Factual Background

The roots of this legal battle trace back to a birth Injury that occurred in 2004. The plaintiffs were a mother and child. They alleged that the medical care provided at the hospital was negligent. Specifically, they targeted two theories of liability. The direct negligence of the hospital’s nursing staff and the vicarious liability of the attending obstetrician.

The case in the Circuit Court for Harford County reached a twelve-day jury trial in July 2022. Separate counsel represented the hospital and doctor. They appeared to the outside world as co-defendants with aligned interests in defeating the plaintiffs’ claims. However, just after the court impaneled the jury, the plaintiffs’ counsel disclosed that they had struck a deal with the doctor.

The parties to the agreement did not disclose the terms of this deal to hospital or the trial judge at the start of the proceedings. The trial judge declined at that time to require disclosure of the terms. While the trial moved forward, the doctor remained a named defendant. He testified with a level of contrition that suggested he was “accepting responsibility”. It wasn’t until the third week of trial—after nearly all evidence had been presented—that the details of the “Agreement” was finally revealed. The jury eventually returned a verdict of $13,385,000 against the hospital.

Parties’ Arguments on Disclosure of Mary Carter Agreement

The core of the appeal centered on whether the trial was fundamentally unfair due to the secrecy of the agreement between the plaintiffs and the doctor.

The Hospital’s Position (Appellant)

The hospital argued that the deal was a “Mary Carter Agreement.” This is a controversial type of settlement where a defendant stays in the case but has their liability capped or eliminated in exchange for helping the plaintiff’s case against other defendants. The hospital contended that:

• The court should have dismissed the doctor from the case entirely once the parties had entered into the agreement.
• The late disclosure of the deal created a “sham of adversity,” where the jury was misled into thinking the doctor was a true adversary to the plaintiffs when he was actually cooperating with them.
• The delay prevented the hospital from effectively cross-examining the doctor about his motives or using an “empty chair” defense to shift blame away from the nurses.

The Plaintiffs’ Position (Appellees)

The plaintiffs fought to keep the verdict intact, arguing:

• The deal wasn’t a true Mary Carter Agreement because no money changed hands upfront.
• The trial judge eventually disclosed the agreement to the jury before they deliberated, which they argued cured any potential prejudice.
• The hospital was still directly liable for the nurses’ actions regardless of the doctor’s status.

Court Ruling on Disclosure of Mary Carter Agreement

The Appellate Court of Maryland ultimately sided with the hospital. It reversed the circuit court’s decision and remanding the case for a new hearing on the motion for mistrial.

Defining the Agreement

The court first confirmed that the deal was, in fact, a Mary Carter Agreement. The court found the doctor received a “pecuniary benefit” because the plaintiffs promised not to enforce any judgment against him. This created the very “sham of adversity” Maryland law seeks to avoid.

The Dismissal Issue

The court clarified that Maryland law does not automatically require a defendant who settles via a Mary Carter Agreement to be dismissed from the case. Therefore, the trial judge did not err by letting the doctor stay in the trial.

The Prejudicial Delay

The fatal error, according to the Appellate Court, was the timing of the disclosure. By allowing the trial to proceed for weeks without the jury knowing about the secret deal, the lower court allowed the doctor’s testimony to be viewed in a vacuum. The jury saw a “heroic figure” who was “taking full responsibility” without knowing he had zero financial risk.

The court noted that the hospital lost its chance to:

1. Color the doctor’s testimony by showing he had “nothing to lose”.
2. Properly execute an “empty chair” defense.

The court concluded that while there is no “bright line rule” on when these deals must be disclosed, in this specific case, the plaintiffs’ disclosure was far too late to save the fairness of the trial.

Commentary on Disclosure of Mary Carter Agreement

Mary Carter Agreements are not common. This opinion restates that the trial judge has discretion to require the terms be revealed to the jury, but the scope of that discretion is unclear.

Generally, abuse of discretion is a very high bar for an appellant to clear. It requires showing that the trial judge’s decision was “well removed from any center mark” or “violative of fact and logic.”

Although this opinion states that a trial judge “may” disclose the terms of a Mary Carter agreement, the discussion does not indicate if nondisclosure is ever within the discretion. In terms of timing of the disclosure, the appellate court said the end of evidence was too late but declined to set a bright line rule. The trial judge’s allowance of the parties to recall witnesses did not cure the lateness. What constitutes late in other cases is not clear.

Plaintiffs may want to push for the best of both worlds by having the agreement and declining or delaying in disclosing it. However this opinion is a cautionary tale that shows the risks of proceeding in that manner.

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.

This post of the Baltimore Medical Malpractice Lawyer Blog highlights a significant medical malpractice verdict. A jury recently sent a powerful message regarding the standard of care in oncology and diagnostic imaging. The jury awarded $25 million in a medical malpractice case to an angiosarcoma patient. They found that doctors repeatedly failed to timely diagnose the rare and aggressive form of cancer.

This case serves as a sobering reminder about “benign” assumptions and communication breakdowns within a medical system. They can lead to catastrophic, life-altering outcomes for patients.

The Medical Malpractice Case: A Three-Year Failure to Act on Angiosarcoma

The plaintiff’s ordeal began when he first sought evaluation for a persistent lump in the breast area. Despite the ongoing presence of the mass, the initial clinical assessment dismissed it as benign. Notably, the medical providers did not order imaging at that time to confirm the diagnosis.

The failure to diagnose was not the result of a single oversight, but rather a multi-year chain of errors:

• Ignored Recommendations: At one point, a radiologist specifically recommended additional diagnostic testing for the patient. However, the medical providers did not take any further steps, and never told the patient that the recommendation existed.
• Misinterpreted Biopsies: When the medical providers eventually biopsied the mass, they mischaracterized the results as noncancerous. This provided a false sense of security that further delayed life-saving intervention.
• The Devastating Discovery: By three years later, the mass recurred and new symptoms emerged. Subsequent testing revealed advanced angiosarcoma that had already metastasized, or spread, including a large tumor in the patient’s liver.

The medical providers who later reviewed the earlier biopsy samples confirmed that cancer had, in fact, been present years prior. The defense argued the disease might have been terminal regardless of the timing. However, the jury disagreed, finding that the failures in diagnosis, follow-up, and informed consent directly caused the patient significant harm.

Understanding Angiosarcoma and Medical Malpractice

To better understand how this cancer behaves and why the diagnostic failures in the $25 million verdict were so critical, it is helpful to look at the specific anatomy involved.

The Anatomy of Angiosarcoma: Blood Vessels and Lymphatics

Angiosarcoma is unique because it does not originate in an organ’s functional cells (like lung or liver cells), but rather in the endothelium.

The Endothelial Lining

The endothelium is a thin layer of simple squamous cells that lines the interior surface of the entire circulatory system, from the heart to the smallest capillaries.

• Structure: Think of the endothelium as the “wallpaper” of your blood vessels. It acts as a gatekeeper, controlling the passage of fluids, nutrients, and white blood cells between the blood and the surrounding tissue.
• Vascular System: Because blood vessels permeate almost every square inch of the human body, angiosarcoma can technically manifest in any anatomical location.
• Lymphatic System: This cancer also arises in the lining of lymph vessels, which transport lymph fluid and are a key part of the immune system.

Common Anatomical Sites

While it can appear anywhere, certain anatomical regions are more frequently involved:

• The Dermis and Hypodermis: The most common form is cutaneous (skin) angiosarcoma, often appearing on the scalp or face of older patients.
• Breast Tissue: As seen in the recent verdict, the breast area is a significant site for this cancer. It can occur as a primary tumor or a secondary complication following radiation for breast cancer.
• Deep Soft Tissue: It can grow within the muscles of the limbs or the trunk.
• Visceral Organs: The liver, spleen, and heart are the most common internal organs affected. In the case mentioned, the cancer eventually spread to form a large tumor in the patient’s liver.

Anatomy of Angiosarcoma and Metastasis in Medical Malpractice

The anatomy of the disease is also why it spreads so efficiently. Because the cancer originates inside the vessels, malignant cells have immediate access to the body’s transport systems.

• Hematogenous Spread: Cancer cells break off and travel through the bloodstream.
• Lymphatic Spread: Cells move through the lymph nodes to distant sites.

In this case, the anatomy played a tragic role. The persistent lump in the breast area remained undiagnosed for years, giving the malignant endothelial cells a direct “highway” to migrate to the liver, where the advanced stage of the disease was finally discovered. Understanding that this cancer is literally part of the circulatory system underscores why a “wait and see” approach for a persistent mass is a dangerous breach of the medical standard of care.

Causes and Risk Factors

While many cases of angiosarcoma occur sporadically without a clear cause, there are several well-documented risk factors:

• Radiation Therapy: Patients who have received radiation for other cancers (such as breast cancer) are at an increased risk of developing angiosarcoma in the treated area, often 5 to 10 years later.
• Chronic Lymphedema: Long-term swelling of the limbs, often after lymph node removal, can trigger the development of these tumors (a condition known as Stewart-Treves syndrome).
• Chemical Exposure: Exposure to certain industrial chemicals, such as vinyl chloride, arsenic, or thorium dioxide, has been linked specifically to angiosarcoma of the liver.
• Genetic Factors: Certain rare genetic syndromes, like Neurofibromatosis type 1, may slightly increase susceptibility.

Symptoms to Watch For

Angiosarcoma is often a “great masquerader,” frequently mistaken for bruises or benign fatty tumors (lipomas). Symptoms include:

• A purple or blue-black lesion on the skin that resembles a bruise but does not heal.
• A soft-tissue lump that may be painful or painless, often increasing in size.
• Lesions that bleed easily when bumped or scratched.
• In advanced cases, symptoms like weight loss, fatigue, or abdominal pain if the condition involves the liver.

The Diagnostic Path

As highlighted by the recent medical malpractice litigation, a clinical exam alone is often insufficient to rule out an angiosarcoma malignancy. If a lump is persistent or growing, specific medical providers and tools are required for an accurate diagnosis.

Who to See

If you notice a suspicious growth, you should initially consult a Dermatologist(for skin-based lesions) or a General Surgeon. However, if there is any suspicion of a sarcoma, you should be referred to a Surgical Oncologist or a specialized Sarcoma Center. These specialists have the expertise to distinguish between common fatty growths and rare vascular malignancies.

Tools and Equipment

• Advanced Imaging: MRI is the preferred tool for evaluating soft tissue masses, as it provides high contrast between different types of tissue. Medical providers often use CT scans and PET scans are to see if the cancer has spread to organs like the lungs or liver.
• Core Needle Biopsy: This is the most critical step. A doctor uses a specialized needle to remove a small cylinder of tissue.
• Histopathology: A pathologist examines the tissue under a microscope. To confirm angiosarcoma, they use Immunohistochemistry (IHC). This uses antibodies to detect specific markers (like CD31 or CD34) that prove the cells originated from blood vessels.

Angiosarcoma Treatment and Prognosis, and Medical Malpractice

The complexity of angiosarcoma requires a multidisciplinary team, typically including a Medical Oncologist, a Radiation Oncologist, and a Surgical Oncologist.

Treatment Modalities

1. Surgery: The goal is the complete removal of the tumor with “wide negative margins,” meaning no cancer cells are found at the edge of the removed tissue.
2. Radiation Therapy: This is often used before surgery to shrink the tumor or after surgery to kill any microscopic cells left behind, reducing the risk of recurrence.
3. Chemotherapy: For aggressive or metastatic cases, drugs such as paclitaxel or doxorubicin are used to slow the spread of the disease.
4. Targeted Therapy& Immunotherapy: In recent years, newer treatments that target the growth signals of blood vessels (anti-angiogenic drugs) have shown promise.

Prognosis

The prognosis for angiosarcoma depends heavily on the timing of the diagnosis. When caught early and treated with radical surgery, the chances of survival are significantly higher. However, because it is so aggressive, the overall five-year survival rate is generally between 20% and 35%. When medical providers misdiagnose or delay a diagnosis by years—as happened in this case—the cancer often reaches a stage where a “cure” is no longer possible. Treatment then shifts toward extending life and managing symptoms.

Final Thoughts on Angiosarcoma Medical Malpractice

The $25 million verdict is more than just a financial award. It is a reminder that patients deserve transparency and diligence. When a radiologist recommends a follow-up, the medical providers must share that information. When medical providers perform a biopsy, they must interpret it with the highest degree of accuracy.

If you or a loved one are facing a persistent medical issue that your providers are “dismissing”, do not hesitate to seek a second opinion. In the world of oncology, time is the most valuable resource a patient has.

If you have experienced a delay in diagnosis of cancer, and that delay has caused the cancer to reach stage 4 by spreading to other organs, then contact the Kopec Law Firm now.

You can read about other Blog posts on Verdicts involving misdiagnosis of a number of different types of cancers.

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.

Part 1 of this series focused on the “same or related specialty” requirement for expert witnesses in Maryland medical malpractice cases. Part 2 discussed the ruling that an erroneous summary judgment for one defendant did not require reversal of defense verdicts in favor of other defendants.

Factual Background

The case centered on a 76-year-old patient who visited an outpatient facility for a routine endoscopic procedure. After the procedure completed, the medical providers monitored the patient in a recovery unit for approximately 30 minutes. The patient’s age and high-risk medical history included hypertension, morbid obesity, and diabetes. Despite this, the gastroenterologist authorized his discharge and allowed him to leave the facility on foot.

