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To file a medical malpractice lawsuit in Maryland, a plaintiffs’ malpractice lawyer must file a certificate of merit by a medical doctor that the negligent doctor breached the standard of care and caused injury to the injured plaintiff. This certificate of merit is a document authored by one or more experts – almost invariably medical doctors – explaining the good faith basis for filing the lawsuit.

A malpractice lawsuit in Maryland is not filed in Circuit Court but in Health Claims Arbitration. However, since 1995, any party may waive this requirement and proceed to circuit court, assuming the certificate of merit requirement has been met.

Can any doctor sign the certificate of merit? The requirements for eligibility vary from different types of malpractice lawsuits. The preliminary requirement for a medical doctor who executes a certificate of merit in Maryland is that: 1) they have clinical experience, i.e. a doctor who actually provides or provided care and treatment to patients, 2) they provided consultation relating to clinical practice, 3) they taught medicine in the subject matter or a related field of health care or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action. With limited exceptions, Maryland also requires the doctor be board-certified in the medicine that is the subject of the lawsuit.

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In Maryland hospital malpractice lawsuits, the Court of Appeals has followed the apparent authority theory of agency. Under this theory, if a Maryland hospital represents that a doctor is its servant or agent and thereby causes a patient to justifiably rely upon the care or skill of that doctor, the hospital is subject to liability to the patient for the doctor’s medical malpractice. The Maryland courts have historically understood that it would be unreasonable to expect that an emergency room patient, with no understanding about the business of how hospitals are set up with respect to independent contractors, should have to inquire as to whether the doctor is an employee of the hospital.

When a malpractice lawyer in Maryland brings a vicarious liability claim against a hospital, it typically includes claims of failure to develop or follow policies and procedures that could have avoided or limited the plaintiff’s injuries from the malpractice. Lawsuits against Maryland hospitals also include, where appropriate, claims that the hospital negligently failed to properly train the agents or servants responsible for the negligence. Another potential claim against the hospital, although it applies less frequently, is negligent credentialling, which means the hospital was negligent in allowing the doctor (or nurse) to work in the hospital.

If you are bringing a malpractice claim against the doctors and the hospital in Maryland, it is often wise to determine if there was a corporate entity that employed the defendant doctors. This may provide additional insurance coverage for claims that are not available against the hospital and give the jury a corporate defendant to make it feel better about a plaintiff’s verdict.

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Maryland does not have an independent cause of action for wrongful birth but, to some extent, embraces the concept within medical malpractice law. A Maryland “wrongful birth” claim would appear to require a doctor patient relationship with the defendant doctor or health care provider.

The damages in wrongful birth cases include the cost of raising the child to majority and future education costs. But missing from these damages is the priceless love and affection the child brings.

This makes wrongful birth claims in Maryland incredibly difficult. Because the parents have to contend that the cost of raising the child is more than the joy the child brings. This is a very tough argument for malpractice lawyers to bring because… well, the reason is pretty obvious.

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Many are concerned about frivolous medical malpractice lawsuits. Little if any attention is given to frivolous malpractice lawsuit defenses.

Everyone realizes that doctors are human beings and sometimes the very best doctors make mistakes, as do the best lawyers, accountants, plumbers and waitresses. But it is incredible how few malpractice lawsuits are conceded on negligence. There is almost invariably some defense, no matter how ridiculous.

We faced one of these classic throw all logic to the win defenses in a deposition yesterday: the “it is a known risk excuses everything defense.”

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The AP reports that President Obama’s says he’s willing to start from scratch on health care — and will consider medical malpractice caps sought by most Republicans. I don’t think the President really supports malpractice reform. My fear is that, at this point, he would sacrifice too much – including small puppies, I think at this point – to enact anything resembling real health care reform.

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The Washington Supreme Court unanimously (9-0) threw out a 2006 law that requires an injured patient to get a certificate of merit from an expert before suing for medical malpractice, finding that RCW 7.70.150, usurped the judicial branch’s power to determine the procedures by which courts adjudicate medical malpractice lawsuits. In other words, requiring a certificate of merit in medical malpractice cases in Washington violates the separation of state powers in Washington’s constitution.

I’m not necessarily against the idea of certificates of merit in medical malpractice cases – which have been required for years as a condition precedent to filing medical malpractice lawsuits in Maryland – even though I’m a little queasy about the idea of treating doctors in civil lawsuit differently that the rest of us. (The justification? We have been doing it that way for a while. Which is really no justification at all when you think about it. But let’s move on.) But if you read the opinion, it is hard to argue that a certificate of merit is anything other than a procedural rule.

Washington state constitution, similar to Ohio’s – is clear that procedural rules are for the judiciary.

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President Obama’s speech on malpractice both left Republicans demanding more and Democrats worried that President Obama will sell the rights of the few for health care reform. Clarifying his thinking (sort of), President Obama said on 60 Minutes on Sunday that there was no evidence that malpractice caps would make a meaningful difference in the costs of health care.

“What I would be willing to do is to consider any ideas out there that would actually work in terms of reducing costs, improving the quality of patient care. So far the evidence I’ve seen is that caps will not do that.”

But President Obama chose – as he always does – his words very carefully. “So far the evidence” means this is what I think…. but I might change my mind if I have to for health care reform to go through. President Obama is keeping his options open on health care tort reform.

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A lawsuit by former CBS “Early Show” personality Mark McEwen against a Maryland doctor and Baltimore Washington Hospital has been dismissed on summary judgment. The Maryland medical malpractice lawsuit alleged that Baltimore Washington Medical Center should have recognized that McEwen was suffering from stroke-like symptoms and treated him with anti-coagulates. U.S. District Judge J. Frederick Motz granted summary judgment for the doctors, finding that there was not sufficient evidence that anti-coagulates would not have prevented McEwen’s stroke.

Interestingly, the doctor at Baltimore Washington Medical Center (formerly North Arundel Hospital) admitted in his deposition that he spent time looking up McEwen on the Internet during his stint in the emergency room. The doctor told McEwen he had the stomach flu and advised him not to fly for two days. McEwen followed the doctor’s orders, then traveled home to Florida and suffered a stroke in mid-air.

It is relatively rare to lose a medical malpractice case in Maryland on summary judgment because usually the doctor’s opinion are set out before the case is filed. Honestly, and I’m just going off the press coverage, I doubt there was much of a malpractice case here although the temporal relationship between the ER visit and the stroke is compelling.