Common Maryland Medical Malpractice Questions

If The Medical Malpractice Resulted in Death, Who Can Sue?

Maryland law classifies wrongful death plaintiffs as “primary” or “secondary” beneficiaries.

Primary beneficiaries are the surviving spouse, parents, and children of the deceased person. Any and all primary beneficiaries can bring a wrongful death case in Maryland.

Secondary beneficiaries are the surviving siblings, cousins, nieces, nephews, and other relatives of the deceased. Secondary beneficiaries If may bring a claim if there are no primary beneficiaries, or if no primary beneficiary is willing to bring the claim to court

It is important to understand that wrongful death claims are not the same as “survival actions.” A survival action is the claim a deceased person had a right to bring for damages that resulted from the medical malpractice and that he/she suffered prior to death. The survival action claim belongs to the Estate of the deceased person not any one of the individual beneficiaries. Therefore, the survival action claim must be brought by a legally appointed Personal Representative. Many times, the Personal Representative will also be one of the primary beneficiaries.

DAMAGES IN A MARYLAND MEDICAL MALPRACTICE WRONGFUL DEATH CASE
Beneficiaries may collect lost financial support they were receiving from the deceased person.Beneficiaries may also collect monetary compensation for the loss of the deceased person’s care, companionship, and guidance. There is no way to mathematically calculate these damages. Juries are simply asked to place whatever value on the loss the jury sees fit.

 

However, regardless of the jury award, Maryland places a limit (“cap”) on these non-economic damages. The cap is based upon the date of the injury and the number of beneficiaries. Juries are not told about the cap. If the jury awards more than the cap, the judge simply reduced the award to the cap amount after the jury is sent home.

DAMAGES IN A WASHINGTON, D.C. MEDICAL MALPRACTICE WRONGFUL DEATH CLAIM

There is no “cap,” or limit, on the damages a family can recover in a Washington, D.C. wrongful death action. However, beneficiaries in a wrongful death claim may not seek damages for sorrow, mental distress, grief, or the loss of love and affection.

The law requires the personal representative of the deceased person’s estate must be the person to file the wrongful death claim. The claim is filed on behalf of the surviving spouse or domestic partner of the deceased person.

If there is no surviving spouse or domestic partner, the “next of kin” may file the wrongful death lawsuit in a D.C. court. Next of kin may include children, parents, or siblings.

DAMAGES IN A WASHINGTON, D.C. WRONGFUL DEATH CASE MAY INCLUDE RECOVERY OF AMOUNTS FOR:
  • funeral and burial expenses
  • medical bills, including emergency care, related to the deceased’s last illness or injury
  • lost wages and benefits the deceased would likely have earned if he or she had lived until retirement,
  • other contributions the deceased would likely have made to support, care, companionship, and other services for his or her surviving family members.

If damages are awarded in the wrongful death claim and the deceased person had a will or other estate plan, they are paid to the estate, which distributes them to the spouse, domestic partner, children, parents, or other next of kin in proportion to the loss each suffered.

IF THE DECEASED PERSON DIED WITHOUT A WILL, DAMAGES ARE ALLOCATED AS FOLLOWS:
  • all to the spouse, if there are no children or parents
  • two-thirds to the spouse, if there are children who also belong to the spouse, and the remainder to the children
  • one-half to the spouse, if there are children who belong to the deceased person but not the spouse, and the remainder to the children
  • three-quarters to the spouse, if there are no children but at least one surviving parent of the deceased person
  • entirely to the parents, if there are no spouse or children; and
  • entirely to the siblings, if there are no spouse, children, or parents.

How many medical malpractice deaths are there per year?

A study done by Johns Hopkins University in 2016 estimates that there are 250,000 deaths due to medical malpractice each year in the United States. In Maryland, there are an estimated 836-1,862 medical malpractice deaths each year.

How can you prove medical malpractice?

  • In order to prove medical malpractice, you must prove that
  • A duty of care was owed by the hospital or doctor to the patient;
  • The standard of care was breached;
  • The breach was the proximate cause of an injury; and
  • Damages resulted from the injury.

What causes medical malpractice?

