Maryland Injury Law Center

Medical malpractice lawyers, victims’ advocacy groups, doctors (and their lobbyists), and insurance companies have produced a heretofore unprecedented spate of editorials on medical malpractice reform in the last few months. Even I’m bored with it.

But a recent editorial in Salon is a little different because the message—that medical malpractice tort reform is not the answer—comes from a pediatrician. The doctor methodically and concisely attacks the premises behind the tort reform movement, including the idea that there is a pandemic of frivolous medical malpractice lawsuits:

Instead of a swamp of frivolous lawsuits, what the data shows is a system that functions. Insubstantial claims tend to collapse, while the medical industry usually opts to pay off injured patients instead of going to trial. The doctors and the insurers choose to fight to win when they think they can, and when there is enough money at stake, and usually do win.

This morning I blogged about University of Maryland Medical Systems v. Waldt in one of the longest posts in Maryland Injury Law Center history. Apparently, considering my blog post and the criticisms in the post, the Maryland Court of Appeals withdrew the opinion. (Okay, maybe it did not happen quite that way. But allow me to pretend.)

What does this mean? I have no idea. The Maryland high court substantively changed its opinion a few years back in Erie v. Heffernan on the question of the impact of insurance companies waiving subrogation in uninsured motorist claims. But the court reaffirmed the deleted portions of the opinion in Heffernan in Maurer v. Pennsylvania National. I’m still perplexed by the thinking on all of that to this day. I’m sure there was a logical reason. But the Maryland Court of Appeals does not share its thinking on these things.

Anyway, the Vegas odds are that this means nothing of great substance. I doubt one of the four judges in the majority will flip and join the dissent to make a majority. The changes could just be trivial. But anything is possible and we will have to wait and see.

The Maryland Court of Appeals reached a decision in University of Maryland Medical System v. Waldt, a case that is reverberating among medical malpractice lawyers in Maryland. (Note: In yet another incredible turn, the Maryland high court has – temporarily at least – withdrawn this opinion.) Yet the back story is better than the case. Two of the most prolific lawyers in Maryland’s history tried this case: Steve Snyder and Billy Murphy. As discussed below, Steve Snyder said he would retire if he lost this case on appeal. (I think he will get a takey-backsie on this one.) In the trial, the Baltimore City judge that tried the case had to give this admonition:

“This is it. Last warning to everybody,” she said. “No finger-pointing, children. No stomping your feet. No screaming. No yelling. No dancing around. No calling names. No throwing sticks and stones. No putting gum in each other’s hair.”

So it got out of control. (More on that later.) But this opinion is important; the underlying trial was an epic and personal war, and Maryland malpractice law is much more clear or an abyss of confusion, depending upon who you ask. While you take a breath, let’s talk about the facts.

This is the tragic case of a Mount Airy woman who was paralyzed on her left side as the result of an operation to treat a brain aneurysm. Plaintiff underwent a procedure at the University of Maryland Hospital to treat an aneurysm which caused bleeding that lead to her injuries, according to the evidence offered by Plaintiff’s attorney at trial.

At trial, Plaintiff called an expert to offer opinions both on the standard of care and on informed consent. The trial judge, Baltimore City Circuit Court Judge Lynn Stewart, excluded the expert’s testimony because the expert devoted over 20% of his professional activities to activities that directly involve testimony in personal injury claims. (Maryland law requires malpractice experts to spend less than 20% of their time in medical malpractice or other personal injury cases.) Because this was the Plaintiff’s only expert, the court directed judgment in favor of the Defendants.

The expert was not just some random guy. He held positions at Massachusetts General Hospital, Harvard, and John Hopkins. The doctor was also not caught up in the medical malpractice testifying racket: he made less than $50,000 a year. He had not, however, seen patients since 2001 and was no longer licensed to practice medicine in the United States. Interestingly, he said he had a medical license in France, but only to write prescriptions for family members. His professional activities included conducting literature peer reviews, reading journals, observing procedures, and discussing patients with former colleagues. His testimony at trial:

Murphy: Now, you testified that you no longer practice medicine but you handle cases for plaintiffs’ lawyers who are suing others for malpractice?

Expert: Yes.

Murphy: That’s all you basically do now except for read journals and go to an occasional meeting, right?

Expert: Yes.

Murphy: So, you are a professional witness, sir, aren’t you?

Slutkin: Objection, your honor.

Judge: Overruled.

Murphy: You are a professional witness, aren’t you, sir?

Expert: I guess I am.

The Maryland Court of Special Appeals disagreed that the expert should be disqualified, finding that the evidence showed that the expert did not violate the 20% rule. The Maryland Court of Appeals reversed and affirmed the judgment.

(Brief intermission: technically, it is the Court of Special Appeals of Maryland and the Court of Appeals of Maryland. But I think it sounds funny.) Continue reading

The Georgia Supreme Court recently ruled in Condra v. Atlanta Orthopaedic Group on an interesting issue in medical malpractice cases: can the standard-of-care medical expert be subject to cross-examination about what the expert would have done if the doctor had treated the patient?

(If you are not interested in the nuance of the facts, skip the next two paragraphs to cut to the chase.) Plaintiff went to an ortho for back, neck and arm pain. The ortho prescribed a 30-day regimen of the anti-convulsive drug Tegretol, which was followed by another 30-day regimen when the patient failed to improve. During the second regimen, Plaintiff experienced leg cramps and shortness of breath. Ultimately, she was diagnosed with aplastic anemia, an awful bone marrow disease where the bone marrow does not produce sufficient red blood cells, requiring many a bone marrow transplant. (Marie Curie was thought to have died because of aplastic anemia.) Plaintiff’s lawsuit against her doctor, who belongs to a huge Atlanta orthopedic practice, alleged that Tegretol was the wrong drug to prescribe and that the doctor should have monitored Plaintiff’s blood count during the Tegretol therapy. Had he done so, according to Plaintiff, they could have avoided this terrible disease.

The doctors’ experts admitted that there is medical literature to support blood count monitoring during Tegretol therapy as appropriate but weaseled out by arguing that it was not “mandatory or essential” even though it was both experts’ regular practice. They also fought the doctor’s malpractice lawyer’s favorite alternative argument: it would not have made a difference if he had done what the Plaintiff’s experts said should have been done because blood monitoring would not have detected aplastic anemia.

The key point on appeal was whether the defendant’s experts could be cross-examined on the fact that it was their practice to do the very thing that they testified was not a breach of the standard of care. So the defendant doctor’s expert says in the deposition, “Sure, I do what you say the doctor should have done in this case but the standard of care does not require it.”
The point here is not subtle: Plaintiffs’ lawyers want the jury to conclude that if the defendant’s experts are taking the same precaution that they claim is above and beyond the standard of care, it underscores what the real standard of care is. Think about it. If a doctor testifies that the defendant’s failure to take a precaution conforms with the “acceptable standard of care”, the credibility of that doctor’s testimony is severely diminished if the medical expert concedes on cross-examination that he/she does exactly what the plaintiff contends should have been done.

No one can argue that the standard of care cannot be established by what the defense expert does. But while the expert’s personal practices may not establish the standard of care, if even the doctors selected by the defendant’s malpractice lawyer are doing what the plaintiff says should have been done, it is powerful evidence. This is true in the actual world where most doctors’ opinions about the standard of care are not based on real data but what the doctor believes is—or should be – the standard of care. Continue reading