Factual Background on Refiling in HCADRO Medical Malpractice

This is a medical malpractice claim. The plaintiff seeks damages for severe personal injuries allegedly resulting from substandard medical treatment. The plaintiff filed the claim against the defendants. They were a corporate medical system operating a local hospital and an individual doctor acting as a specialized hospitalist. Initially, the plaintiff tried to comply with the mandatory arbitration framework under the HCMCA. She filed a claim before the Health Care Alternative Dispute Resolution Office (HCADRO). However, the procedural foundation of that initial filing was fatally flawed. On January 28, 2011, the circuit court dismissed the plaintiff’s action against the medical system defendant. The plaintiff failed to sufficiently identify the responsible medical providers within the Certificate of Qualified Expert (CQE). The circuit court ordered the dismissal without prejudice, in compliance with standard HCMCA enforcement mechanisms.

Following this dismissal, the plaintiff sought to exploit a statutory safety valve rather than returning to the administrative forum. On March 29, 2011, the plaintiff skipped the HCADRO entirely. She filed an entirely new civil action directly within the Circuit Court for Montgomery County. The plaintiff relied on a specific limitations-savings provision, under the Courts and Judicial Proceedings Article (CJP) § 5-119. She said it permitted the filing of a new complaint directly in the circuit court. She said that this filing effectively resurrected the claim and tolled the applicable statute of limitations.

Other Procedural Deficits

The case moved into discovery against both the medical system and the individual hospitalist physician. Additional procedural deficits emerged. The trial court gave a scheduling order. It included the deadlines by which the parties were required to list their expert witnesses. 

Despite the mandates of this scheduling order, the plaintiff failed to identify any expert witnesses intended to be called at trial against the corporate medical defendant within the deadline. Furthermore, the plaintiff failed to file a timely response to the medical system defendant’s subsequent motion for summary judgment. It had been brought based upon that exact absence of expert testimony. With respect to the individual defendant physician, the plaintiff did produce a medical expert for deposition. However, during the course of record proceedings, the plaintiff admitted that this expert was a neurologist. Thus, his qualifications did not enable him to testify to the standard of care expected of a hospitalist.

There was an absence of standard-of-care expert evidence against both defendants. The trial court granted summary judgment in favor of the medical system and the physician. The plaintiff orally requested the court during proceedings for an additional opportunity to cure the discovery deficiencies. The trial court denied it by entering summary judgment. Following the entry of judgment, the plaintiff filed a motion to alter or amend the judgment regarding the individual physician. She attached an “amplified” affidavit from the neurologist that tried to revise and bolster his professional qualifications. The trial court denied this motion, and the plaintiff’s appealed.

Parties’ Arguments on Refiling in HCADRO – Medical Malpractice

On appeal, the primary dispute turned on a matter of statutory interpretation regarding the precise scope of CJP § 5-119. The plaintiff said that the circuit court committed reversible error by dismissing the March 29, 2011 complaint against the healthcare defendant. Then the plaintiff focused heavily on the literal text of CJP § 5-119. It contains a disjunctive phrase. This allows a non-negligent claimant whose case the court dismissed without prejudice to “commence a new civil action or claim for the same cause”. The plaintiff argued that the General Assembly’s use of the disjunctive “or” gave injured parties an absolute choice between alternative paths. Under this interpretation, the plaintiff claimed a right to go around the administrative HCMCA framework. She could file a fresh civil action directly in the circuit court. This treats the savings provision as a standalone procedural bridge.

Conversely, the defendants argued that CJP § 5-119 could not be read in a vacuum. The defendants maintained that while § 5-119 functions as a narrow, limitations-savings provision, it lacks any language describing the initial venue or forum where a “cured” claim must be filed. The defendants noted that CJP § 3-2A-04(b)(1) says that any “claimant or plaintiff” must file an expert certificate and report directly “with the Director” of the HCADRO. Therefore, the defendants argued that a plaintiff whose certificate is deemed legally deficient by a court cannot utilize a limitations-savings statute to completely bypass mandatory arbitration and strip the HCADRO of its threshold jurisdiction.

