About Medical Malpractice in Maryland

In Maryland and most other states, the legal definition of medical malpractice is basically the same. When a healthcare provider fails to use the same skill and care that a reasonably competent health care provider, engaged in a similar practice, would have used in the same or similar circumstances, and if that failure caused actual harm to the patient, the patient has a claim for medical malpractice. This is the actual legal standard that judges and jurors deciding medical malpractice cases are required to use. If you think the standard seems a bit vague and ambiguous, you are not the only one.

First, what is a “reasonably competent health care provider?” Second, how does one define “the same skill and care” that should have been used? Finally, when are the circumstances the “same or similar”?

GETTING ANSWERS

Unfortunately, there are no quick and easy answers to these questions. There simply aren’t any books, formulas, or lists that can be relied on to say “if (insert event here) happened to you, then it was medical malpractice.”

Instead, the law in most places requires anyone who thinks they have a medical malpractice case to hire an expert witness who can provide an opinion that the treatment in question was below the “standard of care.” The expert witness is also required to define the standard of care in the given situation.

Medical Malpractice Examples

If you, or someone you love, has suffered an unintended medical result, you may have a claim for medical malpractice. An “unintended medical result” is an outcome different from the one you and your family expected.

SOME EXAMPLES OF UNINTENDED MEDICAL RESULTS THAT MAY LEAD TO A MEDICAL MALPRACTICE CASE:

  • A child born with a brain injury after an otherwise uncomplicated pregnancy
  • Back surgery that results in paralysis
  • A hospital admission that results in a pulmonary embolism
  • An emergency room visit for chest pain that results in discharge and a heart attack a few days later
  • An undiagnosed cancer
  • A colonoscopy that results in a ruptured intestine
  • Being given the wrong medication

Here is a slightly oversimplified example that may be helpful in understanding why there is no “list” of medical malpractice events.Mrs. Doe has abdominal pain. She goes to see a surgeon, Dr. Cutter, who tells Mrs. Doe he believes she has a cyst growing on her liver. This cyst is causing her pain. Dr. Cutter says he can remove the cyst and her pain will go away. Mrs. Doe agrees to have the operation.

In the operating room, Dr. Cutter discovers the mass is not a cyst, but is actually the largest liver cancer he has ever encountered. Dr. Cutter has almost no experience operating on a tumor of this magnitude. Furthermore, the fact that the mass is cancer (instead of a cyst) means the risk of bleeding during the operation is much higher. Mrs. Doe is asleep on the operating table. She does not know her actual condition is very different from the one she was told she had when she agreed to have the surgery. Mrs. Doe does not know the operation necessary to remove the cancer is much more difficult, and carries a much higher risk of death, than the surgery she agreed to have. Mrs. Doe does not know that Dr. Cutter has very little, if any, experience at operating on a tumor like the one she has. Dr. Cutter could abort the operation, wake up Mrs. Doe and discuss the new findings with her. Or, Dr. Cutter could proceed with the operation, attempt to remove the tumor, and tell Mrs. Doe what happened when she in the recovery room.

Dr. Cutter decides to continue with the operation. Mrs. Doe starts losing blood faster than Dr. Cutter and his team can replace it. Mrs. Doe dies on the operating table.

MEDICAL MALPRACTICE QUESTIONS

Did Dr. Cutter commit malpractice? Wasn’t there a rule that should have governed Dr. Cutter’s decision to stop the operation or to proceed?

Unfortunately, medicine isn’t simple, and every situation presents a different set of problems. If doctors tried to fit every patient into a set of rules, lives would be lost. Therefore, medicine doesn’t have these hard and fast rules. Instead, in order to determine what should have happened during Mrs. Doe’s operation, the law requires us to rely upon experts witnesses. Expert witnesses in medical malpractice cases are usually specialists who have been been practicing for a significant time. They are the doctors who have “seen and done it all”.

THE EXPERT WITNESS

In our example, we would likely seek out a surgeon who specializes in liver cancer. For purposes of our example, let’s call our expert surgeon Dr. Wellby. Dr. Wellby has been a practicing surgeon for over 25 years. She has written textbook chapters on the practice of liver surgery. She has taught surgery to medical students and surgical residents in hospitals. She has successfully operated on large liver tumors, like the one Mrs. Doe had, many times.

We would ask Dr. Wellby to review the facts of Mrs. Doe’s case and analyze the situation based upon her training and experience. She would then decide if Dr. Cutter acted like a reasonable surgeon would have under the circumstances.

Notice that Dr. Wellby would not analyze the case against what she would have done for Mrs. Doe. What Dr. Wellby would have done is not the legal standard. Dr. Wellby may be the best surgeon in the world, and it may be because she does things a bit differently than other surgeons. However, she is only allowed to compare Dr. Cutter’s actions to those that her profession expects of the average reasonable surgeon.

TWO SIDES

Because everyone is entitled to his/her own opinion, different experts will have different opinions. Some surgeons, like Dr. Wellby, will opine the standard of care required Dr. Cutter to abort the operation, and discuss the new findings with Mrs. Doe once she was awake and stable. Expert surgeons hired by Dr. Cutter will most likely opine the standard of care allowed Dr. Cutter to proceed with the operation if, in his judgment, it was the correct thing to do. Both sides will usually have very good arguments for why their opinion is the right one.

WHO DECIDES

So, which expert is correct? Was Dr. Cutter supposed to stop the operation? Was it “reasonable” for him to proceed? These questions will only be answered when the case goes to trial, and they will be answered by the jury.

A jury is a group of citizens from the local community who are asked to decide questions put to them by the parties in a lawsuit. They jury makes its decision based upon the evidence presented at the trial. In our example, if the jury, based on all of the evidence, believes Dr. Wellby, then Dr. Cutter committed malpractice and he is legally responsible for Mrs. Doe’s death. If the jury does not believe Dr. Wellby, then Dr. Cutter did not commit malpractice and he is not responsible for her death.

A GOOD LAWYER

As you can see, whether or not Dr. Cutter will be held accountable for Mrs. Doe’s death really comes down to a battle of opinions. Therefore, the Doe family’s chance of success is critically dependent upon the selection of her expert witness, and her lawyer’s ability to present the case to the jury clearly, concisely, and in a way that motivates the jury to hold Dr. Cutter accountable.