While walking to his car in the parking lot, the patient fell and sustained catastrophic spinal injuries. He died two weeks later. His family brought medical malpractice and wrongful death claims in the Circuit Court for Baltimore County. During the trial the defendants argued that the patient was “contributorily negligent.” They supported this theory by citing a statement from the patient’s spouse. She mentioned to emergency responders that her husband appeared to have tripped on a curb or a slight unevenness in the sidewalk. On the basis of this testimony, the trial court allowed the jury to receive an instruction on contributory negligence. This essentially gave the jury the power to bar the family from any recovery if they believed the patient was even slightly at fault for the fall.

Parties’ Arguments

On appeal, the plaintiffs argued that the trial court committed error by giving the contributory negligence instruction. They contended that there was no evidence that the patient acted unreasonably. The plaintiffs’ primary argument was that a patient cannot be found negligent for simply walking to his car after a doctor has officially determined he is safe to be discharged. They argued that “tripping” is a physical event, not a failure of legal duty. This is especially true when the medical team failed to provide the necessary assistance or a wheelchair.

The defendants argued that the instruction was appropriate because the patient had a duty to look where he was walking. They suggested that by failing to navigate the sidewalk safely, the patient contributed to his own injuries. They essentially sought to convince the jury that the fall was the result of a “trips and falls” hazard rather than the residual effects of anesthesia or a lack of medical supervision.

Court’s Ruling on Contributory Negligence in Medical Malpractice

The Appellate Court of Maryland reversed the trial court’s decision on this issue, ruling that the evidence did not support a contributory negligence instruction. The Court held that for a defendant to successfully raise a contributory negligence defense in a medical malpractice case, there must be evidence that the patient violated a specific instruction given by a healthcare provider.

The Court noted that in this case, the patient was doing exactly what he was told he could do. He was leaving the facility. There was no evidence that he ignored a warning not to walk, nor did he refuse a wheelchair. The Court clarified that a patient is entitled to rely on their doctor’s professional judgment that they are fit for discharge. Furthermore, the Court distinguished between “causation” and “negligence.” While a defendant can argue that a trip caused the fall to negate the link to medical care, they cannot label that trip as “negligence” by the patient unless the patient breached a duty of care. Because the patient followed all instructions, the defense of contributory negligence was legally unavailable.

Commentary by Medical Malpractice Lawyer Mark Kopec on Contributory Negligence in Medical Malpractice

In my view, the Appellate Court decided this issue correctly. It is a significant decision for patient rights in Maryland. Contributory negligence is a notoriously harsh doctrine in our state. Maryland is one of the few remaining jurisdictions that follows “pure” contributory negligence. As a result, a plaintiff who is found to be even 1% at fault is completely barred from recovering any damages. This “all or nothing” rule is why defendants so aggressively try to inject this issue into every case they can.

However, contributory negligence is rarely applicable in Maryland medical malpractice cases, and for good reason. A patient enters a medical facility because they lack medical expertise. They are there to rely on the expertise of professionals. It is inherently contradictory to allow a doctor to declare a patient “safe” and then allow that same doctor to argue the patient was “negligent” for believing them.

Tripping is Not Contributory Negligence in Medical Malpractice

As the Court recognized, a patient’s simple act of walking—even if they trip—does not constitute legal negligence if they have been cleared for that activity by their physician. Defendants often try to confuse the jury by framing accidental movements as “fault.” However, this ruling reinforces the high bar required to blame a patient. Unless a patient explicitly defies medical advice (such as getting out of bed after being told to stay put), the defense should not be allowed. This decision prevents defendants from using “victim-blaming” tactics to escape liability for their own failures in risk assessment and patient safety.

You can read other Blog posts on the topic of Defenses.

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.

Factual Background

This litigation began following a 2015 incident at a local outpatient facility. A 76-year-old patient underwent a common gastrointestinal procedure. Following the four-minute procedure, the medical providers moved the patient to a recovery area for monitoring. The plaintiff had a medical history that included morbid obesity, hypertension, and diabetes. Despite this history, the treating physician approved the patient for discharge approximately 30 minutes later.

Tragedy struck almost immediately after the patient left the building. While walking to his car in the parking lot, the patient fell. He suffered severe spine injuries to the thoracic area. He passed away two weeks later from complications related to these fractures. The surviving family members subsequently filed a medical malpractice and wrongful death lawsuit in the Circuit Court for Baltimore County.

The legal action targeted several parties. They were the board-certified gastroenterologist, his medical practice, the ambulatory surgery center, a nurse anesthetist, and a licensed practical nurse. Before the trial could begin, the circuit court granted summary judgment in favor of the doctor. The trial court ruled that the plaintiffs’ experts expert witnesses were not legally qualified to testify against him. The effect of this summary judgment on the claims against the co-defendants is the subject of this Blog post. As a result, the case proceeded to an eight-day jury trial. The only the remaining nurse anesthetist and the monitoring nurse were defendants. Ultimately, the jury found that these two providers had not breached their respective standards of care.

Parties’ Arguments

Following the defense verdict at trial, the plaintiffs filed an appeal. One of their primary contentions related to the effect of the summary judgment on the remaining defendants. They noted the trial court’s initial error of wrongly dismissing the doctor from the case. They claimed this required the reversal of the jury’s verdict in favor of the other two defendants. The plaintiffs argued that the absence of the “lead” physician created a significant void in the trial. They suggested that without the doctor at the defense table, the remaining providers were able to “bootstrap” their defense onto the court’s earlier ruling.

The plaintiffs maintained that the jury was essentially left with an incomplete picture of the healthcare team. They argued that the jury’s decision regarding the nurses was inextricably linked to the doctor’s actions. Therefore, the entire matter should be remanded for a new trial involving all original defendants. This would ensure a fair adjudication of the “full narrative” of the patient’s care.

In contrast, the defense argued that there was no improper effect from the summary judgment on the claims against them. They advocated for the finality of the jury’s decision. They asserted that any error regarding the doctor was “harmless” in relation to the claims against the other providers. The defense contended that the standards of care for a nurse anesthetist and a recovery room nurse are legally distinct from those of a physician. Therefore, they argued that the jury’s finding that these specific individuals did not act negligently should stand on its own/ This is regardless of whether the doctor’s dismissal was technically incorrect.

Court’s Ruling on Effect of Summary Judgment on Co-Defendants

The Appellate Court of Maryland provided a ruling that balanced the correction of legal errors with the preservation of jury findings. While the Court agreed with the plaintiffs that the trial court should not have dismissed the doctor, it affirmed the jury’s verdict in favor of the nurse anesthetist and the monitoring nurse.

The Court’s decision was rooted in the principle of “non-prejudicial error”. To overturn a jury verdict, an appellant must prove not only that an error occurred. The error must “probably affected the verdict”. The Court found that the plaintiffs failed to meet this high burden. There was no improper effect from the summary judgment on the claims against the co-defendants. The judges reasoned that:

• Distinct Roles: The jury was tasked with deciding if the individual nurses breached their own standards of care. Whether the doctor was also negligent was a separate question that did not necessarily dictate the nurses’ liability.
• Separation of Duties: The evidence at trial focused specifically on the monitoring and sedation responsibilities of the nurses. The Court found no “substantial likelihood” that evidence of the doctor’s potential negligence would have altered the jury’s assessment of the nurses’ specific conduct.
• Finality of Litigation: The Court emphasized that it is possible to reverse one part of a judgment (the doctor’s dismissal) while affirming another (the jury’s verdict for the nurses) if the issues are severable.

Ultimately, the Court remanded the case for a new trial against the doctor and the surgery center. It while let the defense verdict stand for the two nurses.

Commentary by Medical Malpractice Lawyer Mark Kopec on Effect of Summary Judgment on Co-Defendants

The plaintiffs were correct that dismissal of the doctor made their case more challenging. However, it was not a legally recognizable harm. Anytime a plaintiff chooses to sue non-doctors, they often run into the defense that the doctor was the ultimate authority, not the non-doctors. Unless the non-doctor failed to covey important information to the doctor, these claims are often challenging. With the doctor gone, the non-doctor defendants could blame the doctor’s “empty chair.” This same situation can happen when a plaintiff settles with the doctor and pursues the non-doctors.

However, this is not legal unfair prejudice. I believe the Appellate Court’s decision on this issue was appropriate and legally sound. In the world of medical malpractice litigation, we often deal with “teams” of providers. While it is true that these providers work together, Maryland law treats them as individuals with distinct professional obligations.

No Recognizable Prejudice

The Court’s refusal to automatically overturn the verdict for the other defendants prevents what could have been a “total litigation reset” that ignores the work of the jury. The plaintiffs had eight days to present their specific evidence against the nurses. A jury of peers heard that evidence and concluded that those two individuals met their professional standards. Overturning that finding simply because a different party (the doctor) was wrongly excluded would be unfair to the defendants who participated in the trial and won on the merits. The summary judgment would not be allowed to have that effect.

Furthermore, this decision reinforces the “harmless error” doctrine. It reinforces that a legal mistake at the summary judgment phase does not poison the entire well of a subsequent trial unless a plaintiff can prove actual prejudice. By allowing the claims against the doctor to proceed in a new trial, the Court corrected the injustice done to the family, while simultaneously respecting the integrity of the jury’s findings regarding the other staff. This balance ensures that victims of malpractice have their day in court against the correct parties, without undermining the legal finality of our justice system.

You can read other reblog posts on the issue of Appeal.

In Part 3, I will examine the applicability of the defense of contributory negligence to this medical malpractice case.

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.

Factual Background: A Routine Procedure with Tragic Consequences

In October 2015, a 76 year old patient had a routine upper endoscopy. It was at an outpatient surgical facility in Baltimore County. A board-certified gastroenterologist performed the procedure. Because the procedure required sedation, a certified registered nurse anesthetist (CRNA) gave sedative medications under the gastroenterologist’s supervision.

Following the short procedure, they moved the patient to a recovery room. A licensed practical nurse (LPN) monitored him there for approximately 30 minutes. The patient’s medical history involved morbid obesity, diabetes, and hypertension. He also was coming out of anesthesia. Despite these facts, the gastroenterologist approved the patient for discharge at 7:28 a.m. The gastroenterologist will be part of the relate specialty issue.

While walking to his car in the parking lot after discharge, the patient fell on the sidewalk. He suffered a severe spine injury. Although initial X-rays showed no fractures, his pain got worse over the next ten days. This continued until he was unable to move. Subsequent imaging revealed unstable fractures in his vertebrae. Despite emergency surgery, the patient died approximately two weeks after the fall from complications related to the spinal fracture.

The patient’s family filed a medical malpractice and wrongful death action in the Circuit Court for Baltimore County. They alleged that the healthcare providers failed to identify the patient as a “severe fall risk” and breached the standard of care by discharging him without a wheelchair or proper assessment. To support their claims against the gastroenterologist, the plaintiffs relied on the expert testimony of a board-certified anesthesiologist, whom they believed was in a related specialty to the gastroenterologist.

The Court’s Holding: Defining an Expert’s “Related Specialty”

The central legal hurdle for the plaintiffs was the Health Care Malpractice Claims Act. It requires that an expert testifying against a board-certified defendant must be “board certified in the same or a related specialty”. The gastroenterologist moved for summary judgment, arguing that he did not share a “related specialty” with an anesthesiologist. The circuit court initially agreed, finding no “overlap” between the two fields of doctors in the context of post-operative discharge.

Factors In Determining If An Expert Is In A Related Specialty

However, on appeal, the Appellate Court of Maryland reversed this ruling. The Court clarified that two specialties are “related” if there is an overlap in the treatment or procedures at issue in the case. The Court’s holding noted several key principles for determining if an expert is qualified under the “related specialty” provision:

• Focus on the Specific Procedure at Issue: The Court noted that in an ambulatory surgery center, gastroenterologists and anesthesiologists (or anesthetists) collaborate closely. While their primary roles differ, they share common responsibility for post-procedure care.
• Identical Standards of Care: The expert anesthesiologist provided testimony stating that the standard of care for post-operative management and discharge assessment is “identical” for both gastroenterologists and anesthesiologists in this clinical setting.
• Experience in the Clinical Setting: The Court emphasized that the expert had extensive experience with the same type of procedure performed in the same clinical setting. This made him well-qualified to opine on the discharge process, regardless of his different board certification.
• Overlap of Expertise: The Court held that two specialties are related when the treatment rendered is performed by both specialists and is within the overlap of expertise of both board specialty areas. In this case, the assessment of fall risk after anesthesia is a cross-disciplinary task that both types of specialists are expected to perform.

Commentary By Baltimore Medical Malpractice Lawyer Mark Kopec

By reversing the summary judgment, the Appellate Court ensured that the claims against the gastroenterologist could proceed. This ruling prevents defendants from using narrow specialty definitions to disqualify qualified experts who possess the relevant clinical experience for the specific care at issue.

The Appellate Court’s analysis reveals that this was a straightforward decision under the related specialty factors. While the plaintiff was likely to ultimately prevail, the choice of an anesthesiologist to critique a gastroenterologist is often going to prompt the defense to take a stab at exclusion. This is true even if the law does not support them. Although it cannot always be accomplished, choosing experts in the same specialty can help avoid the defense’s delaying tactics.

