The Wall Street Journal reports today that five New Your City hospitals will embark on a pilot program to reduce medical malpractice insurance premiums and related costs by divulging medical mistakes promptly, by making settlement offers swiftly, and by utilizing specialized "health courts" to resolve disputes and negotiate settlements before litigation is commenced. The participating hospitals are Manhattan's Beth Israel Medical Center, Mount Sinai Medical Center, New York-Presbyterian Hospital, Brooklyn's Maimonides Medical Center and Bronx's Montefiore Medical Center. The goal of the program, funded with $3 million of federal money, is to reduce medical errors. While New York-Presbyterian Hospital will focus its error prevention on surgical errors, the four other hospitals will focus their efforts on reducing obstetric errors which have caused significant increases in malpractice insurance rates.

An important aspect of the program is judge-directed mediation, which has been very successful in reducing New York City's public hospital payouts on malpractice claims by hundreds of millions of dollars over a seven year period. Although the details are still being worked out, Richard C. Boothman, a University of Michigan consultant hired to assist with planning and oversight of the program, has encouraged the hospitals to "handle [claims] in a proactive, principled way . . . [and] if it's a legitimate lawsuit, step up and resolve it."

One concern is that injured patients may resolve their claims without the assistance of legal counsel and may short-sell valuable claims. Although jury trials would still be available to  individuals who participate in the program, the extent to which they are advised and guided in that direction during the claims or mediation process when they are without legal counsel is unclear.

The lawyers at Belsky, Weinberg & Horowitz have written in prior blogs on the need for specialized medical malpractice courts to resolve claims. Our attorneys frequently resolve claims through alternate dispute resolution (ADR) processes of mediation and binding arbitration. Typically, when early ADR is suggested by medical providers or their attorneys, they are, in effect, acknowledging some financial exposure and thus fault for the medical error being alleged. The New York program is an important model to watch over the next several years to determine whether other states, including Maryland, might benefit from a more formalized program of prompt error disclosure and swift settlement of medical malpractice claims.

The Maryland Health Care Malpractice Claims Act, codified at § 3-2A-01, et. seq. of the Courts & Judicial Proceedings Article of the Maryland Annotated Code sets forth onerous rules and requirements plaintiffs must comply with before filing suit against a "health care provider" for medical negligence in any state or federal court. Among other requirements, the Act requires that within 180 days after the claim is filed with the Health Claims Dispute Resolution Office--the state administrative body that receives all medical malpractice suits and which serves more like a clearinghouse than an actual arbitration tribunal-the claimant/plaintiff must file a "Certificate of Qualified Expert" wherein an expert, trained in the same or similar field as the defendant/health care provider, must certify there was a breach of care which proximately caused the claimant/plaintiff's injuries. Once that certificate and an accompanying comprehensive report are filed, the plaintiff (or the defendant) may waive out of the arbitration process and refile the action in any state or federal court where venue and jurisdiction are proper.

Not all medical providers, however, are subject to this mandatory arbitration process in Maryland. The following are "health care providers" subject to mandatory health claims arbitration: hospitals, medical day care centers, hospice care programs, assisted living programs, ambulatory care facilities, physicians, osteopaths, optometrists, chiropractors, registered or licensed practical nurses, dentists, podiatrists, psychologists, licensed certified social workers, and physical therapists. Not included on this list are pharmacists, physician's assistants, nurse practitioners, radiology and other specialized technicians, maintenance and support staff at medical institutions, and employees and staff members at a physician or health care providers' offices.  The claimant must also suffer a "medical injury" arising from the rendition of health care in order for the claim to be subject to mandatory arbitration.  Not all incidents at health care facilities arise from medical treatment or care.

Should you have a claim for medical malpractice, be aware of the strict requirements of the Maryland Health Care Malpractice Act but consult with an attorney before assuming that your claim will be subject to mandatory health claims arbitration. The attorneys at Belsky, Weinberg & Horowitz are trial lawyers skilled in handling all aspects of medical negligence claims from investigation to trial. Should you have questions or need information about the firm's services or your personal injury or health care related claim, please contact the firm.

