Facts

The plaintiff went to the BWMC emergency room in 2020 at the beginning of the COVID-19 pandemic. The first visit was on April 22, and then the second was on April 25. On April 22, the plaintiff reported fever, muscle aches, chills, nausea, mild cough, and diarrhea. She also said a lot of people at her work were sick and suspected to have COVID. The ER staff suspected she had COVID but did not test her because she did not meet the testing criteria in effect at the time. (Op. at 1).

On April 25, the plaintiff returned by ambulance with knee and back pain, sweat, chills, and cough. Specifically, her knee pain was increasing. The ER staff diagnosed her with suspected COVID and knee effusion. It discharged her, instructing her to return if she had difficulty breathing.

On April 30, she went to another ER and was diagnosed to be septic, have Group A strep., and suspected endocarditis. She did not test positive for COVID (Id.).

The plaintiff sued the BWMC emergency physicians in the Circuit Court for Anne Arundel County. The defense moved for summary judgment based on statutory immunity under PS 14-3A-06., which the circuit court granted (Id. at 2).

The plaintiff’s complaint alleges that she had a markedly elevated white blood cell count, including elevated bands indicating a more severe infection. (Id.).

Statutory Immunity

On March 5, 2020, the Maryland governor declared a state of emergency due to COVID-19. Subsequently, he issued executive orders under that declaration. On May 6, the governor issued a proclamation stating:

“Health care providers who act in good faith under this catastrophic health emergency proclamation, including orders issued under the proclamation by the Governor and by other State officials acting at the direction of or under delegated authority from the Governor, have the immunity provided by §14-3A-06 of the Public Safety Article of the Maryland Code.”

A May 6 directive from the MD Health Department stated: “MDH does not construe the immunity provisions in Pub. Safety Art. § 14-3A06 or Health Gen. Art. § 18-907 to apply to a healthcare provider or facility performing non-COVID-19 related procedures or appointments.”

Under PS 14-3A-06, “[a] health care provider is immune from civil or criminal liability if the health care provider acts in good faith and under a catastrophic health emergency proclamation.” 

Appellate Court’s Analysis of Statutory Immunity

The Appellate Court found that the governor’s March 5 proclamation triggered this application of statutory immunity. The Appellate Court observed no allegation of failure to act in good faith. As a result, the question is what does it mean to act “under” the proclamation. (Op. at 8-9).

The Court found that the ER physicians had provided COVID-related care even though they had not provided the care allegedly needed for another infection process in the knee (Id. at 11). As a result, the Appellate Court found that the care was “sufficiently related” to the emergency proclamation to be entitled to statutory immunity under PS 14-3A-06 (Id. at 11-12).

The Court held that the May 6 directive did not apply because the official issued it after the care (Id. at 11-13). The Court also noted that other factual scenarios may raise various issues relating to statutory immunity.

Commentary By the Baltimore Medical Malpractice Lawyer

This commentary is more related to the nature of the statutory immunity than the Court’s interpretation.

Officials’ Response to COVID

Many of the decisions that government officials made during COVID were questionable. They include expansive lockdowns, frequently changing (and sometimes inconsistent) directives on mask mandates, “physical distancing,” limits on gathering sizes, quarantine requirements, and testing guidelines. Officials had to make many decisions without all of the information they would have liked about COVID, including its contagiousness and prospects for treatment. Despite this limitation, however, there is ample evidence that many decisions could have been more wise regardless of the state of knowledge.

Some of the difficulties with the policy decisions are the inevitable challenges that “one size fits all” rules always present. These same challenges apply to healthcare provider statutory immunity. Perhaps more importantly, however, statutory immunity is arguably unnecessary to accomplish its goals.

Maryland’s Standard of Care is Sufficient

Suppose the immunity is to protect healthcare workers in a public emergency. In that case, the medical malpractice system already does that. In Maryland, the standard of care for healthcare workers is the standard of practice among members of the same healthcare profession, with similar training and experience, situated in the same or similar communities at the time of the alleged malpractice. CJP 3-2A-02(c)(1).

Two components apply to this discussion: “standard of practice . .. at the time of the alleged malpractice.” Any medical malpractice case related to care provided during a public health emergency would use a standard of care that reflects the circumstances of the emergency. In this public health situation, that would include the knowledge at the time about COVID and its testing and treatment.

Because of this standard, some aspects of COVID cases make them unviable as medical malpractice cases. Throughout the COVID pandemic, I spoke to many potential clients who had bad outcomes from COVID-19. I did not see a possible medical malpractice case in nearly all of those instances. The reason was usually the lack of any proven treatment and the unpredictability of the outcomes. There often was no pattern. Some young and otherwise healthy patients died or had permanent complications, and some older, health-compromised patients made complete recoveries.

