Slip and fall cases on "black ice" present inherent difficulties of proof for plaintiffs' counsel. "What was the ambient temperature? Who maintained the property? How long had it been precipitating? And did the plaintiff know of the hazard?" These are all questions asked by counsel at intake and by defense counsel during deposition or at trial.

The last question-did the plaintiff know of the potential hazard and assume the risk of injury-- has been the first and last question asked of actual and potential clients. Why? Because thre4e years ago, our state's intermediate appellate court, the Maryland Court of Special Appeals, issued an opinion in Allen v. Marriott that made almost any endeavor by a plaintiff into ice or snow an assumption of the risk of injury which barred their claims under Maryland law, even if they, themselves, did not actually know of and appreciate the risk. In essence, the Marriott decision opened the door for trial judges to summarily dismiss cases based a plaintiff's "imputed" knowledge of a risk. It created a quasi-objective standard and eviscerated the long-standing subjective standard of assumed risk.

Based on this new quasi-objective concept of assumed risk, nearly no case was winnable and anyone seeking representation or already represented was either told there was no case or learned from their counsel after a motions hearing that their case was summarily dismissed and that a jury would never hear the facts and reach a decision.

We are pleased to report that Court of Appeals of Maryland has righted the course for black ice slip and fall cases and has clarified in Poole v. Coakley & Williams Construction, Inc. that the proper standard for determining whether a plaintiff assumed the of risk injury is a purely subjective one unless the risk was so notorious and known by people of common intelligence that a claim of subjective ignorance should not be believed. The Court was unwilling to find as a matter of law that people of ordinary intelligence would typically know of and appreciate the risk of black ice, and ruled that summary judgment by the trial court and affirmance by the Court of Special Appeals based on the assumption of risk defense was erroneous and that a jury should be responsible for the final decision on the issue.

The facts of Poole are straightforward: Mr. Poole was walking in his employer's parking lot where ice and snow had accumulated from prior storms. As a result of melt and water discharge from a construction project nearby, a 3-4 foot-wide water "stream" had developed. Poole decided it was safer to walk through the water than upon the adjacent ice and snow and had done this on "5-7 times" before he encountered "black ice" in the stream and fell. He brought suit for his injuries against multiple defendants for causing or contributing to the unsafe conditions. The trial court granted summary judgment in favor of some of the defendants on the basis that the claims were time barred by the statute of limitations. Based on plaintiff's deposition testimony, his answers to interrogatories and other statements he made during discovery, the trial court ruled that the plaintiff assumed the risk of injury by walking where he did, when he did, and that the facts were not "materially different" from those in the Court of Special Appeals' decision in Allen v. Marriot, where the plaintiff was found to have assumed the risk of his injury.

On appeal, Poole's counsel raised the following issues relevant to the adverse assumption of risk ruling:

1) Whether the trial judge erred in granting summary judgment in favor of Coakley and Forsgate based upon the allegation that Appellate assumed the risk of injury;

2) Whether the decisions of Allen v. Marriott Worldwide Corp., 183 Md. App. 460, 961 A.2d 1141 (2008), cert. denied, Allen v. Marriott, 408 Md. 149, 968 A.2d 1065 (2009), and Thomas v. Panco Mgmt. of Md., LLC, 195 Md. App. 245, 6 A.3d 304 (2010), cert. granted, Thomas v. Panco Mgmt., 418 Md. 190, 13 A.3d 798 (2011), as applied to Appellate's case, are erroneous. . . .

The Court in Poole took issue with the trial court's grant of summary judgment on the assumption of risk issue for two reasons: "(1) its invasion of the province of the jury where there was a disputed question of material fact concerning Appellant's knowledge of the risk of danger posed by the black ice; and (2) its reliance on Allen, an outlier case that altered the prior meaning and effect of the knowledge prong of the assumption of the risk test."

The Court of Appeals focused first on the objective versus the subjective standard for determining whether Mr. Poole assumed the risk of his injury. Quoting extensively from the seminal Hornbook, Prosser and Keaton on the Law of Torts and the Restatement (Second) of Tort, the Court reiterated the longstanding and otherwise firmly established subjective standard for determining whether a plaintiff assumed the risk of his injuries. It further resolved any doubt that an objective test should not be applied except in circumstances where anyone of normal age and intelligence would appreciate the risk. The Court surveyed existing Maryland cases where the trial court ruled as a matter of law that the risk of injury was assumed and distinguished those cases.

