Maryland Malpractice Law

Maryland malpractice law is based on a fault system.

That is, malpractice exists if a doctor, nurse or other health care professional fails to comply with the appropriate "standard of care" for treatment.

Unfortunately, medical mistakes are common in the United States.

In 2000, the Institute of Medicine reported that up to 98,000 die each year in American hospitals due to medical mistakes. That's 268 people a day! Medical mistakes are the 8th leading cause of death in our country. Preventable medical mistakes cause more deaths each year than AIDS, breast cancer or auto accidents.

And hundreds of thousands more are injured or disabled each year because of medical mistakes.

In fact, a recent study of physicians conducted by the Harvard School of Public Health showed that fully 35 percent of the doctors said that either they or members of their families had experienced medical errors in the course of being treated and most said that the errors had "serious health consequences," such as death, long-term disability or severe pain. In addition, 3 in every 10 of the doctors who participated in the study had seen an error that caused serious harm to patients outside their families in the past year.

So the primary cause of malpractice cases is not any of the things that the defense propagandists would have you believe -- runaway juries, greedy malpractice lawyers, "frivolous lawsuits" -- it is malpractice!

Those of us who focus on Maryland malpractice law usually describe malpractice claims as having two components which we commonly call "liability" and "damages."

A. Liability

Under Maryland malpractice law, liability, or legal responsibility, exists if doctors or other health care providers fail to comply with the appropriate "standard of care." Standard of care means what a competent health care provider should do in a particular circumstance.

For example, a competent surgeon should remove all sponges from the patient before closing at the end of surgery. If the surgeon does not do so, s/he has deviated from the standard of care and committed malpractice.

The defense will probably argue that the health care provider did nothing wrong, that the bad result is just one of those things. And it is true that a bad outcome, by itself, is not proof of malpractice under Maryland malpractice law.

That is why most questions of whether malpractice has occurred under Maryland malpractice law require expert opinion(s) to determine.

In fact, under Maryland malpractice law, you have a malpractice case -- literally -- when an expert says you do.

When you file your case, Maryland malpractice law requires you to include a Certificate of Merit which is a statement by an expert in the same specialty as the case involves stating that the defendant deviated from the standard of care. Without that Certificate, your case will be dismissed.

1. Defenses

In addition to claiming that the health provider did nothing wrong, the insurance company defending the case will probably raise other defenses. One common defense is "contributory negligence." Another defense that is often raised is "causation." Let me explain these further.

a. Contributory Negligence

Unfortunately, Maryland is one of only 4 states that has a very harsh rule called "contributory negligence." If it exists, contributory negligence defeats your claim.

This means that if you contributed in any way to causing your injuries, you have no claim against the health care provider. In theory, if you are only 1% responsible for causing your injuries and the health care provider is 99% at fault, under Maryland malpractice law you are not entitled to recover from the health care provider!

Incidentally, the alternative to contributory negligence that exists in most states is called "comparative negligence," a much better and more fair rule. You might want to contact your state legislators and encourage them to adopt it.

Under comparative negligence, which varies slightly among the states that have this rule, the fault of the two parties is "compared" and the one who is more at fault pays while the one who is less at fault has his or her claim reduced by the percentage of their fault. For example, if Jones is 90% responsible for causing an incident and Smith is 10% at fault, Smith can recover from Jones for her injuries, but Smith can only recover 90% of full compensation. She loses 10% of her recovery because she was 10% responsible for causing the incident.

The defense may argue that you were contributorily negligent in some way or failed to "mitigate damages" by, for example, not following the physician's instructions. They will contend that your failure -- not the health care provider's error -- caused the bad result.

Therefore, under Maryland malpractice law, you must be able to prove that the health care provider deviated from the accepted standard of care and that you did nothing to contribute to causing your injuries.

b. Causation

You must be able to prove that the health care provider's negligence caused your injuries and damages.

Often, the defending insurance company will raise the defense that something other than the health care provider's deviation from the standard of care caused your injuries. They may claim that the "real cause" (their term, not mine) of your injuries and damages was an unrelated accident, the normal aging process . . . or anything else they can think of. p>Here, also, expert testimony is often required to prove your case.

B. Damages

"Damages" is the term that refers to the consequences of the health care provider's carelessness. In other words, "What harm did the carelessness cause?"

Under Maryland malpractice law, damages include economic losses and noneconomic losses.

The economic losses that you can recover include . . .

all medical bills you incurred treating injuries that result from the malpractice,

any loss of income, such as employment income, and

any other economic losses that result from the malpractice.

If Maryland malpractice law merely required the careless health care provider to pay for your financial losses, you would not be fully and fairly compensated.

The economic losses are not what you will remember years later about this experience. What you will remember more is the pain of your injuries, the mental uncertainty, the sleepless nights (or whatever your symptoms were) and the disruption to your life that the careless health care provider caused.

Because you did nothing to cause these losses, fundamental fairness -- and Maryland malpractice law -- require the one who caused your injuries to compensate you in money damages for such noneconomic losses as . . .

physical pain

mental anguish

disfigurement

inconvenience

physical impairment

damage to your marital relationship.

How do you prove future consequences, such as future medical bills and future loss of income?

You probably guessed . . . expert witnesses. Physicians document the future physical limitations of the patient, there may be a vocational rehabilitation expert to testify about the patient's vocational limitations, perhaps a life care planner will testify about the patient's other needs and an economist converts all of this into dollars and cents.

Where there are serious, permanent injuries, fair compensation under Maryland malpractice law can easily be $1,000,000.00 or more.

To help prove your losses, keep a diary which answers this question: How has this malpractice affected my life?

If you hire a Maryland malpractice lawyer, your lawyer will help you gather and develop the evidence of your noneconomic losses.

C. Final Thoughts

Medical malpractice cases are complicated and expensive and the results are uncertain.

While some injury cases are well-suited for a do-it-yourself approach, medical malpractice cases are not.

No matter how obvious the malpractice, the defense will have experts who will defend the actions of the health care provider. On the other hand, you may have difficulty locating an expert, even if your claim is meritorious. Physicians are putting increasing pressure on their brethren who testify for injured plaintiffs.

The defense has almost unlimited funds to spend to defeat your claim.

Statistics show that somewhere between 2 out of 3 and 3 out of 4 cases that go to trial are won by the defense.

Confronted with these realities, you should never consider presenting a malpractice case yourself. Instead, you should consult with an experienced Maryland malpractice lawyer.

To learn more about Maryland malpractice law, contact us.

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