Miller & Zois are experienced medical malpractice lawyers. Our law firm’s reputation is not based on television commercials but successful settlement and verdicts. We have secured millions of dollars for our clients in medical malpractice claims that were denied by the insurance companies and their doctors.
Our firm reviews a great number of malpractice claims a year. One big reason: there are many potential claims. An estimated 100,000 – think about that – people are killed by medical malpractice every year. That does not include errors by other health care practitioners, including many doctors, midwives, pharmacists and others. This also does not include the number of people injured, sometimes catastrophically so, by medical malpractice.
It can be difficult to know whether you have a medical malpractice case. Some clients are pretty sure they don’t have a case and they do; others are sure they have a case and they do not. In general, there are four elements to every Maryland medical malpractice lawsuit:
- Duty: The health care provider must have an obligation to the injured person—usually this is satisfied when there is a doctor-patient relationship.
- Breach: The health care provider must have deviated from the acceptable standard of care, meaning that he/she did not act as reasonable health care providers would have acted in the same circumstances.
- Causation: That breach in the standard of care caused an injury.
- Damages: The injury includes legally recoverable damages—for example, cost of past/future medical care, lost wages, pain, mental anguish, inconvenience and disfigurement.
Medical malpractice law in Maryland is complicated and created by statutes, rules of court and appellate court opinions. The best way to determine if you have a medical malpractice case is to contact a Maryland medical malpractice lawyer. But even we will not know right away based on a phone call or a meeting. It takes a full investigation, the collecting of medical records, consulting independent medical doctors, and a host of other steps to find out (1)whether there was malpractice, and (2) if their was an injury from the malpractice. Of course, malpractice alone is not enough: lawyers need to marshal evidence to persuade the insurance company – or, ultimately – a jury.
STATUTE OF LIMITATIONS
The first question in deciding whether a medical malpractice claim is recoverable hinges on what is known as the statute of limitations. Every state, including Maryland, has a deadline to file a lawsuit. For medical malpractice claims, the general rule is this:
You must file your lawsuit within the shorter of:
- Three years from the date the injury was discovered; or
- Five years from the date the injury was committed.
Most of the time, this is fairly easy to calculate. If you go in for surgery, and the surgeon clearly does something wrong that is obvious that day (for example, he operates on the wrong limb), then you must file a lawsuit within three years of that date (because you discovered the injury on the same day as the medical malpractice).
The rule gets complicated when applying the discovery rule, however. Let’s say that the doctor left a surgical sponge in your abdomen. He stitches you up, and you feel fine initially. But you start to develop a little bit of pain about a month after the surgery—it’s nothing major, but a little bothersome. It continues off and on for a year, until finally morphing into crippling pain. You go to the hospital, they take an x-ray, and discover the retained sponge. What is the deadline to file a lawsuit in that case? The answer is simply three years after the injury was discovered, or should have reasonably been discovered. What that means, is that you should file your medical malpractice case as soon as you can within three years of the date of the malpractice, if possible. If you are beyond that three year limit, it may be up to a judge or jury whether you were on notice of a problem within a few weeks after the malpractice, or whether you had a longer amount of time. The best plan is to always act conservatively and investigate your potential claim as early as you can.
There is another exception for minors—children under the age of 18. When a minor is injured, there are typically two claims: one by the parents for medical expenses required during the child’s minority, and the other by the parents for medical expenses required after the age of minority, and for pain, suffering and mental anguish, etc… (in some cases, a minor can recover his/her own minor medical expenses). The child’s claim can be brought anytime before the age of 21—up to three years after the child turns 18.
The other time limit to be aware of is notice. Depending on who committed the malpractice, there may be an obligation to provide formal notice within a certain amount of time to a particular local, state, or federal governmental entity. For example, if the malpractice was committed by an army doctor working within the scope of his employment, formal notice must be given within two years from the time the claim accrued. For claims against the State of Maryland, notice may be required within one year of the date of the injury. For claims against local Maryland governments, notice may be required within 180 days of the date of injury. Every case is different, and failure to give proper notice may forever bar a medical malpractice claim, or there may be a way around it. You should consult with a lawyer immediately if you believe you may have a claim.
HEALTH CLAIMS ALTERNATIVE DISPUTE RESOLUTION
Maryland requires all medical malpractice claims to first proceed through a state institution known as the Health Claims Alternative Dispute Resolution Office (HCADRO). Originally intended as a way to resolve some claims before trial, it has become a clearinghouse for all nursing home and medical malpractice cases in Maryland, a useful location for preliminary discovery, and a source for Maryland medical malpractice statistics.
Even though most cases enter and depart HCADRO with little pomp and circumstance, there are a number of extremely important rules that must be observed. These rules were drafted by the Maryland legislature, and have been interpreted and re-interpreted by the appellate courts over the years. These rules include:
- The filing of very detailed certificates of experts and expert reports, and deadlines to file those documents;
- The qualifications required of experts who testify about the standard of care; and
- The process to waive out of HCADRO which permits filing in a circuit court.
These rules are extremely complicated, and are constantly being reinterpreted by our Courts.
Clients often ask how much their medical malpractice case is worth. There are many variables, including the type of injury, the degree of permanent injury (if any), the location of the lawsuit, and the personalities of the plaintiff and defendant. In general, though, recoverable damages include:
- Past and future medical expenses
- Past and future lost wages
- Noneconomic damages for injury cases: pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium (injuries to spouse and marital unit)
- Noneconomic damages for cases where a death resulted: mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, education
Importantly, noneconomic damages in Maryland are limited by damage caps which change every year (right now, they increase by $15,000.00 every year). The applicable cap depends on the date of the malpractice—for malpractice committed between January 1, 2011 and December 31, 2011, the noneconomic damage cap is ordinarily $695,000.00 (it is higher where there is a death involved).
If you or a loved one has been injured by medical malpractice in Maryland, call today to speak with a personal injury lawyer who handles Maryland medical malpractice lawsuits. You can reach us at 800-553-8082 or by clicking here for a free no obligation consultation on the internet.