Stay tuned for Part 2 of this series, where we will examine the Court’s analysis of the jury verdicts and the “likelihood of prejudice” resulting from the trial court’s errors. In addition, Part 3 will discuss the applicability of the doctrine of contributory negligence to this medical malpractice case.

You can read additional Blog posts on expert testimony issues, including posts on the related specialty issue:

• Related Specialty: Otto v. UPMC 1
• Related Specialty: Street v. UPMC 1

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.

Factual Background to the One Satisfaction Rule

​The appellate court noted that the plaintiff has an extensive and complex medical history. (Op. At 2).

In 2009, the plaintiff reported chronic myalgias and extreme fatigue affecting her shoulders, wrists, neck, thoracic area, hips, knees, and ankles. Doctors then diagnosed her with osteoporosis and degenerative spine disease.  (Id.).

In 2012, the plaintiff suffered a traumatic brain injury (“TBI”) when she fell down a flight of stairs, resulting in massive intracranial bleeding that left her cognitively and physically disabled. Following her TBI, the plaintiff suffered from vision problems, balance disturbances, and reduced strength. She required assistance with virtually all activities of daily living, was unable to walk without assistance, dress, or use the bathroom independently, and was found to be “disabled” by the Social Security Administration. (Id.).

This history preceded the events that gave rise to one satisfaction rule issue.

Alleged Medical Malpractice

​On July 19, 2017, the plaintiff visited the defendant hospital’s emergency department with complaints of ongoing and worsening low back pain. She denied any recent falls and denied incontinence. On examination, she had normal strength in her lower legs. She was diagnosed with nontraumatic back pain, and, after a few hours, she improved in the emergency department and was released to receive physical therapy at home. (Id.).

On July 31, 2017, a physician saw the plaintiff following complaints of back pain and urinary incontinence. An MRI revealed a “severe compression deformity” and “stenosis and disc protrusion” in her lumbar spine. The plaintiff visited a spine surgeon on August 4, 2017, who prescribed her a back brace that she refused to wear and scheduled her for spine repair surgery to be conducted ten days later. Before the surgery could take place, however, the plaintiff was discharged from the surgeon’s practice after her sister was abusive toward the office. (Id.).

On August 19, 2017, the plaintiff was evaluated at a different hospital’s emergency department for the onset of generalized weakness and told staff that she had been falling several times a day due to her weakness. The following day, she required immediate medical intervention as a result of severe, life-threatening, or potentially disabling conditions. She transferred to the Johns Hopkins emergency department, where they admitted her. (Id. at 3-4).

The plaintiff subsequently underwent spine surgery on August 23, 2017. While recovering after the surgery in her hospital room, she fell when she attempted to go to the bathroom. Her right hip was fractured as a result of this fall, and corrective surgery was performed the following day. (Id. at 4). This was the unsettled claim part of the one satisfaction rule in this case.

Medical Malpractice Claim

​The plaintiffs filed a complaint in the Circuit Court for Frederick County on April 2, 2019, alleging medical malpractice during the July 19, 2017, emergency department visit. The plaintiffs’ complaint contended that the defendants’ negligent failure to diagnose contributed to the plaintiff’s development of cauda equina syndrome, conus medullaris syndrome, and permanent damages, including bowel and bladder incontinence, severe back and leg pain, numbness, and weakness. (Id. at 4-5).

The court twice postponed the trial until ultimately scheduling it for May 20, 2024. (Id. at 5).

Car Accident

​While awaiting the trial, on May 1, 2021, nearly four years after the alleged medical malpractice, the plaintiff was involved in a motor vehicle accident resulting in multiple injuries, including a left hip fracture. She had left hip surgery on May 2, 2021. Her medical records documented both current problems and historical ones. (Id. at 5-6).

On November 17, 2022, the plaintiff filed a complaint concerning the car accident case. The plaintiff settled the suit for $100,000 and gave a release concerning the accident. (Id. at 6-7). This was the settled claim in the one satisfaction rule issue. The release did not mention or carve out exceptions for the plaintiff’s then-pending medical negligence suit or any other injuries before the May 1, 2021, motor vehicle accident. (Id. at 7).

The plaintiffs did not disclose the motor vehicle negligence proceedings or the release to their trial counsel in the medical negligence case. Counsel learned afterward of the release. (Id.).

The defense moved for summary judgment based on the release, and the court granted it under the one satisfaction rule. (Id. at 8). The plaintiffs appealed. (Id. at 9).

Appellate Court of Maryland on the One Satisfaction Rule

The one satisfaction rule states that there can be only one satisfaction for the same injury. The first step is to identify what constituted the plaintiff’s alleged satisfaction. Satisfaction is an acceptance of full compensation for an injury. In addition, the unresolved negligence must flow legitimately as a natural and probable consequence of the satisfied injury. (Id. at 13).

In the second step, the court decides whether the satisfaction from the first-resolved action encompassed all of the injuries sustained by the plaintiff, including those injuries, in the subsequent proceeding, alleged to be attributable to the negligence in the second, unresolved action. (Id. at 14).

The alleged satisfaction here is the $100,000 payment that the plaintiff accepted in the motor vehicle negligence case. The Release was limited to injuries arising out of the car accident. This did not make the plaintiff whole for medical malpractice claims arising four years before the car accident. (Id. at 15-16).

In addition, the car accident case focused on the fracture of the left hip, while the medical malpractice case focused on matters that preceded the car accident: cauda equina syndrome, conus medullaris syndrome, and permanent damage, including bowel and bladder incontinence, severe back and leg pain, numbness, and weakness.

Because the motor vehicle negligence release did not represent a satisfaction of the plaintiff’s medical negligence claims, the Appellate Court held that the one satisfaction rule does not bar the medical negligence action from proceeding. (Id. at 19).

Commentary By Baltimore Medical Malpractice Lawyer Mark Kopec on the One Satisfaction Rule

​The analysis of the one-satisfaction rule in this case is straightforward. The medical malpractice did not flow from the car accident injury. It preceded it.  (Unlike a situation where a car accident caused injury, and during treatment for the injury, the plaintiff was harmed by medical malpractice. See Blog post, One Satisfaction: Gallagher v. Mercy)

Moreover, the plaintiff got separate injuries in the two events. The medical malpractice allegedly resulted in incontinence and pain in the lower back. The car accident resulted in a broken left hip.

There is no reasonable analysis that could conclude that the car accident settlement compensated the plaintiff for the medical malpractice injuries.

Practical Considerations

In the context of releases, I’ve previously written in this Blog about the importance of medical malpractice and car accident lawyers coordinating their efforts to ensure that their claims do not interfere with each other’s. In this case, no one told the medical malpractice lawyer about the car accident, the injury, the claim, or the settlement until afterward. That should not happen.

The bigger concern for the plaintiff in this case should not be the one satisfaction rule or the car accident injury. Rather, it is her prior history of disabling medical conditions. There is no question that the incontinence caused by cauda equina syndrome and conus medullaris syndrome is a horrible thing to have to live with. On remand, however, the defense will emphasize how difficult the plaintiff’s daily life was for years before the alleged medical malpractice occurred.

You can read other Blog posts on cases involving Damages and Settlement issues.

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.

A recent $48 million verdict serves as a sobering reminder of the devastating consequences when medical providers deviate from established standards of care. The case involved a patient and his wife. They sued a dermatologist and the practice group. The medical malpractice claim was for the negligent misdiagnosis and delay to treat recurrent skin cancer.

The jury’s decision highlights a critical failure in the continuum of care—one that transformed a treatable condition into a life-altering catastrophe.

What is Peri-Neural Invasion (PNI)?

To understand why this case resulted in such a substantial award, one must first understand the clinical significance of the pathology findings. The doctor had previously removed a skin cancer near the patient’s right ear. The pathology report identified peri-neural invasion (PNI).

Peri-neural invasion occurs when cancer cells wrap around or invade the space surrounding a nerve. It is not merely a localized growth; it is a specialized method of cancer spread. Think of nerves as “highways” for malignant cells. Once a tumor gains access to the nerve sheath, it can travel far beyond the visible margins of the original lesion, moving deep into the head, neck, or even toward the brain.

Why is PNI Important?

PNI is a “high-risk feature” because it is strongly associates with aggressive recurrence. When a pathologist notes PNI, it signals that the cancer is no longer a simple skin-deep issue. It indicates a high probability that microscopic “seeds” of the cancer remain along the nerve path, even if the primary tumor appears to have been removed.

The Appropriate Response to PNI

The discovery of PNI necessitates an immediate escalation in the treatment plan. Standards of care typically require:

• Clear Margins: Ensuring the surgical site is completely free of malignant cells.
• Multidisciplinary Consultation: Consulting with doctors that are specialists outside of dermatology.
• Adjuvant Therapy: Because of the high risk of recurrence, doctors often should refer patients with PNI for radiation therapy to “mop up” any microscopic cells traveling along the nerves.

The Compounding Risk of Skin Cancer Delay: Leukemia and Immunocompromise

The doctor’s failure to act on the PNI further exacerbated the patient’s underlying health status. The patient had a history of cancer and was immunocompromised due to chronic leukemia.

In medical malpractice litigation, the patient’s baseline health is a critical factor in determining the “standard of care.” An immunocompromised system is less capable of fighting off microscopic cancer cells or controlling a recurrence. For a patient like this one, the “wait and see” approach is inherently more dangerous. The lack of a robust immune response means that any delay in diagnosis allows the cancer to progress at an accelerated rate.

The Critical Omission: Referral to a Radiation Oncologist

Despite the PNI and the patient’s immunocompromised state, no referral to a radiation oncologist was made. This omission is a central pillar of the negligence claim.

A radiation oncologist specializes in using high-energy beams to destroy cancer cells. In cases of recurrent or high-risk skin cancer, radiation is often used as a “secondary shield.” While a surgeon removes what they can see, the radiation oncologist treats the surrounding tissue to ensure the “highway” (the nerves) is cleared of remaining disease. By failing to make this referral, the defendants deprived the patient of a vital line of defense.

The Domino Effect of Misdiagnosis

The tragedy deepened months later when a painful lesion appeared in the same area where the doctor had removed the initial cancer. This is a classic “red flag” for recurrence. However, the doctor misdiagnosed the lesion as benign, removed it, and—critically—discarded it without a biopsy.

Discarding tissue without a biopsy when there is a history of high-risk malignancy is a significant breach of protocol. It effectively “blinded” the medical team, allowing the cancer to advance unchecked until it required radical intervention.

The Human Toll: Surgery and Permanent Injury from Skin Cancer Delay

The delayed diagnosis allowed the cancer to invade deep structures of the head and neck. To save the patient’s life, surgeons had to perform extensive, radical surgery. The results were devastating:

1. Facial Paralysis: Because the cancer follows the nerves (PNI), surgeons often have to sacrifice the facial nerve to ensure they have removed all malignant tissue. This results in the “dropping” of one side of the face, making it impossible to smile, close an eye, or speak clearly.
2. Loss of Hearing: If the cancer invades the ear canal or the auditory nerves, the surgical removal of the tumor often necessitates the removal of the hearing apparatus.
3. Disfigurement: Radical head and neck surgery involves the removal of skin, muscle, and sometimes bone, leading to significant changes in physical appearance.
4. Chronic Pain: Nerve damage from both the cancer and the surgery can lead to permanent, neuropathic pain that is notoriously difficult to treat.

Breaking Down the $48 Million Damages for Skin Cancer Delay

The jury’s award split into two distinct categories reflecting the different types of harm suffered by the family:

$32 Million for Pain and Suffering

The jury awarded this portion for the physical and emotional agony the patient endured over more than eight years. This covers the physical pain of the cancer, the trauma of the surgeries, the loss of bodily function, and the mental anguish of living with disfigurement and a terminal outlook.

$16 Million for Loss of Consortium

The jury awarded this amount to the patient’s widow. Loss of consortium is a legal claim for the spouse of an injured or deceased person. It compensates for the loss of the “benefits” of a married relationship, including:

• Affection and companionship.
• Comfort and solace.
• Sexual relations.
• The ability of the spouse to provide the same level of emotional and household support they did prior to the injury.

In this case, the jury recognized that the negligence didn’t just hurt the patient; it effectively ended the marriage as the couple had known it, long before his actual passing.

A Final Lesson for Providers and Patients on Skin Cancer Delay

The $48 million verdict underscores the massive exposure healthcare providers face when they ignore high-risk pathology markers and fail to follow established standards of care for vulnerable patients.

For patients, this serves as a reminder to always ask: “Was a biopsy performed, and what were the high-risk features?” For the legal and medical communities, it is a landmark example of how a single ignored pathology note can lead to a lifetime of suffering.

You can read Blog posts on other Verdicts.

Have you or a loved one suffered due to a delayed cancer diagnosis? Contact the Kopec Law Firm now.

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.

Factual Background

​This case involved a car collision, and the plaintiff filed a lawsuit in the Circuit Court for Prince George’s County. The plaintiffs included a woman and her two minor children. (Op. at 2).

