Medical Malpractice Blog
of Washington, D.C. Medical Malpractice Attorney Michael M. Wilson, M.D., J.D.
Opposition to Motion for Ex Parte contact with treating physicians
Memorandum of points and authorities in support of plaintiff's opposition to defendant Washington Hospital Center's motion to permit Ex Parte communications with plaintiff's decedent's treating physicians.
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Recent Verdict Against the D.C. Government
Fellow DC lawyer Louis Fireison of Louis Fireison & Associates, P.A. tried a case in the United States District Court for D.C. against the D.C. Government and received a jury verdict of $440,000 in a no offer case on March 7th, 2011. The case concerned a person who was shot by the police in the abdomen. The defense, which was rejected, was that the police officer’s gun went off during a struggle.
Congratulations to Louis Fireison, Esq.!
Judge Titus Opinion
Judge Roger Titus, United States District Judge for the District of Maryland, recently denied a motion to preclude the United States from defending a Federal Tort Claims Act (FTCA) medical malpractice wrongful death case on the grounds that the United States government failed to file certificates of meritorious defense. This opinion is Willever v. U.S., 9cv3072 Doc 47, March 4th, 2011, and is attached here for easy download. The basic issue in this case is whether, in a federal case, the U.S. Government is required to follow the same rules that every other defendant in a medical malpractice case in the State of Maryland is required to follow.
A previous decision of the same court, Mayo-Parks v. U.S., 384 F. Supp. 2d 818, 820-821 (D. Md. 2005), reached the opposite conclusion, and stated that the United States Government was required to follow the same rules as other Maryland Medical Malpractice defendants. Judge Titus refused to follow this ruling, stating that he disagreed with the result.
I believe that having one set of rules for the United States Government and another set of rules for the Plaintiff and all other medical malpractice defendants is unfair. I believe that the ruling in Mayo-Parks is more appropriate under the rules and case law
A strict following of the Willever holding could make it impossible to successfully bring a case against the U.S. Government. The plaintiff could file a medical negligence action in HCADRO against the United States, which is the proper party defendant. Then, the plaintiff would serve a Statement of Claim together with discovery requests upon the United States. These requests would allow the plaintiff to obtain information to file a Certificate of Merit that complies with the applicable case law. If Maryland Health Claims cannot compel the U.S. Government to respond to the discovery, then the Plaintiff cannot file the certificate of merit and then his case will be dismissed.
This is a totally unfair result. I hope that further litigation results in upholding the opinion of Mayo-Parks
"See Medical Records" in Medical Malpractice Cases
One major difficulty for Medical Malpractice attorneys is discovery. One of the standard questions is some variant of what happened to my client, and what treatment did she receive? Typically, the defense lawyer just says, "See medical records."
Our firm has filed a number of motions to compel actual answers to the questions rather than receiving a vague "See medical records" reply. We have received a number of favorable orders to our requests.
I am currently conducting legal research to locate as many of the favorable local rulings on this issue as possible, and then intend to put the rulings on my web site for download.
This area of discovery is a very important part of a medical malpractice case.
Federal Rules of Civil Procedure and Defense Medical Exams
In the United States, Rule 35 of the Federal Rules of Civil Procedure which covers Physical and Mental Examinations. Rule 35 is an important proponent against Defense Medical Exams, which is a “second” opinion, opted for by the defense attorneys of the Defendant in hopes of finding an excuse for denying a person their benefits. Under Rule 35, in the event that a plaintiff’s mental or physical condition is in question, they can be ordered to submit to a physical or mental examination by a suitably licensed or certified examiner by the Court. It is important to note that this rule only covers mental and physical examinations, and excludes things such as “life care examinations.” In a recent case Dr. Wilson’s client was Court Ordered to meet with the defendant’s expert. This comes as a surprise as Dr. Wilson motioned to the Judge that the “examiner” the Defense elected to use was not qualified or licensed to perform either a physical or mental examination. Further Dr. Wilson argued that the Defense already had “one bite at the defense medical examination apple,” and had no showing that the first examination was inadequate and why the Defendants required another examination by an unqualified person.
