We’ve all heard stories where surgeons removed the wrong limb or left surgical tools inside a patient. While these examples certainly fall under the heading of medical malpractice, most cases are much more subtle. It’s easy to overlook a case of malpractice if you don’t understand what it means and the laws that apply to making a claim.
What Is Medical Malpractice?
Medical malpractice is a legal term that refers to an act or omission by a doctor during the treatment of a patient. This act or omission deviates from the accepted norms of practice within the medical community, resulting in injury to the patient. When you go to a doctor for care, it is with the expectation that they have the skills and education to provide competent care. When they fail to meet this obligation, the patient has the right to file a medical malpractice claim.
The laws for filing a malpractice claim differ from state to state. Each state defines the process for filing, including who has a right to file a claim and the time limits within which they must act. In Maryland, the laws are especially complex. If you aren’t sure you have a valid case or you don’t know how to pursue a claim, your first step should be to find a qualified attorney with a specialty in the area of medical malpractice.
Sometimes celebrity cases, where a high-profile person’s death is brought into question, are highly publicized. TV personality Joan Rivers’ death during surgery is one example. Singer Michael Jackson’s death from an accidental overdose is another. Again, these are extreme cases made even larger than life because of the victim’s celebrity status. No one should have the false expectation that medical negligence only happens when Hollywood doctors cater to the rich and famous.
What Is Malpractice Insurance and How Does It Work?
Medical malpractice insurance is a type of liability insurance that protects healthcare professionals from liability when a patient is injured. The patient may incur significant expenses from their injury that the healthcare provider may be liable for.
Malpractice insurance is there to pay these expenses when a patient’s injuries prove to be the result of negligence on the healthcare provider’s part. It covers the bodily injury and personal injury, including mental anguish.
The high cost of recovery and the legal expense that goes into malpractice lawsuits results in extensive investigations by the medical insurance companies. An individual claim may include damages of thousands or even millions of dollars. It is in the insurance company’s best interest to challenge any claim where negligence is especially difficult to prove.
There are two basic types of medical malpractice insurance: occurrence-made and claims-made. Claims-made policies cover claims as long as they are in effect when the malpractice occurred and when the claim is first reported. If the doctor cancels the policy prior to the claim, it doesn’t cover the error even if it occurred while the policy was active.
When a doctor purchases tail coverage for a claims-made policy, it will also pay for claims made after the policy is no longer in effect. No coverage covers malpractice prior to the policy’s effective date. Occurrence-made policies cover events that occur during the policy period, regardless of when a patient files a claim.
Who Needs Malpractice Insurance?
In the state of Maryland, doctors are not the only people or entities considered to be healthcare providers. If your injury results from the negligence or act of any of the following, you can hold them liable in a court of law. As a result, every member of a medical staff should have coverage to protect them from malpractice lawsuits.
- Nursing homes
- Assisted living facilities
- Medical day care centers
- Free-standing ambulatory care centers
- Physical Therapists
- Social workers
Most states require doctors to carry malpractice insurance, which is most often paid by their employer. Some practices obtain group coverage to provide insurance for all employees who may be held liable for a patient’s injury.
Negligence isn’t always immediately apparent. Sometimes the injury or condition that results from a healthcare provider’s actions takes time to appear. This is especially true when it results from misdiagnosis or failure to diagnose a condition at all. These are the most common types of medical malpractice injuries. Failing to diagnose a condition accurately and in a timely manner reduces the patient’s options for effective treatment. Some common diagnosis errors include stroke & heart attack, diabetes, cancer, and meningitis.
Other Common Types of Medical Malpractice:
An anesthesiologist gives a patient anesthesia according to a patient’s medical history, weight, age, and the level of sedation needed. It is the job of the anesthesiologist to interview the patient and calculate the proper dosage and drug on a case by case basis. When they administer the anesthesia incorrectly, it can cause a number of problems.
The wrong dosage or failure to monitor brain activity can result in brain damage, seizures, or strokes. Giving a patient the wrong drug can produce an allergic reaction. In the most severe cases, the patient can experience cardiac arrest or even death.
Hospitals abound with medical equipment, from the use of imaging equipment in diagnostics to joint implants used to replace deteriorated bone. When any of the equipment or products used to treat a patient is defective or malfunctions, the liability depends on the cause. Contact a medical malpractice attorney to discuss the laws regarding defective product liability in your case.
Something like a faulty hip implant could be the fault of the manufacturer. Sometimes the manufacturer is negligent in the use of materials, the manufacturing process, or the safety standards used to test the product. When the implant fails, additional surgery and therapy may be required. In addition, the patient is at a greater risk of developing an infection and other potential complications.
