Articles Posted in Medical Malpractice

[I updated this post in 2020 with Baltimore-area shoulder dystocia verdicts and settlements at the bottom of this post.]

A Baltimore jury yesterday found a doctor responsible for the brain injury and death in 2003 in a shoulder dystocia case and awarded the child’s parents $8.1 million. The damages are limited to just over $2.1 million under Maryland law putting a cap on awards for pain and suffering.

During the delivery of the child at Mercy Hospital, the child’s shoulders became stuck in the birth canal. This condition, known as shoulder dystocia, occurs when the child’s head can clear but the shoulders require additional medical maneuvers for the child to be delivered. In shoulder dystocia cases, one shoulder of the baby usually is trapped behind the mother’s pelvis, obstructing the baby’s breathing. It is hard to conjure up a more horrific case. This Baltimore jury that heard all the evidence in this medical malpractice case determined the damages at $8.1 million. Why do we have a law in Maryland that only awards these Plaintiffs about one-fourth of what the jury believed was appropriate?

Virginia Lawyers Weekly reports today on a $1,000,000 settlement in a medical malpractice Erb’s palsy case. The interesting thing about this case is that the injuries occurred during a cesarean section. The father of the child claimed he witnessed the obstetrician applying excessive force to the fetal head after the baby’s shoulder did not clear. Plaintiff’s expert testified the doctor failed to make the incision large enough to extract the baby’s head and then inappropriately applied traction to the baby’s still entrapped head. Fortunately, the doctor promptly diagnosed the child with a brachial plexus injury confined to the child’s neck (at C5/C6). After surgery, the child has a good prognosis for a functional arm and hand.

Shoulder dystocia cases are not rare but this is the first case I have seen or read about where the OB/GYN’s malpractice was failing to make a large enough C-section incision.  There are many claims that involve failing to provide a c-section.

These injuries occur with babies that are much larger than typical or, as is frequently the case when the mother has diagnosed or undiagnosed gestational diabetes (or is just a diabetic).   The big thing with this problem is seeing the problem before it manifests itself.

The Maryland Court of Appeals> overturned a lower court in a 4-3 decision in Goldberg v. Boone, a Montgomery County informed consent case.

Facts of Goldberg v. Boone

Plaintiff underwent a mastoidectomy (an operation on the mastoid bone, which is the prominent bone behind the ear, to remove a cholesteatoma (a rare condition in which skin cells proliferate and debris collects within the middle ear). During the procedure, the doctor accidentally drilled a hole into Plaintiff’s skull.

Sixteen years later, Plaintiff saw the medical malpractice defendant otolaryngologist in Rockville, Maryland. The Defendant doctor determined that Plaintiff had another cholesteatoma and performed an outpatient revisionary mastoidectomy on Plaintiff to remove the second cholesteatoma.

The day after the procedure, Mr. Boone began having trouble reading, remembering names, and recalling words. Subsequent MRI and CT scans revealed hemorrhaging and an opening in his skull.

Plaintiff’ filed a complaint against the subsequent doctor, alleging the doctor committed malpractice by negligently puncturing the Plaintiff’s brain with a surgical instrument during the revisionary mastoidectomy, causing serious and permanent brain damage. The plaintiff also alleged that the defendant’s medical doctor failed to inform him that, because of the hole in his skull, the procedure would be more complex than a standard revisionary mastoidectomy and that there was a risk of sustaining brain damage from the procedure.

The plaintiff alleged that there were surgeons more experienced available to perform the procedure in Maryland than the defendant who had performed only one revisionary mastoidectomy in the past three years.

Jury Award

After two days of deliberations, the jury awarded Plaintiff $113,000 for loss of past and future earning capacity, $355,000 for past and future medical expenses, and $475,000 for non-economic damages. The total award was $943,000.

Maryland Court of Appeals Opinion

The Maryland Court of Appeals’ opinion is long. I think two issues are of particular interest: one just for general interest; the second makes what may not be new law but flushes out the extent to which the decision on what they leave to the jury. The issues are:

(1) Where a retained expert is asked a single cross-examination question about his prior inconsistent testimony when testifying on behalf of one infamous Maryland sniper defendant, does that question warrant reversal of the denial of a mistrial motion?

(2) Whether it is a jury question on informed consent when the defendant medical doctor did not disclose his relative inexperience in performing the procedure and advising the Plaintiff that there were more experienced doctors in Maryland available to perform the procedure. Continue reading

Last week, a Baltimore County jury awarded a $2.3 million jury verdict in a stroke misdiagnosis medical malpractice suit in Towson.

The trial before Baltimore County Circuit Court Judge Dana M. Levitz took six days, and the jury deliberated for seven hours before returning a verdict, according to Plaintiff’s medical malpractice lawyer.

Facts

Yesterday’s USA Today ran a story about the often preventable tragedy of undiagnosed heart attacks. It told the story of James Pettry, who woke early one morning short of breath and sweating profusely. His wife dialed 911. The paramedics gave Mr. Pettry oxygen and aspirin and then used an electrocardiogram machine to examine the heart’s electrical function. They believed he had a heart attack and took him 3 miles to the hospital. The emergency room doctor disagreed. The doctor ran some tests, diagnosed him with anxiety, and sent Mr. Pettry home nearly five hours later.

We all know where this story is going. Mr. Pettry died the next day, joining the list of thousands every year who die every year from heart attacks left undetected. In fact, researchers from New England Medical Center in Boston reported in the New England Journal of Medicine in April 2000 that emergency room doctors mistakenly send home one in 50 heart attack victims. Other studies have documented higher rates of missed heart attack diagnosis.

The defendant says that his patient died from chronic heart disease that had no connection to the symptoms that landed him in the ER.

We have seen an increasing number of recent client calls questioning the quality of the care that a family member or friend is receiving in a nursing home. Over 1.5 million Americans are in nursing homes with 30,000 of them in Maryland. That number is rising fast as America continues to age. Baltimore County alone has 49 nursing homes and 299 assisted-living facilities.

How Much Are Baltimore Nursing Home Cases Worth?

According to Jury Verdict Research, 60 percent of personal injury trials involving nursing home abuse or neglect result in plaintiff verdicts. The median verdict is $192,977. The median verdict alleging malpractice in the treatment of a nursing home patient is $275,000.

Medical malpractice plaintiffs receive a median award of $934,487 for medical malpractice claims involving surgical negligence and improper medication, according to a recent Jury Verdict Research study that looked at malpractice cases nationally in the last seven years. Plaintiffs have a 36% chance of prevailing in these cases. The following statistics are the likelihood of a successful verdict:

Failed Sterilization 35%

Catheterization 39%

In Maryland, to bring a medical malpractice complaint against a doctor, you must get a certificate of merit by a medical doctor that the negligent doctor breached the standard of care and caused injury to the injured plaintiff. The qualifications of the medical doctor depend on the subject of the particular claim.

But this there is no getting around this statute.  The certificate of a qualified expert is a required step in pushing a malpractice case forward.  If it does not follow the certificate requirement, the court will dismiss a circuit court action.