What is Medical Malpractice: Do I Have a Valid Case?

Well over half of all of the potential new case calls that our office receives start out with the caller stating that they are not sure that they have a case, but they want to just talk to a lawyer to see if the care that they received constitutes medical malpractice. We understand. What constitutes medical malpractice is often times difficult for people to understand because they are focusing on primarily on the fact that they believe a bad outcome must necessarily be equated with malpractice. Unfortunately, that is not the case. In Maryland, medical malpractice is generally defined as a negligent act or omission by a health care provider that caused an injury to the patient. This negligence can be from something as simple as a medication error or failing to monitor a patient with a known history of falls, to an improper or delayed delayed diagnosis and/or negligent treatment following a surgery or other procedure. A recent study at Harvard found that more than 200,000 deaths each year are caused by medical mishaps, but only 25,000 to 120,000 of those are due to actionable medical malpractice/negligence.

So, when a potential client telephones us and describes the set of circumstances that gave rise to the injury or death in question, how do we lawyers analyze your claim? The first thing that we do is try and determine if there was a violation of what is known as the “standard of care.” The term standard of care, as is applies to medical malpractice cases, is what a reasonable doctor in the same or similar circumstances would have done if he was practicing in the same or similar setting. Standards of care for various procedures, after-procedure treatment, making diagnoses, etc., are generally uniformed throughout the country and are largely determined by such things as medical ethics boards, medical licensing divisions, practices and procedures that are uniformly taught at medical schools around the country and professional organizations for the various specialties within the field of medicine. For example, if a first-time caller questions why her cancer diagnosis was not made sooner than it was, our attorneys will investigate what types of symptoms the caller had, what type of testing was offered to the caller by the health care provider and whether other similarly situated health care providers would have treated the caller in the same manner as his/her doctor did. Most often, we will speak directly with physician-experts within the same field to help us answer these questions. That is because, in Maryland, in order to file a medical malpractice lawsuit against a health care provider, we must obtain what is known as a Certificate of Qualified Expert (essentially an affidavit) from a health care provider within the same or similar subspecialty of the potential defendant health care provider) wherein the expert attests that the care at question fell below the accepted standards of care. Once this Certificate of Qualified Expert is obtained (along with a report from that expert setting forth exactly how the defendant health care provider deviated from the standard of care), we are free to move forward with filing the lawsuit.

In addition to demonstrating that the defendant health care provider provided care that was negligent/below the standard of care, our office must also determine if that care “caused” the plaintiff a legally permissible form of injury, and specifically, what that injury is/was and whether it is permanent in nature. If the negligence does not have a legally recognized causal connection to the injury, there is no case. For example, in Maryland, if a doctor was negligent in failing to timely diagnose a patient with a cancerous tumor, but that negligence did not in any way shorten the patient’s life expectancy or affect his/her survivability, there is no case. Lastly, while permanency of the injury is not necessarily a requirement, due to the expenses associated with bringing a medical malpractice case, permanent injuries naturally are considered more egregious than temporary injuries that require no additional treatment. To be truly worth pursuing, a plaintiff typically must be able to show that the outcome resulted in losses/damages that far exceed the amount of legal fees and expenses necessary to bring the action.

In sum, if you or a loved one believes you were victimized by a health care provider whose care fell below the standard of care, call our lawyers for a free consultation at (410) 385-2225. We routinely practice in the Baltimore and Washington D.C. areas.