The Court noted the difference between visible ice and snow which a plaintiff walks upon and falls, which has been consistently deemed an objectively voluntary assumption of the risk of injury, and cases such as Poole, where black ice is involved. In black ice cases, the Court ruled, people of normal intelligence would not ordinarily comprehend the concept or the risk of black ice. The Court overruled Allen's hybrid standard of imputed knowledge of a danger or risk, stating that prior decisions require that the risk be subjectively understood and assumed by the plaintiff and not simply imputed by virtue of conditions that are not notoriously known and understood by the community at large. The imputation of knowledge of risk, under the circumstances the Court held, was an improper invasion of the fact finder's right to decide the issue, and that any cases, including Allen, holding otherwise are effectively overruled.

In light of the Poole decision and the Court's subsequent decision in Panco, which will be reviewed in our next blog post, plaintiffs now have a fighting change of getting their cases before juries. For those whose cases have fallen into the gap between the Marriott and Poole decisions, we can only say that our system is not perfect but bad law can be changed with perseverance and tenacious lawyering. Thankfully, skillful lawyers recognized the wrong, went against the grain, and argued a position some would not have endeavored. The game has now changed and the playing field is ever so slightly evened. For now, the subjective standard for proving a plaintiff's knowledge and appreciation of the risk of injury has been clarified as the law in Maryland by the Court's decision in Poole.

Joint tortfeasor releases were the subject to two reported appellate decisions this week. The subject of joint tortfeasor releases is a complicated issue that can impact or destroy claims by plaintiffs against a nonsettling defendant if the release with the settling defendant is not properly crafted. Details of the different types of joint tortfeasor releases and the effect they can have on claims against nonsettling defendants will be discussed in the next blog on the case of Spence v. Julian, issued by the Court of Special Appeals on October 26^th.

Another case however, Tempel v. Murphy,decided by the Court of Special Appeals on October 28^th, presents a completely discernable and straightforward issue related to a nonsettling defendant's entitlement to pretrial discovery of the content of a joint tortfeasor release between the plaintiff and settling defendants. The court in Tempel ruled that a nonsettling defendant is not entitled to discover the amount of a settlement but is entitled to see other content within a joint tortfeasor release to enable the requesting defendant to prepare their case for trial.

The Court (Ayler, J.) cited Maryland Rule 2-402(a), which states that a party may discover "any matter . . . that is relevant to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. . . " and concluded that the amount of settlement contained within a joint tortfeasor release is not relevant to a determination of liability or the amount of damages allegedly sustained by a plaintiff.  Only after the jury reaches it verdict does the information become relevant to allow a court to apportion damages appropriately between all affected defendants.  The Court reiterated that discovery is intended to require disclosure of the facts giving rise to the litigation to allow the discovering party the opportunity to prepare timely their claims and defenses without undue surprise.

Although the amount of the settlement was deemed irrelevant and not discoverable pre-trial, the Court held that other terms of a joint tortfeasor release are discoverable pre-trial because the nonsettling party is entitled to know what evidence they must offer at trial to reduce their exposure to plaintiff's damage claim, e.g., whether the nonsettling defendant must prove the joint tortfeasor status of the settling parties which is required by some releases known as Swigert releases.

On an unrelated issue, the Court upheld the trial court's refusal to grant a judgment notwithstanding the verdict and rejected defendants' argument that the plaintiffs' economist's testiumony on lost future earnings of the decedent was speculative and should not have been considered by the jury. The economist offered opinions as to the date the decedent would have retired for purposes of calculating the future income loss claimed by the wrongful death beneficiaries. Absent an express statement by the decedent while alive, the economist based his opinions on various statistical information on average retirement ages and testified the decedent would have retired at age 66 or 67. He conceded during cross-examination that he did not know exactly when the decedent would have retired. The Court ruled that a jury could reach conclusions on all issues related to lost support claims, including decedent's likely retirement age, based on all the evidence including the amount of future lost earnings, the decedent's health, the testimony of the family, his financial situation and statistics as to when he would have retired.