As with most other business and investment decisions, attorneys are forced to evaluate the merits of malpractice claims and perform a cost-benefit analysis to ensure, to the extent possible, that the time and money invested will bring a return of that investment and adequate compensation to the victim after case expenses and attorneys' fees are paid. Many potential clients contact our office with legitimate negligence claims that we must reject because the cost of pursuing those claims will exceed the likely recovery. Thus, there is a group of small malpractice claims that fall into the proverbial "black hole" where the claim is legitimate but simply cannot be pursued economically.

It's very unfortunate that the costs of litigation are so high. There is essentially no limit at the trial level on the number of expert witnesses a given party may call to support their position. Costs of litigation, including expert fees, trial exhibits, medical records, PowerPoint presentations and the like, can easily rise above $100,000.

Although in Maryland the General Assembly created the Health Claims Dispute Resolution Office as an administrative prerequisite to state court litigation, where the concept in its creation was to streamline malpractice litigation by limiting the number of experts who can be called in a particular field, creating a "fast track" for "trial" of the case, and formulating helpful procedural rules not present in the Maryland Rules of Civil Procedure, the sad reality is that health claims arbitration in Maryland is never used, i.e., the parties waive out of the process at a very early stage, primarily because the findings of the three member arbitration panel who would decide the case have no binding effect in the sense that the losing party can appeal the decision de novo, which means the appeal results in a second trial with more witnesses and lots of wasted time and resources at the arbitration level.

The Maryland General Assembly should consider creating specialized trial courts to deal with medical malpractice claims, where the judges and staff are trained in the nuances of medical malpractice litigation, and who can assist litigants by promptly and efficiently dealing with issues the arise consistently in such cases, such as expert qualifications, compliance with conditions precedent to litigation such as certificates of qualified experts, discovery disputes, and issues related to the scientific, medical and factual validity of the evidence proposed for admission at trial. Specialized malpractice tribunals could also formulate specific procedural rules that limit the length of trial depending on the complexities of the medicine, and restrict parties from indulging in expert "overkill" or spending the opposing party "into the ground." These courts could provide a forum for expedient and efficient resolution of the smaller claims that are presently rejected for the above-stated reasons by most malpractice law firms in the state.

The time has come for specialized malpractice tribunals whether or not health claims arbitration remains a prerequisite to full blown litigation in state court. Please feel free to post your opinions on this subject on the Belsky, Weinberg & Horowitz medical malpractice blog or contact our attorneys for more information.

Some medical malpractice cases are resolved by settlements reached before, during or after trial. A common quid pro quo for settlement of these claims is a confidentiality agreement with terms and conditions which are typically incorporated into the "Release" the settling medical provider requires the plaintiff to sign before payment is made. There are pros and cons to agreeing to confidentiality.

Certainly, health care defendants desire that claims and settlements remain confidential for obvious reason. Likewise, some plaintiffs prefer that their affairs remain confidential. In such a case, the parties are in agreement that the confidentiality is beneficial by protecting their personal affairs from public scrutiny. Other plaintiffs, however, wish the world to know that the provider settled the claim, whether or not he or she admitted fault in the process. Public disclosure and perhaps an apology are frequently motivating factors for bringing claims. When public disclosure is desired, confidentiality provisions should not be agreed to as they will prevent dissemination of information that the plaintiff desires be made public.

In addition to preventing disclosure of the amount of the settlement, confidentiality agreements frequently prohibit the disclosure that a settlement of any amount was reached, or that discussions were undertaken to resolve the claim. Reference to "John Doe" and "Anonymous" in substitution for the parties' true names is usually prohibited as well.

Although many state medical boards are suppose to keep track of malpractice claims resolved against medical providers, many do not learn of the results of settlements due to confidentiality agreements. There are exceptions in some states where governmental agencies are permitted to learn and disclose generic results of confidential settlements, but this writer is aware of more than a few cases where settlements that meet the threshold criteria for public disclosure by state licensing boards do not appear under the settling medical provider's licensure listing. 

