. On the other hand, if your failure to follow your doctor’s instructions had nothing to do with the harm they caused you, there should not be an issue.

A problem we often encounter is when a doctor claims a deceased patient failed to comply with their instructions. If the patient has passed away, it is hard to prove that the doctor is lying. However, if there is no indication of the doctor’s instructions in the deceased patient’s medical records, doctors will have a harder time making that argument.

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 excuse negligent care.

The first step is to retain a medical malpractice attorney. The attorney and his or her firm will then investigate your case. They begin by obtaining all of your relevant medical records. Once all of the records have been gathered, your attorney will review them and consult with an expert, another doctor in the same specialty. They will give an opinion as to whether medical malpractice occurred. If the expert agrees that your doctor may have been negligent, your case will move forward very rapidly. If the expert does not think that your doctor did anything wrong the lawyer may choose not to take your case. At that point, you may want to retain another lawyer. For a more detailed, step-by-step overview of the medical malpractice claim process from start to finish, visit our page on 7 steps to file a malpractice suit.

The Maryland legislature enacted the Health Care Malpractice Claims Statute in 1976 for the purpose of providing a mandatory arbitration system for all medical malpractice claims. The statute requires that plaintiffs file with the Director of the Maryland Health Claims Arbitration Office before filing a Circuit Court claim.

Within 90 days of filing a claim in arbitration, plaintiffs 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 the plaintiff’s injuries.

In order to prove a claim of medical malpractice in court, you will need to present opinion testimony from expert witnesses, i.e. other doctors. Basically, you gather all of the relevant medical records and non-disputed facts of your case. Then you find another qualified doctor, i.e., a doctor of the same specialty and education, to review your case and give their opinion as to whether your doctor was negligent.

At first, this expert opinion will be presented in the form of a letter or written opinion. As your case progresses, however, your expert will need to testify at a deposition or in court to explain his opinions.

Your expert will need to explain what the applicable standard of care was in your situation, or in other words, what a reasonable doctor should have done. He or she will also need to articulate exactly how your doctor breached this standard of care.

You will also need an expert opinion, sometimes from a different type of doctor, as to whether your doctor's negligence was the proximate cause of your alleged injuries. Specifically, your expert will need to testify that your injuries would likely have been avoided if your doctor had provided appropriate care.

It can be a challenge to find doctors who are willing to stand up for patients at trial. It is particularly difficult to find Maryland doctors who are willing to testify against other Maryland doctors. Thankfully, if you know where to look, you can find respected and experienced doctors who are willing to stand up for victims who have wrongfully suffered as a result of medical malpractice.

This is unlikely, although it happens occasionally. Almost every Maryland doctor has insurance that will cover them in the event that they are found guilty of malpractice. Moreover, it is difficult for doctors to get away with changes because there are often multiple copies of a patient’s medical record which can be cross-checked.

Alterations to medical records are rare, but medical malpractice attorneys are always aware of the possibility. Accordingly, we look for inconsistencies in the medical records that indicate an alteration has been made.

1. Illegality of altering medical records

In Maryland, patients have a legal right to obtain copies of his/her medical records. Health care providers can charge an amount specified by Maryland statute for the copies. Miller & Zois will get your medical records for you if we agree to investigate your case.

• How to collect medical records quickly.

Doctors in Maryland are required to supervise physicians' assistants. Nurse practitioners are a different story. Our regulations provide that a nurse practitioner may perform the following functions independently:

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
7. Providing emergency care

In other words, nurse practitioners function mostly as doctors. Accordingly, there may not be an independent cause of action against the doctor for negligence, although there may be other viable claims.

• Bringing lawsuits against nurses and nurse practitioners in Maryland

Malpractice insurers and hospitals rarely settle a malpractice case if a lawsuit has not been filed. For context, we only settled two malpractice lawsuits in 2015 without the need for a suit.

Most of our malpractice cases settle. However, we have also tried many malpractice cases and gotten seven-figure verdicts in instances when insurance companies refused to make an offer.

There is good news and bad news. Beginning with the bad news, most medical negligence cases that go to trial in Maryland end in a defense verdict. Plaintiffs win only about 8% of the time. On the other hand, most malpractice cases that end favorably for the plaintiff settle before trial. Defense lawyers only want to take cases they are sure to win to trial. Most good medical malpractice cases end in settlements. Additionally, we have won the majority of our malpractice claims. Good cases handled by lawyers who are willing to fight for their plaintiffs have a good chance of winning.

The average settlement or verdict amount in medical malpractice cases nationwide is $250,000. There are basically 3 factors that dictate the value of a malpractice case:

Economic damages: All of the money you lost and had to spend as a result of the malpractice and all of the money you will lose and have to spend in the future. The past and future lost income and medical expenses resulting from medical malpractice will greatly impact the value of the case. The more medical expenses and lost wages you have the higher the potential value of your case.

Pain & suffering damages: In addition to economic damages, medical malpractice plaintiffs are entitled to receive compensation for the mental as well as the physical pain and suffering caused by their injuries. More severe physical injuries will naturally involve more pain & suffering and will, therefore, have a higher value.

Strength of claim: For cases that are settled out of court, the strength of the plaintiff's medical malpractice case against the defendants will often drive the settlement value. If the plaintiff has a particularly strong case that will be easy to prove at trial, the defendants will want to avoid a trial and will offer more to incentivize the plaintiff to settle.

The two factors most closely correlated with settlement value is the severity of the victim’s injury and the experience of the malpractice lawyer. The best malpractice lawyers are highly sought after, which means they usually handle the best cases. Regardless of that fact, obtaining experienced counsel with a good track record is a critical ingredient of successful claims.

Our law firm handles medical malpractice cases on a contingency basis. This means that you will not pay a fee unless we get you a recovery. We also front all of the additional costs of your malpractice case. If we do not win your case, you are not obligated to pay any of these costs.