Summary Judgment

Regarding the summary judgment and discovery rulings, the plaintiff argued that the trial court abused its discretion by denying her a final opportunity to cure her expert identification deficiencies before the formal close of discovery. The plaintiff noted that discovery still had approximately one month remaining. Thus, the harsh consequence of summary judgment—which acted as a dismissal of her claims—should be only for the worst instances of non-compliance. Regarding the physician, the plaintiff said that her expert’s extensive medical experience qualified him to offer standard-of-care opinions, regardless of whether he practiced specifically as a hospitalist. The plaintiff further insisted that the trial court abused its discretion in denying her post-judgment motion to alter or amend, saying that the attached affidavit clarified and amplified the expert’s qualifications to survive summary judgment.

The individual defendant physician said that the plaintiff’s expert entirely lacked the requisite clinical experience to testify regarding the standard of care for a hospitalist. The physician argued that a neurologist’s specialized training and skill in interpreting magnetic resonance imaging (MRIs) could not be replace or compare to the day-to-day operational standard of care required of a hospitalist. Because the plaintiff admitted on the record that her expert could not state the standard of care expected of a hospitalist, the physician argued that summary judgment was required as a matter of law.

Court’s Ruling

The Court of Special Appeals affirmed the judgments of the circuit court across all issues. Reviewing the statutory interpretation question de novo, the appellate court held that neither CJP § 5-119 nor any other statute provision allows a medical malpractice plaintiff to re-file a dismissed claim in the circuit court without first filing a legally sufficient Certificate of Qualified Expert within the HCADRO framework. The court said that CJP § 5-119 is a narrow limitations-savings statute that must operate with the whole HCMCA. While § 5-119 protects a diligent claimant from being barred by the statute of limitations, it does not alter the absolute forum requirements of CJP § 3-2A-04(b)(1), which commands that expert certificates be filed exclusively with the Director of the HCADRO. 

The court noted that under the statute scheme, a plaintiff cannot pursue an action in any state court unless it strictly complies with the HCMCA. Because a proper certificate is a condition precedent, the court said that a plaintiff whose certificate is ruled deficient must return to the HCADRO to file anew. The court further ruled that the HCADRO, rather than the circuit court, is the appropriate forum to resolve any underlying limitations or tolling disputes.

Summary Judgment

Turning to the entry of summary judgment, the appellate court held that the trial court was correct as a matter of law. The court noted that to establish a prima facie case of medical malpractice in Maryland, a plaintiff must affirmatively prove:

1. The applicable standard of care;
2. That the defendant violated said standard; and
3. That the violation proximately caused the injuries.

Because medical malpractice actions are complex, plaintiffs need expert testimony to establish a breach of the standard of care. In this instance, the plaintiff failed to designate any expert witness against the medical system defendant. This left the court with no choice but to conclude that the case could not proceed. Against the individual physician, the plaintiff admitted that her expert could not testify regarding the standard of care expected of a hospitalist. Due to this failure to produce qualified expert testimony on the standard of care, the plaintiff could not establish a prima facie case, making summary judgment legally required.

Finally, the appellate court reviewed the trial court’s discovery and post-judgment rulings under a deferential abuse of discretion standard. The court held that the trial court did not abuse its discretion in refusing to grant the plaintiff additional time to cure her discovery failures. The record revealed a persistent history of non-compliance, including a failure to abide by scheduling deadlines or to respond to the pending summary judgment motion. Similarly, the court found no abuse of discretion in the denial of the motion to alter or amend. The plaintiff’s “amplified” affidavit did not contain newly discovered evidence or information from subsequent events. Rather, it merely rehashed the expert’s neurological background. The plaintiff had already admitted it was insufficient to establish the standard of care for a hospitalist.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Refiling in HCADRO

The HCMCA can be a legal minefield in medical malpractice cases for even experienced practitioners. Even more challenging were the early cases. They had to establish the controlling application of language that parties could interpret reasonably in multiple ways. In the process, there were harsh results as the Maryland appellate courts clarified these principles.

