Medical Malpractice or Mere Negligence?

Would you rather sue a healthcare provider for negligence in Health Claims as a medical malpractice case or would you rather file a simple negligence case in Circuit Court?

If your answer was Health Claims, you need to get your head examined. Filing in Health Claims in Maryland just creates more hoops that you need to jump through.  Are they manageable?  Absolutely.  But when it comes to Byzantine rules and conditions precedent, sign me up for the path of least resistance wherever possible.

Is it Negligence or Medical Malpractice?

medical malpractice negligenceThe determination of whether a claim against a health care provider belongs in Health Claim is based on whether the claim involves a “medical injury” as defined by MD. CODE ANN., CTS. & Jud. PROC. § 3-2A-01(g)  The statute states a “medical injury” is an “injury arising or resulting from the rendering or failure to render health care.”  Not every tortious injury inflicted on a patient by a healthcare provider is medical malpractice.  The distinction between ordinary negligence and malpractice hinges on whether the mistake involves a matter of medical science or act requiring special skills not possessed by laypersons. So if the negligence or lack thereof can be assessed based on the common everyday experience of the jury, it is not a medical malpractice case.

What constitutes a “medical injury” in Maryland? This has been the subject of a few Maryland appellate cases.  It is clear that intentional torts like assault and battery are not subject to Health Claims.  So if a doctor intentionally hits a child while removing stitches, that claim will not be subject to health claims. But we are talking about classic assault and battery.  You can’t just call it assault and battery if it is actually a medical injury.

The Practical Problem on Close Calls

Many victims file pro se cases against doctors outside the Maryland health claims process.  This is because they either can’t comply with the requirement, they cannot get a doctor to sign a certificate of merit or because they do know of the requirement in the first place.  So it is easy to take a chance and file a straight negligence claim because the alternative is no claim at all.

Miller & Zois has never filed a claim against a health care provider outside of health claims arbitration.  The problem is, why would you take the risk?  The health claims arbitration process is an enormous hassle, but it is one we navigate with ease.

The risk of getting it wrong is twofold.  The first risk is you can have your case dismissed with prejudice.  But in litigation, you not only want to win, but you also want to win big and easily.  If you file a case with a malpractice flavor as a simple negligence case, you better get a trial judge that sees it the way you do. Because if that judge does not, you will find yourself with an appellate case.

Even if you are right and you eventually win in the Court of Special Appeals or the Court of Appeals, you still lose. Because you have wasted precious time and resources to get back to where you started.  That is one thing I have figured out in the last 20 years: you can lose even when you win by fighting battles that never needed to be fought in the first place.





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