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This guide covers the most common questions you will have if faced with a medical malpractice case in Maryland. The answers to some of the questions are a bit more complex. So we tried to give a “short answer” to each question before the longer (and more complete) answer. If the topic is really involved, we link to a separate blog post on our website that explains the issue in greater detail.
You can get the basic information from the short answer, but we do recommend you read the long answer too so you know the details. This stuff isn’t always easy to explain in a few sentences.
This guide was written by Tucker Clagett, a Waldorf medical malpractice attorney at Southern Maryland Law - Andrews, Bongar, Gormley & Clagett in Waldorf, Maryland.
Our Best Advice: This guide contains general information about Maryland medical malpractice law as a helpful resource for the public. Simply reading this guide does not create an attorney-client relationship with our law firm.
Reading this guide is no substitute for hiring an attorney. If you have any serious legal issue, you should get personal advice from an attorney who understands the unique facts of your situation.
We hope you will choose us to handle your Maryland medical malpractice case. If not, at least talk to another attorney who knows what they are doing. That is the best advice we can ever give you.
We have high quality medical care in Southern Maryland. But sometimes mistakes do happen.
Should a doctor or hospital be treated any differently than someone else who makes a mistake that injures someone? Everyone should be held accountable for the results of their mistakes. That is what insurance is supposed to be for.
Short answer: Medical malpractice in Maryland is really just a claim of negligence. Lawyers make negligence cases all the time in car accidents, slip & fall cases, etc.
Longer answer: Malpractice is a fancy word for negligence committed by a professional while rendering their services.
So lawyers in Maryland can commit legalmalpractice if they make a legal mistake, and doctors in Maryland can commit medical malpractice if they make a medical error.
Because of the nature of what professionals do, they can do great good or cause great harm. A lawyer can really harm someone’s life or finances if they mess up. An architect can cause millions of dollars in repairs if they draw the plans up wrong.
A doctor is one of the few professionals that can actually kill someone if they make a mistake.
All professionals receive advanced schooling, have continuing education classes, and carry insurance to cover their mistakes. If you sue a health care provider in maryland, you will almost certainly be making a claim against his or her insurance company.
Insurance companies don’t make money by paying claims easily. They will fight you.
If you wish to bring a medical malpractice claim in Maryland, you better know up front it will definitely be a fight. It will not necessarily be the choice of your doctor or health care provider. It is the decision of the insurance company.
One of the few things I can actually guarantee you in a medical malpractice case is that it will be a fight.
Short answer: Negligence means something special to lawyers. It means someone did something they should not have done, or failed to do something they should have done. It means they did not act like a “reasonable” person would act in the same situation. We call that violating the “standard of care.”
In a car accident case, violations of the “standard of care” can be easy to prove. If you run a stop sign, or rear end someone because you followed too closely, or pulled out in front of someone, you clearly violated the “standard of care” of normal drivers and you will be found to be negligent by a Judge or jury.
Longer answer: In a Maryland medical malpractice case, proving negligence is much more difficult. The standard of care can be difficult to set. There are no set rules of the road.
Because of what doctors do, it is much harder to pinpoint when a violation has occurred. We rely on a doctor to use his or her judgment in the middle of a procedure.
You do not get to use your judgment to run a stop sign. But a doctor may get to use his or her judgment to do something they wouldn’t teach in med school.
However, they are not allowed to do something that violates the normal standard of care for similar doctors in a similar situation. That crosses the line into negligence, and may be medical malpractice.
Another problem is that medical science changes all the time. The standard of care 50 years ago is completely different than the standard of care now. And 50 years from now, we may look back and think some things we do today are crazy. You cannot create hard and fast medical rules today that people must follow in the future (like you can for drivers).
All of this means it is harder to prove medical malpractice under Maryland law. A jury will never be able to figure it out on their own. We have to rely on expert witnesses.
Short answer: To prove medical malpractice in Maryland, you must get an expert witness who will say that the health care provider in your case violated the accepted standard of care in the medical field.
The only people who can say that are usually doctors themselves. So you have to get one doctor to testify against another doctor.
Longer answer: This is not easy. Doctors do not like doing that.
So you have to (a) find someone who is willing to do so, and (b) go out of the local area to find a doctor who does not practice with the health care provider you are targeting.
Finding a doctor willing to testify against another doctor is expensive. Expert witnesses charge for their time to review your medical records and your case. And they charge a lot. They are doctors, and their time is very valuable.
That is one reason why you have to be seriously injured before you have a medical malpractice case that a lawyer will take on. (See more about that later.)
This also means we can almost never tell a client with 100% certainty whether or not they have a case. We are not doctors.
We may be better able than most people to see the issues at the heart of any medical malpractice case, but we cannot just pronounce a certain act to be medical malpractice on our own. We need the doctor’s opinion.
If you have a Maryland medical malpractice case, we will give you some guidelines and tell you what we think, but we will never really know for sure until the expert reports back to us.
