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          JAMES P KOCH

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          TELEPHONE   410/ 539 7816 

          FAX 410/ 539 3957   

          Email jameskoch@jpkochlaw.com  

 

 

 

 

MEDICAL MALPRACTICE, HOSPITAL AND NURSING HOME NEGLIGENCE                

Click here to read about results achieved in representative cases. 

FREQUENTLY ASKED QUESTIONS 

What evidence is needed to prove a medical malpractice claim? 

Can I sue if my health care provider was negligent, but I did not suffer an injury? 

 Can I sue if I suffered a serious injury as the result of medical or other health care treatment?  

Who is a health care provider under Maryland medical malpractice laws?

What is contributory negligence?

How much does it cost to file a malpractice case?  

What kinds of damages can be recovered in a Maryland malpractice case? 

What is the statute of limitations in Maryland for medical malpractice cases? 

How long will it take to resolve my case?

Will I have to go to court?

What kinds of malpractice claims get turned down? 

 

For additional information, call 410 539 7816 or contact us by email

What evidence is needed to prove a medical malpractice claim? 

The basis of every meritorious malpractice case is serious injury caused by a health care provider's negligence, or deviation from the standard of care. 

This means that in every case the plaintiff must produce sufficient evidence that establishes the applicable standard of care, the defendant's breach of the standard of care, and the action the defendant should have taken in order to meet the standard of care. 

The plaintiff must also produce evidence that establishes that the health care provider's negligence caused the plaintiff's injury. 

Some common errors that may involve malpractice include:   

Failure to timely diagnose and treat, or misdiagnosis of, a serious medical condition, such as cancer, appendicitis, infection, or impending heart attack or stroke;

Surgical mishap resulting in injury to organs, blood vessels, or nerves, especially when not immediately recognized and treated at the time of surgery;

Patient neglect in hospitals, skilled nursing facilities, and nursing homes resulting in medication errors, falls, pressure sores (decubitus), etc. 

Can I sue if my health care provider was negligent, but I did not suffer an injury? 

No. Even if the health care provider's negligence could have resulted in permanent injury or death, there is no legal case if the error has caused no harm. In this kind of case, the patient might consider filing a complaint with an appropriate regulatory authority, such as the health care provider's licensing board or the Maryland Office of Health Care Quality.  

Can I sue if I suffered a serious injury as the result of medical or other health care treatment?  

Not necessarily. A bad result is not a sufficient basis for filing a lawsuit. In some cases, the patient's injury, even if it is serious, is a known risk of treatment which can occur even when the health care provider adheres to the standard of care.  No matter how serious the injury, in every case the plaintiff must prove that the health care provider's negligence caused the injury

Who is a health care provider under Maryland medical malpractice law?

Maryland has enacted special rules applicable to claims against health care providers. These rules specify the qualifications of experts who testify about the standard of care, the kinds of evidence that must be produced in support of the claim, and the amounts of damages which a plaintiff can recover. 

Under Maryland law, health care providers include hospitals, skilled nursing facilities, medical day care centers, hospice care programs, assisted living programs, freestanding ambulatory care facilities, physicians, osteopaths, optometrists, chiropractors, registered or licensed practical nurses, dentists, podiatrists, psychologists, licensed certified social workers, and physical therapists  

What is contributory negligence? 

Contributory negligence is a plaintiff's failure to exercise reasonable care that causes or contributes to the injuries alleged in the malpractice case. An example of contributory negligence in the malpractice context is the patient's failure or refusal to follow the doctor's medical advice. Maryland is one of the few remaining states which follows the rule that contributory negligence, if proven at trial, is an absolute bar to any recovery. 

How much does it cost to file a malpractice case? 

Malpractice cases are usually accepted on a contingent fee basis. If there is no recovery, there is no fee. In most cases, we can advance the costs of prosecuting the case. Costs are then deducted from the settlement or recovery at the end of the case.    