Puppolo continues to stand for the principle that plaintiffs have to fix deficient CQEs in HCADRO, not the circuit courts.

You can read other Blog posts involving Procedure issues in HCADRO and the circuit courts.

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 previous Part 1, I covered the trial court’s refusal to reopen discovery. Then Part 2 involved the limits placed on unapproved drug testimony under Daubert-Rochkind. Part 3 discussed the exclusion of post-dated medical literature.

Factual Background on Other Patient Evidence in Medical Malpractice Case

The multiple week trial progressed in the circuit court. A key element of the plaintiffs’ causation and damages strategy hinged on proving that if the decedent had been correctly diagnosed with cardiac amyloidosis during his lifetime, his condition could have been stabilized. To demonstrate this concept in the medical malpractice case, the plaintiffs sought to introduce the live testimony of a fact witness that had been an other patient who had taken the same drug treatment.

In this medical malpractice case, the other patient was an independent third party. He had no personal, familial, or professional relationship with the decedent. Nor did he possess any firsthand knowledge regarding the specific medical care, evaluations, or consultations provided by the defendant doctors. The other patient had also been diagnosed with cardiac amyloidosis.

According to the plaintiffs’ proffer, the other patient was prepared to testify that following his diagnosis, he successfully obtained the medication tafamidis through an experimental compassionate use program. He would testify that the drug effectively arrested the progression of his disease, stabilized his cardiac function, and significantly extended his life.

However, the timeline of the other patient’s medical journey differed from the decedent’s. Medical providers did not diagnose the other patient with cardiac amyloidosis until 2018. This was months after the decedent had already passed away. It was outside the February 2015 to December 2017 treatment window that formed the baseline of the lawsuit. The defendants objected to the other patient taking the stand. They argued that his anecdotal medical history was legally irrelevant and structurally prejudicial. The trial judge sustained the objection and barred the other patient from testifying int he medical malpractice trial. The plaintiffs appealed.

Parties’ Arguments

On appeal, the plaintiffs contended that the trial court committed a reversible error and abused its discretion by keeping the other patient from testifying. They argued that the other patient was a fact witness whose testimony proved the element of proximate causation. Specifically, they asserted that the other patient’s real-world survival story offered tangible, living proof to the jury that cardiac amyloidosis was not an automatic, immediate death sentence between 2015 and 2017.

By showing that another individual survived the exact same disease using a specific medical pathway, the plaintiffs believed they could demonstrate a “reasonable probability” that the decedent would have survived as well had he been properly diagnosed. The plaintiffs maintained that any differences between the other patient’s medical condition and the decedent’s went to the weight of the evidence, which the jury should evaluate, rather than its admissibility.

The defendants counter-argued that the trial court’s decision was a textbook application of Maryland Rules 5-401 and 5-402 governing legal relevance. They emphasized that in a medical malpractice action, a plaintiff cannot establish the standard of care or proximate causation by introducing the isolated, anecdotal experiences of a single, unrelated patient.

The defendants pointed out that the other patient’s diagnosis occurred in 2018. This meant his access to experimental protocols post-dated the decedent’s lifetime. It could shed no light on what treatments were widely accessible or standard between 2015 and 2017. They argued that allowing an unrelated patient to testify about his personal medical success would invite the jury to engage in speculation, drawing an unscientific, emotional equivalence between two entirely distinct human bodies and clinical timelines.

Court’s Ruling

The Appellate Court of Maryland looked at the trial judge’s exclusion of the other patient under a de novo standard for the threshold determination of legal relevance, and an abuse of discretion standard regarding the trial court’s overall management of witness evidence. The appellate court affirmed the trial court’s ruling, holding that the other patient’s proposed testimony was irrelevant as a matter of law.

Citing Maryland Rules 5-401 and 5-402, the court noted that evidence is only admissible if it has a logical tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Two Flaws

The court split its medical malpractice analysis of the other patient’s testimony into two fatal flaws:

First, the court discussed the complete absence of factual overlap. The other patient had no connection to the case, no knowledge of the decedent, and no insight into the actions of the defendant physicians. His testimony amounted to an isolated, personal case study of an entirely different patient with a distinct genetic makeup, age, medical history, and clinical progression.

