Ingerman & Horwitz LLP is a law firm of talented attorneys who represent medical malpractice victims in the Baltimore, Maryland region and surrounding areas in Maryland.
If you are the victim of medical malpractice, or believe you have been harmed as the result of negligence of a health care provider feel free to contact our firm and speak with an attorney to discuss what legal options and rights you may have.
When we seek medical care, we are placing ourselves in the hands of the "experts". Medical professionals hold themselves out to the community, in one manner or another, as skilled and competent in their particular areas of expertise. A patient places him or herself in the care of the doctor, nurse, hospital or other provider because he expects the health care provider to possess reasonable care, skill, learning - to be familiar with the applicable medical standards and protocols - and to exercise that skill in a reasonably competent manner.
By holding themselves out to be professionals, the health care providers are agreeing to treat the patient carefully, without negligence. Unfortunately, this is not always the case. Failure to provide adequate medical care can be a breach of the contractual agreement between the health care provider and patient and can, therefore, form the basis of a claim for medical malpractice.
In Maryland, the procedures surrounding a medical malpractice claim are detailed and complex. They provide the rules of the process, telling us who can bring a claim, when it must be brought, under what circumstances a claim can be brought and what are the limits on potential recovery. The Maryland statute also identifies persons or entities against whom a claim can be brought, that is, who qualifies as a "health care provider". This is a large group and specifically includes the following types of facilities:
...as well as the following types of health professionals:
As one can see, this is a comprehensive list. Essentially, anyone involved in the providing of health care and licensed in some manner is considered a health care provider in the State of Maryland and the law of medical malpractice applies to them.
All health care providers are required by law to comply with the applicable standard of care when providing medical treatment.
This is the "operative phrase" used throughout the area of medical malpractice in the State of Maryland. Any claim for medical malpractice must allege that the health care provider in question "deviated from the accepted standard of medical care" in the treatment of the patient. But what does this mean? There are no published "rules of the road" that define the standard of care. Over the years, the Courts have developed and refined the definition. The basic definition applies to all health care providers. It can be characterized as follows:
In order to comply with the applicable standard of care, the health care provider has a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances.
This basic standard has now been refined and specifically included in current law as follows:
The health care provider is not liable for the payment of damages unless it is established that the care given by the health care provider is not in accordance with the standards of practice among members of the same health care profession with similar training and experience, situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.
Health care providers, in all areas, are required to have a reasonable level of competence and to meet that level of competence when treating patients.
This determination is made "within the class". In other words, a nurse is held to standards of reasonably competent nurses, not to the standards of doctors. A doctor is held to the standards of practitioners in the same field - a family physician may not be held to the standards of an expert in infectious diseases. A surgeon must comply with standards for surgery. A small hospital in a rural area is not held to the standards of a metropolitan research institution or a teaching hospital.
Similarly, health care providers are not held to an "optimal care" standard. If care is reasonable, even if it is not the best or the "gold standard", then the requirement has been satisfied. A particular medical problem may be susceptible to various forms of treatment. The fact that one acceptable course of treatment is chosen over another, even if there is a bad result, is not a deviation from the standard of care.
The law also requires, in the case of medical malpractice, that there be a professional relationship between the health care provider and the patient, either express or implied, to give rise to the medical malpractice claim. An express relationship exists when the patient seeks care from a doctor or other health care provider for medical treatment. An implied relationship could occur in a situation where, for example, an unconscious patient is treated in an emergency room. In any event, there must exist some sort of "doctor/patient relationship" in order for there to be a claim for medical malpractice.
A claim can also arise where a patient has been treated without being fully informed of the treatment being rendered and its potential consequences. This is known as "informed consent". A health care provider, when treating a patient, must, within reason, explain to the patient the known material risks of the procedure. In the area of "informed consent", the courts will take a common sense approach to claim. The health care provider must show that some reasonable attempt was made to obtain consent from the patient or someone authorized to consent on the patient’s behalf. An exception would arise in the case of an emergency, if the risks not explained are particularly remote or if there is some incapacity of the patient to consent to treatment.
The area of "informed consent" is the one area of medical malpractice where expert testimony, as to liability, is not required in order to support a claim. If a claim is based solely on the lack of informed consent, the plaintiff need not demonstrate a deviation from the accepted standard of medical care and need not file the expert certificates that would otherwise be required. Even in cases of this nature, however, an expert may be required to prove damages to the plaintiff.