​Before trial, counsel for the defendants sent a settlement offer to counsel for the plaintiffs via email. It stated, “I have final authority of $30k/each for the kids for a total of $160k.” Counsel for the plaintiff made a counteroffer stating, “I am at $175,000,” and asked whether the insurance company would make it a “global settlement.” According to counsel for the defendant, he orally accepted that offer during a phone call with opposing counsel. Subsequently, per counsel for the defense, counsel for the plaintiff attempted to raise the settlement demand to $300,000 on the same phone call. Counsel for the defense later filed a motion enforcing the $175,000 settlement. (Id. at 3). Defense counsel also asserted that the plaintiff lawyer’s statement that he “meant to withdraw the offer during the phone call but had not done so” indicated a settlement. (Id. at 4).

​In response to the motion enforcing settlement, counsel for the plaintiffs did not dispute whether the phone call took place or whether counsel for the defense accepted the settlement demand for $175,000. Instead, counsel asserted that he withdrew the $175,000 settlement offer “at the same time” that counsel for the defense accepted. Per counsel for the plaintiff, there was no settlement, and negotiations remained ongoing.  (Id.)

​The circuit court granted the defense’s motion to enforce the settlement without holding a hearing. The plaintiffs appealed. (Id.).

Appellate Court on Enforcing a Settlement Agreement

The Appellate Court stated that it is often extremely difficult to determine the factual question of whether the parties intended to create an executory accord, where one party pays the other to dismiss claims. Such an agreement need not be in writing. Oral executory agreements are binding and may be enforced as long as the basic requirements for a contract are present. Where the existence of a settlement agreement is contested, a full plenary hearing is required. That an agreement to settle exists between the parties must be proven based on facts in the record and not solely on the allegations of counsel. (Id. at 5-6).

The Appellate Court held that the trial court erred because a full plenary hearing was required before issuing a ruling on the motion to enforce the settlement. The trial court granted the defense’s motion to enforce the settlement without any evidence that the parties had agreed to settle the case, even though the parties disputed the existence of any such agreement. There was no sworn testimony, affidavits, depositions, interrogatories, or anything remotely resembling evidence adduced at the motion hearing to prove the existence of an agreement between the parties. The trial court granted the defense’s motion to enforce the settlement solely based on the representations made by counsel in their pleadings. This was an error, and the Appellate Court reversed. (Id. at 6-7).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Enforcing a Settlement Agreement

​The trial court in this case failed to take evidence on whether there was a settlement. The facts in this case are quite unusual. The trial court may have heard that the plaintiff’s lawyer admitted they failed to withdraw the offer and perhaps concluded that, legally, there was no dispute of fact. However, the Appellate Court made clear in this opinion that the trial court still has to take evidence.

Representations by counsel in pleadings are not enough, even when the evidence is going to be the same in sworn form. The evidence on whether there was a settlement was composed of communications between the lawyers.

Moreover, it is a very unusual situation for a plaintiff’s lawyer to attempt to withdraw a demand and then replace it with one that is almost twice as much. The opinion does not discuss any facts that shed light on what led to the move.

On remand, the parties will have an opportunity to present evidence regarding the existence or nonexistence of a settlement. In addition, the plaintiff should consider explaining the rationale for the attempt almost to double their settlement demand. Without a supportive explanation, it is hard to see a judge being sympathetic to such a move.

Practice point

​In mediations, the mediator serves as a neutral witness to any settlement reached. When lawyers negotiate directly with each other, however, they should plan the communication and document it in the event one side contests with a motion enforcing settlement. Email is a good choice.

​However, it is best not to mix and match. In this case, it appears that plaintiff’s counsel sent an email demand and then followed up with a phone call intended to replace it. The risk is obvious – the opposing lawyer may accept the prior demand before it is replaced. That may be what happened here. The preferred practice is to communicate the replacement demand by email.

You can read other Blog posts involving settlement issues.

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 the high-stakes environment of an Emergency Room, time is of the essence. However, a recent verdict serves as a sobering reminder that when speed replaces diligence, the consequences can be fatal. A jury awarded $15.5 million to the family of a 74-year-old man. His life irrevocably altered—and eventually ended—due to a misread spinal CT scan.

The case specifically highlights a growing concern in modern medicine. The reliance on international teleradiology and the potential for medical malpractice when doctors review complex diagnostic images in mere minutes.

The Case: A Five-Minute Oversight

The patient entered the hospital with a suspected spine injury, requiring urgent diagnostic imaging of his spine. A teleradiologist (a radiologist working remotely) in Thailand did the preliminary interpretation of his CT scans. The doctor misread the CT scans and subsequently reported the scans as “completely normal for a 74-year-old”.

Afterward, based on this “clear” report, ER physicians removed the patient’s protective neck brace. Shortly after, his condition spiraled, leading to permanent paralysis (quadriplegia) and his death two and a half years later. The jury’s decision hinged on a startling audit. The doctor had spent only five minutes reviewing two separate CT scans. This is a duration far below the standard of care required for such complex images.

What is a CT Scan?

A Computed Tomography (CT) scan is a powerful diagnostic tool that uses a series of X-ray images taken from different angles around your body. A computer then processes these “slices” to create cross-sectional images of the bones, blood vessels, and soft tissues.

In emergency trauma cases, the CT scan is the “gold standard” for identifying fractures or displacements in the spinal column. It allows radiologists to see details that a standard 2D X-ray might miss, such as small bone fragments or subtle misalignments of the vertebrae.

Spinal Damage: What the Scan Should Have Shown

In a case involving spinal trauma, a radiologist is looking for several critical indicators:

• Vertebral Fractures: Breaks in the bony structure of the spine.
• Subluxation: Partial dislocation of the spinal joints.
• Spinal Canal Narrowing (Stenosis): Evidence that bone or disc material is pressing against the spinal cord.
• Hematomas: Internal bleeding that can put pressure on the nerves.

In this patient’s case, while the preliminary read claimed the spine was “normal,” a later final report noted significant abnormalities that went unaddressed during the most critical window of his care.

The Danger of Premature Neck Brace Removal

When a patient presents with a potential neck or back injury, medical providers place them in a cervical collar (neck brace) to maintain “spinal precautions.” This immobilizes the spine to prevent any movement that could damage the spinal cord.

If a CT scan is misread as “normal” and the brace is removed prematurely, the results can be catastrophic. Without the brace, a fractured or unstable spine can shift. Even a small movement—tilting the head or being repositioned in bed—can cause a bone fragment to sever or crush the spinal cord. This is precisely the “deterioration” that led to the plaintiff’s paralysis.

Understanding Quadriplegia

The verdict focused heavily on the fact that the malpractice resulted in quadriplegia (also known as tetraplegia).

Quadriplegia is a form of paralysis that results in the partial or total loss of use of all four limbs and the torso. This typically occurs when there is an injury to the cervical (neck) section of the spinal cord. Because the spinal cord acts as the main “data cable” for the brain, an injury high up in the neck blocks signals to everything below it, including the arms, legs, and even the muscles required for breathing.

For a 74-year-old, the onset of quadriplegia is not just a loss of mobility; it is a total loss of independence that places immense strain on the respiratory and cardiovascular systems, often leading to a shortened life expectancy.

The Standard Time to Read a CT Scan: How Fast is Too Fast?

One of the most damning pieces of evidence in this trial was the five-minute review time for two CT scans.

While there is no “hard” universal timer, medical literature and expert testimony generally suggest that a thorough review of complex spinal CTs—which involve hundreds of individual image “slices”—requires significantly more time than 150 seconds per scan. Radiologists must compare different views (axial, sagittal, and coronal), check for subtle bone density changes, and ensure no soft tissue swelling is present.

The jury viewed the five-minute “speed-read” as a lack of diligence that rose to the level of negligence.

The Dangers of International Telemedicine – Misread CT Scans

Telemedicine allows hospitals to have 24/7 radiology coverage by sending images to doctors in different time zones (like Thailand) where it is currently daylight. However, this “follow-the-sun” model introduces unique malpractice risks:

1. Volume Over Value: Teleradiologists are often paid per “read,” which can create an implicit incentive to move through images as quickly as possible to increase compensation.
2. Lack of Context: A remote doctor does not see the patient. They lack the “clinical correlation”—the ability to see that the patient is in extreme pain or showing neurological deficits—which might prompt a more careful look at the scan.

A Precedent for Patient Safety

The $15.5 million verdict is a victory for patient advocacy. Consequently, it sends a clear message to teleradiology firms and hospitals: the convenience of remote medicine does not excuse a departure from the standard of care. Whether a doctor is in the next room or halfway across the globe, they owe the patient their full, focused attention.

You can read Blog posts on other Verdicts.

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.

Factual Background on Identifying the Defendant in a CQE & Standard of Care

The plaintiff filed a medical malpractice case in the circuit court for Allegheny County, alleging that the hospital was negligent in its prevention, diagnosis, and treatment of his sacral decubitus ulcer. (Op at 1).

The plaintiff entered the emergency room with drowsiness and loss of consciousness. He stayed two weeks, and many doctors and nurses treated him. (Id. at 2).

Although the plaintiff was heavy, the medical providers did not order a bariatric bed for him until eight days into his admission. At that time, they diagnosed him with a sacral pressure ulcer. The patient underwent surgical debridement of the ulcer and was discharged from the hospital three days later. (Id. at 2-3).

Two weeks after discharge, after losing consciousness, the plaintiff went to another hospital, where he was diagnosed with a stage three sacral decubitus ulcer. He received further treatment, was transferred to another hospital, and then subsequently discharged. For six months, he would have severe discomfort from the ulcer, including the inability to sit for more than two hours at a time. (Id. at 3).

The plaintiff then filed his claim in the Healthcare Alternative Dispute Resolution Office (HCADRO). (Id. at 3). The plaintiff also filed a CQE and a report from his proposed expert witness addressing the allegations of breach. The defense moved to dismiss, arguing that the CQE and report were insufficient under CJP 3-2A –01. Afterward, the circuit court granted the motion to dismiss. (Id. at 1).

The plaintiff then appealed. (Id. at 1). In part 1, I discussed the Appellate Court of Maryland’s holding that the plaintiff’s CQE met the related specialty requirement. Examining for decubitus ulcers was a procedure shared by both general surgeons and internal medicine doctors.

Appellate Court of Maryland

​The following two issues that the appellate court addressed were whether the CQE and report sufficiently stated the standard of care and identified the defendant.

A valid CQE must identify with specificity the defendants against whom the plaintiff brought claims, include a statement that the defendants breached the applicable standard of care, and that such a departure from the standard of care was the proximate cause of the plaintiff’s injuries. CJP § 3-2A-04(b)(1)(i). (Id. at 14).

Identification of Defendant

The Appellate Court rejected the defense’s contention that the CQE and report failed to identify the medical providers specifically. The court noted that the CQE specifically listed the providers’ names. All of them were either defendant hospital employees or apparent agents because they treated the plaintiff at the defendant’s hospital. There was no allegation that the hospital gave notice that those employees were independent contractors. (Id. at 16).

Moreover, the plaintiff had alleged in his complaint that the prior providers were agents, servants, and employees of the defendant. His CQE identified the defendant and its agents, servants, and employees. Naming the providers was equivalent to naming the defendant and satisfied the identification requirement. (Id.).

Standard of Care

A CQE must include a statement that the defendants breached the applicable standard of care. CJP § 3-2A 04(b)(1)(i). The report or CQE must indicate what the applicable standard of care was or how the named provider departed from the standard of care. (Id. at 16).

CQE & Report

The plaintiff expert’s report addressed two scenarios due to conflicting evidence. The first was if the fact finder determined that the decubitus ulcer was not present on admission:

All treating healthcare providers who saw the plaintiff during his time at the hospital until November 14 failed to adhere to the standard of care in failing to monitor him for the development of an ulcer, failing to properly order nursing instructions for the preemptive treatment to avoid the development of the ulcer, in failing to take note of the objective findings that would indicate a need to prevent the development of the ulcer, and in ultimately allowing the ulcer to develop. (Id. at 17-18).

If the fact finder determined that the ulcer was present on admission:

All treating healthcare providers who saw the plaintiff from the time of admission until November 14 failed to adhere to the standard of care in documenting, monitoring, treating, and requesting consultations for the ulcer. (Id. at 18).

The expert added that after November 14, all health care providers treating the plaintiff failed to adequately control the ulcer’s development and then allowed it to progress to an ultimately unstageable ulcer. (Id.).

The Appellate Court found that the plaintiff’s expert identified how each provider treated the plaintiff, and that the actions were insufficient as to the applicable standard of care. The CQE makes clear that the alleged standard of care required the providers to monitor, document, and request consultations to treat the ulcer. (Id. at 18). As a result, the CQE was not deficient, and the circuit court erred in granting the motion to dismiss. (Id. at 19).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Identifying the Defendant in a CQE & the Standard of care

On the issues of sufficient identification of the defendant and stating the standard of care, the Appellate Court had no problems in efficiently concluding that the CQE was adequate.

The primary basis for the circuit court’s erroneous ruling was its conclusion that the CQE did not meet the related specialty requirement. However, the defendant’s pressing of the two arguments on identification of the defendant and stating the standard of care shows that defendants will go to lengths to take advantage of trial courts’ lack of understanding in this area of the law.