Second, the court focused on the timeline gap. Because the other was not diagnosed until 2018, his inclusion in an experimental compassionate use program occurred after the decedent had already died. The court noted that availability of an experimental protocol in 2018 does not prove that a community physician in 2015 or 2016 could have legally or practically secured that same treatment for a patient.

The appellate court concluded that the other patient’s personal clinical outcome had absolutely no legal relevance. It did not show whether the defendants breached the standard of care or caused the decedent’s death. Because the testimony could not make any fact of consequence more or less probable, it was properly barred.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on the Relevance of Other Patient’s Experience

The Appellate Court of Maryland’s decision to affirm the exclusion of the other patient’s testimony was correct. A single patient’s positive response to a drug or protocol proves nothing. It does not show how a different patient will react to that same drug. Two patients diagnosed with the exact same broad disease category may have vastly different situations. Different comorbidities, genetic expressions, structural heart damage, and tolerance levels. Allowing the other patient’s evidence would unfairly shift the burden onto the defense. They would have to practically litigate the other patient’s medical chart. They would try to prove why his body was different from the decedent’s. This would result in a potentially confusing, time-wasting “mini-trial” within a trial.

If the court allowed this testimony, defendants would conversely be incentivized to search the country for patients who took the drug and died. They would present their own parade of tragic anecdotes. Broad, peer-reviewed epidemiological data, and clinical trials may be relevant, but not individual anecdotes.

In addition, the other patient did not enter the medical system as an amyloidosis patient until 2018. Thus, his narrative belongs to a different era of medical availability. Things can change fast in the evolution of experimental drug pipelines. A drug may be highly restricted or completely not available in one year. Then it might suddenly open up through an expanded access protocol two years later. Permitting the jury in this medical malpractice case to listen to the other patient’s timing would could confuse them with a different compassionate use framework.

Series Conclusion

With this fourth holding affirmed, the Appellate Court of Maryland then completely upheld the defense verdict in DeMizio v. Johns Hopkins Health System Corp. Taken as a whole, this four-part opinion serves as a reminder for Maryland trial lawyers. Success in complex medical malpractice actions requires compliance with scheduling orders, a foundation for expert opinions, a literature focus on the exact dates of treatment, and also a rejection of anecdotal evidence.

You can read other Blog posts on Evidence issues in other cases.

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

In Part 4, I will discuss the relevance in a medical malpractice case of an other patient’s experience with the drug treatment at issue.

In Part 1, I looked at the trial court’s refusal to reopen a discovery window. Also, Part 2 involved the court’s restriction of expert testimony regarding non-FDA-approved pharmaceuticals under the Daubert-Rochkind framework.

Factual Background on Medical Article in Medical Malpractice

The core liability dispute in the underlying lawsuit focused on whether the defendants failed to properly and timely diagnose the decedent’s cardiac amyloidosis. The relevant period of medical evaluation and care provided by the defendants spanned from February 2015 until the patient’s sudden cardiac death on December 15, 2017.

At trial, the parties disputed what diagnostic criteria and clinical guidelines governed a reasonably competent cardiologist’s knowledge and actions during that specific 2015–2017 timeframe. The plaintiffs sought to introduce into evidence a specific medical article published by the Cleveland Clinic. This article updated guidelines for cardiac amyloidosis. It mapped out advanced clinical paths to identify the disease before fatal cardiac events occurred.

The journal published the Cleveland Clinic article in December 2017—the exact month and year of the decedent’s death. The journal released it at the very tail end of the relevant treatment. Thus, it was not available to the medical community during the nearly three years of prior evaluations that formed the basis of the negligence claims. Furthermore, the plaintiffs’ legal team failed to identify, produce, or otherwise disclose this specific literature during the discovery period. They waited until the middle of the trial to attempt to introduce it. They were trying to bolster the live testimony of their expert witnesses cardiologist. The defendants immediately opposed its admission, causing an extensive sidebar and a formal evidence ruling by the trial judge.