E-Mail Discussing the Issue | Motion and Court Order
Maryland's "Same or Similar Specialty"
January 19th, 2011
Maryland has required that a certifying or testifying expert on the standard of care must be in the “same or similar specialty” as the defendant. What does this mean? Can an internist testify against an emergency medicine specialist? Can an ER doc testify against a pediatrician?
A recent case in the United States District Court for the District of Maryland by Judge Alexander, handed down on November 15th, 2010, clarifies this issue. The opinion, Jones v. Bagalkotakar, AW-10-0309, can be located here.
As background, Maryland's Health Care Malpractice Claims Act, Md. Code Ann., Cts & Jud.Proc. § 3-2A-01 and following requires that in all medical malpractice claims the patient must file a certificate of merit signed by a qualified expert. The expert must issue both a certificate and a report that the defendant breached applicable standards of care and that the error caused the injury complained of.
The expert must be qualified, and in order to be qualified, must have either clinical experience, must have provided consultation relating to clinical practice, or must have taught medicine “in the defendant's specialty or a related field of health care, or in the field of health care in which the defendant provided treatment to the plaintiff, within five years of the date of the alleged act or omission giving rise to the cause of action."
If the defendant physician is board certified, then the certifying expert must also be board certified in the same or a related specialty. As far as I know, the opinion by Judge Alexander Williams in this case is the first court opinion interpreting same or similar specialty.
In this case, a pediatrician certified a case against an ER physician. The lawyers for the ER physician moved to dismiss the case.
Judge Williams decided that the pediatrician was familiar with the proper evaluation of children, and stated that the way of deciding the matter would be as follows:
(a) What is the procedure that the claim is about?
(b) Do both specialties do the procedure?
(c) Does the certifying expert have experience in that specific procedure?
and
(d) Is the standard of care the same or similar for both specialties?
The procedure in this case concerned the examination of a sick child. Judge Williams found that the examination of a sick child is performed by
pediatricians, internists, and also emergency room physicians, and that the evaluation of the child is essentially the same whether the physician is an emergency medicine physician, a pediatrician, or an internist.
I believe that other judges will avoid hyper-technical interpretations of Maryland’s “same or similar” language, and find that when different specialties do the same thing, then a board certified expert in one specialty can testify against a board certified expert in the other specialty.
Interest in a Federal Class Action Lawsuit Regarding D.C. Medicaid Process
January 4, 2011
Would Washington, DC TLA, or any other D.C. list serve members have any interest in a federal class action law suit with respect to the D.C. Medicaid process? We have a number of cases in settlement proceedings that either cannot receive a Medicaid lien amount, or the lien amount is far in excess of the amount allowable by the case law.
The D.C. Government has only provided one part time employee to provide their lien payoff amounts. She is not authorized to negotiate the lien amount to get cases settled. There is no one assigned with authority to negotiate D.C. Medicaid liens, as far as we can tell. We have one case where a six figure D.C. Medicaid lien has been escrowed for more than a year, and the D.C. Government has not filed suit or even contacted us to negotiate the resolution of the lien!
It would seem that other attorneys with D.C. claims, DC TLA, and mediators and judges trying to resolve D.C. Medicaid liens would all have an interest in filing a class action to have the court issue an order requiring the D.C. Government to provide persons to provide their liens on a timely basis and also to provide and designate an attorney to negotiate these liens in compliance with case precedent.
Local Rule Amendment
December 29, 2010
The U.S. District Court of Maryland issued the following "emergency" local rule amendment, concerning expert designations on December 1, 2010:
Local Rule 104.10 (as amended):
Unless otherwise ordered by the Court a party must provide the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) only as to experts retained or specially employed by a party to provide expert testimony. The disclosures need not be provided as to hybrid fact/expert witnesses such as treating physicians. The party must disclose the existence of any hybrid fact/expert witness pursuant to Fed. R. Civ. P. 26(a)(2)(A), and [disclose the subject matter on which the witness is expected to present evidence under Fed. R. Evid. 702, 703, or 705, as well as a summary of the facts and opinions to which the hybrid fact/expert witness is expected to testify, pursuant to Fed. R. Civ. P. 26(a)(2)(C). In addition], an adverse party may obtain the opinions of such witnesses (to the extent appropriate) through interrogatories, document production requests, and depositions.