Belsky, Weinberg & Horowitz is a full service Maryland law firm with practice groups in the areas of plaintiffs' personal injury, medical malpractice, workers' compensation, social security disability and bankruptcy. We supply this and other information on our website as educational materials to keep our readers abreast of important legal developments that relate to the areas in which we practice. Keeping abreast of legal developments is an important responsibility our firm takes very seriously. We make every effort to report new cases and legal issues objectively, although opinions are at times expressed. Should you have any questions about the firm or any information on our website, please contact our office by clicking here or by calling (410) 234-0100.

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It was a very active week for Maryland's appellate courts with several important opinions that affect our clients and our professional liability practice. We will summarize every case from the past week and will start with a conflict of laws case involving the doctrine of lex loci delicti (the law of place of the wrong controls). The case teaches the reader two important lessons: one is the distinction between a substantive and procedural law; the other is what can happen on appeal when the appeals court decides a case on grounds other than those argued and briefed by the parties.

In Lewis v. Waletzky,The Court of Appeals of Maryland, Maryland's highest court, answered a question certified by the U.S. Court of Appeals for the Fourth Circuit, to wit: whether Maryland's public policy exception to the doctrine of lex loci delicti requires the application of Maryland or D.C. substantive law in a malpractice case brought in Maryland for injuries sustained in D.C. Traditionally, under the doctrine of lex loci delicti, the place of the wrong controls the substantive law a court must apply in a case, but the procedural law of the forum state is applied no matter where the wrong occurred. The public policy exception allows the forum court to apply its own state's substantive law even though the wrong occurred in another jurisdiction.

The facts in Lewis are fairly straight forward. The plaintiff's psychiatrist prescribed various psychotrophic medications for conditions not described in the opinion. The plaintiff developed side-effects from the medication, but the physician did not discontinue the medications and instead prescribed others. The plaintiff was ultimately taken off of the medications by other physicians but by then the medications had caused Tardive Dyskinesia/Dystonia, a very serious neurological disorder. Because the suspect prescriptions were filled and ingested by the plaintiff in D.C., she argued her injuries arose in D.C. and that Maryland's mandatory arbitration requirement pursuant to the Maryland Health Care Claims Act (Health Claims Act) did not apply because it was a substantive law and under D.C. law health claims arbitration is not required.

At trial the Defendant sought dismissal arguing that although the Health Claims Act was substantive and despite the doctrine of lex loci delicti, Maryland's strong public policy required mandatory arbitration of the case. The trial court agreed with the defendant and dismissed the case. The plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit, who certified the question as to whether Maryland recognizes a public policy exception to the choice of law doctrine of lex loci delicti. The certified question assumed that the law at issue was substantive and not procedural.

Rather than addressing the question certified, the majority (Barbera, J.) opted to address the issue of whether the Health Claims Act was substantive or procedural and skirted the issue of whether the public policy exception to the lex loci delicti doctrine applied. The court ruled that the Health Claims Act is procedural and that noncompliance with its mandatory arbitration provisions required dismissal of the case. The Court explained that the law at issue simply affects "the manner in which the forum administers justice" and was not substantive because it does not "establish the existence or abrogate a cause of action." In reaching this conclusion, the court surveyed other cases where laws were deemed either substantive or procedural. The case is a useful primer on this basic conflict of laws issue.

The most interesting aspect of the case is found in the dissenting opinion of Judge Adkins, who, joined by Judge Murphy, complained that the parties were essentially ambushed by the majority's decision, which was based on an issue not raised by the Fourth Circuit's certified question, nor by the parties during briefing and argument. The dissent made light of the fact that the certifying court and the parties all had assumed albeit incorrectly that Maryland's Health Claims Act was substantive and inquired only as to whether a public policy exception to the lex loci delicti doctrine applied. The dissenting judges would have deferred a ruling until the parties could brief the "substantive versus procedural" issue upon which the Court decided the case.

Last week, the Court of Special Appeals revived a medical malpractice lawsuit that had been dismissed by the Circuit Court for Baltimore City.

In this case, captioned Muti v. University of Maryland Medical Systems, Inc., Edward Muti suffered a heart attack and underwent cardiac bypass surgery.  Because of complications suffered after that surgery, a breathing tube was reinserted.  A lawsuit for wrongful death and a survival action and was brought by his family and the personal representative of his estate, alleging negligence in the insertion of the tube. The medical experts retained by the plaintiffs alleged that Mr. Muti suffered a tear to his windpipe after the insertion and his health care providers failed to timely diagnose and treat the tear. During the pendency of the lawsuit, it was discovered that Mr. Muti had adopted a son during a previous marriage.  This son had not lived with his father for 30 years and no one in the family knew how to contact him.