There are three things you have to prove in any medical malpractice case:
(1) The doctor was negligent
As discussed above, you have to prove the doctor did something he or she should not have done, or did not do something he or she should have done. You must show the health care provider violated the accepted standard of care.
(2) Causation
You must prove the negligence of the health care provider is what actually caused your injury.
If you would have been harmed anyway, because of a disease or injury you already had, then the doctor’s poor care may not be the actual cause of your injury.
In Maryland, we must prove causation “within a reasonable degree of medical probability.” This is not as high as “medical certainty”, but it is a pretty high standard.
It means you need an expert to say that in their expert and professional opinion, there is a direct link between your injury and the actions (or inactions) of the health care provider.
(3) Damages
You must prove you have sufficient damages from the negligence. If the health care provider makes a mistake, but it doesn’t lead to any actual harm, then there is no malpractice claim.
This happens more than you might think. People often come to us and say “but I could have suffered an injury due to their mistake.” We understand, and believe me we are sympathetic. But to have a medical malpractice claim in Maryland you must actually suffer an injury.
Short answer: We hate to write this section of the guide. It sounds crass and uncaring. Most attorneys don’t like talking about this particular issue for that reason.
But it is a fact of Maryland medical malpractice law and we promise people honest answers. So here goes:
A lawyer will only accept your medical malpractice case if you have enough damages to make it worthwhile.
We hate making that statement! But it is true – and there are good practical reasons for it.
Longer answer: Because insurance companies will fight your case, and because of the need for expensive expert witnesses, a lawyer must pay, in advance, a lot of money in any medical malpractice case.
We have to hire the expert to even review your records before we even decide to take your case. If we decide to file suit, we have to pay for the litigation costs too, which includes hours and hours of our expert witnesses time.
All of this can easily cost $10,000, before you file your lawsuit! To get to trial, it is not unusual to have $25,000 – $50,000 (or more) invested into a case.
If you invest $25,000 into a case, and a jury only gives you an award of $25,000, then you have done all of that work for nothing. The recovery on the case will go to cover your expert witness costs.
That just doesn’t make sense. Nobody is going to invest that amount of money and time into a case that will not result in a decent recovery for your attorneys fees, medical bills, and your pain and suffering.
None of this is meant to take away from the very real pain and suffering you may have gone through! Your suffering and your health are priceless.
But we cannot wave a magic wand and make your pain go away. All our system can do is try to compensate you for that pain.
Therefore, the economics of a medical malpractice case make this financial aspect a very real calculation that attorney’s must do.
It stinks, but in our current system that is the way it is.
We can estimate what a jury will award in your case, and we must make that part of the decision process. It is not a part of the equation that we like, but it is an honest assessment you need to know about.
And of course, you will never know what your case may be worth until you get a consultation with an attorney and have him or her review your records. That is a necessary step before you can even begin to consider this aspect of your case.
But we want you to know about this issue upfront. If you have a potential Maryland medical malpractice case, we don’t promise that you will like what we tell you.
We do promise an honest opinion of the reasonableness and value of your case.
Short answer: Maryland law regulates the time limits for you to bring a medical malpractice case. This is called the statute of limitations.
If you fail to file your case within the statute of limitations, you lose your right to make your claim no matter how valid it is or how extensive your damages are.
In Maryland, you must file any medical malpractice case within 3 years of the date you knew, or should have known, that you had a possible claim. But no case can be filed more than 5 years after the negligent act or omission that resulted in the injury.
Longer answer: This statute of limitations is a bit complex. The normal statute of limitations is 3 years. But in medical cases, it is possible to have a negligent act which causes an injury, but you do not discover it for a long time.
The statute of limitations for medical malpractice cases in Maryland gives you 2 additional years to have an undiscovered medical problem before the usual 3 years starts to run.
But it also functions as a 5 year ceiling on claims of medical malpractice no matter when you discovered it. (Things are a little different for minor children – ask an attorney.)
When exactly it was that you “knew or should have known” a medical injury occurred can be a hotly debated topic.
Was it when you got home from the hospital? Was it when you first felt that pain? Was it when your first test results came back? Or was it when the final diagnosis was made and all the puzzle pieces fell together?
This can be a good area for a defense attorney to explore in any case.
This is why it is critically important to get to a lawyer sooner rather than later.
We have to do a painstaking review of your records, and we have to get an expert to do the same thing. All of this takes time – often months.
If you wait to the last minute, we may not take your case just because the statute of limitations is too close. You will find most reputable attorneys will do the same thing.
Don’t get caught in this trick box. Call an attorney as soon as reasonable.
In Maryland, you cannot just hire an attorney and run off to the courthouse to file your medical malpractice case.
Maryland makes you jump through some very specific hoops before you can bring a medical malpractice claim. This is another reason to see an attorney long before the statute of limitations even gets close.
Here is the process in a nutshell:
(1) Get Your Medical Records
We prefer that patients get their own records and bring them to us for review.