  • According to the American Board of Professional Liability Attorneys (ABPLA), medical malpractice is when a doctor, healthcare professional, or a hospital causes an injury to a patient through a negligent act or omission.
  • Examples of medical malpractice by medical team: misdiagnosis or failure to diagnose, prescribe wrong medication or wrong medication dosage, surgical errors, errors relating to childbirth, or communication error among your medical team.
  • Examples of medical malpractice by hospital or medical center: failure to maintain equipment, failure to provide clean and sanitary environment, failure to adequately train doctors and hospital staff, or failure to put in place necessary procedures and systems to ensure effective communication among care team.

Where to Report Medical Malpractice

  • To report medical malpractice against a hospital or healthcare center, contact the Maryland Office of Health Care Quality.
  • To report medical malpractice against a doctor, contact the Maryland Board of Physicians.
  • To report medical malpractice against a nurse, nursing assistant, or medication technician, contact the Maryland Board of Nursing.

How much does it cost to hire a lawyer for malpractice case?

Nothing. Most experienced medical malpractice lawyers work on a contingency fee basis. This means there is no cost to you unless there is a recovery. If there is a recovery, then a legal fee will be charged as a percentage of the gross amount recovered. After the fee is deducted, the costs to bring the malpractice case will then be paid back to the law firm from the remainder of the recovery.

How much money can be recovered in a medical malpractice case?

SETTLEMENTS AND VERDICTS IN MARYLAND
In Maryland, victims of medical malpractice are entitled to recover the value of their past and future lost wages, past and future medical and care expenses, and past and future lost household services. Medical malpractice victims are also able to recover an amount of money for their conscious pain and suffering. However, there are laws in Maryland that place a limit (“cap”) on pain and suffering damages. The cap came into effect in 1985. Since then, it has been both increased and modified by the Maryland State Legislature. The cap that applies to each case is based upon the date of the injury.

SETTLEMENTS AND VERDICTS IN WASHINGTON, DC
Victims of medical malpractice are entitled to recover the value of their past and future lost wages, past and future medical and care expenses, and past and future lost household services. Medical malpractice victims are also able to recover an amount of money for their conscious pain and suffering. The District of Columbia, unlike Maryland, does not place a limit on conscious pain and suffering damages.

Why do attorneys turn down medical malpractice cases?

The main reason a case is not accepted for investigation, or is declined after investigation, has to do with the business model of contingency fees. Medical malpractice lawyers who represent patients work on a contingency fee. That means the lawyers and law firms do not charge by the hour, and do not expect the clients to pay for the costs associated with the investigation and prosecution of their case.

Instead, the law firm only receives a fee on cases that resolve in the client’s favor. Furthermore, because clients with unsuccessful cases are not expected to repay the firm for case expenses, those cases not only fail to earn a fee, but also result in a financial loss to the firm.

The costs associated with the investigation of a medical malpractice case are usually between $5,000 and $15,000. If the investigation results in the case being filed, the costs to prosecute the case is usually between $30,000 and $100,000. If the case can not be settled, it will proceed to trial. Trial of a medical malpractice case can cost an additional $20,000 to $50,000. These amounts do not represent legal fees. They are not the amount of money being paid to the lawyers working on your case. They are the expenses that must be incurred to properly handle your case. They include the cost of medical record copying, expert witness fees, court reporters, transcripts, court fees, exhibit preparation and travel. Contingency fee clients are not expected to pay these costs. The risk of recovery of these costs, and of obtaining a legal fee is borne solely by the law firm.

This business model has the benefit of allowing clients to retain an attorney to investigate their case who could not otherwise afford to pay the costs and fees up front. However, it is evident that the model also requires lawyers who want to stay in business to select cases that have a significant probability of success. We sincerely try to help everyone who calls us. However, the reality of economics gets in the way at times.

Why did the lawyer I called send my Medical Malpractice case to someone else?

There are several reasons a lawyer may “refer” your medical malpractice case to another attorney.

  • The lawyer you originally called may not have the experience or resources necessary to properly handle a medical malpractice case.
  • The lawyer you called may be in the business of referring cases to other lawyers. Some law firms specialize in connecting clients with attorneys. For this service, the law allows these firms to receive a “referral fee.” The referral fee is paid to the original firm you called by the firm that ends up taking your case, and should not result in you paying a higher fee.

At D’Amore Personal Injury law, we believe that the law firm you called is the law firm you should get. However, our resources are not infinite. Cases come up where the involvement of another law firm is beneficial to our clients. In those cases, we partner with outside counsel to ensure we are helping the greatest number of people possible.