The defendant hospital sought to have these claims dismissed, arguing that the missing son, who was not named in the lawsuit, was a "necessary party" and therefore the wrongful death claims must be dismissed because he was not named as a party.  The Circuit Court for Baltimore City agreed, and dismissed the claims with prejudice, which would prohibit the plainitffs from correcting this procedural error.  The Court of Special Appeals reversed this decision, holding that the Circuit Court was not required to dismiss the case with prejudice and should have considered the harm to the missing son before deciding the appropriate "penalty."

Next, defendant sought to dismiss the survival estate action, arguing that the experts for the plaintiffs offered conflicting testimony to one another as to when the negligence occurred and how it occurred.  In addition, the hospital argued that one of the experts based his opinions on circumstantial evidence hypothesis and could not point to any published study to back up his opinions.  The circuit court agreed, and dismissed the lawsuit. 

The Court of Special Appeals reversed this decision as well, holding that while the experts were in conflict with some of the facts, they both agreed on the ultimate issue- Mr. Muti's trachea tear was not properly and timely diagnosed and that this negligence caused harm to him.  The Court opinied that a jury is free to believe some, none or all of an expert's testimony and further, an expert may base his opinions on his education, training and experience and need not rely to a published study to form the basis of his conclusions.

This case will not return to the Circuit Court for Baltimore City for further proceedings.

If you or a loved one have been the victim of medical negligence, contact Belsky, Weinberg & Horowitz for a free consutation.  We will fight to protect your rights and the compensation you deserve.  Call us at 410-234-0100 or email us for a free consultation 

The Court of Appeals today ruled that orthopaedic surgeons may not refer patients for MRI and CT scans operated by health care entities in which the referring physician or group has an ownership interest. The decision upholds an declaratory ruling by the Maryland Board of Physicians on the issue. The appeal was brought by twelve medical groups, all of whom were referring patients to scanning facilities in which they held ownership interests.

The Maryland Court of Special appeals on Tuesday reversed a Baltimore City trial judge's entry of summary judgment against several medical malpractice plaintiffs after determining the appropriate remedy for a defective certificate of qualified expert is dismissal and not summary judgment. In Powell v. Breslin (No. 181, Sept. Term 2009), the appellate court ruled that the intent of the legislature was to require dismissal without prejudice in such circumstances, even though the specific statutory provision setting forth the criteria for a valid expert certificate did not expressly provide the remedy of dismissal for certificate deficiencies.

The case involved wrongful death and survival claims brought against a vascular surgeon, an anesthesiologist, the physicians' groups, and Good Samaritan Hospital. The lawsuit alleged the anesthesiologist was negligent in either improperly administering an epidural anesthetic or that the anesthesiologist and vascular surgeon were negligent in failing to take action to avoid the progression of a spinal hematoma which ultimately lead to the patient's death. The Statement of Claims was amended twice, the second of which added as a defendant the vascular surgeon who performed the surgery for which the epidural anesthesia was administered. At that time, plaintiffs' counsel refiled a Certificate of Qualified Expert signed by an anesthesiologist attesting that the vascular surgeon deviated from standards of care and proximately caused the decedent's injury and death.

The anesthesiology expert was deposed and testified that he wasn't familiar with the standards of care applicable to vascular surgeons, and that he was not familiar with what training or experience vascular surgeons would have to allow them to diagnose and treat epidural hematomas. The vascular surgeon and his group filed a motion for summary judgment, which the trial court granted, finding that because the motion was based on facts not contained in the record, the court believed it was required to treat it as a motion for summary judgment in accordance with Maryland Rule 2-501. The remaining defendants ultimately settled their cases with the plaintiffs before trial, but an appeal was taken on the grant of summary judgment in favor of the surgeon and his group because the entry of judgment as opposed to dismissal precluded the plaintiffs from refiling their case and correcting the certificate deficiencies.

The court considered various sections of the Maryland Malpractice Claims Act, which sets forth the statutory scheme for health claims arbitration. It concluded that when reading the various sections in harmony, dismissal was clearly the appropriate remedy. It also reviewed the most recent appellate decisions involving allegedly defective certificates and found unanimity in those opinions that dismissal was the appropriate sanction for inadequate expert certification. In the end, the appeals court ruled that despite the Maryland Rule that states that the motion must be treated as one for summary judgment, the Act superceded the rule under the circumstances.