The CQE in this case easily defeated all three of the defendants’ arguments. Unfortunately, the trial court’s ruling in favor of the defense on one issue resulted in a lengthy delay in this litigation. Fortunately, the appellate court has corrected that error and also has returned the plaintiff’s case to him.

Until the trial courts get a firm grasp on CQE law, defendants will continue to make their unsupported arguments, and these arguments will continue to generate delay.

You can read other Blog posts on issues involving Expert Testimony, including:

• CQE Agents: Dunham v. UMD
• Nurse CQE: Robinson v. Canton
• CQE & Report: Powell v. Wurm

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.

A jury awarded a $16 million verdict in a medical malpractice case involving the tragic wrongful death of an infant due to a delayed C-section. The case centered on the devastating consequences of hospital staff and doctors failing to respond to clear warning signs during a prolonged labor. The family alleged that despite visible indications of fetal distress—including oxygen deprivation and the presence of meconium—the doctor did not perform an emergency C-section until the window for a safe delivery had closed.

This verdict is more than just a financial figure. It reflects the severe harm caused by medical inaction and the profound emotional toll on a family. The decision sends a powerful message that negligence causing devastating injury has serious consequences.

To understand why this case resulted in such a significant verdict, it is essential to explore the medical red flags that the legal team argued were ignored that resulted in infant death and birth injury medical malpractice.

Understanding Signs of Fetal Distress

Fetal distress is a broad term used to describe a situation where a baby is not receiving adequate oxygen or is otherwise struggling during labor and delivery. Monitoring these signs is the primary responsibility of the labor and delivery team.

Common signs of fetal distress include:

• Abnormal Heart Rate: This is often the first indicator. A heart rate that is too fast (tachycardia) or, more alarmingly, too slow (bradycardia) can signal trouble.
• Decreased Fetal Movement: If a mother notices a significant drop in the baby’s activity, it may indicate the baby is trying to conserve energy due to stress.
• Abnormal Results on a Non-Stress Test: These tests measure the baby’s heart rate in response to their own movements.

If medical providers do not respond to fetal distress, it can lead to infant death and medical malpractice.

What is Prolonged Labor?

In this case, the family alleged that the distress occurred during a prolonged labor. Labor is generally considered “prolonged” (or “failure to progress”) when it lasts longer than 20 hours for a first-time mother or 14 hours for someone who has given birth before.

Prolonged labor is dangerous because it puts physical stress on both the mother and the infant. As labor stretches on, the risk of infection increases, and the baby may become exhausted or experience restricted blood flow during contractions. When labor stalls, medical professionals must decide whether to intervene with medication or move toward an emergency C-section to prevent injury. Inaction here resulted in infant death and medical malpractice.

Indications of Oxygen Deprivation (Hypoxia)

The core of the plaintiff’s argument was that the medical team ignored indications of oxygen deprivation. When circumstances compomise a baby’s oxygen supply, it can lead to Birth Asphyxia. This often results in permanent brain damage or, as in this case, infant death and medical malpractice.

Indications of oxygen deprivation include:

• Late Decelerations: On a fetal monitor, if the baby’s heart rate drops after the peak of a mother’s contraction and takes a long time to recover, it is a classic sign that the placenta is not delivering enough oxygen.
• Low Apgar Scores: Immediately after birth, doctors assess babies on a scale of 1–10. Very low scores often point to oxygen deprivation during delivery.
• Acidosis: Blood tests taken from the umbilical cord can reveal high acid levels, confirming the baby was struggling to breathe.

The Presence of Meconium and Its Significance

The trial highlighted the presence of meconium as a critical warning sign that the medical providers appeared to overlook. Meconium is the baby’s first stool. It is thick, sticky, and dark green.

Why is meconium significant during labor? Under normal circumstances, a baby does not pass meconium until after birth. If meconium is in the amniotic fluid while the baby is still in the womb, it is often a sign of physiological stress. The baby’s digestive system may contract due to a lack of oxygen, causing the stool to be expelled.

The greatest danger is Meconium Aspiration Syndrome (MAS). If a distressed baby gasps for air while still in the womb or during birth, they can inhale the meconium-stained fluid into their lungs. This can cause severe inflammation, block the airways, and lead to fatal lung or brain injuries. When meconium is present, the medical team must act with heightened urgency. Inaction here led to infant death and medical malpractice.

The Consequences of Inaction: Infant Death & Medical Malpractice

In this case, the doctor delayed in performing a C-section despite these clear markers. This delay led to a fatal brain injury shortly after birth. The $16 million award covers medical expenses. More importantly, it also addresses the “emotional damages” and the loss of a life that timely intervention could have saved.

Medical malpractice cases involving infant deaths are incredibly complex. They require a deep understanding of both the law and the strict protocols that govern obstetric care. This verdict serves as a reminder to healthcare providers that “inaction” can be just as negligent as an active mistake.

You can read Blog posts on other Verdicts.

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.

Factual Background

​The plaintiff filed a medical malpractice case in the circuit court for Allegany County. He alleged that the hospital was negligent in its prevention, diagnosis, and treatment of his sacral decubitus ulcer. (Op at 1).

The plaintiff went to the emergency room with drowsiness and loss of consciousness. He entered the hospital and stayed for two weeks. Many doctors and nurses treated him. (Id. at 2).

Although the plaintiff was heavy, the medical providers did not order a bariatric bed for him until eight days into his admission. At that time, they diagnosed him with a sacral pressure ulcer. The patient underwent surgical debridement of the ulcer and left after discharge three days later. (Id. at 2-3).

Two weeks after discharge, after losing consciousness, the plaintiff went to another hospital, where they diagnosed him with a stage three sacral decubitus ulcer. He received further treatment, transferred to another hospital, and subsequently discharged. For six months, he would have severe discomfort from the ulcer, including the inability to sit for more than two hours at a time. (Id. at 3).

The plaintiff filed his claim in the Healthcare Alternative Dispute Resolution Office (HCADRO). (Id. at 3). The plaintiff filed a CQE and a report from his proposed expert witness addressing the allegations of breach. The defense moved to dismiss, arguing that the CQE and report were insufficient under CJP 3-2A –01. The circuit court granted the motion to dismiss. (Id. at 1).

The basis for the circuit court’s dismissal was that the plaintiff’s expert in general surgery did not meet the related specialty requirement of overlap in treatment and procedures with providers named in the CQE in internal medicine, pulmonary medicine, and infectious disease. (Id. at 5). The plaintiff appealed. (Id. at 1)

Appellate Court of Maryland

​The first issue in this case was the peer-to-peer requirement between the attesting expert and the medical providers:

In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert concerning a defendant’s compliance with or departure from standards of care shall have had clinical experience, provided consultation relating to clinical practice, or 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 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. CJP § 3-2A-02(c)(2)(ii)(1). (Id. at 8).

Related Specialty

Specialties are related when there is an overlap in treatment or procedures within the specialties and therefore an overlap of knowledge of treatment or procedures among those experienced in the fields or practicing in the specialties, and the treatment or procedure in which the overlap exists is at issue in the case. (Id. at 9).

A CQE that satisfies the peer-to-peer requirement as to some named providers, but not others, satisfies the requirement overall because the plaintiff is not required to prove his case with the CQE. In reviewing the CQE, the trial court is to accept the assertions in the certificate, just as courts accept a plaintiff’s well-pleaded facts and allegations in a complaint. (Id. at 10).

Here, the expert was a board-certified general surgeon, and the named physicians were board-certified in internal medicine, infectious diseases, neurology, pulmonary disease, radiology, hospice and palliative medicine, and geriatric medicine, in addition to the nurses. The expert was also trained and certified in advanced wound care and post-surgical follow-up care. The procedure at issue was the failure to monitor the development of, document, and treat sacral decubitus ulcers. (Id. at 11).

Holding on Related Specialty in CQE

The Appellate Court held that the treatment at issue here was the physical examination of a patient who had been sitting for days in a hospital bed. It was one shared between specialties, whether performed by surgeons before or after surgery, or by an internal medicine doctor as a hospitalist. The internal medicine doctors and general surgeons here both had the same type of initial training and shared a basic knowledge and skills of the profession. (Id. at 11).

The Appellate Court held that the circuit court erred. The circuit court acknowledged that the medical specialties overlapped in performing physicals but incorrectly dismissed the case. The court failed to recognize that the procedure at issue involved the proper physical exam of a patient. (Id. at 12).

In this case, examining, documenting, and diagnosing medical problems, including ulcers, was a procedure shared by both general surgeons and internal medicine doctors. Additionally, because the CQE met the peer-to-peer requirement for the named physicians who are board-certified in internal medicine, the CQE is sufficient for that requirement, even though the CQE may not meet the exact requirement for the named nurses or other specialties. (Id.).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Related Specialty in CQE

​CQEs continue to be a stumbling block in litigation for parties, lawyers, and courts. In this case, the circuit court recognized that the specialties overlapped in the physical examination but failed to appreciate that this was the central issue.

With a decubitus ulcer, several medical providers attending to the patient will be involved in preventing, assessing, and treating the ulcer. Even though these specialties each have some training that the others do not, there is a common denominator regarding decubitus ulcers.

Application of the straightforward facts to clear precedent should have resulted in the denial of the motion to dismiss. The plaintiff had met the related specialty requirement in the CQE. The dismissal has real consequences. The plaintiff had to incur the legal costs and expenses of pursuing an appeal and waiting one year and four months to return to the beginning of litigation in the trial court. A party deserves better than this.

A Note on Damages

Due to the extensive time and considerable expense in medical malpractice cases, many medical malpractice lawyers will only pursue cases for permanent physical injuries of a certain level. In a decubitus ulcer case, this usually means the ulcer becomes infected and leads to fatal sepsis. When a decubitus ulcer heals, it can be difficult to obtain substantial damages.

In this case, there’s no indication that the decubitus ulcer led to a permanent physical injury. The complaint seemed to emphasize the six-month period needed for healing. An added factor is that the juries in Circuit Court for Allegany County are generally considered more conservative on medical malpractice cases than in several other Maryland counties.

Another complicating issue for liability is that the plaintiff was heavy. Even with the best equipment, it can be challenging to prevent decubitus ulcers entirely. In this case, however, there appears to be evidence of a significant delay in obtaining the appropriate bed for the plaintiff. It also seems that several medical providers were involved in that failure. This delay may be the evidence that the plaintiff believes is most compelling in pursuing his case. It will be interesting to see what happens on remand.

You can read other Blog posts on issues involving Expert Testimony, including:

• Related Specialty: Street v. UPMC 1
• Nurse CQE: Robinson v. Canton
• CQE & Report: Powell v. Wurm

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.

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Medical procedures are inherently stressful. Consequently, patients place an immense amount of trust in the hands of their surgeons and hospital systems. We expect that even in complex cases, doctors and nurses will follow the basic safety protocols designed to protect us. However, a recent verdict serves as a sobering reminder of what can happen when those systems fail. The result was a retained surgical instrument.

A jury recently awarded $16.75 million in a medical malpractice lawsuit against a hospital and medical group. The case specifically centered on a “retained surgical instrument”—a preventable medical error that left a patient suffering for nearly two months.

The Case: A 13-Inch Oversight

The patient underwent a significant surgery to remove a massive, 75-pound benign tumor. While the removal of the tumor was successful, the aftermath was a nightmare. The surgical team left a 13-inch metal retractor inside her abdomen following the procedure.

For 58 days, the metal object remained undetected inside her body. During this time, the patient experienced:

• Severe physical pain.
• Persistent nausea.
• Heightened anxiety and sleep disturbances.

A CT scan nearly two months later identified the source of her agony. To fix the error, the patient had to undergo a second surgery to remove the instrument, subjecting her to further medical risks and a prolonged recovery period.

What is a Metal Retractor?

In the context of this case, the object left behind was a surgical retractor. These are essential tools surgical teams use in almost every operating room. A retractor is a manual or handheld medical instrument used by surgeons to separate the edges of a surgical incision or to hold back underlying organs and tissues.

By keeping the “surgical field” open and clear, retractors allow the surgeon to see and access the specific area they are operating on without having to hold the tissue back with their own hands. In major abdominal surgeries, these instruments can be quite large—as seen in the 13-inch tool involved in this verdict—to provide enough leverage to move muscle and organs.

How is it Used in Abdominal Tumor Removal?

Removing a 75-pound tumor is a significant surgery. During such a procedure, the surgeon must navigate around organs, blood vessels, and nerves.

1. Exposure: Retractors are placed strategically to pull back the abdominal wall.
2. Stability: Once the incision is open, larger, often heavier metal retractors are used to keep the intestines or other organs away from the tumor site.
3. Precision: By “retracting” the surrounding tissue, the surgeon has the visibility needed to detach the tumor from the body safely.

In a procedure involving a tumor of that size, surgeons typically use multiple retractors of various shapes and sizes simultaneously to maintain a clear view of the operating site.

What is a Retained Surgical Instrument (RSI) Case?

A Retained Surgical Instrument (RSI) case is a specific type of medical malpractice claim. The surgical team accidently left a foreign object—such as a sponge, needle, or tool—inside a patient’s body after closing the incision.

In the legal and medical world, these are often “Never Events.” These are errors that are so egregious and preventable that they should never occur if the surgical team follows standard safety protocols.

