Articles Posted in Medical Malpractice

Recently, a state appellate court issued a written opinion in a personal injury case that raised an issue that is very important for Maryland medical malpractice plaintiffs to understand. The case presented the court with the opportunity to discuss whether a plaintiff’s late-filed medical malpractice case should be permitted to proceed despite its untimeliness because the defendant acted to cover up his potential liability.

Dentist's ChairUltimately, the court concluded that the plaintiff’s visit to another doctor who worked with the defendant to effectuate the defendant’s care plan did not provide the plaintiff with actual notice of the defendant’s malpractice. Thus, the plaintiff’s lawsuit was timely.

The Facts of the Case

The plaintiff, who was suffering from serious dental issues, was a patient of the defendant dentist. The defendant created a care plan and, in March 2006, referred the plaintiff to a specialist who was to perform certain procedures, including placing dental implants.

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When someone is injured due to the negligence of a medical professional, they may be able to secure compensation for their injuries through a Washington, D.C. medical malpractice lawsuit. However, due to the complex nature of these lawsuits, there are often multiple experts involved. Often, these experts are called to establish the element of causation.

SurgeryCausation in a medical malpractice case is a critical element that must be established by the plaintiff. In order to successfully prove causation, a plaintiff must present some testimony establishing that the defendant’s actions were the cause of the plaintiff’s injuries. Thus, it will not be enough for the plaintiff to establish that the defendant medical professional was negligent; it must also be shown that the defendant’s negligence resulted in the plaintiff’s injuries. A recent case illustrates the consequences one plaintiff suffered after failing to connect the dots in a medical malpractice lawsuit.

The Facts of the Case

The plaintiff had a laparoscopic hysterectomy performed by the defendant doctor. During the surgery, the defendant perforated the plaintiff’s bowel, and despite checking for any injuries before finishing the surgery, he did not notice the perforation. After the surgery, the plaintiff was experiencing abdominal pain and difficulty urinating.

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In Washington, D.C. medical malpractice cases, the plaintiff must prove several elements in order to prove their case. One of the elements that a plaintiff must establish is that the care rendered by the defendant medical provider fell “below that which would have been taken by a reasonably prudent physician.”

Prison YardThe idea behind this requirement is that the law does not require doctors to be perfect and always obtain the best results. However, when the care the doctor provides falls below the generally accepted standard of care, the doctor can be held legally responsible for any harm suffered by the patient.

In order to establish the applicable standard of care, and to show that the defendant’s care fell below that level, a Washington, D.C. plaintiff must present an expert witness. An expert witness is usually a doctor who specializes in the same field as the defendant doctor, or who possesses some specialized knowledge in that area of medicine. A plaintiff’s failure to present an expert witness may result in a case’s premature dismissal. A recent case illustrates how one plaintiff’s case was dismissed based on a failure to include an expert’s affidavit supporting his claim.

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The courts in Washington, D.C. deal with a heavy caseload. Indeed, it is not uncommon for a Washington, D.C. personal injury case to take months, if not years, to reach trial. In most cases, some delay is expected while the parties conduct their investigation, exchange discoverable materials, and prepare their case. However, if a court determines that a plaintiff is not pursuing their case dutifully, the court has the power to dismiss the plaintiff’s case.

CalendarWhile dismissal for a plaintiff’s failure to prosecute a case is a rare sanction that is not often imposed, a recent appellate decision illustrates when courts are willing to impose sanctions on a party who is not diligently pursuing their claim.

The Facts of the Case

The plaintiff filed a medical malpractice lawsuit against the defendant in 2005. However, since the plaintiff failed to attach a required expert affidavit, the case was voluntarily withdrawn without prejudice in 2007. The next day, the plaintiff filed another lawsuit against the same defendants; however, that case was withdrawn the next year under similar circumstances. The plaintiff’s third lawsuit was filed the very next day.

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One of the first steps that any Washington, D.C. personal injury plaintiff must take after filing a lawsuit is serving the named defendants. The law requires that all defendants be served so that they know the allegations they are facing and how they can respond to them. This is a critical step, and if a plaintiff does not effectuate proper service, their case may be dismissed. A recent opinion in a wrongful death case illustrates the serious repercussions that a plaintiff can face if a defendant is not properly served.

StopwatchThe Facts of the Case

The plaintiff’s husband was a patient in the defendant hospital. According to the court’s written opinion, on the day before his death, the plaintiff’s husband was admitted to the hospital with sharp chest pain. The attending physician on duty diagnosed him with gastritis and sent him home. On the following day, the plaintiff’s husband was again admitted to the hospital, this time while in cardiac arrest. He remained in the hospital for a short time longer before he was transported to another hospital, where he ultimately passed away.

About a year later, the hospital closed. Shortly after that, the plaintiff filed a timely wrongful death case against the hospital, claiming that the physician’s negligence in failing to diagnose her husband’s cardiac arrest led to his death. The plaintiff served a former member of the board, who was the hospital’s legal counsel. The hospital responded that service was not proper, and the plaintiff voluntarily withdrew her lawsuit so that she could effectuate proper service.