The stated reason for the "emergency" amendment is that "Federal Rule of Civil Procedure 26(a) was amended on December 1, 2010. Because the amendment conflicts with Local Rule 104.10 and there is insufficient time to amend the rules under the regular procedure of Local Rule 605.1, the full bench considered and approved the following emergency amendment to Local Rule 104.10."
The order issuing the amendment extends the amendment to the present cases before the USDC-DMD: "This amendment applies to all cases filed or pending on or after December 1, 2010, to the extent practicable, unless otherwise ordered by the presiding judge."
iPad Apps for Lawyers
December 15, 2010
My iPad has been a valuable resource for my work as a medical malpractice attorney. Some of my favorite applications so far:
I use Dropbox, which allows you to copy PDF files to your iPad and take the files with you. I also like FRCP - to take the federal rules with me, and Ilawlib - legal library.
I've been using Tripit Pro to keep track of flights. For example, Tripit Pro will email you notices that your flight has been delayed by four hours due to weather or has been moved to another gate.
If you want to read The Washington Post on the road, there is a new Washington Post app for the iPad. I also like Dock Clock for my desk.
Challenges with Washington, D.C.’s Notice Statute
December 9, 2010
I have never been a big fan of Washington, D.C.’s notice statute. Defense counsel have raised an issue in one of my cases that points out one of the problems with the notice statute. A hospital nurse commits nursing malpractice, and she is an employee of the hospital acting within the scope of her employment. A notice letter is served on the hospital also naming the nurse and setting forth her actions, but the nurse is evading service and was not served.
Defense counsel is arguing that since the nurse was not served with the notice, then there was improper notice for the actions of the nurse, and the hospital is excused because its liability is based on the liability of the nurse.
I believe that the DC Notice statute does not require that each employee receive a separate notice, and most likely this will be the subject of briefs. Hopefully, the judge will issue orders resolving this argument once and for all.
D.C.’s notice statute only applies, by its own terms, to D.C. Superior Court and not to federal court.
The notice statute provides that a good faith unsuccessful effort to provide notice can be a basis for waiving the notice requirement. The statute says the judge may also do so when substantial justice so dictates. If a defendant is dodging service then the judge can waive the requirement.
When the hospital receives a notice letter setting forth the negligent actions of its nurse, then the hospital would put the nurse on notice. The hospital would still be responsible for the negligent actions of its employee. The drafters of the statute did not intend to do away with the doctrine of respondeat superior.
Neurologic Birth Injury
December 1, 2010
There is a very interesting article in the Journal of Legal Medicine on September 8th, 2010 by Robert L. Conason and Steven E. Pegalis on the topic of Neurologic Birth Injury, focusing on protecting the rights of the child. This article is a response to a previous article, “Defending a Neurologic Birth Injury” by Thomas P. Sartwelle, a medical malpractice defense counsel.
The Sartwelle article argues that obstetricians are falsely accused of causing birth injuries, and that these injuries cannot be avoided. He claims that a small minority of defense experts claim that a caesarean section could have prevented these injuries. He argues that science refutes these arguments. Sartwelle argues that plaintiffs’ attorneys knowingly pursue meritless cases, which we do not do. He even refers to one expert by name and notes that The American College of Obstetricians and Gynecologists (ACOG) has censured that expert.
Specialty organizations such as ACOG and the Neurosurgeons group have recently started censuring plaintiff’s experts, never defense experts, for testimony that they disagree with. Sartwelle proposes establishing a formal system to punish “rogue” experts who favor the plaintiff.
The article by Conason and Pegalis discuss no fault proposals to compensate, or actually, to not compensate, birth injury cases. These proposals basically would separate the cases most likely to be meritorious and then provide only some minimal compensation to these cases. There is also a discussion of whether the electronic fetal monitor is a useless gadget. Why would obstetricians use the electronic fetal monitor (EFM) in almost all deliveries if it was a useless gadget? ACOG tells mothers that EFM can alert “your doctor” to warning signs that can enable him or her “to take steps to help your baby.” (ACOG, Educational Pamphlet AP015 - Fetal Heart Rate Monitoring During Labor 2001). It points out that if the EFM suggests that the baby has a problem, the doctor may deliver right away.