Parties’ Arguments

At trial and on appeal, the plaintiffs said that the trial court committed error. It completely kept out the Cleveland Clinic article. They argued that the literature was not being offered to introduce a new, after death method. Rather, to support and confirm the existing diagnosis techniques that their expert witness was already stating to the jury.

The article was published in December 2017. The plaintiffs maintained it was strictly at the same time as the final month of the decedent’s life. It accurately showed the peak of medical knowledge at the exact moment his care finished. The plaintiffs further argued that the defendants could suffer no genuine prejudice or unfair surprise from the text. The Cleveland Clinic is a famous institution. Its published diagnosis thresholds should be familiar to any board-certified cardiologist’s conduct in a court of law.

The defendants argued that the trial court’s decision to bar the article was a proper and necessary application of Maryland evidence law. They said that the standard of care must be measured by the knowledge available to a practitioner at the time of the alleged negligent acts, not through the lens of retrospective literature.

The defendants pointed out that the article was published in December 2017. It could not possibly have informed or guided a physician’s clinical decisions in 2015, 2016, or the vast majority of 2017. Introducing a post-dated or contemporaneous diagnostic guideline, they argued, would unfairly invite the jury to judge the defendants’ past actions using subsequent medical consensus. Finally, the defendants raised a clear procedural objection. They emphasized that the plaintiffs’ failure to disclose the article during the formal discovery window denied the defense an opportunity to review the text with their own experts. This constituted an incurable trial-by-ambush tactic.

Court’s Ruling on Medical Article in Medical Malpractice

The Appellate Court of Maryland reviewed the trial judge’s exclusion of the medical article. It used an abuse of discretion standard for the procedural discovery violation. It used a de novo standard for the underlying legal relevance regarding the standard of care. The appellate court affirmed the trial court’s ruling on both grounds, finding no error or abuse of discretion.

First, the court addressed the temporal relevance of the literature. The appellate court reiterated a foundational tenet of Maryland tort law. The medical standard of care is strictly measured by the clinical information, diagnostic tools, and scientific consensus available to a practitioner at the exact time the alleged negligent act or omission occurred.

The Cleveland Clinic article was published in December 2017. It was physically impossible for it to have informed, influenced, or guided the defendants’ diagnostic actions during the preceding years of the patient’s treatment. The court noted that a physician cannot be held liable for failing to adhere to a diagnostic guideline that had not yet been written, compiled, or disseminated to the wider medical community.

Second, the court affirmed the exclusion based on the plaintiffs’ clear procedural default. By failing to disclose the Cleveland Clinic article during the active discovery phase, the plaintiffs violated the structural requirements designed to prevent surprise at trial.

Finally, the appellate court observed that even if the exclusion had been technically improper, it constituted entirely harmless error. The trial record revealed that the plaintiffs’ expert cardiologist was still fully permitted to testify at length regarding the underlying diagnostic criteria. This was based entirely on his personal clinical knowledge and active practice. Thus, the physical absence of the document did not prevent the plaintiffs from presenting their core theory of liability to the jury.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Medical Article in Medical Malpractice

The Appellate Court of Maryland’s decision to uphold the exclusion of the Cleveland Clinic article was predicable based on its date. It sounds like the plaintiffs were able to get the substance equivalent into evidence through the expert’s testimony. That’s probably the best they can do given that the release date of the article was after almost all of the treatment already had occurred.

The procedural basis for the exclusion also was problematic for the plaintiffs. Disclosing the article for the first time during the plaintiffs’ expert’s trial testimony was not going to go well. Even though the expert had said in deposition that he was not relying on any medical articles, the plaintiffs still had a fair chance at using it if they had disclosed it before the expert had taken the stand.. Even if disclosure was the day before the expert testified, a judge could find that the defense could adequately consult with their experts and prepare cross examination.

You can read additional Blog posts on the topics of Expert Testimony and Discovery.