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Earlier this month, a federal appellate court issued a written opinion in a personal injury case involving a missed cancer diagnosis filed against the Veterans Administration (VA). Ultimately, the court concluded that, while the VA was negligent in failing to diagnose and treat the cancer, that failure was not the cause of the patient’s death. This case is important for Washington, D.C. medical malpractice plaintiffs because it illustrates the strict requirement of causation and the level of certainty an expert witness must possess when testifying.

Chest X-RayThe Facts of the Case

The plaintiff was the surviving spouse of a patient who was treated by the VA for various medical issues. Pertinent to this case was the patient’s diagnosis of cirrhosis of the liver. In 2011, a routine test showed the patient presented increased liver function. The attending nurse ordered a CT scan, and the VA doctor interpreting the scan noted that the patient’s cirrhosis was stable but did not note anything else.

In 2013, the plaintiff was admitted to the emergency room with various symptoms, including painful urination, incontinence, confusion, and slurred speech. Another CT scan was ordered and found a cancerous mass in the patient’s liver. The CT scan results were then compared to the earlier CT scan, and it was clear that the mass was present in the earlier scan as well. Since then, the size of the mass had doubled.

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Many Washington, D.C. medical malpractice cases ultimately come down to whether a doctor adequately informed the patient of the risks involved with a procedure. This is called informed consent.  Earlier this month, an appellate court in Oklahoma issued a written opinion in a medical malpractice case dealing with the issue of informed consent. The court had to determine if a patient can give informed consent to undergo a surgery without knowing who will be actually performing the surgery. Ultimately, the court determined that in order for a patient’s consent to be valid, the doctor must inform the patient of anyone who will be performing the significant portions of the procedure.

Operating RoomThe Facts of the Case

The plaintiff was a patient of the defendant gynecologist. In 2010, the defendant recommended that the plaintiff undergo a total laparoscopic hysterectomy, and the plaintiff agreed. Prior to the surgery, the plaintiff signed a form indicating her consent to the procedure. The consent form stated that the plaintiff authorizes the defendant and “whomever he/she (they) may designate as his/her assistants, to perform the following operative or diagnostic procedure(s): total laparoscopic hysterectomy.” There was also a dedicated section to list who would be assisting with the procedure, but that portion was left blank.

The defendant enlisted the help of a certified nurse with whom she had worked many times in the past. The nurse was not a hospital employee but was an independent contractor hired by the defendant.

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Anyone who has ever had a medical procedure or surgery performed has likely been confronted with a medical release waiver. These contracts are designed to limit – or altogether eliminate – a health care provider’s liability in the event something goes wrong during the procedure. While the intention of these contracts is to prevent a patient’s ability to proceed with a medical malpractice case, the reality is that courts often look upon these agreements with disfavor. A recent case out of Florida illustrates how one court struck down one such agreement on the basis that it was too vague.

Medical Release WaiverThe Facts of the Case

The defendant was a doctor who performed a spinal fusion surgery on the plaintiff. During the surgery, something went wrong, and the plaintiff’s ureter was severed. The plaintiff filed a medical malpractice case against the doctor, claiming that the doctor’s negligence resulted in his injuries.

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Earlier this month, a Maryland appellate court issued a written opinion in a medical malpractice case brought by the surviving loved ones of a man who died while in the care of the defendant doctor. The case required the court to determine if the lower court was proper to allow the defendant doctor to admit evidence that there had previously been other doctors named as defendants, but they all settled the case out of court prior to the case reaching trial. Ultimately, the court concluded that the lower court was proper to allow the evidence, and it affirmed the jury’s verdict in favor of the defendant doctor.

Hospital BedThe Facts of the Case

The plaintiffs filed a wrongful death by medical malpractice case against the defendant physician, claiming that he was negligent in the interpretation of X-ray images that eventually led to their loved one’s death. The case was filed against the defendant doctor as well as the three doctors who treated their loved one after the defendant. The cases against the three other doctors were all settled out of court.

At trial, the one remaining doctor wanted to explain to the jury that there had originally been four named defendants, but three of them had settled the cases against them. The defendant doctor also wanted to claim that these non-present parties were the ones who were ultimately responsible for the plaintiffs’ loss. The plaintiff filed a motion to prevent the defendant from discussing the non-present parties, but the trial court denied the plaintiffs’ motion and allowed the evidence. The jury returned a verdict in favor of the defendant.

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Earlier this month, one state’s supreme court issued an opinion in a medical malpractice case alleging that the defendant hospital was responsible for leaving a four-inch piece of tubing in the plaintiff’s body after a surgery. The case required the court to discuss the burden-shifting framework applicable in foreign-object cases, ultimately holding that the framework should apply in all cases of foreign objects being left in a patient’s body, and not just in those cases where the plaintiff cannot recall who left the object in his body.


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The Facts of the Case

The plaintiff was admitted to the defendant hospital for a colon resection surgery after it was discovered that he had several cancerous polyps. The surgery went as planned, and afterwards some drainage tubing was placed into the plaintiff’s body to help get rid of extra post-surgical fluids.

Prior to his discharge, a nurse came to remove the tubing. She pulled the tubing out, discarded it, and then sent the plaintiff home. Four months later, the plaintiff returned with complaints of pain in the area where the tubing had been. It was subsequently discovered that there was approximately four inches of tubing left in his body. Another surgery was scheduled and performed to remove the tubing.

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