Maryland Medical Malpractice Frequently Asked Questions

malpractice faqIf you have suffered a serious injury or the death of a loved one and you suspect medical malpractice, it is hard not to be confused.

There is no question that the path to navigate in a medical malpractice case in Maryland in complicated, so much so that your average Maryland personal injury lawyer who does not regularly handle malpractice claims would have a tough time pushing the case forward without making a fatal mistake.

That said, this website does contain all of the information you need to get your arms around the process. While we cannot anticipate every possible question you might have, these questions will get you started in better understand the road ahead for you and your family.

Nothing can make up for your suffering. Our goal in these cases is to maximize the amount of money we can put in our client for the suffering you have endured. This is all our legal system can do for you.

Big Picture Malpractice QuestionsBirth InjuriesWhat is Medical Malpractice?

Medical malpractice is basically a special type of professional negligence committed by a doctor or other licensed healthcare professional (e.g., nurse, therapist, hospital, urgent care facility, etc.). Medical malpractice occurs when a doctor makes a mistake or provides negligent medical treatment that falls below the recognized "standard of medical care" that should have been applied by a competent doctor in the situation.

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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 would be liable for any resulting damages that are the direct cause of the negligence.

In other words, a successful case will require that you prove two things. First, an error by a health care provider. Second, the injury must be the direct result of the mistake. That's it. Of course, there can be a medical error made but no injury if you were not injured as a consequence.

In order to have a valid legal claim for medical malpractice there must be some evidence to support 2 basic requirements:

  1. the doctor or healthcare provider made a mistake or rendered negligent care; and
  2. your injuries were a direct result of the mistake or negligent care (i.e., were it not for the doctor's mistake your injuries would not have occurred).

The first element focuses on the quality of the care you received and whether it satisfied the standards of good medical practice recognized in your area. You will need to show that your doctor somehow failed to do what any reasonable doctor would have done in your situation. The second element looks at your alleged injuries and whether they were actually caused by the doctor's negligent care. Even if your doctor was blatantly negligent, you can't sue him if that blatant negligence does not actually injure you.

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How do You Prove Medical Malpractice

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 you 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 (i.e., what a reasonable doctor should have done). He 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 you doctor had provided appropriate care.

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

Our Health Care Malpractice Claims Statute requires that before filing a Circuit Court claim, you must first file with the Director of the Maryland Health Claims Arbitration Office. Compliance with the Act's arbitration requirements before a lawsuit may not be avoided, either by express agreement of the parties or by mere oversight.

Within 90 days of filing a claim in arbitration, you 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.

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How Long do You Have to File a Medical Malpractice Suit?

In Maryland the statute of limitations for medical malpractice claims is 5 years from the date that the malpractice occurred; or 3 years from the date that the injury was discovered - whichever is shorter. Md. Code Ann., Cts. & Jud. Proc. § 5-109. Figuring out exactly when the malpractice occurred or the injury was discovered for purposes of calculating the applicable limitations period can be very complicated. To be on the safe side you should usually just assume that you have 3 years from the date of the malpractice. If you are already past this point, don't give up. There are numerous exceptions and legal nuisances to the statute of limitations period and when it begins to run. If you have doubts, you should immediately consult with a lawyer. The medical malpractice attorneys at Miller & Zois are very familiar with the complexities of the statute of limitations and how it applies to specific circumstances. We are more than happy to examine your case and tell you whether or not the limitations period has expired.

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If a Procedure is not Successful, is That Malpractice?

When a medical procedure is not successful or results in a bad outcome it does not automatically mean that the doctors were negligent. 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 the doctor deviating from the standard of care.

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How Much Money is a Medical Malpractice Claim Worth?

Plaintiffs in a medical malpractice case can recovery monetary damages to compensate them for the losses caused by the malpractice. There are 2 types of damages: (a) economic damages (e.g., lost income, medical expenses); and (b) pain & suffering damages.

The average settlement / verdict amount in medical malpractice cases nationwide is $250,000 (the average Miller & Zois settlement/verdict is more than twice this amount). Of course the real question is how are individual malpractice cases valued? There are basically 3 things that dictate the value of a malpractice case:

  1. ECONOMIC DAMAGES: Economic damages include all of the money you lost and all of the money you had to spend as a result of the malpractice - past & future. The past and future lost income and medical expenses resulting from the medical malpractice will impact the value of the case. The more medical expenses and lost wages you have the higher the potential value of your case.
  2. PAIN & SUFFERING DAMAGES: In addition to economic damages, medical malpractice plaintiffs are entitled to receive money to compensate for the mental & 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.
  3. 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 trial and offer more to settle.

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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 negligently hurt or kill a patient are not dishonest people or even bad doctors. For whatever reason, they made a mistake. This is why almost every Maryland doctor has insurance. If doctors do "alter" medical records when they fear a 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 Maryland medical malpractice attorneys 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 Maryland is five years from the time the malpractice was committed or three years from the date the injury was discovered, whichever is shorter. If you are hesitant to bring an action against your doctor you are not alone. Studies show that in most severe injury cases, the patient, or the patient's family in wrongful death cases, does not bring a claim.

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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 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. Our regulations provide that a nurse practitioner may perform independently the following functions under the terms and conditions outlined 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 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).

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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 done something wrong. Doctors cannot guarantee results. The question is whether the outcome would have been different if the physician exercised the ordinary standard of care. To succeed, a plaintiff must show an injury or damages that resulted from the 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 has their lawyer review them, the health care provider can charge an amount specified by Maryland statute for the copies. In our cases, we will get your medical records for you if we agree to investigate your case.

  • How to collect your medical records quickly

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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 claim is submitted to the trial court.

The arbitration panel is either a three-person panel consisting of an attorney, a health care provider and a layperson, 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 claim first file that claim with the Director of the Health Claims Arbitration Office.

The 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.

  • What are the key differences between a malpractice case and other types of civil lawsuits?

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What if I Suspect Malpractice, but I'm not Sure?

Doctor rarely tell their patients they commit malpractice. You need a lawyer to investigate your claim.

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How do I Start the Process of Bringing a Medical Malpractice Claim?

If you have already decided to at least pursue a potential medical malpractice case, your first step in that process will be retaining a medical malpractice attorney to investigate your potential case. The attorney and his or her firm will then investigate your case which starts by obtaining all of your relevant medical records. Once all of the records have been gathered, your attorney will review them and then consult with an expert (another doctor of the same specialty) to review your case and 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 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.

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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 palsy often suffer a loss of control and sensation in their neck, shoulders, arm, and hands.

Erb's palsy can be caused by a medical mishap, 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 healthcare negligence case depends on the facts of the 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 healthcare providers may be a medical malpractice claim. If this is the case, they are sued as health care providers under Maryland law. Other cases of neglect and abuse are not medical malpractice claim. In practical terms, the vast majority of tort claims against nursing homes are medical malpractice lawsuits.

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