In this case, the defense argued that the error was an “inadvertent mistake” occurring during a “complex procedure”. However, the jury disagreed, siding with the plaintiff’s argument that the incident represented gross negligence and a failure to adhere to basic surgical protocols.

Protocols to Prevent Retained Instruments

To prevent RSIs, hospitals must follow strict “count” protocols. These protocols are the primary line of defense against leaving foreign objects in a patient. They usually include:

• The Initial Count: The surgical team counts every instrument, sponge, and needle and records them before the surgery begins.
• The Intermediate Count: Counts are performed whenever instruments are added or when there is a shift change in the surgical staff.
• The Final Count: Before the surgeon begins to close the primary incision, the scrub nurse and the circulating nurse must perform a final count of every item to ensure it matches the initial tally.
• Post-Closure Count: The surgical team often does a final verification after the surgeon closes the skin.

If a count does not match, the surgeon is notified immediately, and an X-ray is typically taken while the patient is still on the operating table to locate the missing item.

Accountability and the Verdict: Retained Surgical Instrument

The jury’s decision was a clear statement on hospital accountability. The $16.75 million total broke down into two parts:

• $1.75 million in compensatory damages (to cover the plaintiff’s pain, suffering, and medical bills).
• $15 million in punitive damages against the hospital.

The jury held the hospital 99% responsible for the error. Some courts allow punitive damages to punish the defendant and deter similar behavior in the future. The plaintiff’s legal team emphasized that this large award was necessary to push the hospital system toward improved safety measures and also to ensure that no other patient has to endure a 58-day ordeal with a 13-inch metal object inside them.

This case serves as a powerful reminder. While surgeries are complex, the safety of the patient must always remain the highest priority.

A Note on Damages in Maryland

In Maryland, it is unlikely that punitive damages would be available in a case like this because Maryland requires actual malice for punitive damages. Moreover, there is no reference to any permanent injury in this case. In the absence of a permanent injury, it can generally be difficult to obtain significant damages in a medical malpractice case. However, the liability in this case was so sloppy that it likely drove the damage award.

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.

Factual Background on Denial of Scheduling Order Amendment

​The plaintiff brought suit in the Circuit Court for Talbot County for a car accident and resulting permanent injuries to his foot, and lost business profits. (Op. at 2-3).

The circuit court’s scheduling order designated June 2022 for the defense expert witness disclosures and a discovery cut-off of October 21, 2022. However, the defense did not designate experts by the deadline. (Id. at 3).

Eight days before the close of discovery, the parties filed a joint motion to modify the scheduling order based on the plaintiff’s lawyer’s medical leave. The court granted the motion, designated November 4 as the new deadline for disclosing the defense expert witness, and January 19, 2023, as the latest discovery cut-off. (Id. at 3-4).

Ten months after being served with interrogatories, the plaintiff provided his answers. The defense then deposed him in December. However, the defense did not designate an expert by the November deadline. (Id. at 4).

Almost 2 months after the second discovery deadline, the defense filed a consent motion to extend the scheduling order. The motion stated that the parties had been attempting to settle the case before conducting extensive discovery but had been unable to do so. The court issued a denial of the scheduling order amendment and scheduled the trial for January 2024. (Id.).

The defense filed a motion for reconsideration, noting that the extension would not prejudice either party since the trial was 10 months away. The court also denied this motion. (Id. at 4-5).

The jury then returned a verdict in favor of the plaintiff for over $450,000. Consequently, the defense appealed. (Id. at 1).

Appellate Court of Maryland

​An abuse-of-discretion standard governs discovery decisions. (Id. at 8). The Appellate Court concluded that the circuit court properly exercised its discretion in the denial of the scheduling order amendment because it could have reasonably found that the defense had not substantially complied with the scheduling order. (Id. at 10).

​The circuit court reviewed the dates of various activities and concluded that no surprising information had developed. (Id. at 12). Applying the Taliaferro factors, the Appellate Court found that the defendant did not explain why it did not identify experts. There was no evidence of a good-faith effort at compliance. (Id. at 14).

The Appellate Court rejected the defense’s blame on the plaintiff’s delay in responding to interrogatories. The court said ultimately the burden falls on the defendant to prepare its defense. (Id. at 15).

The defense failed to engage in trial preparation outside of deposing the plaintiff. It waited until months past the discovery deadline to request the second extension. Settlement discussions do not override the duty to prepare for trial if the parties do not settle. (Id. at 16).

The Appellate Court cautioned that modification of scheduling orders, particularly for a second time, is generally reserved for extraordinary circumstances. (Id. at 17). The plaintiff’s late interrogatory answers, additional particulars revealed in his deposition, and engaging in settlement discussions were not extraordinary circumstances warranting a second modification. (Id.).

Holding

The Appellate Court concluded that the defense did not substantially comply with the scheduling order. As a result, the court did not reach the question of whether the defense provided good cause for noncompliance. The circuit court did not abuse its discretion in denial of the scheduling order amendment. (Id.).

For the same reason, the Appellate Court affirmed the exclusion of the defense’s expert witness, a police officer who would have testified that the data from the plaintiff’s car showed he was accelerating and traveling twice the speed limit at impact. (Id. at 1-2,18). Finally, the Appellate Court held that the plaintiff had failed to introduce evidence that any contributory negligence by the plaintiff was a proximate cause of the accident. As a result, the trial court properly granted judgment for the plaintiff on the issue of contributory negligence. (Id. at 19-23).

Commentary By Baltimore Medical Malpractice Lawyer Mark Kopec on Denial of Scheduling Order Amendment

​This denial of the scheduling order amendment is a very tough result for the defense lawyer and client. This opinion is a reminder of the very deferential standard applied to the trial court. An appeals court will uphold a trial judge’s strict enforcement of scheduling order deadlines, even when many trial judges would have been more lenient.

​Even though the plaintiff had significantly delayed in providing answers to interrogatories, the defense failed to show that it had taken every possible action to comply with the scheduling order, given the information that it had.

Two additional aspects also can be traps in situations like this. The plaintiff specifically agreed to every request made by the defense. This opinion, however, is a reminder that trial judges are not only not bound by such agreements but often can act against them.

Lack of Prejudice Not Enough

The most challenging aspect of this denial of scheduling order amendment was that, when the trial court scheduled the trial, it was 10 months away. That time was enough for the parties to complete discovery without delaying the case. There also was no apparent prejudice to the plaintiff from the defense’s previous failures to comply with the scheduling order.

In many other cases, trial judges would have allowed the amendment to the scheduling order because it would not have delayed the case. This opinion, however, is a stark reminder that a party cannot rely on an extension in such circumstances.

The bottom line for this denial of scheduling order amendment is that a party that fails to show substantial compliance with a scheduling order is not in a position to reverse a trial judge who declines an extension.

You can read other blog posts on cases involving Discovery and Procedure.

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.

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The lawsuit alleged medical negligence in the timing of a C-section for a high-risk pregnancy. This then led to a uterine rupture and subsequent oxygen deprivation for the newborn. While the defense maintained their approach met medical standards, the settlement underscores the critical nature of managing complex placental conditions.

Anatomy of the Placenta: The Life Support System

The placenta is a vital, temporary organ that forms in the uterus during pregnancy. It acts as the primary communication link between the mother and the developing fetus, responsible for providing oxygen and nutrients while removing waste products via the umbilical cord.

Structurally, the placenta consists of both fetal and maternal components. The fetal side, known as the chorion, develops branching structures called chorionic villi. These villi are essential for nutrient exchange as they dip into the mother’s blood supply within the uterine wall. Normally, these villi attach to the endometrium (the inner lining of the uterus) and detach easily after birth.

Understanding Placenta Percreta Birth Injury: When Invasion Becomes Dangerous

Placenta percreta is specifically the most severe form of “placenta accreta spectrum” (PAS), a range of conditions where the placenta attaches too deeply to the uterine wall.

• Placenta Accreta: The villi attach to the superficial muscle of the uterus.
• Placenta Increta: The villi grow deeper into the uterine muscle (myometrium).
• Placenta Percreta: The most catastrophic type, where the placenta grows entirely through the uterine wall and may invade nearby organs like the bladder or intestines.

In this case, her diagnosis of placenta percreta meant that the placental tissue breached the outer uterine layer and severely compromised the structural integrity of her uterus.

Causes and Risk Factors of Placenta Percreta Birth Injury

The leading theory is that a “defective” decidua (uterine lining) allows for uncontrolled placental invasion. This often occurs at the site of previous surgical scars.

The primary risk factors include:

• Previous Cesarean Sections: This is the single most important risk factor; the more C-sections a woman has had, the higher the risk.
• Placenta Previa: A condition where the placenta covers the cervix.
• Uterine Surgery: History of fibroid removal (myomectomy) or dilation and curettage (D&C).
• Advanced Maternal Age: Typically defined as age 35 or older.

Diagnosis: Who and How?

Suspected cases of PAS are typically managed and diagnosed by Maternal-Fetal Medicine (MFM) specialists—doctors who specialize in high-risk pregnancies.

The primary diagnostic tools are:

• Prenatal Ultrasound: Often performed during the second-trimester anatomy scan, it has a sensitivity of over 90% for detecting placental abnormalities.
• MRI: Used as an adjunct to ultrasound, MRI provides better detail of the depth of invasion and whether the placenta has reached the bladder or other pelvic organs.

Baltimore birth injury lawyer Mark Kopec can assess the diagnosis of your placenta percreta and advise you on a potential birth injury case.

The Treatment Plan: Management of a High-Risk Delivery

Because of the extreme risk of life-threatening hemorrhage, a “C-hysterectomy” (delivering the baby via C-section followed immediately by the removal of the uterus) is the standard of care.

The delivery is typically scheduled prematurely, often between 34 and 37 weeks, to avoid the mother going into spontaneous labor, which could trigger a rupture. In this case, she was scheduled for 37 weeks, but the lawsuit argued this delay was negligent as her uterus ruptured before the procedure could take place.

Uterine Rupture: A Catastrophic Event

A uterine rupture is a full-thickness tear of the uterine wall. In placenta percreta, the invading placental villi weaken the uterine muscle to the point of failure. As the pregnancy progresses and the uterus stretches, the thinned, invaded section can then spontaneously burst.

Placenta Percreta Birth Injuries: HIE and Cerebral Palsy

When a uterus ruptures, it is a medical emergency for both mother and child. For the baby, the rupture often disrupts the blood and oxygen supply from the placenta.

• HIE: Hypoxic Ischemic Encephalopathy: This is a brain injury caused by a lack of oxygen (hypoxia) and a lack of blood flow (ischemia). If the brain is deprived of oxygen for even a few minutes, brain cells begin to die.
• Cerebral Palsy (CP): HIE is a leading cause of cerebral palsy, a permanent neurological disorder that affects motor skills, muscle tone, and also movement.

In this case, the uterine rupture led to baby to suffer from HIE. This ultimately resulted in her developing cerebral palsy. This $17 million settlement will provide for the baby’s lifetime medical needs, including specialized therapies and accommodations required for her condition.

You can read Blog posts on other delayed c-section cases:

• Pitocin Misuse $951M
• Prolonged Labor $48 Million
• Fetal Decelerations $29M
• Preeclampsia Stillbirth $25M
• Delayed C-Section $18M

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.

Factual Background

​After the patient in this case was diagnosed with prostate cancer, he consulted with the defendant radiation oncologist and proceeded with a treatment of hormone therapy and radiation. The treatment specifically included administering the drug Amifostine to protect the bladder and rectum from radiation-induced inflammation. The patient was later diagnosed with Stevens-Johnson syndrome, a disease involving skin irritation and blisters, which causes the top layer of skin to die and shed. Shortly after that, he died from pneumonia. (Op. at 4).

The patient’s estate and his family then filed wrongful death and survival actions against the doctor and his medical group in the Circuit Court for Prince George’s County. They brought an informed consent action, alleging that the doctor failed to disclose material risks of administering the radiation therapy, as well as the drug, before obtaining the patient’s consent. (Id. at 5).

The defense moved in limine to exclude a package insert from the drug in reference to the FDA not approving it for prostate cancer. Afterward, the court granted the motion. (Id. at 14).

The jury then found for the defense, finding that a reasonable person, having been informed of the material risks of Amifostine, would not have refused treatment. (Id. at 15).

However, the Court of Special Appeals reversed. (Id. at 16–17). Consequently, the defendants appealed. (Id. at 2-3).

Court of Appeals

​The elements of an informed consent cause of action generally include the duty to disclose to the patient material information that a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment or procedure; breach of that duty by failing to make an adequate disclosure; and that the violation was the proximate cause of the patient’s injuries. (Id. at 18).

The information specifically includes the nature of the ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment. (Id. at 19). The risks the doctor must disclose are material. (Id).

Negligence, however, is a different claim from informed consent. Evidence that a medical procedure or treatment is not for a patient is relevant in a negligence case but is not applicable in an informed consent action. (Id. at 21-22).

FDA Insert & Informed Consent

An issue in this case concerned the admissibility of evidence regarding the package insert for Amifostine and its off-label use. (Id. at 33). The plaintiff attempted to introduce the package insert itself and also testimony through its expert witness, a pharmacist, that the insert cautioned against use in older patients. (Id. at 33-34). The plaintiff also attempted to introduce that the defendant doctor did not inform him of the insert’s caution. (Id. at 34).

