Medical Malpractice

Washington, D.C. Laws May Make it More Difficult for Plaintiffs to Recover in Medical Malpractice Suits

November 26, 2019 | Lebowitz & Mzhen

When an individual ends up in a hospital, they expect that the nurses and doctors will take care of them and make sure they are safe. Because of the level of trust given to health care professionals, and the stakes at issue, Washington, D.C. (the District) medical malpractice cases can be extremely traumatic. Unfortunately, however, doctors and nurses can and do make mistakes. Generally, Washington, D.C. law allows victims to sue when they are injured as a result of those mistakes.

However, some laws in the District may prevent a plaintiff from recovering anything against their medical provider, even if they were injured as a result of the provider’s negligence. For instance, Washington, D.C. residents should be aware of the District’s harsh contributory negligence rules, which will bar a plaintiff from recovering anything for his damages if the court finds he was at all responsible for his injury. This applies in situations where a plaintiff is found to be just 5 percent responsible. In some unusual cases, a plaintiff who brings suit against a medical provider and is found partially accountable may even end up owing the medical providers money for legal fees.

Additionally, plaintiffs may find themselves unable to recover if they decide to leave the hospital against medical advice (AMA). Typically, in these cases, the hospital will ask the patient to sign a form indicating that they are leaving AMA, that they assume all of the risks of doing so, and that they release the hospital and medical staff of all liability. Sometimes patients won’t even read this form thoroughly, but signing it can preclude a plaintiff from successfully bringing a suit later on. For instance, in a recent state appellate opinion, the court dismissed a plaintiff’s lawsuit against her doctor because she signed an AMA form.

Third-Party Liability in Washington D.C. Medical Malpractice Lawsuits

October 28, 2019 | Lebowitz & Mzhen

Washington, D.C. and Maryland doctors who negligently treat a patient may face liability for a patient’s injuries caused by their negligence. Courts will hear and rule on medical malpractice lawsuits as long as the injury victim meets specific threshold requirements. Washington, D.C. medical malpractice victims must show that they had a medical professional-patient relationship with the provider. The victim must then prove that the medical professional was negligent in the diagnosis or treatment of their condition. Further, the patient must prove that it is “more likely than not” that the medical professional’s negligence caused their injuries. Finally, patients must show that they suffered physical, mental, or financial damages.

Proving the first element of a Washington, D.C. medical malpractice lawsuit is straightforward when there is a doctor-patient relationship between the parties. In those cases, the law is clear that doctors who enter into a physician-patient relationship owe their patients specific duties. These duties include providing a certain level of care and reasonably informing their patients of their treatment. Challenges arise when the injury victim is a third-party and not the doctor’s actual patient.

For example, a state appellate court recently issued an opinion dealing with issues in third-party Washington, D.C. medical malpractice lawsuits. In that case, a man injured four people and killed one when he struck a horse-drawn carriage. About a year before the accident, the man visited an eye institute, and a doctor determined he was legally blind and should not drive. A few weeks before the crash, the man visited another doctor at the same facility, and the doctor told him that his vision was improving and that he could drive with some restrictions. The victims filed a lawsuit against the driver and were awarded a judgment that the man could not satisfy. The man filed a medical malpractice lawsuit against the facility and assigned his claim and potential award to the plaintiffs in the car accident case against him. The medical facility moved to dismiss the case, arguing among other issues, that medical malpractice does not extend to third non-patient parties. In this case, the court found that although doctors may face third-party liability, it does not extend to situations where a doctor fails to warn a third-party about their patient’s driving risks.

When Must a Washington, D.C. Plaintiff Comply with the District’s Strict Medical Malpractice Requirements?

August 6, 2019 | Lebowitz & Mzhen

All Washington, D.C. personal injury cases must follow the procedural court rules set out in the rules of civil procedure. However, Washington, D.C. medical malpractice cases are subject to additional hurdles that, if not correctly followed, may result in the dismissal of a plaintiff’s claim. Thus, plaintiffs bringing any claim that may be construed as a medical malpractice case should take all precautions to ensure they protect their right to recover.

