Originally posted at Breaking Legal News. Please visit http://www.breakinglegalnews.com/.

Los Angeles County has settled a medical malpractice lawsuit with a patient at Harbor-UCLA Medical Center who claimed that one of her blood vessels was punctured by a catheter tip during a medical procedure. The woman suffered further complications from the injury but was released a few days later.

This is from the article I read:

County officials said they believed they cared for the patient properly but would be hampered in court by the Res Ipsa Loquitur doctrine. The doctrine says an entity is presumed to be negligent if it had “exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened,” according to the website law.com.

Res ipsa loquitur in this medical malpractice case? What on earth are they talking about? I'm not saying res ipsa can never be applied in a malpractice case (read Orkin v. Holy Cross Hosp, Inc., 318 Md. 429 (1990) but that's a pretty big matzah ball to leave hanging out there. You are the Los Angeles Times. Tell us a little more than that.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

I'm squinting my eyes but I still cannot get the correlation between the national debt and limiting medical malpractice lawsuits. This Huffington Post commentary points out the insanity of including medical malpractice reform on our "to do" list to tackle the national debt. The "Bristol Palin as America's Next Sweetheart" like stretch: if doctors made more money, it would reduce medical costs and Medicare would be cheaper.

If the Baltimore Orioles would get better baseball players, the people of Baltimore would become happier and more productive. Baltimore could not contain these good vibrations to its own borders. The economy would improve, more people would pay taxes, and we could reduce the national debt.

How is that logic different from the idea that reducing malpractice lawsuits would reduce the national debt?

The blog post leaves out another reason why the notion is insane. Medicare makes a fortune in successful malpractice cases because it asserts it subrogation interests and is repaid a significant amount of money (I would love to see data on how much but I'm sure it is billions) it spends on medical care that results from malpractice (and accidents, product liability claims, and other torts).

It is a reasonable view to support medical malpractice reform. I completely disagree with it for scores of reasons. But I can admit that people smarter than I support limiting malpractice lawsuits in this country. (I think.) What I will not concede is that there is even a reasonable argument that limiting the rights of medical malpractice victims will help reduce the national debt.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

You are a lawyer looking for an expert in a medical malpractice case in Maryland. You find one you think is perfect. She has strong opinions, a great reputation, and will be able to communicate well with the jury. You have just one problem. Although your expert is intimately familiar with the care/procedure at issue, she is board certified in a different practice area. (I would like to dedicate this paragraph to basketball analyst Hubie Brooks, who virtually invented this talking in the second person style.)

Maryland malpractice lawyers deal with this type of quandary all the time and often feel compelled to err on the side of caution and find an expert in the exact same specialty as the doctor suspected of malpractice. You err on this side because you just know that the malpractice defense lawyers on the other side are sure to bring a motion to dismiss your case. Best case scenario, you have a hassle on your hands. Worst case scenario, you run into the wrong judge who dismisses your case.

This scenario played itself out in a medical malpractice suit filed in U.S. District Court in Greenbelt. Defendants' malpractice lawyers sought to dismiss Plaintiffs' malpractice lawsuit against three of the four defendants because Plaintiffs' certifying expert is a pediatrician and not an emergency room doctor or an internist (there was also a pediatrician defendant who, of course, had no basis to join in the dismissal). The Defendants' argued that having a pediatrician was the exact purpose of the statue in the first place, to heel "hired gun experts from freely roaming outside of their chosen fields, and opining on standards of care that they cannot possibly address, based on the scope of their training and certifications."

(Hired gun experts. Funny hearing that from defendants' malpractice lawyers. Of course, the experts defendants' attorney retained are not hired gun experts. They are just great doctors and great humanitarians, who, like Derek Jeter, would play for free. The hundreds of thousands of dollars they make testifying is a mere byproduct of their good work.)

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

Jury Verdict Research published a study this month that found that medical malpractice plaintiffs receive an average of $983,769 for being "incorrectly diagnosed with a serious illness resulting in fear or unnecessary treatment." For once, the median is not far behind the average. The median misdiagnosis verdict was $843,362.

To provide a contrast, the study also provided the most recent national data for medical malpractice verdicts. The average medical malpractice verdict in the United States over the last 11 years is $713,457. The median malpractice verdict is $196,500. Approximately 15% of malpractice awards exceed $1,000,000 which certainly inflates the average, although a number of these verdicts are not collectable because of either caps on noneconomic damages or because the doctor did not maintain malpractice insurance.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

The Maryland Court of Appeals affirmed the dismissal of a medical malpractice lawsuit against a doctor for procedural reasons in a 4-3 opinion issued this morning.

Filed in Anne Arundel County, this wrongful death malpractice claim alleged that a dermatologist failed to perform a timely biopsy of a mole that later proved to be melanoma and caused a man's death.