The plaintiffs had also challenged the constitutionality of the Act, claiming it was void for vagueness. The court avoided that issue by stating that since the case resolved on nonconstitutional grounds, the constitutional issue would not be addressed.

The certification statute has proven an illusive and poorly drafted law which has resulted in the dismissal of many legitimate cases, many on Draconian and rather ridiculous grounds. For years, practitioners filed the most basic of certificates without an accompanying report, and that process was accepted by the parties' counsel and the courts as standard procedure. Then suddenly, in 2005, the Court of Special Appeals issued D'Angelo v. St. Agnes Healthcare (in which this writer was plaintiffs'/appellants' counsel), setting the stage for strict scrutiny of certificates for both form and substance by trial and appellate courts.

Suddenly, acceptable certificates became unacceptable and many cases were dismissed "without prejudice" even though, in reality, they were dismissed "with prejudice" because they could not be refiled due to expiration of the statute of limitations. The standards for expert certification were tightened even further by a series of Court of Appeals opinions that were cited in the subject Powell case (Walzer & Konits), yet the trial and appellate courts seem to almost universally ignore that plaintiffs frequently suspect malpractice but cannot prove a case until their records are obtained, questions are asked of the defendants at depositions, and the experts are provided with a complete set of medical facts to consider. Although the courts have made clear they don't condone a "shoot first and sort it out later" approach, they seem to expect some clairvoyance by plaintiffs' experts and counsel. And while the courts have emphasized that the certification is a preliminary opinion and that's all the statute requires, the scrutiny of the experts' opinions upon "out of the gate" defense motions to dismiss for certificate deficiencies have been so extensive and harsh that "preliminary opinion" really seems to mean a definitive, permanent and unchangeable opinion.

Please contact the attorneys at Belsky, Weinberg & Horowitz with any questions should you have a malpractice claim or question you wish reviewed.

An article in today's Wall Street Journal discusses the failure of physicians to consider and communicate abnormal test results and the prevalence generally of diagnostic errors, which account for approximately 40% of all malpractice claims and cost "insurers an average of $300,000 per case to settle." The article continues by citing data from a variety of studies that  primary care doctors are "overwhelmed" by test result abnormalities that are not  communicated to their patients or are otherwise discounted as within the margin of laboratory error and are not given indepedent significance.

One study conducted by the Veterans Health Administration found that when a primary care doctor and a specialist both get test results, each assumes the other will follow up with the patient and the end result is no communication with the patient at all.  A perfect example of a disaster waiting to happen is a male patient who sees a primary care doctor and a urologist for complaints associated with an enlarged prostate, a commonly experienced problem in men over 50.  Sometimes the urologist may order blood work, while at other times he may rely on a patient's representation that his primary care doctor already ran blood work months earlier and reported no abnormalities.  The urologist will sometimes rely on the patient's report of normal results and will not ask the primary care doctor for the results.

A standard test for male patients over the age of 40 is the "Prostate Specific Antigen" test or PSA. While primary care physicians may focus on results that fall outside certain numeric thresholds established by the lab as abnormal (typically +2.5-4 ng/ml), urologists are more concerned with the "velocity" of PSA increase from one test result to another even if the results are outside the abnormal parameters for the patient's age.  If the urologist doesn't have all the test results, he will never be in a position to consider the full extent of the PSA velocity which can result in a disastrous failure to diagnose prostate cancer, the 2^nd leading cause of male death in the United States.

There are many other examples that result in failure of physicians to coordinate and diagnose major medical problems due to erroneous assumptions and pure failures to coordinate and communicate with other treating physicians.

Patients who believe no news is good news and who are anxious to learn their results need to be their own best advocates and call for test results and insist on answers and information no matter what the doctor's temperament or attitude. They should get copies of all test results from all of their doctors, and ensure that their other doctors receive the same results.

From a purely practical standpoint, if a doctor is impossible to get a hold of or has a disinterested attitude, the patient should run and not walk away from that doctor and choose a provider who is compassionate, caring, and has a manageable patient load.  Sitting in the waiting room, watching the length of time it takes to see the doctor after arrival for the consultation, and the time the doctor spends with the patient during the visit are all good indicators of the doctor's patient load but are not conclusive. Some physicians are great at small talk, but when they don't know what's in the patient's chart or ask basic questions about the patient's health that they should otherwise know from reading the chart in advance of the consultation, these are ominous signs that should be heeded.