Sometimes lawyers will negotiate confidentiality agreements for a price, i.e., they will require the settling health care provider pay for confidentiality in addition to payment for the underlying claim. In many cases, however, confidentiality is presumed and is built in to the settlement offer extended during negotiations.

If you have a case where settlement is being discussed, be sure to ask your attorney about whether confidentiality will be made a part of the ultimate agreement and consider carefully whether this is something you truly desire. Contact the attorneys at Belsky, Weinberg & Horowitz for further information on confidentiality agreements.

We receive a fair number of calls from prospective clients inquiring about whether an internal injury to an organ, nerve or vessel during a surgery on an unrelated area constitutes malpractice. The issue is typically not whether the injury occurred, since insult to "adjacent structures" is a known risk or complication of any surgery and is covered by the typical informed consent form signed by the patient before surgery.

Although the injury itself is a known and assumed complication, the failure to recognize the injury when it occurs typically does amount to malpractice. Therefore, if a bowel or bile duct is cut, or a nerve or blood vessel is severed or compressed, the failure of the surgeon to recognize that the injury occurred, and the failure to act promptly to correct or "mitigate" the injury to reduce the likelihood of worsening or permanent harm, is cause for a claim notwithstanding any informed consent form where the patient otherwise acknowledges the risk and waives a claim.

Injuries to adjacent structures can occur for a variety of reasons. A surgeon's hand can slip while using sharp instruments to dissect tissue. Electrocautery used to cut tissue can arch and burn other areas not within the immediate field of the surgery. A patient may be mispositioned during the surgery causing compression of nerves and vessels. Or a patient's body or extremity may be manipulated in such a way to cause injury during joint replacement surgeries. Unfortunately, a patient under anesthesia cannot react to pain and therefore cannot provide verbal ques to the surgeon that something is wrong or that they are in pain.

The attorneys at Belsky, Weinberg & Horowitz have vast experience with surgical injuries of all types, including those to adjacent structures. Should you wish to discuss a possible claim with our attorneys, please contact our office.

The Maryland Court of Special Appeals today ruled in Murray v. Murray (No. 2432, Sept. Term 2007 (reported)) that a determination of whether a plaintiff's recovery for employment discrimination constitutes marital property for divorce distribution purposes hinges on the classification of the damages awarded by the judge or jury. The Court embraced the "Analytical Approach," under which a judge must determine "what the award, settlement, or judgment was intended to replace" and must consider "the nature of the personal injury award or settlement to explain why the property is the separate asset of a spouse or why it should be considered marital subject to equitable distribution." The Court rejected other approaches that consider the timing of the underlying claim or settlement/award.

In adopting the analytical approach, the Court reviewed four appellate decisions adopting the same approach:  Blake v. Blake, 341 Md. 326, 346-47 (1996 (damage award for personal injuries arising during the marriage); Queen v. Queen, 308 Md. 574 (1987) (workers' compensation benefit payment received during the marriage for injuries occurring during the marriage); Lowery v. Lowery, 113 Md. App. 423 (1997) (workers' compensation lump sum benefit payment received during the marriage for injuries occurring prior to the marriage); and Newborn v. Newborn, 133 Md. App. 64 (2000) (proceeds of a personal injury settlement received by the husband for injuries occurring during marriage).

Ultimately, the Court concluded that the "portion of such claim proceeds which compensates the claimant spouse for lost wages or earning capacity during the marriage, medical expenses paid from marital funds, or for joint loss of consortium, is marital property subject to equitable distribution." By contrast, the Court held that any proceeds awarded or intended "to compensate the injured spouse for future postmarital wages, bodily injury, or pain and suffering [. . .] constitute the non-marital property of the recipient spouse."

Earlier this month, the Court of Appeals of Maryland granted certiorari in a case which raises important issues relative the sufficiency of a plaintiff's expert certification.  One issue of particular interest to the plaintiffs' bar, and which has been raised frequently at the trial level, is whether a defendant who unilaterally waives out of health claims arbitration gives up the right to complain about the sufficiency of the plaintiff's expert certification.  Arguably, since a waiver cannot occur until plaintiff files a "valid" expert certification, the defendant tacitly accepts the validity of the certification by waiving out of health claims arbitration.