If we send a letter requesting your records, the hospital or doctor’s office will know immediately that somebody is investigating your case. It is very rare for a medical record to go missing or be altered, but why take the chance?
Also, if word gets out an attorney is reviewing your case, the other doctors you treat with will likely be less expressive in their medical records as we would like.
If you suffered an act of medical malpractice, you will receive more medical treatment from other doctors after the incident occurs. We are always very interested in what those doctors say about what caused your condition.
If they know we are going to read those reports, they will be more careful about what goes in them. This is just human nature. Doctors do not want to end up as witnesses against someone they know. They don’t want to get involved in the legal aspect of your case.
You have an absolute legal right to get your own medical records in Maryland. They do have the right to charge you for those records, but the amount they can charge is limited by state law.
It involves a flat fee and a per page copying fee. In typical confusing and overcomplicated fashion, for Maryland lawmakers, it was set years ago but increases annually with inflation. (Really? Would it be so hard for the politicians to keep anything simple???) As of 2018, the fee involved a preparation fee of $22.88, plus .83 cents per page. But if you order your records electronically, the fee is capped at $81.63 plus the preparation fee. So if you are getting close to 100 pages of records, get them electronically. And most of these cases involve a LOT more than 100 pages of medical records.
(2) The Attorney Reviews Your Records
First, we review your records to screen out cases that just do not rise to the level of malpractice. Normally, your medical records will be quite voluminous. It may take a while to review these records.
When finished, we will give you an honest answer about our opinion, but the next step involves the much more important opinion.
(3) Another Expert Reviews Your Medical Records
We team up with some of the best medical malpractice attorneys and experts around to make sure you get high quality legal services. If we think you may have a case, we will tell you after the first review.
Then we will send your records off to a specialist attorney and/or medical expert to review and tell us whether this is, in fact, a medical malpractice claim.
This does not cost you any extra. We have arrangements with these attorneys where we agree to split the overall attorney’s fee. It does not affect the amount you recover.
This arrangement benefits you because we can send your case to the right attorney. The best attorney for your type of malpractice case may be local, or in Washington, or Baltimore, or elsewhere.
We know who is who in the legal community. That means you do not have to shop around yourself.
Believe me, you do not want to hire someone who does not specialize in medical malpractice cases. That is one area of law you do not “dabble” in. You either do it exclusively, or you team up with someone who does. We team up.
Also, you get to deal primarily with a local law firm (us) during the pendency of your case. And you get a team of lawyers behind you. This arrangement has great benefits for our clients.
(4) Expert Review & Certification
As discussed above, your case must be reviewed by a medical expert familiar with the type of medicine involved in your case.
They must be willing to certify, in writing, that your case is a valid medical malpractice case under Maryland law. They must hold this opinion within a reasonable degree of medical probability.
(5) File with the Maryland Health Claims Arbitration Office
Maryland has a special governmental office called the Health Claims Arbitration Office where your attorney must file a claim before filing suit at the Courthouse. This office was designed to cut down on filing medical malpractice lawsuits.
It is a hoop that must be jumped through prior to filing a lawsuit at the Courthouse. Part of this filing includes the written expert certification mentioned above.
This does keep frivolous medical malpractice cases out of the Maryland court system (which is a good thing!). Technically, there is a provision to go through arbitration, but it can be waived.
(6) File Suit
If your case cannot be settled (and hardly any of these cases are settled without litigation) you must file suit and proceed like a normal court case. You will get a trial date, go through discovery, do depositions, etc.
Don’t fear litigation. It is “par for the course” in Maryland medical malpractice cases. For a variety of reasons, these cases do not settle without some litigation. Your attorney can explain why when you get your consultation.
There are some very definite steps we advise all our clients to take if they think they have a Maryland medical malpractice claim.
First and foremost – think about your health first, and your legal case second.
If you have suffered an injury or illness that you think may be caused by medical malpractice, you need to get proper medical care to get well and recover as soon as possible.
Do not hesitate to get a second opinion.
We are blessed in the Baltimore-Washington region to have some of the best medical care on the entire planet within a one or two hours drive of us. You should take advantage of that. Be very happy you do not live in the middle of nowhere. If you did, you may not have access to world-class health care. Because of where you live – you do.
That is why you would be absolutely crazy not to find the best doctor you can and get a second, or even third, opinion.
Find out your treatment options. You may find out that your condition is treatable. If so, do it. Your future health is priceless.
Second, get your records.
See the section called “What is the Process?” above for more details on how to do this. See what is in there. A lot of that medical stuff is gobbledygook. But a lot of it is plain English.
You may learn a lot just leafing through your records.
Third, get a free consultation with an attorney.
Almost all attorneys who handle medical malpractice cases in Maryland offer a free consultation, and will give you their opinion as to whether or not you have a valid claim after they review your records. If you need a Maryland medical malpractice lawyer, we hope you will choose us.
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