The point of all this is that malpractice claims arising from doctor oversight of diagnostic information is prevalent and can be avoided by efforts on both sides of the physician-patient relationship. Patients need to ask questions, call their physicians, seek prompt care, not wait for their symptoms to disappear, follow physician instructions to get tested, and comply with their physicians' prediagnostic instructions for test and procedure preparation. Likewise, physicians must communicate with their patients, pay attention to test results, consider the patient's clinical symptoms, not simply discount abnormalities as within "the margin of laboratory error" and coordinate patient care with other specialists who are involved.

Medical malpractice claims serve a deterrent effect against negligent medical care and also arguably result in the practice of defensive medicine where unnecessary tests and procedures are performed out of fear that something will be missed and the doctor will be sued. Although healthcare costs are at the forefront of the public debate, a recent Harvard study finds that malpractice claims and defensive medical care represent a very minimal part of the overall healthcare costs in the United States. If the choice is defensive medicine over better and more careful healthcare, the choice seems self-evident.

Belsky, Weinberg & Horowitz understands the issues patients are faced with and the results of improper medical care. We have a team of highly trained and credentialed lawyers and a support staff whose track record for excellent results and client compassion make the difference in claim outcomes. Please contact us if you are considering a claim, or simply if you are confused over the course of your healthcare. Although we are not physicians, we can guide you in the right direction to get the answers you need and deserve. We will offer our advice in the hope we can help just one person avoid a malpractice claim.

On September 24, 2010, the Court of Appeals of Maryland issued its much anticipated opinion in DRD Pool Service, Inc. v. Freed, in which it upheld Maryland's cap on noneconomic loss. The opinion was grounded on past common law precedent upholding the cap in prior challenges. The court refused to revisit two prior decisions upholding the cap on constitutional grounds and refused to apply a heightened standard of scrutiny as to whether the cap is constitutional. Instead, the court applied the lowest level of rational basis scrutiny in holding that the potential impact on the insurance industry and insurance premiums in allowing unlimited awards for noneconomic loss was a rational justification for the legislature to impose the cap. The court also determined there was sufficient evidence of conscious pain and suffering offered through expert testimony on the issue of whether the decedent, a minor, who drowned in a swimming pool, suffered conscious pain and suffering prior to his death despite the absence of independent eyewitness accounts that the child demonstrated behavior indicative of struggle or conscious suffering. The court therefore affirmed the decision of the Maryland Court of Special appeals on both issues.

The court took a very narrow approach on the issue of whether it should deviate from prior rulings on the issue of the cap. One could argue this was a matter of convenience, politics, or legitimate concern for upholding prior decisions. One wonders, however, what the "litmus test" is for reconsideration of prior precedent since over the last several years, the Court of Appeals has overruled prior precedent in cases involving informed consent and accidental injury in workers' compensation cases, both of which would have a similar impact on insurance premiums. Ironically, those cases were not cited by the court in its determination that prior decisions control.

The court disagreed with the trial court's grant of summary judgment on the issue of whether sufficient proof of conscious pain and suffering was offered for jury consideration. The plaintiffs had offered expert testimony as to what typically would be experienced by a drowning victim, while the defense argued that the absence of eyewitness accounts of actual struggle and distress eliminated proof that a jury could consider. In the end, the court held that the decedent's conscious pain and suffering hinged upon the objective evidence of the decedent's medical history, the autopsy report, and the expert's opinion, which the court held supported a "reasonable inference" that the decedent was conscious when he entered the water and suffering while drowning. The trial court's grant of summary judgment due to the absence of subjective evidence of the decedent's actual conscious pain and suffering was therefore reversed. The court found the plaintiffs' expert credible and well credentialed and, unlike the trial court, gave considerable weight to his opinions.

Belsky, Weinberg & Horowitz has written extensively about the unfairness and illogic of damages caps. The firm continues to advocate against application of caps in favor of a "free market" jury deliberation process where the "people" ultimately decide what damages should be awarded. Judges continue to retain remittitur powers to reduce jury awards that they consider unfair or unconscionable. We will never give up the fight for injured victims and hope that at a future date, the impact on insurance premiums will be further explored and countered by the impact on the injured and their families. Please contact us with any questions.

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.