Stay tuned for Part Four of this series. I will examine the final issue raised on appeal. The total exclusion of a fact witness and the strict rules governing the legal relevance of non-party patient outcomes.

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

In Part 1 of the Blog series, I discussed the trial court’s denial of a motion to reopen discovery.

Part 3 will discuss the exclusion of post-dated medical literature. Part 4 will discuss the relevance in a medical malpractice case of an other patient’s experience with the drug treatment at issue.

Factual Background

The procedural core of this dispute emerged from a pre-trial motion filed by the defendants. The motion sought to exclude or restrict the testimony of the plaintiffs’ designated expert witness, a board-certified cardiologist . The plaintiffs intended to introduce three distinct clinical opinions through this expert witness. These would prove both a breach of the standard of care and legal causation. The trial court ultimately allowed the expert witness to testify regarding two of his clinical conclusions. However, the primary conflict on appeal focused on his third opinion. The defendants had breached the medical standard of care by failing to treat the patient with the drug tafamidis. Or by failing to refer him to a center where he could get the drug.

The relevant treatment window a from February 2015 until the patient’s sudden death in December 2017. The FDA had not approved the drug tafamidis for any therapeutic use within the United States. The FDA did not officially grant regulatory approval for the drug until 2019.

Expert Testimony on Experimental Drug

At the pre-trial evidentiary hearing, the expert witness stated that despite the lack of domestic FDA approval, the European Union and Japan had already approved tafamidis for treating cardiac amyloidosis during 2015 and 2016. He said that clinical studies showed the medical community widely knew about the drug’s safety and effectiveness. They were accessible to American cardiologists at that time.

To bridge the regulatory gap, the expert witness maintained that patients of financial means could have traveled abroad to obtain the medication. Alternatively, he claimed that the patient could obtain the drug in the USA “off-label” through special “amyloid centers.” These were located at elite institutions like Harvard, Stanford, and Johns Hopkins via compassionate use or special prescribing protocols.

The expert witness said that a reasonably competent cardiologist operating between 2015 and 2017 had to either prescribe tafamidis off-label or immediately refer the patient to an amyloid specialist who could secure the drug. However, at the hearing, the expert witness failed to produce, cite, or reference a single peer-reviewed publication, clinical guideline, or objective data source. He did not show that American cardiologists had generally accepted this non-FDA-approved drug during the relevant time period.

Parties’ Arguments

On appeal, the plaintiffs contended that the trial court committed a reversible abuse of discretion by overly restricting the expert witness’s testimony. They argued that the expert firmly grounded his conclusions in decades of personal clinical experience, extensive active practice, and a comprehensive awareness of ongoing global medical literature.

The plaintiffs maintained that because the expert witness was a highly qualified, board-certified cardiologist who actively treated amyloidosis patients in his own practice, his insights into cutting-edge therapeutic options should have been presented to the jury. Barring this testimony, they argued, caused severe and fatal prejudice to their case. It entirely eliminated their ability to argue a primary theory of negligence: that a viable, life-extending treatment protocol existed and should have been pursued by the defendants.

The defendants argued that the trial court properly ruled in its role as a judicial gatekeeper. They maintained that the expert witness’s opinion regarding tafamidis was a classic example of speculation that lacked any objective factual or scientific foundation. The defendants claimed that under longstanding Maryland law, the standard of care is not formulated in a vacuum. It must reflect what a reasonably competent practitioner would do under similar circumstances within the domestic medical community.

They argued that a drug entirely lacking FDA approval during the years of treatment cannot be forced upon the medical community as a mandatory standard of care without objective evidence showing widespread domestic acceptance. Because the expert witness offered nothing but his own personal assertions (ipse dixit) to support his claim that off-label use was the expected standard, the defendants argued the testimony was properly excluded as unreliable.

Court’s Ruling on Experimental Drug Expert Testimony

The Appellate Court of Maryland reviewed the trial court’s decision under an abuse of discretion standard. It noted that a trial judge’s determination to admit or exclude expert testimony will not be disturbed unless the ruling is completely unsupported by logic, fact, or guiding legal principles. The appellate court affirmed the trial court’s exclusion. It held that the trial judge correctly applied the standards of Maryland Rule 5-702 and the Daubert-Rochkind reliability framework.