Kearney, Gail A., Individually, etc., et al. v. Robert S. Berger - Case No. 125, September Term 2009.

ISSUES - STATUTORY - MEDICAL MALPRACTICE - (1) DID THE TRIAL COURT ABUSE ITS DISCRETION IN RULING THAT APPELLANTS DID NOT HAVE GOOD CAUSE FOR AN EXTENSION OF TIME UNDER MD. CODE, ANN., CPJ SECTIONS 3-2A-04(b)(5) AND 3-2A-05(j)? (2) DID APPELLEE WAIVE HIS STATUTORY RIGHT TO OBJECT TO THE SUFFICIENCY OF THE ARBITRATION PROCEEDINGS WHEN HE UNILATERALLY WAIVED ARBITRATION AND FAILED TO PLEAD ANY OBJECTION IN HIS ANSWER? (3) DID THE TRIAL COURT ERR IN DETERMINING THAT THE APPELLANTS' CERTIFICATE OF QUALIFIED EXPERT WAS INSUFFICIENT?

The Court of Appeals of Maryland has reissued its decision in University of Maryland Medical System v. Waldt, which was recalled several weeks ago after it was initially issued.  In a cursory review of the reissued opinion, it appears that Chief Judge Bell has now joined the majority on the issue of whether a retired physician who was designated as plaintiffs' expert was properly prohibited from testifying because his involvement in litigation-related matters exceeded the 20% ceiling established by Maryland statutory law. 

The majority held that the neuroradiology expert's endeavors in matters such as reading medical periodicals, observing surgeries, and consulting with other physicians could not be considered "professional activities" as defined by the statute and, therefore, his litigation-related activities when compared against his legitimate "professional activities" were higher than allowed by law.  Chief Judge Bell, who originally dissented as to this portion of the decision, has now joined the majority, changing the decision from 4-3 to 5-2 on this issue.

The Waldt opinion remains a disappointment for medical malpractice attorneys representing plaintiffs.  The disqualified expert was nationally renowned in the area of neuroradiology.  His disqualification occurred in part due to his retirement from the active practice of medicine in 2001.  He was, however, extremely knowledgeable despite his retirement and despite having never performed the coiling procedure at issue. 

The reissued opinion highlighted the expert's credentials as follows:  "Dr. Debrun was educated in France and practiced inteventional neuroradiology for 45 years before retiring in July of 2001.  He has held many positions in that field, including Chief of Neuroradiology at the University Hospital of Paris, Director of Neuroradiology at the University of London in Canada, Chairman of the Department of Radiology at Massachusetts General Hospital, Visiting Professor at Harvard Medical School, and Director of Interventional Neuroradiology at The Johns Hopkins Hospital in Baltimore. Dr. Debrun has lectured extensively and written hundreds of articles on the subject of neuroradiology. He has in the past performed over 30 coiling procedures to treat wide-neck aneurysms.  Between 10 and 15 of those aneurysms were similar in size to Mrs. Waldt''s aneurysm. Because Dr. Debrun's retirement preceded the market release of the neuroform stent, he never performed a coiling procedure using that stent."

As stated in an earlier blog on the case, very few physicians would have ever performed the subject procedure since it was contraindicated and not otherwise approved by the Food and Drug Administration.  The trial court's rationale precluding the testimony of Dr. Debrun on the issue of whether proper informed consent was given, although not "clearly erroneous" in the appellate court's view, was in some respects, in this author's opinion, unjustified despite his lack of experience with the particular coiling procedure at issue.

The attorneys at Belsky, Weinberg & Horowitz are experienced medical malpractice attorneys who are keenly aware of the hurdles that must be cleared in order to obtain justice for our clients.  Those hurdles continue to be erected by decisions like Waldt.  We understand the odds and the burdens that come with handling malpractice claims successfully.   We fight to protect the rights of all clients and other individuals injured at the hands of negligent medical providers.  Please contact us if you wish to discuss a particular case or issue with one of our attorneys.