In many medical malpractice cases, by the time a case reaches trial, it is too late for the plaintiff to comply with the strict procedural rules of a medical malpractice claim. Often, defendants argue that the plaintiff’s claim is one of medical malpractice, and that the case should be dismissed because the plaintiff failed to comply with the applicable procedural rules. These plaintiffs are then in the position of explaining why their claim is not one of medical malpractice, and is instead a claim of traditional negligence. A recent case acts as a good illustration of this principle.

According to the court’s opinion, the plaintiff was a patient at a clinic. While at the clinic, an employee attempted a venipuncture in the plaintiff’s right arm. Apparently, the employee did not have permission to conduct the procedure, and as a result of the attempted venipuncture, the plaintiff suffered serious injuries.

The Element of Causation in Washington, D.C. Medical Malpractice Cases

January 31, 2019 | Lebowitz & Mzhen

In a Washington, D.C. medical malpractice case, a plaintiff must be able to establish that the care provided by the named defendants fell below the applicable standard of care. In addition, a plaintiff must show that a defendant’s act or omission was the cause of their injuries. This is referred to as causation. A recent case issued by a state appellate court discusses causation in the medical malpractice context.

The Facts

According to the court’s opinion, the plaintiff noticed a large mass on the back of her head. She went to the doctor, who diagnosed the mass as a tumor, and was referred to a neurosurgeon. The neurosurgeon determined the mass was an osteosarcoma that was dangerously close to the plaintiff’s brain. He recommended surgery to remove some of the tumor’s mass, to be followed by radiation or chemotherapy. The plaintiff agreed to the surgery.

The neurosurgeon ordered several tests to be conducted by the plaintiff’s primary care doctor to ensure that her body was in good enough condition for the surgery. Evidently, the test results were abnormal. When the plaintiff went in on the day of surgery, the anesthesiologist reviewed the plaintiff’s chart and noticed the abnormal results; however, upon further review, he determined the plaintiff was fine to proceed with the surgery. The anesthesiologist did not inform the surgeons of the abnormal test results.

Court Reverses Jury’s Zero-Dollar Damages Award Based on Finding That It Was “Clearly Inadequate”

May 23, 2018 | Lebowitz & Mzhen

Recently, a state appellate court issued a written opinion in a personal injury case raising an issue that occasionally arises in Washington, D.C. medical malpractice cases. Specifically, the court was tasked with determining if the jury’s zero-dollar damages award was sufficient or if the plaintiff’s motion for a new trial should be granted. After reviewing the evidence, the court concluded that the jury’s award was “clearly inadequate,” given the facts that were accepted as true.

The Facts of the Case

The plaintiff, an elderly woman, woke up one day with a terrible headache accompanied by vomiting and diarrhea. After two days, the plaintiff’s symptoms did not subside, and she had her husband take her to the emergency room at the defendant hospital. Believing that she may have had a bad case of food poisoning, the woman explained her symptoms to the intake nurse, including her headache.

Throughout the plaintiff’s stay at the hospital, she complained of a headache and other various gastrointestinal issues. However, the intake nurse failed to note that the plaintiff was complaining of a headache. Thus, the plaintiff was diagnosed with high blood pressure with diarrhea and vomiting with no particular cause and was discharged with instructions to make an appointment with a primary care doctor for a follow-up.

Court Excuses Plaintiff’s Untimely Filing Based on Dentist Fraudulently Concealing Potential Malpractice

May 2, 2018 | Lebowitz & Mzhen

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.

Ultimately, 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.

The Importance of Connecting the Dots in a Washington, D.C. Medical Malpractice Case

March 11, 2018 | Lebowitz & Mzhen

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.

Causation 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.

Medical Malpractice Plaintiff’s Case Dismissed for Lack of Expert Testimony

November 9, 2017 | Lebowitz & Mzhen

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.”

The 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.

Medical Malpractice Lawsuit Dismissed by Court Based on Plaintiff’s Failure to Prosecute

September 25, 2017 | Lebowitz & Mzhen

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.

While 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.

Plaintiff’s Improper Service of Defendant Results in Dismissal of Wrongful Death Case

September 18, 2017 | Lebowitz & Mzhen

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.

The 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.