7 Differences in Filing a Medical Malpractice Lawsuit in Maryland
Filinga lawsuit in Maryland is generally a single step process for a victim. You simply draft a complaint that alleges duty, breach, damage, and proximate cause as the result of a negligence of another party and your lawsuit is off to the races.
To protect doctors from “frivolous lawsuits”, the Maryland legislature and many other states have required victimswho want to file a medical malpractice lawsuit, in Maryland, to jump through additional hoops. This makes it nearly impossible for a victim to bring their own lawsuit against a doctor, without a lawyer. In fact, the laws are so complicated, some seemingly meritorious cases, have never made it inside a courtroom. The technical details of Maryland malpractice laws were not complied with, at least according to the judges who we trust to make these calls. You would think these type of mistakes would only be made by litigants, who either do not have a lawyer or attorneys who have little experience in medical malpractice cases. In reality, some very experienced malpractice lawyers in Maryland, have made unfortunate mistakes that have led, not to medical malpractice lawsuits, but legal malpractice claims. The take home message is filing a medical negligence claim in Maryland is not rocket science, but it is complex and it is easy to make a mistake that can destroy your claim. If you are a lawyer who has not handled a lot of Maryland medical malpractice claims, you might want to consider referring your case to lawyers who have successful handled many of these cases (hint, hint).7 Key Differences
There are many differences to keep in mind when filing a medical malpractice lawsuit and a regular tort lawsuit in Maryland. Here are the 7 key differences:
- In Maryland, you are required to file your malpractice lawsuit - with an arbitration panel, instead of filing it in court. This is not optional.
- The claimant must also file a certificate of a qualified expert, within ninety days of the filing of the claim. Importantly, claims are rarely pursued in arbitration, because either party, typically the Plaintiff, can waivethe out of arbitration requirement, after the filing of a certificate of expert and report. Our lawyers file this simultaneously with their arbitration claim, so it will get to the court more quickly. The certificate must be from a qualified doctor in this area of medicine who can attest to (1) the breach of the standard of care, and (2) that the breach is the proximate cause of the harm caused. The doctor on the certificate may not spend more than 20% of his/her professional activities to activities that directly involve testimony in personal injury claims.
- Maryland law also requires not just a certificate of a qualified expert, but a report of the attesting expert. Many forests have been burned over what needs to be in this report and how it must differ from the certificate.
- The cap on damages in medical malpractice cases for pain and suffering are lower than what you can obtain in other personal injury cases. The Maryland legislature has mistakenly yielded to the doctors’, lobbyists and enacted legislation. Therefore, in 2004, restricted damages in claims against health care providers became effective.
- Medical bills can only be introduced, if they were actually paid or were a cost to the victim. This change is under the Maryland collateral source rule and is specific only to malpractice cases. In a regular tort claim, Plaintiffs can seek all of their medical bills, even if they have been paid by their insurance or some other source. Therefore, if you have $400,000 in medical bills, paid by your health insurance and there is no lien, you can ask the jury for that full $400,000 in medical bills. In a malpractice claim, these damages cannot be claimed. The statute of limitations is different in Maryland medical malpractice claims too. The most notable difference is that Maryland has a time limit on bringing a claim, even if the victim did not reasonably known that she/he had a claim.
- You almost certainly need an expert in a medical malpractice case, if you want to survive summary judgment and get your case before a jury.
This is not the entire constellation of differences between malpractice cases and regular personal injury claims in Maryland. But these are the key differences you want to keep an eye on, if you are bringing a medical negligence claim in Maryland.
If you have more questions about bringing a malpractice claim in Maryland or you are looking for co-counsel for your claim, give us a call at 800-553-8082 or reach out to us on-line for a free, no obligation consultation.