The CA held that whether a treatment is appropriate is relevant and admissible evidence in a negligence cause of action, but not in an informed consent case. (Id. at 36). The package insert’s warning against use in older patients may have supported a negligence claim. (Id.).

The plaintiff also attempted to introduce evidence at trial through the pharmacist’s testimony and the defendant that the FDA had approved Amifostine in ovarian cancer and head and neck cancer cases, but not for prostate cancer. (Id. at 37-38). The CA again concluded that this evidence was relevant to negligence but not informed consent. (Id. at 40).

Information about off-label use does not provide the patient with any information about the treatment itself or the likelihood or severity of any risks. Therefore, it cannot be considered material information for an informed consent claim. (Id. at 42).

The CA reversed the CSA and affirmed the trial court. (Id. at 43).

Commentary By Baltimore Medical Malpractice Lawyer Mark Kopec on FDA Insert & Informed Consent

​Similar to the court’s holding discussed in Part 1, the evidence in this part was not relevant to an informed consent claim. The lack of FDA approval did not go to one of the elements of information that a physician must disclose. In addition, cautioning against use in older patients did not include the specific details needed to fit into an informed consent disclosure.

Either of these pieces of evidence could be relevant in a given case. A plaintiff would have to relate them to specifics that demonstrate the probability of success of the treatment or the risk of unfortunate consequences.

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.

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A recent medical malpractice case has resulted in a $40.3 million verdict, highlighting the devastating consequences of failing to follow established medical protocols in stroke mismanagement. The case involved a 45-year-old patient who was left permanently disabled after two hospitals failed to provide timely and accurate medical interventions.

The jury’s decision specifically includes over $7 million in life-care costs. This case serves as a somber reminder of how critical every second is when the brain’s blood supply is compromised.

What is a Stroke?

A stroke, often called a “brain attack,” occurs when the blood supply to part of the brain is interrupted or reduced, preventing brain tissue from getting oxygen and nutrients. Within minutes, brain cells begin to die.

There are two primary types of strokes:

1. Ischemic Stroke: The most common type (about 87% of cases), caused by a blockage (blood clot) in an artery leading to the brain.
2. Hemorrhagic Stroke: Caused by a ruptured blood vessel that bleeds into the brain.

In this case, the focus was on the mismanagement of an ischemic event where the window for treatment was missed due to procedural errors and there was stroke mismanagement.

Brain Anatomy and Stroke Impact

To understand why this verdict was so high, one must understand the anatomy involved. The brain has specific regions, each responsible for different functions:

• The Cerebrum: Controls higher functions like speech, emotion, and fine motor skills.
• The Brainstem: Controls vital life functions like breathing and heart rate.
• The Cerebellum: Manages balance and coordination.

When a stroke occurs in the Middle Cerebral Artery (MCA), for example, it can lead to paralysis on one side of the body and loss of speech. Because the 45-year-old plaintiff in this case was left “permanently disabled,” it suggests that a significant portion of functional brain tissue was lost due to the lack of intervention, and stroke mismanagement.

Causes and Risk Factors

Strokes don’t usually happen in a vacuum. They are often the result of years of cardiovascular “wear and tear.”

Common Causes:

• Thrombosis: A clot forms inside an artery in the brain.
• Embolism: A clot forms elsewhere in the body (often the heart) and travels to the brain.

Key Risk Factors:

• Hypertension (High Blood Pressure): The leading cause of stroke.
• Atrial Fibrillation (AFib): An irregular heart rhythm that allows clots to form.
• Diabetes: Damages blood vessels over time.
• Lifestyle Factors: Smoking, high cholesterol, and physical inactivity.

The Role of tPA: The “Clot Buster”

One of the central issues in this legal battle was the administration of tPA (tissue plasminogen activator).

What is tPA and How Does it Work? Why is Stroke Mismanagement Medical Malpractice Potentially Tragic?

tPA is an intravenous medication that treats acute ischemic stroke. It works by dissolving the blood clot that is blocking blood flow to the brain. By “busting” the clot, it restores blood flow and can significantly reduce the long-term disability associated with a stroke.

However, doctors must give tPA within a strict time window—traditionally 3 to 4.5 hours from the onset of symptoms. If given too late, the risk of brain bleeding (hemorrhage) outweighs the benefits.

The Importance of “Time of Onset” & Stroke Mismanagement Medical Malpractice

This case hinged on a dispute over the “last known normal” time. The plaintiffs argued that one hospital ignored precise EMS documentation regarding when the patient’s symptoms began. Instead, the hospital relied on a “last known normal” time provided by the patient’s wife, who had been away for hours.

By prioritizing a third-party report over the patient’s own reported onset time and EMS data, the hospital incorrectly deemed the patient ineligible for tPA and there was stroke mismanagement. This underscores a vital medical truth: Time is brain. Every minute a stroke goes untreated, the brain loses approximately 1.9 million neurons.

CT Perfusion Imaging: Assessing the Damage

When a patient is outside the standard tPA window or has a large vessel blockage, doctors use advanced imaging like CT Perfusion (CTP).

What is CT Perfusion Imaging?

CT Perfusion is a specialized scan that shows how much blood is reaching various parts of the brain. it helps doctors distinguish between:

1. The Core: Brain tissue that is already dead (irreversibly damaged).
2. The Penumbra: Brain tissue that is currently “starving” for blood but restoring blood flow quickly can still save it.

Misinterpreting the Data and Stroke Mismanagement Medical Malpractice

In this case, clinicians at the second hospital allegedly misread the CT perfusion imaging. They overestimated the “core” (dead tissue), concluding the patient wouldn’t benefit from a mechanical thrombectomy (the surgical removal of a clot).

However, expert testimony from an interventional neuroradiologist revealed that the patient’s true “core” damage was only 20–25%. This was well within the threshold where a thrombectomy could have saved significant brain function.

Conclusion on Stroke Mismanagement: A Lesson in Medical Malpractice

The $40.3 million verdict reflects the jury’s finding that the hospitals failed to adhere to national stroke guidelines. By ignoring accurate onset data and misinterpreting advanced imaging, the medical teams accordingly missed multiple opportunities to prevent permanent disability.

For the patient, the award provides the necessary funds for lifelong care, but it also serves as a landmark warning to healthcare facilities regarding the necessity of rigorous protocol adherence in emergency stroke care.

To read Blog posts on other stroke verdicts, see:

• Stroke Misdiagnosis $70.8 Million
• Stroke Mismanagement $40M

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.

Factual Background

​The patient in this case was diagnosed with prostate cancer. He then consulted with the defendant radiation oncologist and proceeded with a treatment of hormone therapy and radiation. The treatment included the doctor’s administration of the drug Amifostine. This drug was supposed to protect the bladder and rectum from radiation inflammation. The patient was later diagnosed with Stevens-Johnson syndrome. This syndrome is a disease involving skin irritation and blisters, which causes the top layer of skin to die and shed. Shortly after that, he died from pneumonia. (Op. at 4).

The patient’s estate and his family filed wrongful death and survival actions against the doctor and his medical group in the Circuit Court for Prince George’s County. They brought an informed consent action, alleging that the doctor failed to disclose material risks of administering the radiation therapy, as well as the drug, before obtaining the patient’s consent. (Id. at 5).

Expert Testimony

The plaintiffs designated a pharmacist as an expert witness in drug therapy as it applies to oncology. (Id. at 5-6).

In a de bene esse deposition, the pharmacist then testified that the doctor should not have used Amifostine in a patient getting radiation for prostate cancer. He also supported his opinion by testifying that the FDA had not approved it for prostate cancer, and warned against it in older patients. (Id. at 6-7).

The circuit court excluded the pharmacist’s de bene esse testimony. The court found that the pharmacist was not a medical doctor and did not address informed consent standards. (Id. at 9).

The plaintiffs then proffered:

The pharmacist would testify to, inter alia, the risk factors associated with Amifostine; that Amifostine has only benefited patients suffering from head & neck cancer, and kidney cancer; that the efficacy of Amifostine in treating prostate cancer was unknown; that the package insert cautions against use in older patients; that there are no other known alternatives to Amifostine, and that the Food and Drug Administration did not approve Amifostine for the treatment of prostate cancer. (Id. at 10-11).

The judge excluded the pharmacist from testifying at trial. (Id. at 11). The jury found for the defense. It specifically determined that a reasonable person, having been informed of the material risks of Amifostine, would not have refused treatment. (Id. at 15).

The Court of Special Appeals reversed. (Id. at 16–17). The defendants then appealed. (Id. at 2-3).

Court of Appeals on Informed Consent Expert Testimony

The elements of an informed consent cause of action generally include the duty to disclose to the patient material information that a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment or procedure; breach of that duty by failing to make an adequate disclosure; and that the violation was the proximate cause of the patient’s injuries. (Id. at 18).

The information includes the nature of the ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment. (Id. at 19). The doctor must disclose material risks. (Id).

Negligence is a different claim from informed consent. Evidence that a medical procedure or treatment is not for a patient is relevant in a negligence case but is not applicable in an informed consent action. (Id. at 21-22).

The CA held that expert testimony is necessary to assist the trier of fact in understanding the severity and likelihood of the risk, so that the trier of fact may assess the material risks of the proposed treatment. (Id. at 24).

The pharmacist may have qualified to testify about the material risks of administering Amifostine. Still, he did not render such an opinion in his de bene esse deposition or in the proffer of his trial testimony. (Id. at 26).

The pharmacist did not address the severity or likelihood of the risks of administering Amifostine; instead, he opined only on the existence of risk. (Id. at 31).

Therefore, the trial judge did not abuse his discretion in excluding the testimony. (Id. at 32-22).

The CA reversed the CSA and affirmed the trial court. (Id. at 43).

Commentary By Baltimore Medical Malpractice Lawyer Mark Kopec on Informed Consent Expert Testimony

​Informed consent claims are not nearly as prevalent as negligence-based claims in medical malpractice cases. When a plaintiff pursues an informed consent claim, they must closely examine the elements they must meet.

In this case, the plaintiff submitted testimony that sounded in negligence. The deposition and proffer did not satisfy the elements of an informed consent claim.

This decision and others specifically provide the roadmap and checklist for a plaintiff seeking to put on an informed consent claim successfully.

Another point to emphasize in informed consent cases is that it is an objective standard. The jury does not have to accept the plaintiff’s testimony that they would not have pursued the treatment if the doctor had provided all of the information. The jury makes its own determination.

We get calls from plaintiffs who have experienced significant side effects from treatments and then claim the doctor did not disclose those effects. In many instances, however, the entire picture reveals that the treatment was so critical to the patient’s ability to regain health that it would be unlikely that a jury would find the risk of side effects was not worth it.

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.

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A jury recently delivered a potent message regarding the critical need for meticulous post-operative care. It awarded a $17 million verdict to the family of a 57-year-old woman. She tragically died five days after an elective hernia procedure. The core of the medical malpractice lawsuit was the allegation that medical malpractice by a surgeon led to a fatal bowel perforation. This bowel injury went dangerously undiagnosed until the patient was in crisis.

The case shows the severe risks associated with bowel perforation, an emergency that demands immediate recognition and treatment. The surgeon claimed that the operation was “without incident.” However, expert witness testimony revealed that the perforation likely occurred during the surgery itself. Key evidence of negligence included the surgeon’s failure to follow up on the patient’s worsening post-operative complaints. Also, the doctor delegated critical medical advice to an unqualified assistant. The patient was suffering from severe pain and an inability to eat. The doctor merely reassured her instead of professionally evaluating her. By the time she was taken to the emergency room, she had deteriorated into septic shock. This verdict compensates the family for their devastating loss. It also highlights the systemic dangers of misdiagnosis or delayed diagnosis and inadequate care for this life-threatening surgical complication.

What is a Bowel Perforation?

A bowel perforation is also a gastrointestinal perforation or perforated viscus. It is a medical emergency and is a hole or a complete loss of continuity in the wall of the small intestine or the colon. This breach in the intestinal wall allows the contents of the bowel—including food, digestive juices, waste (stool), and a massive load of highly virulent bacteria—to leak out into the peritoneal cavity. The peritoneal cavity is the space between the membranes that line the walls of the abdomen and pelvis and the organs themselves.

This leakage rapidly causes severe inflammation and infection of the abdominal lining, a condition called peritonitis. Peritonitis is extremely dangerous. The infection can spread throughout the abdomen. This can lead to a local collection of pus known as an abscess, or, worse, entering the blood. Once in the blood, the infection can rapidly spiral into a widespread, life-threatening systemic infection known as sepsis, which can quickly progress to septic shock and multiple organ failure. Because of the severe, rapid onset of system wide infection, a bowel perforation requires immediate surgery intervention to contain the contamination and prevent death.