It is a long opinion. It spends a good bit of time on the "law of the case" doctrine and the unique application of that doctrine in this case where the Court of Appeals grabbed the case before the Court of Special Appeals hears the arguments. Pretty boring. The highlights of the case are, however, of importance to every medical malpractice lawyer in Maryland:

• A certificate of merit must include an expert report. Period. But then I think arguably the court left the door a little ajar as to whether the certificate itself can meet the requirements of the report. The court writes that there is no evidence as to how the doctor breached the standard of care, noting that "the certificate does not otherwise meet this requirement...." If it had, would that have made a difference? I'm not sure. The take home lesson for Maryland malpractice lawyers: never be the lawyer who finds out the answer to this question.
• Malpractice lawyers do not need to specifically allege who it was that breached the standard of care if it is otherwise obvious as it is in the single defendant case. Substance is elevated over form, at least on this sub-issue.
• The certificate of merit's job is to serve as a barrier for claims that lack merit. A certificate of merit in Maryland does not need to state the qualification of the expert or certify that the expert spends less than 20% of their time on forensic activities.
• Certificates of merit do not have to be expressed in terms of "reasonable degree of medical probability." Certainly, an expert's testimony at trial needs to include the magic language but it does not have to be in the certificate of merit.
• Doctors do not waive their rights to challenge a certificate of merit by waiving out of health claims arbitration. The court noted their own silence on whether there could be conditions under which a doctor could waive their rights.
• It was not an abuse of discretion for the trial judge to refuse to extend the deadline to file a certificate of merit that complied with Walzer.

Defendant's lawyer filed a motion to dismiss 18 months after the plaintiffs' filed their malpractice lawsuit. Why wait 18 months? The defendant's lawyer's motion was precipitated by the court's finding in Walzer v. Osborne just a month before. Every plaintiffs' medical malpractice lawyer in Maryland thought Walzer imposed new requirements to file a medical malpractice lawsuit in Maryland. Obviously, defense lawyers did too, waiting to make these procedural arguments until just after Walzer. Even Maryland's high court seems to agree, noting the "not coincidental" timing between the doctor's motion and Walzer. But Walzer was not the first time, nor will it be the last, that an appellate court calls its ruling existing law and practicing lawyers believe it to be new law. The Supreme Court does it all the time too. It is the nature of the beast. It is just like having an answer to a math problem in the back of the book and then creating the answer. The only thing that makes this a little different is the court seems to acknowledge that Walzer took Maryland malpractice lawyers by surprise when it noted the timing of the doctor's motion.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

You really should read Colin Son's guest blog on KevinMD yesterday. Dr. Son uses two quotes to make a point I really don't know that he needed to make: doctors are more important than lawyers. The first quote is by a lawyer suggesting a lawyer is America's most important job. The second quote is by a journalist who suggests that being a reporter is harder than being a brain surgeon.

Dr. Son disagrees. Okay, fair enough. But Dr. Son feels compelled to take it a step further. Lawyers and journalists, he announces, are inferior professions to medical doctors.

We can all agree that President Obama's life to more important to society than, say, Brett Favre. It is an obvious fact. But if President Obama were to announce this tonight at a press conference, we would all conclude that he had lost his mind.

Similarly, I'm inclined to agree with Dr. Son that doctors are generally more important than lawyers. I might change my view if I was wrongfully accused of a crime. But if someone asked me if I could have the best doctor in the world or the best lawyer, I would take the best doctor in a heartbeat. But the fact that a doctor feels compelled to make this point is, at best, unnecessary and self-aggrandizing, and, at worst, creepy.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

Consumer Reports does just this. Here are the rankings for Maryland health insurance providers: (1) Aetna, (2)CareFirst Blue Choice, (3) CIGNA HealthCare Mid-Atlantic, (4) Coventry, (5) Employer Health Programs, (6) Kaiser, (7) MD - Individual Practice Association, (8) Optimum Choice, (9) Uniformed Services Family Health Plan, and (10) UnitedHealthcare.

You can find the list here. If you are a member of Consumer Reports, you are allowed to see... well, just that, this list. You have to add to your membership ConsumerReportsHealth.org which provides the rankings for consumer satisfaction, prevention, and treatment.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

Both doctors' groups and medical malpractice lawyers are preening about a new study that shows that the cost of medical malpractice in the United States is 2.4% of annual health care spending.

Medical malpractice lawyers say the study shows that medical malpractice tort reform would have little impact on our health care costs. Doctors' groups point to the fact that 2.4% equals $55.6 billion a year, a daunting number even in the post-TARP era when $500 billion is a mere half of a stimulus package.

But here is how the numbers break out:

• Indemnity payments: $5.72 billion, of which $3.15 billion represents payment for economic damages; $2.4 billion for noneconomic damages; and $170 million for punitive damages. This includes the attorneys' fees of medical malpractice lawyers who represented the plaintiffs.
• Administrative expenses: $4.13 billion, which includes $1.09 billion in fees to defense attorneys; and $3.04 billion in overhead expenses. (Estimated fees to plaintiffs' attorneys were $2 billion, but that amount is included in indemnity payments.)
• Defensive medicine costs: $45.59 billion, of which $38.79 billion was estimated as the cost of hospital services and $6.80 billion as physician services.

There is something incredible in these numbers that no one is talking about. The researchers said their estimate includes $45.59 billion in defensive medicine care where doctors prescribe treatment and tests that may harm or expose the patient to risks simply because they want to avoid medical malpractice lawsuits. So health care providers spend $45 billion in additional costs (from which they often profit) to protect themselves from $6 billion in risk? If I hired a team of lawyers to oversee everything our law firm does to make sure we are not committing legal malpractice and then complained about the cost...this analogy is not working. Let me try another: imagine hand grenade manufacturers swatting flies with hand grenades and then complaining about the rising cost of hand grenades. (That does not entirely work either but at least it is closer. Because somehow you have to add in the fact that flies landing is actually a harm that is fully insured. But you get the point without my metaphors.) Don't these doctors' groups feel a little odd parading this around? And why is no one pointing this out? This is right up there with Stonehenge on my list of great mysteries.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

The Court of Special Appeals of Maryland issued an opinion today in Powell v. Breslin, which is analyzed on the Maryland Malpractice Attorney Blog.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.