This is perhaps one of the biggest concerns that patients face. They are completely vulnerable to the skills of the surgeon and the entire operating team. Not surprisingly, errors that occur during surgery are often quite severe. Some potential errors include operating on the wrong site, performing the wrong surgery for the patient, damaging an organ or another body part, or mistakes during the surgical procedure itself.
Surgical errors have the potential to cause serious medical problems that result in long-term care. Sometimes the person requires additional surgeries to repair the damage. Some cases result in death.
Prescription Drug Errors
Mistakes with prescription drugs occur frequently and they can be serious in a number of ways. Giving a patient the wrong drug can lead to overdose, allergic reactions, and a lack of treatment for the condition for which it was originally prescribed.
Giving a patient the right drug in the wrong dosage can result in similar problems. The doctor may not take into consideration any common complications associated with the drug. Less often, doctors prescribe dangerous or defective drugs for which there are better alternatives. If the prescription is not legible, the patient may receive the wrong drug or dosage even when the doctor prescribed the right drug.
Most childbirth errors occur by obstetricians and result in some of the highest claims. Sometimes the malpractice occurs from the treatment of the mother during pregnancy. Many drugs pose a risk to the growing fetus.
Other times, the malpractice occurs during the birthing process. Occasionally, improper care following the birth results in a malpractice claim. When the actions of the doctor result in a birth defect, lifelong condition, or death of the baby, the stakes in the following malpractice case often become high. Any time an injury occurs to a baby as a result of negligent care, parents should seek the advice of a medical malpractice attorney.
These are some of the most common causes of medical malpractice but there are many others. Something as simple as reading an x-ray wrong or failing to read a patient’s list of allergies can have serious consequences.
Medical malpractice is a real threat to everyday people like you. In fact, researchers claim that it is now the third-leading cause of death in the U.S.! Every person in the country needs an understanding of what types of errors fall under the heading of malpractice and what to do if they become a victim.
What to Do If You Suspect Medical Malpractice
Extreme cases of malpractice are obvious but rare. Most are less easy to define and pose a challenge to prove. If you believe you are a victim of medical malpractice, don’t wait to see an attorney. You must file within a specified period of time following the accident or from the time you discover the injury. Failing to file during this ‘statute of limitations’ will result in the court dismissing your case.
Schedule an appointment with a medical malpractice attorney to have your case evaluated. Take all of your medical records to the appointment and share all of the information you currently have with the attorneys. The more information you provide, the more accurately they can evaluate your case.
Filing a Malpractice Claim in Maryland
In Maryland, you have five years from the date the alleged malpractice occurred or three years from the time you discover the injury. An exception to the rule is for minors under the age of eleven or when the injury involves the reproductive system or a foreign object.
If the medical malpractice leads to a wrongful death, you must file a lawsuit within three years of the victim’s death.
Once you file a medical malpractice claim, you must file a certificate of merit within 90 days. This document must be from a qualified medical expert stating the specific injury involved, the alleged breach that occurred, and what the offending doctor should have done to meet the standard of care. The purpose of this document is to infer that the doctor named in the lawsuit caused the injury to the plaintiff.
The state of Maryland also requires the defendant doctor to file a certificate from a qualified expert, which states that they complied with the standard of care or that the alleged breach was not the cause of the plaintiff’s injury.
In the past, both parties had to waive arbitration before the case progressed to court without it. Today, only one party must waive arbitration before the lawsuit proceeds. If both parties agree to go through arbitration, the arbitrators decide on whether medical malpractice occurred and the amount of damages that apply. The judge or jury then considers the findings and determines whether they are accurate. You have the option to reject the findings by the arbitration panel but if you do and then lose the court case, you must pay the legal costs for the other side.
Another requirement by Maryland is that of expert testimony. The expert must be licensed or certified in a different jurisdiction but in a similar way to that of the professional charged with malpractice.
Maryland is a contributory negligence state, meaning that you can’t recover damages if the court finds you at fault for any portion of your injuries. Even if the professional whom you make the claim against is 99% at fault, you can’t collect any of the damages.
Keep in mind that from the time you file your claim, your dealings are with the insurance company and not directly with the healthcare provider. This is the reason that having a knowledgeable, experienced attorney to guide you is so important.
Many plaintiffs and defendants settle medical malpractice lawsuits before they ever go to court. It is in the best interest of the insurance company and the plaintiff to settle on an amount that they are both happy with.
An attorney who has handled many cases similar to yours knows how to negotiate a fair settlement with the insurance company. If the parties can’t reach a reasonable agreement, they are familiar with your case and ready to defend your rights in court.
If you think you have a medical malpractice case, contact Ingerman & Horwitz L.L.P. to schedule a consultation. The first step towards getting a fair resolution to your case is to learn your rights. Ingerman & Horwitz have extensive experience and an excellent success rate for getting their Maryland clients the compensation they deserve.