How Bowel Perforation Can Occur During a Hernia Procedure – Medical Malpractice

A hernia occurs when an organ, such as a loop of the intestine, protrudes through a weak spot or tear in the muscle wall that normally contains it. Hernia repair surgery is a common procedure, yet it carries the possibility of an iatrogenic (medically caused) bowel injury. The mechanisms by which a perforation can occur during or immediately following a hernia repair include:

• Iatrogenic Trauma and Viscerolysis: The most direct cause is surgical error: physical trauma from surgical instruments. During the repair, the surgeon must identify and carefully free any intestinal loops that have become trapped inside the hernia sac or adhered to the abdominal wall, a process called viscerolysis. The intestine can be fragile, especially if it has been incarcerated (trapped) or inflamed, making it susceptible to accidental tears or punctures from sharp instruments or even rough handling.
• Laparoscopic Injury: Many doctors perform hernia repairs laparoscopically (minimally invasively). This technique introduces additional risks, including direct injury during the insertion of the laparoscopic ports (access injury), trauma from instruments used inside the abdomen, and thermal injuries. Thermal injury, caused by using energy devices (like electrocautery or ultrasonic forceps) too close to the bowel wall, can cause a full-thickness burn that may lead to a delayed perforation several days after the procedure.

Pre-existing

• Pre-existing Injury/Ischemia: In some cases, the perforation may not be a direct injury from the surgeon but a consequence of the underlying hernia. An incarcerated hernia can lead to strangulation, where the blood supply to the trapped intestinal segment is cut off. This results in ischemia (tissue death), which can cause the bowel wall to become gangrenous and spontaneously rupture, potentially even before the surgical repair is completed or recognized during the operation.

The patient in this reported case, who presented with symptoms five days after her surgery, highlights the critical danger of an injury that might not be immediately apparent, such as a small iatrogenic tear or a delayed thermal injury.

Recognizing the Symptoms – Bowel Perforation Medical Malpractice

The clinical presentation of a bowel perforation is often sudden, severe, and catastrophic, though it can sometimes be delayed, particularly if the perforation is small or walled off by surrounding tissue (like the omentum). When contamination occurs, the body reacts with a massive inflammatory response.

Classic Symptoms of Bowel Perforation:

• Severe Abdominal Pain: This is the hallmark symptom and is typically sudden, acute, and intense. It often starts localized and then spreads to become generalized across the entire abdomen as peritonitis develops. The pain is often sharp and worsens with any movement or pressure. The patient in this case suffered from “severe pain” post-operatively.
• Peritoneal Signs: On physical examination, the abdomen may be rigid, distended, and also extremely tender to the touch (tenderness and guarding).
• Systemic Signs of Infection:
  • Fever and Chills: A rise in body temperature is a common indicator of the rapidly developing infection.
  • Nausea and Vomiting: Caused by the inflammation and potential functional obstruction of the gut. The patient in the featured case also experienced an “inability to eat”.
• Vascular/Shock Signs: As the infection progresses to sepsis and shock, signs of hemodynamic instability emerge, including an increased heart rate (tachycardia) and low blood pressure (hypotension). These are critical indicators of a deteriorating patient, which in the featured case led to septic shock.
• Absent Bowel Sounds: The infection and inflammation often cause the intestines to cease normal peristaltic motion, resulting in absent or significantly quiet bowel sounds upon auscultation.

Diagnosis and Diagnosing Medical Providers – Bowel Perforation Medical Malpractice

A bowel perforation requires a rapid, definitive diagnosis by medical providers capable of initiating immediate, life-saving management.

Diagnosing Medical Providers

The primary medical providers involved in the diagnosis and initial management are those in Emergency Care (Emergency Physicians) and General Surgeons. Given that the definitive treatment is almost always emergency surgery, an emergent surgical consultation is essential as soon as perforation is suspected.

Diagnostic Process

The diagnosis relies on a thorough patient history, physical examination, and key imaging and laboratory tests.

1. History and Physical Examination: A history of sudden, severe abdominal pain. This is especially after a recent gastrointestinal or abdominal procedure like hernia repair, and is a major red flag. The physical exam focuses on locating abdominal tenderness, distension, and signs of peritonitis.
2. Laboratory Tests: Blood work is crucial and typically reveals signs of a massive inflammatory response, most notably a high white blood cell count (leukocytosis).
3. Imaging Tests:
   • Abdominal and Chest X-Rays: These are often the first, quickest, and cheapest screening tools. The key finding is the presence of “free air” (pneumoperitoneum)—gas that has leaked out of the perforated bowel and collected in the abdominal cavity, often seen as a crescent shape under the diaphragm.
   • Computed Tomography (CT) Scan: The gold standard for diagnosis. A CT scan with contrast provides detailed images that can:
     • Confirm the presence of free air and extraluminal fluid.
     • Pinpoint the precise location of the perforation.
     • Assess the extent of contamination, such as localized abscess formation.

The failure to properly evaluate the patient’s complaints in this case, delaying the crucial diagnostic work-up, illustrates the catastrophic consequences of diagnostic error or delay.

Comprehensive Treatment Protocol – Bowel Perforation Medical Malpractice

The management of a bowel perforation is a time-sensitive emergency protocol focused on three critical phases: resuscitation, infection control, and definitive surgical repair.

1. Resuscitation and Stabilization

Before or simultaneously with surgery planning, the patient must be rapidly stabilized to counter the effects of shock and sepsis. This involves:

• Fluid Resuscitation: Administering large volumes of intravenous (IV) isotonic crystalloids (fluids) to restore blood pressure and tissue perfusion, especially in cases of septic shock.
• Airway and Breathing: Maintaining oxygenation and correcting any acidosis.
• NPO and Gastric Decompression: The patient is kept nil per os (NPO—nothing by mouth) to prevent further leakage, and a nasogastric tube may be inserted to decompress the stomach and prevent vomiting.

2. Infection Control (Antibiotics)

Doctors must give broad-spectrum intravenous antibiotics immediately, ideally within the first hour of suspicion. These medications target the likely intestinal bacteria that have leaked out and are crucial for fighting the severe infection and preventing the progression to sepsis.

3. Definitive Surgical Intervention

The most definitive step is emergency surgery, which is required for the vast majority of perforations. The goals of surgery are to:

1. Control Contamination: This is achieved through a thorough intra-operative washout of the abdominal cavity to remove leaked stool, food, and pus.
2. Identify and Manage the Defect: The surgeon must locate the hole and perform the appropriate repair.
   • Small Perforations: A surgeon may close directly a small, clean defect by primary repair (oversewing the hole).
   • Large or Contaminated Perforations: If the area of bowel is heavily contaminated or damaged by ischemia, the surgeon must perform a bowel resection—removing the damaged segment.
3. Restore Continuity (or Create a Stoma): After resection, the doctor can sometimes immediately reconnect (anastomosis) two healthy ends of the bowel. However, in cases of severe contamination, diffuse peritonitis, or if the patient is very unstable, the safer option is to create a stoma. This is an opening in the abdominal wall (a temporary or permanent colostomy or ileostomy). It diverts waste while the body recovers.

Potential Outcomes and Prognosis – Bowel Perforation Medical Malpractice

Bowel perforation is one of the most serious gastrointestinal emergencies. It carries high rates of morbidity (bad outcomes) and mortality (death), even with swift treatment. The ultimate outcome is highly dependent on the quick diagnosis and intervention.

Adverse Outcomes of Delayed Diagnosis

The most severe consequences link to a delayed diagnosis. This is shown by the case where the patient was found to be in septic shock. These outcomes include:

• Septic Shock and Multi-Organ Failure: The leading cause of death. Uncontrolled sepsis causes dangerous low blood pressure and widespread organ shutdown (kidneys, lungs, etc.).
• Persistent Abdominal Abscesses: Localized pockets of infection that may require further draining procedures or surgery.
• Fistula Formation: Abnormal connections between the intestine and other organs, or the skin, requiring complex surgery correction.
• Prolonged Hospitalization and Intensive Care: Patients often require extended stays and critical care support.
• The Need for a Permanent Stoma: While often temporary, a stoma (colostomy/ileostomy) for fecal diversion can be permanent. This can significantly impact a patient’s quality of life.

Prognostic Factors

Survival rates vary widely (mortality rates reported between 11% and 81%), with specific factors significantly worsening the outlook. Prognostic factors associated with a higher risk of death include:

• Advanced Age.
• Organ Failure at the time of presentation.
• Diffuse Peritonitis (widespread contamination).
• Hemodynamic Instability (e.g., low blood pressure and high heart rate).
• Delay in Diagnosis and Surgery.

The verdict serves as a stark reminder to all medical providers. Recognizing the subtle, yet severe, post-operative symptoms of bowel perforation and acting immediately—rather than delegating or dismissing patient complaints—is critical to a positive outcome. The failure to perform a timely evaluation can escalate a surgical bad outcome into a fatal tragedy.

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.

Factual Background

The plaintiff in this case brought a medical malpractice claim in the Circuit Court for Prince George’s County. The case was against a doctor and also her practice group. The plaintiff alleged that failure to monitor a condition in her eye led to vision loss in that eye. (Op. at 1).

During discovery, the plaintiff failed to respond to interrogatories and a request for production of documents. Two months passed. In addition, defense counsel inquired three times over the course of two months about the discovery responses and the deposition of the plaintiff, and did not receive a response. (Id. at 2).

The defendants then noted the plaintiff’s deposition and filed a motion to compel discovery. The plaintiff did not respond. (Id.).

Upon granting the motion to compel, the court issued a stern warning to the plaintiff about the potential consequences of non-compliance. However, the plaintiff claimed she did not receive the court’s order, which the court inadvertently did not docket. (Id. at 2-3).

The defense filed another motion for sanctions, seeking dismissal. (Id. at 3). Defense counsel appeared for the deposition of the plaintiff, but the plaintiff did not appear. The defense counsel then supplemented their motion for sanctions with this fact. (Id. at 4). The plaintiff provided answers to interrogatories after the court’s second compliance deadline. (Id. at 5). 

Trial Court’s Ruling on Dismissal Sanction in Medical Malpractice Case

The trial court granted the defense’s motion to dismiss. It noted the numerous unanswered motions to compel. It also stated that the plaintiff’s counsel failed to comply with both court deadlines and that the court had warned the plaintiff that she could face sanctions and penalties. (Id. at 6).

The court also noted the plaintiff’s lack of communication with her counsel, which was a significant factor in the case. The court emphasized that the plaintiff had a duty to stay in touch with her counsel, which she failed to do for many months. (Id. at 7).

The circuit court applied the five factors for assessing dismissal as a discovery sanction and dismissed the case. The plaintiff appealed. (Id. at 7-9).

Court of Special Appeals

Maryland Rule 2-433(a)(3) gives trial courts broad discretion to impose sanctions for discovery violations. The available sanctions range from striking out pleadings to dismissal. The decision to invoke the ultimate sanction is within the trial court’s discretion, underscoring the court’s authority and responsibility to maintain the integrity of legal proceedings.

The CSA said it does not look at each incident in isolation, but rather at the entire history and context of the case in reviewing the trial court’s decision to dismiss. (Id. at 13). The five factors often overlap and do not lend themselves to a compartmental analysis. (Id. at 12).

Factors

1. Whether the disclosure violation was technical or substantial

The violation was not technical, but was substantial. Belated disclosures are relevant to the other parties’ ability to prepare their case. (Id. at 13).

2. The timing of the ultimate disclosure

The plaintiff failed to provide the discovery by the deadline in the court’s order. The plaintiff’s counsel demonstrated willful disregard throughout the case. The plaintiff provided responses to discovery requests more than 7 months after the defendants issued the requests. (Id. at 17-18).

3. The reason, if any, for the violation

The court found that the fault for the lack of discovery responses and communication lay with both the plaintiff and her lawyer. (Id. at 18-19).

4. The degree of prejudice to the parties respectively offering and opposing the evidence

The prejudice of the defense was great. Memories of witnesses fade, and the ability to locate witnesses becomes an issue. As of the date that the trial court considered the motion for dismissal as a sanction, more than six years had passed since the events at issue. This time period included 2 1/2 years in litigation, due to the plaintiff’s delay in serving the defense. (Id. at 19-20).

5. Whether a postponement might cure any resulting prejudice and, if so, the overall desirability of a continuance

A continuance would not cure prejudice. The plaintiff lawyer’s track record gave the court no reason to think he would suddenly start cooperating. (Id. at 21). Accordingly, the CSA affirmed the judgment. (Id. at 22).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Dismissal Sanction

One of a lawyer’s nightmares is when a client fails to cooperate, or even ‘disappears’ for a time. From the outset of litigation, the court scheduling order sets deadlines for the case. Without the client’s cooperation, a lawyer can fall behind in advancing the case according to the court’s deadlines. This lack of collaboration can include the inability to respond to discovery from the opposing party. Client-lawyer cooperation is essential in such situations.

When this happens, the lawyer mustn’t also disappear. However, that is precisely what happened here. Even if the lawyer cannot advance the litigation without the client’s assistance, the lawyer can inform the opposing party and the court of the situation and his efforts to obtain cooperation.

When the lawyer also disappears, however, there comes a point in the case when it is too late to reverse course. The defense seeks dismissal, and the court considers the track record of wasted time in the case and decides that enough is enough. The impact of delays and nonresponsiveness on case outcomes underscores the urgency and importance of timely action in legal proceedings.

The irony is that this is when the client and the lawyer start responding, but it is too late. If the plaintiff and her lawyer had put in this effort earlier in the case, there would be no dismissal.

You can read other Blog post on dismissal sanction: Scheduling Order Sanctions: Little v. Hyde, and additional posts in the category of Discovery.

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.