Oral Argument was held before the Court of Appeals on November 5th on the critically important case of Lockskin v Semsker, where the trial judge in a medical malpractice case ruled that the cap on noneconomic damages added by the General Assembly in its 2005 amendments to the Health Claims Malpractice Act does not apply to cases where health claims arbitration is waived and the case is transferred to the circuit court for trial. The trial court's decision came as a surprise to the medical malpractice bar and has generated a great deal of controversy and uncertainty as to the value of claims and cases since the ruling came down.

Of the seven judges on the Court of Appeals hearing this case, many of the questions were asked by four judges-- Murphy, Barbera, Adkins and Harrell. Judge Murphy made the first remark by questioning not whether the General Assembly intended to create a cap on malpractice claims, but whether it in fact did so based on the statutory language it enacted into law. The issue which appeared most problematic for the judges was the fact that the legislature during its emergency session clearly intended to create restrictions on malpractice claims but yet the trial court's interpretation effectively eliminated the cap in nearly every such case. The judges took interest in statistics supplied by the parties that revealed that nearly all litigants waive out of arbitration before a merits hearing is held before an arbitration panel.

Counsel for the defendants who are seeking a reversal of the trial court's rejection of the cap argued that the statute on its face is ambiguous and thus the court must look to the legislative intent and history in determining whether the General Assembly intended to impose the cap in medical malpractice cases of all types no matter where they are heard. The legislature, according to defense counsel, was very clear in its intent to "tamp down" malpractice claims and awards. He also argued under the "absurdity doctrine" that it would be absurd for the legislature to have created a section on caps within the Health Claims Malpractice Act specific to malpractice claims only for it not to apply to the vast majority of malpractice cases which are not arbitrated to conclusion.

According to the defendants, based on the rarity of an arbitration award (which was and remains a well known phenomenon), the legislature clearly could not have intended for the cap to apply only to the very small subset of arbitrated cases. Otherwise, every person with a malpractice claim would waive out of arbitration to avoid the cap and the arbitration process would effectively be abrogated by judicial interpretation.

Counsel for the plaintiff who prevailed at the trial level in convincing the judge to reject the cap argued that the language of the statute was plain and that, even if a mistake in drafting was made, it was for the legislature and not the Court to correct. He noted that this kind of drafting problem had arisen in other cases involving the cap in wrongful death cases, and also arose in connection with criminal cases, where the Court refused to rewrite the legislation that was plain on its face, but yet resulted in an unintended application of the statutes.  In both cases, the legislature amended the statutes after the Court of Appeals' rulings.

Plaintiff's counsel faced a barrage of questions about the extent that cases are arbitrated to completion, which he conceded, albeit reluctantly, was very few, and was asked whether he agreed that if the legislative history and intent was considered, that his position was untenable.  He disagreed that the legislative history would change the outcome since earlier drafts of the law would reveal that the legislature once had the proper language to make the cap applicable to all medical malpractice cases, but chose to use other language instead.

The lawyers at Belsky, Weinberg & Horowitz will continue to monitor the outcome of this case and report on all events as they arise.

The Court of Appeals of Maryland has recalled its recent decision in University of Maryland Medical Systems v. Waldt, a relatively rare event that signifies temporarily that the Court is not satisfied with some aspect of the opinion.  As of this date, therefore, the Court of Appeals' decision is no longer binding precedent and has been removed from publication.  The case can no longer be access on the Court's home page.

Sometimes cases are recalled to correct minor errors within the opinion.  Minor changes are usually made quickly and the opinion is reissued.  Rarely, the Court will change the substance of the opinion.  In Waldt, the mathematical computation of the expert's percentage of time spent serving as an expert was so close to the twenty percent statutory maximum (as calculated in the opinion - 20.6%) that it is possible the Court wishes to elaborate or expound upon the method by which it disqualified the plaintiff's expert.  The real reason for the recall is purely conjectural but is an interesting development in a very important opinion.  The attorneys at Belsky, Weinberg and Horowitz will keep you abreast of developments in the Waldt decision when they arise.