Damages recoverable in a malpractice case 

Non-economic damages: These include pain and suffering, inconvenience, physical impairment, disfigurement, and loss of consortium (i.e., damage to the marital relationship). 

Caps on non-economic damages:  Maryland has enacted limits on awards for non-economic damages in personal injury cases, including medical malpractice cases. The date on which a legal cause of action arises determines the amount of the damage cap.  The cap on non-economic damages, which increases in the amount of $15,000 annually, is as follows: 

If the cause of action arises on or after                   the damage cap is

1/1/2011                                                                $695,000

1/1/2012                                                                $710,000

1/1/2013                                                                $725,000

1/1/2014                                                                $740,000

1/1/2015                                                                $755,000

1/1/2016                                                                $770,000

1/1/2017                                                                $785,000

Limits on non-economic damages in wrongful death and survival casesIn a wrongful death and survival action involving a single claimant, the aggregate cap on non- economic damages is as indicated above.  In cases involving two or more claimants, the aggregate award for non-economic damages, to be divided among all beneficiaries, may not exceed 125% of the cap applicable to individual claimants.  

Economic damages:  Economic damages may include medical bills incurred as a result of the negligence, as well as future medical, custodial care, and similar expenses that can be proven with reasonable certainty. 

A claimant is also entitled to compensation for lost wages, as well as any loss of earning capacity caused by the negligence. 

In a wrongful death case, damages may include the pecuniary loss to the claimant resulting from the death of the decedent.       

Statute of Limitations

In Maryland, actions against health care providers generally must be commenced within within three (3) years after the injury is discovered, or five (5) years after the injury occurs, whichever is sooner. Even an experienced attorney can sometimes have difficulty determining when an injury was "discovered" or when an injury "occurred".  Anyone thinking about filing a medical malpractice case should promptly seek legal advice if there is any concern about the statute of limitations.     

Injuries to minors: If the child is less than 11 years old when the injury occurs, then the above three (3) and five (5) year time periods start when the child reaches age 11; and if the child is less than 16 years old when the injury occurs, then the these periods start when the child reaches age 16.

Ignorance of cause of action caused by fraud.  If the health care provider uses fraud to prevent a claimant from discovering a cause of action (for example, by concealing facts which would alert the patient that he had received negligent care), then the cause of action accrues when the claimant discovers or should have iscovered the health care provider's fraud. 

Wrongful death actions against health care providers must be filed within three (3) years after the date of death. The statute of limitations in a wrongful death action commences when the decedent dies, not when the injury resulting in death is discovered. The three-year rule applies even if the claimant was a minor at the time of the decedent's death.    

How long will it take to resolve my case?

Before we file suit, we must investigate to determine the legal merits of the claim. This involves, among other things, gathering medical records and consulting with medical experts. The investigation takes several months to complete. 

Soon after we file suit, the court enters a scheduling order. In Maryland, trial is usually scheduled about a year after commencement of the case. However, trial postponements and other delays are not uncommon. 

In most cases, the court requires that the parties attempt to settle the case prior to trial by participating in mediation. 

The entire process typically takes between 18 and 24 months to complete.    

Will I have to go to court?

Most cases are settled prior to trial. If your case does not settle, you will have to appear in court and testify. Trial of the typical malpractice case takes a week or longer.    

In addition, you will have to attend any court ordered pre-trial settlement conference or mediation.  

You will have to attend your own deposition, which usually takes place in a lawyer’s or court reporter's office. You may, but are not required to, attend the deposition of any other party or witness in the case. 

Reasons why a case may be turned down

We can not pursue a case if we can not find a qualified expert who is willing to testify in support of the plaintiff's case. Without an expert, we can not prove in court that the health care provider deviated from the standard of care.  

It costs many thousands of dollars to litigate a malpractice claim. These are among the most expensive kinds of cases to litigate. In some cases, the cost of litigation is disproportionate to the likely recovery. In these cases, it is not economically feasible to pursue the case.    This is why we usually can pursue only cases which involve grievous or permanent injuries, or death.