In order to recover in a claim based on informed consent, the plaintiff must show: that there was no emergency need for the treatment in question; that the health care provider did not inform the patient of the material risks; that a reasonable person in the plaintiff’s position would have not consented to the procedure if the risks had been explained; and that the plaintiff’s injuries resulted directly from the treatment that was rendered.
Maryland has detailed and specific rules and procedures that must be followed in order to file a claim alleging medical malpractice. Even before a formal claim is brought, however, a thorough and detailed investigation must be done in order to determine whether or not there is a viable claim.
When clients call out office and inquire about medical malpractice, a thorough history is taken to learn as much as possible about the nature of the potential claim. If, based on that initial interview, it appears that there may be a viable claim, we ask the client to sign the forms necessary for us to secure and review all pertinent medical records. This process can be lengthy and time consuming but is absolutely necessary to the successful pursuit of a medical malpractice claim.
Once the records have been retrieved and studied, an expert must then be engaged to support the claim. Maryland law requires that every claim for medical negligence, alleging a deviation from the standard of care, must be supported by the testimony of an appropriate certifying expert. Even in the most obvious cases, (e.g. a surgeon operates on the wrong leg) an expert is required to verify that this is a violation of the standard of care. If a plaintiff is not able to secure the opinion of a qualified certifying expert, then his or her claim will ultimately be dismissed.
The expert must certify in two general areas. First of all, he or she must certify that there has been negligence (a deviation from the accepted standard of medical care) on the part of the health care provider in question. Secondly, he or she must certify that the plaintiff suffered serious, permanent injury as a direct result of the negligence of the health care provider in question. Both elements must be present in order to proceed with a medical malpractice claim. In many instances, a patient receives inadequate or negligent care at the hands of one health care provider, but then seeks out a second doctor who provides appropriate medical care. If the problem is resolved, that is, if the second doctor performs the correct treatment and the patient makes a normal recovery, then there would be no viable claim. Even though the first doctor was negligent, the patient suffered no injuries as a direct result of that negligence.
In Maryland, all claims for medical negligence must first be filed with the Health Care Alternative Dispute Resolution Office. This is a State agency that keeps track of all medical malpractice claims. If the parties decide to keep the claim in that office, a decision will be made by a panel of arbitrators. This decision is subject to appeal by trial in the Circuit Court, either before a Judge or a Jury. In most instances, after filing in the Health Care Alternative Dispute Resolution Office, the parties (one or the other) elect to have the case removed from that office and tried directly in the Circuit Court.
Once a claim has been filed, the normal litigation process applies. The health care provider will raise whatever defenses he or she has, hire experts to testify on his or her behalf, and generally, vigorously contest the claim. Depositions will be taken of the parties, as well as any experts who are named to testify in the case. Ultimately, if no settlement is reached, the case will be tried in the Circuit Court of the appropriate jurisdiction, either before a Judge or a Judge and Jury.
In some instances, the parties are able to resolve the case by alternative means. Many cases are now resolved through mediation - a process by which the parties agree to present the claim to a neutral third party who assists then in reaching a resolution. Mediation is a voluntary procedure and is not binding on the parties.
Another method of alternative dispute resolution is arbitration. In this instance, the parties may agree to the appointment of an arbitrator who will hear and decide the case in a manner that is binding. Arbitration can be an effective means of resolving disputes in that the costs of litigation are dramatically reduced. Under the system now in place in Maryland, parties in all claims for medical malpractice must make some attempt to resolve the case by alternative dispute resolution. Either mediation or arbitration.
If there is no settlement or other resolution, then the case proceeds to trial. At trial, testimony is presented from the plaintiff, the health care provider and expert witnesses on both sides. Plaintiff presents testimony as to economic damages (medical expenses, lost wages, other "out of pocket expenses", cost of future medical care) as well as what are known as "non-economic damages". These typically include claims for pain and suffering, inconvenience, permanent injury, limitations on activities, disfigurement, changes in life style, etc. In all claims for medical malpractice, the Maryland Legislature has placed a ceiling or "cap" on recoveries of non-economic damages.
Medical malpractice cases are among the most difficult and expensive types of cases to bring. This is an area of law where representation by qualified attorneys, with extensive experience in the medical malpractice arena, is invaluable.