Under Maryland Rule 5-702(3), a court must determine whether a sufficient factual basis exists to support an expert’s testimony. That requires an evaluation of both the adequacy of the data and the reliability of the underlying methodology. To guide this assessment, courts utilize the ten non-dispositive Daubert-Rochkind factors. The appellate court walked through the trial judge’s factor-by-factor analysis. It balanced both the strengths and terminal deficiencies of the expert’s proffer.

Application of Factors

• Factors Weighing in Favor of Admissibility (Factors 6 and 10): The court acknowledged that the expert witness’s opinions grew naturally out of his independent clinical research and regular practice rather than developed solely for litigation (Factor 6). Furthermore, the court agreed that the field of cardiology is universally recognized as capable of reaching reliable results regarding medical standards of care (Factor 10) .
• Factors Compelling Exclusion (Factors 2, 5, and 7): Despite the expert’s qualifications, the court found fatal flaws under the remaining criteria. Under Factor 2 (peer review and publication), the court highlighted that the expert witness produced zero published literature stating that tafamidis was an accepted standard of care in the U.S. between 2015 and 2017. Under Factor 5 (general acceptance), the court observed that while the drug was “out there” or available globally, the expert provided no evidence of its widespread domestic acceptance among American practitioners during the relevant treatment years. Most critically, under Factor 7 (unjustified extrapolation), the court determined that because the drug entirely lacked FDA approval during the decedent’s lifetime, concluding that prescribing it was the mandatory standard of care constituted an impermissible leap.

The appellate court concluded that the expert witness failed to bridge the massive “analytical gap.” That gap was between the empirical data (global trials and localized experimental use) on one side. On the other was his sweeping conclusion (a nationwide standard of care). The opinion rested solely upon the ipse dixit—the uncorroborated word—of the expert. Thus, the appellate court held that the trial court properly exercised its discretion to exclude the testimony.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Experimental Drug Expert Testimony

The Appellate Court of Maryland’s decision to affirm the restriction of the expert witness’s testimony was not surprising. Patients often face hurdles in gaining access to medical treatment that is available in other countries, but that the FDA has not approved for use in the USA. These hurdles can be at multiple stages. A patient may not be able to find a doctor who will consider such a treatment. In addition, the hurdle may be an insurance company that will not pay for the treatment.

In this case, the insurmountable hurdle was the legal system. Showing the availability of the treatment was not enough. Nor was showing wide acceptance in other places. The plaintiff’s expert had to establish that the medical community in the USA had widely accepted the treatment. For the patient in this case, that would not come until two years later, when it was too late.

You can read more Blog posts on issues involving expert witnesses.

Stay tuned for Part 3 of this series. I will analyze the trial court’s exclusion of the post-dated Cleveland Clinic medical article. I will also further explore the temporal constraints governing evidence in medical negligence actions.

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 2 will involve the limits placed on unapproved drug testimony under Daubert-Rochkind. Then Part 3 will discuss the exclusion of post-dated medical literature. Part 4 will discuss the relevance in a medical malpractice case of an other patient’s experience with the drug treatment at issue.

Factual Background

The underlying medical malpractice action was brought by the plaintiffs in May 2020. The lawsuit alleged that multiple medical defendants failed to appropriately diagnose and treat the decedent’s underlying cardiac amyloidosis. This was during a relevant treatment period from February 2015 until his sudden death in December 2017.

From its very start, the case faced procedural friction and experienced structural delays over several years. A substantial portion of this stagnation was directly attributable to successive legal counsels for the plaintiffs entering appearances and subsequently withdrawing from active representation. Specifically, the plaintiffs’ initial filing counsel withdrew in December 2020. This resulted in the court to pushing the original July 2021 trial date back to March 2022.

