Perhaps surprisingly, medical malpractice causes a high number of deaths in the United States annually. These are complex legal claims almost always require expert assistance. Settlements are hard to win without legal representation, but they can ultimately result in generous compensation.
Background: What Is Medical Malpractice?
When a healthcare professional, typically a doctor or a hospital, injures you through medical negligence, you have a medical malpractice claim. Medical malpractice claims are a species of personal injury claims. They have a reputation for being complex, contentious, and lucrative.
Special Features of Maryland State Law
Maryland imposes specific requirements for filing a medical malpractice lawsuit. Below are some key aspects of Maryland’s medical malpractice laws that differ from the medical malpractice laws of many other states.
The Expert Certificate Requirement
Maryland has instituted an ‘expert rectification’ prerequisite to filing a personal injury lawsuit. Its purpose is to discourage the filing of frivolous lawsuits. Before filing a medical malpractice lawsuit, you must obtain a certificate from a qualified medical expert.
The certificate must include a written statement from a qualified medical expert confirming that they reasonably believe that the defendant failed to meet the applicable standard of care and that this failure (medical negligence) caused your injury.
The Statute of Limitations
The statute of limitations sets the deadline by which you must either file a lawsuit, finalize a settlement, or forever hold your peace. In Maryland, the statute of limitations deadline is five years after the date of the malpractice or three years after the date that you discover it, whichever comes first.
There are exceptions to this rule, of course. Contact a lawyer for assistance.
Damage Caps
Non-economic damages compensate you for intangible losses such as emotional distress or pain and suffering. Maryland has placed an upper limit on the amount of non-economic damages you can receive.
Proving Negligence
Medical negligence consists of two elements–duty of care and breach of duty.
- Duty of care: The defendant must comply with a specific duty of care that is based on their training, their specialty, the patient’s condition, and the community where the doctor provided their services.
- Breach of duty of care: Whatever the doctor’s duty of care, they must have failed to meet its demands. It might have been a breach of commission (doing something inappropriate) or a breach of omission (failing to do something that their duty demanded of them).
You have established medical negligence once you establish duty of care and breach of duty. Establishing medical negligence is not enough to establish liability. However, you must also establish causation and damages (see below). Settlement negotiations will revolve around these four elements.
Using a Medical Expert
One unique aspect of medical malpractice claims is the routine use of expert witnesses. Expert witnesses can be used to establish every aspect of your claim, especially duty of care (what the defendant should have done). Medical experts are useful not only for their testimony.
Expert witness reports can also exert a decisive effect on settlement negotiations. In many cases, both sides will hire experts.
The Expert Witness Industry
Many medical expert witnesses are former doctors who now make their living testifying and preparing reports for medical malpractice claims. You might consider these witnesses inferior–after all, since one side or the other is paying them, couldn’t the opposing party easily accuse them of bias?
But this accusation doesn’t necessarily work in a medical malpractice claim, although it occasionally raises ethical questions. ‘Professional’ expert witnesses are usually the best kind because they are experienced in litigation and will not wilt under cross-examination.
Proving Causation
Two kinds of causation matter–actual cause and proximate cause.
- To establish actual cause, you must prove that your injuries would not have occurred but for the defendant’s negligence.
- To establish proximate cause, you must prove that the harm you suffered was a foreseeable consequence of the defendant’s medical negligence.
Even if you can prove medical negligence, you absolutely must prove causation to win.
Proving Damages
In a medical malpractice lawsuit, you may qualify for the following compensation:
- Reimbursement for your medical expenses
- Lost earnings
- Diminished earning capacity
- Out-of-pocket expenses
- Pain and suffering
- Emotional distress
- Loss of enjoyment of life
- Loss of consortium
There are other forms of damages that you might qualify for. Punitive damages, for example, are possible but very difficult to obtain. If you are a close relative of someone who died as a result of medical malpractice, wrongful death damages apply. You must carefully document any damages you claim.
Filing a Lawsuit
Filing a lawsuit is a near-necessity if you want to win a medical malpractice lawsuit. That doesn’t mean you will end up at trial. Healthcare providers generally don’t like the publicity that a trial brings. It does mean that you will probably have to file a lawsuit to prove to the defendant that you mean business.
There are other good reasons to file a lawsuit as well–to beat the statute of limitations deadline, for example, or to gain access to the pretrial discovery process (see below).
Pretrial Discovery
One of the main problems you’re likely to face in a medical malpractice claim is a lack of evidence. That is because much of the evidence that you need to win will be in the hands of the defendant.
Pretrial discovery is a powerful, court-supervised, evidence-gathering tool that you can use to gather enough evidence to tilt the balance of settlement negotiations in your favor. Below is a sampling of some of the evidence that you might demand from the defendant:
- Medical records;
- Personnel records (performance evaluations, credentialing history);
- Hospital policies and procedures;
- Incident reports;
- Reports prepared by testifying expert witnesses;
- Internal communications, such as emails and text messages; and
- Billing records.
If the defendant refuses to cooperate, you can ask the court to sanction them. Remember, however, that the defense can demand evidence that is in your possession. They might even demand that you submit to an independent medical examination conducted by a doctor of their choice.
Mediation
Many Maryland medical malpractice claims are resolved through mediation. In mediation, a trained third party seeks to help both sides reach a compromise solution. The mediator cannot impose a solution on either party.
Mediation can be a very effective means of reaching a settlement after negotiations reach a stalemate. Other methods of alternative dispute resolution, such as arbitration, are possible.
Settlement
The doctor must personally approve any settlement-–the insurance company cannot approve it, and neither can defense counsel. Doctors can be very stubborn about what they see as an attack on their reputation. Indeed, that is precisely why you need a lawyer.
Most Baltimore Medical Malpractice Lawyers Won’t Charge You a Dime in Legal Fees Unless You Win
A Baltimore medical malpractice lawyer is unlikely to charge you based on ‘billable hours.’ Instead, they use the contingency fee system, where your legal fees equal a pre-agreed percentage of whatever amount you recover. Most of them offer free initial case consultations.
CONTACT OUR OFFICE FOR A FREE CONSULTATION WITH A BALTIMORE PERSONAL INJURY LAWYER
Deciding how to proceed with a personal injury claim can be overwhelming, especially if you are still recovering from injuries and have never dealt with an accident claim. Our Maryland personal injury lawyers handle everything for you so you can focus on healing. Call us at (410) 837-2144 to schedule your free consultation with one of our injury attorneys.