Consequences of Statutory Immunity

Constantine, however, was not a COVID case. It was a suspected COVID case. Other facts indicated an unrelated, serious infection process. These options are the essence of differential diagnosis. The health care providers got it wrong.

Statutory immunity has given the healthcare providers an automatic pass at the expense of the plaintiff’s permanent loss. The medical malpractice system, however, was equipped to weigh the healthcare provider’s actions according to the appropriate standard to determine whether the plaintiff was entitled to compensation. 

As the Appellate Court recognized, it is unknown how many other plaintiffs will be denied the protection of the justice system under statutory immunity.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

In part 1, I addressed when an expert is in a “similar specialty” to that of the defendant doctor. CJP 3-2A-02(c)(2)(ii)(1)(B). In part 2, I addressed the Court’s ruling on the issue of peremptory challenges. I then in part 3 addressed the informed consent ruling.

Facts

Here, I will repeat the basic facts of the case. The plaintiff sued a hospital, an emergency room doctor, a vascular surgeon, and their practice groups in the Circuit Court for Harford County. She alleged that as a result of breaches of the standard of care, she had to undergo a below-the-knee amputation. After a two-week trial, the jury then returned a defense verdict, and the plaintiff filed an appeal. (Op. at 1).

On June 16, 2017, the plaintiff went to the emergency room. Her right foot was numb, pale, and cool. An ultrasound showed an abnormal Ankle-Brachial Index (ABI). After a physical exam, Dr. Lu found no emergent vascular compromise to warrant emergent intervention. However, due to the low ABI, she recommended follow-up with vascular surgery if symptoms continued (Id. at 3-4).

On June 18, the plaintiff then returned to the ER. She reported that the pain was worse and the top of her foot was icy cold. ER Dr. Bassi admitted the plaintiff. The ER doctor requested a vascular surgery consultation. The consultation did not occur for two days. (Id. at 5-6).

Maryland Standard of Care

The circuit court precluded the plaintiff’s vascular surgeon expert from testifying that the defendant’s vascular surgeon breached the standard of care by not doing a consult on June 18 or 19. The defendant practice group had a policy of responding to non-stat consult requests within 24 hours. Moreover, Dr. Lu requested a consultation with the group. Dr. Gonze was not on call on the 19th. Therefore, the circuit court precluded the plaintiff from arguing that the failure to consult on either day was a breach.

The Appellate Court ruled that the trial erred in finding that the group’s response policy established the standard of care and that no other evidence could be offered (Id. at 51). The policy can be evidence of the standard of care but cannot control that issue (Id. at 52-53).

Commentary By the Baltimore Medical Malpractice Lawyer

Standard of Care

The defense’s argument that the vascular surgeon group’s policy set the standard of care can be easily dismissed by looking at the ramifications. Such a rule would encourage self-serving guidelines that would be far looser than quality patient care would require. In addition, there would be varying policies within a hospital among specialists of the same type and among hospitals in a community. Moreover, as groups and hospitals amend policies, patients would face differing policies depending on whether they present before or after a policy change. All of this would be under the fiction that these vastly differing and constantly changing policies reflect a reliable and consistent standard of care.

Next for the Standard of Care Claim

Maryland Supreme Court

At this time, the deadline for seeking review in the Maryland Supreme Court has not run. The Appellate Court’s opinion was not a complete win for either side, and as a result, either can seek review in the highest court. However, the Supreme Court does not have to accept any such appeal—it is discretionary. Given the overall soundness of the Appellate Court’s ruling, I would be surprised if either party sought such a review, and I would be even more surprised if the Supreme Court would grant it.

Maryland Circuit Court

As a result, the likely next step is remand in the circuit court, in the Appellate Court’s opinion. The plaintiff’s initial case had a standard of care claim against the ER physician on the 16th for not requesting a vascular consult. It also alleged negligence on the part of the vascular surgeon for waiting until the 20th to do a consult requested on the 18th.

In the first trial, the jury determined that the ER doctor on the 16th did not breach the standard of care. The next jury will not revisit that decision. The first jury, however, had not been allowed to consider the vascular surgeon’s failure on the 18th and 19th. The plaintiff will present this new claim to the jury on remand.

From just reading the opinion, there needs to be more known to comment in detail on the plaintiff’s prospects on the standard of care claim against the vascular surgeon on remand. However, the plaintiff’s causation case has become more difficult. The window of negligence has been reduced from 4 days (16th-20th) to 2 days (18th-20th).

The plaintiff has to show that an earlier vascular surgery consult would have resulted in treatment that saved the leg. The earlier the consult, the better prospects for such proof. If the next jury finds a breach of the standard of care, it will have to determine if the vascular surgeon could have saved the leg in those two days.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.