However, when it comes to medical malpractice suits, ACOG does everything it can to argue to the contrary.
These two articles do a good job of summarizing general arguments and concepts in medical malpractice cases involving birth injuries.
Videotaping Depositions: Set Up and Equipment Suggestions
November 28, 2010
I have been videotaping depositions under Washington, D.C. Rules. I would suggest you carefully check the rules of your state before buying equipment and doing any videotaping of your depositions. For set up, one idea would be to discuss the set up ahead of time with opposing counsel. If agreement cannot be reached you could file a motion in advance of the deposition.
The set up I use is a Sony HD 240 GB Camcorder, Model Number HDR-XR550V, now on sale for $1200. The camcorder is high definition, and records up to 100 hours of high definition video. You can just download the video to your computer by USB, and you can distribute to opposing counsel on DVD or on external USB hard drives.
You need a high quality microphone. One idea is a single external microphone, used by court reporters, the HGM-1 Hi-Gain Mic. The cost is $150. This will handle a moderately sized group, say six people. Alternatively, you could get a portable mixer with XLR microphones, but this could cost as much as $1,000 or more for the mixer and $250 to $500 per XLR lavaliere microphone.
If you would like to stamp the date and time onto the video, you can use a program, DVMP Pro. This specifically supports this Sony camcorder, and costs $80, less with increasing quantity. You can also do basic editing with this program.
You would also need a video editing program. I would recommend Adobe Premiere Elements 9, available at Best Buy for $100, or Pinnacle Studio Ultimate, Windows, for $80 at Best Buy.
This is enough to get you started without problems at a cost of $1500. The camcorder and microphone are small and easily set up and operated. The camera even comes with a remote control! At $250 per hour for professional videographer, this would pay for itself in only six hours.
$4.1 Million Verdict in Maryland Birth Injury Case
November 18, 2010
A jury rendered a verdict of $4.1 million against the University of Maryland Medical Center on November 5th, 2010, to a boy (now 8 years old) with brain damage and cerebral palsy. Unfortunately, Maryland has a cap on non-economic damages (damages for pain and suffering) and the verdict will be reduced to $3.6 Million.
The case involved child Darryl Gholston, Jr. His mother, Nicole Player, claimed that there was a delay in delivering her child. Darryl was delivered three months prematurely and weighed less than 2 pounds at birth.
The lawyer was Keith Foreman. One of the principal experts for the boy in the case is Carolyn Crawford, M.D., a pediatrician and neonatologist, who has worked on cases with my law firm. The case caption is Darryl Gholston, Jr., et al v University of Maryland Medical Center Corp., Baltimore City Circuit Court, Case Number 24C09005519.
The hospital’s lawyers were the law firm of Miles and Stockbridge, P.C. in Baltimore.
Are Surgical Checklists the Cure for Medical Malpractice?
November 14, 2010
An editorial in the November 11th, 2010 issue of the New England Journal of Medicine titled "Strategies for Improving Surgical Quality – Checklists and Beyond" presents a checklist designed to help surgeons and surgical teams with quality control. There is another article in the same issue that the editorial cites as quieting "the skeptics.”
As a medical malpractice attorney and doctor, I think that the Checklists article and editorial are useful, and may use it in a pending surgical death case where there was a failure to address decreased potassium levels despite a red flag from the laboratory, leading to impaired gut motility, leading to bowel obstruction and death in a six month old infant.
On the other hand, I can't imagine basing a case on the failure to use a checklist. But I am willing to discuss it with my surgical experts and see what they think about it. If the lab sends back repeated red flags that the serum potassium is low, does it really help to have a checklist item? Also, the checklist could not be so detailed as to address every lab value and every contingency. I don't think that everything in medicine can be reduced to a series of endless checklists.
The editorial itself notes that considerable skepticism and controversy exists about the use of checklists.