Replacement counsel stepped in, but subsequent complications and scheduling conflicts forced further adjustments, delaying the trial to May 2023. In early 2023, the plaintiffs’ legal team suffered consecutive departures. One co-counsel withdrew in February, and lead counsel left in April due to health complications. Consequently, the trial date was postponed yet again, resetting the operational schedule to January 2024.

Amidst these compounding delays, the operative discovery deadlines had long since crystallized under the court’s scheduling order. The circuit court originally set discovery to close on January 27, 2022. There were minor disputes regarding document production. The court then permitted discovery to remain partially open for a highly limited purpose. It definitively established a final, modified discovery deadline of May 31, 2022.

Plaintiffs’ Motion for Reopening of Discovery

More than a full year after this final discovery deadline closed, the plaintiffs again secured their new legal representation, with incoming counsel entering an appearance in July 2023. On the exact date of his appearance—fourteen months after the absolute expiration of discovery and four months before the rescheduled trial date—the plaintiffs’ new attorney filed a motion requesting the court to reopen discovery. The explicit purpose of the motion was to depose two of the defendants’ expert witnesses, whose identities and specialized expert reports had already been provided during the original, active discovery period.

Parties’ Arguments on Reopening Discovery & Medical Malpractice

In seeking leave to reopen the discovery window, the plaintiffs argued that the requested modification was narrow in scope and would only require the discovery window to be active for a very brief period. They emphasized that at the time of the motion in July 2023, the scheduled trial date was still several months away, meaning that it could easily accommodate the expert depositions without requiring an additional postponement of the trial itself.

New counsel further maintained that prior legal representation had committed a disservice to the plaintiffs by failing to execute these depositions while discovery was open, effectively arguing that the clients should not be penalized for the strategic omissions or failures of their previous attorneys. Finally, the plaintiffs claimed prejudice, asserting that entering a medical malpractice trial without having conducted pretrial depositions allowed the defense experts to unfairly adapt, surprise, and shape their live trial testimony to the direct detriment of the plaintiffs’ case.

Defense Arguments

Conversely, the defendants argued that there was absolutely no good-faith basis to disturb the long-standing scheduling order by reopening discovery in this medical malpractice case. They pointed to the extensive administrative history of the case, highlighting that the numerous prior delays were entirely attributable to the plaintiffs’ compounding counsel turnovers and internal management. The defendants asserted that the trial court was legally and equitably required to protect the integrity of the judicial schedule, ensure finality, and shield the defendants from ongoing litigation costs.

They emphasized that the plaintiffs had been provided an ample, fair, and multi-year opportunity to depose the defense experts during the active discovery period, and that a sudden shift in trial strategy by incoming counsel did not constitute an extraordinary circumstance or legal justification. Reopening discovery, they warned, carried an unacceptable risk of throwing other pre-trial deadlines off track, disrupting expert schedules, and inevitably precipitating yet another trial delay.

Court Ruling on Reopening Discovery & Medical Malpractice

The circuit court denied the plaintiffs’ motion to reopen discovery, expressing concern regarding the compounding delays and the danger of throwing the remaining trial deadlines off track. On appeal, the appellate court reviewed this denial under the highly deferential “abuse of discretion” standard. The court emphasized that the control of a trial calendar and the modification of a scheduling order are matters strictly committed to the sound judgment and discretion of the trial court.

To determine whether the trial court acted within its lawful bounds, the appellate court applied the framework established in Maryland jurisprudence, which dictates that a party seeking to modify a scheduling order past its deadline must demonstrate both substantial compliance and good cause.

Analysis

First, analyzing substantial compliance, the appellate court found that the plaintiffs’ delay was completely divorced from a minor or “technical” violation. The motion was brought more than fourteen months after the formal close of discovery. Thus, it represented a total failure to meet the scheduling order’s structural terms, precluding any finding of substantial compliance.

Second, evaluating good cause, the court ruled that a tactical change in trial strategy or the personal assessment by incoming counsel that prior counsel had failed the client does not constitute a legally sufficient justification for noncompliance. The court observed that the defendants’ experts had already submitted highly detailed written expert reports during the active discovery window. Therefore, the plaintiffs were not operating completely in the dark or facing a dynamic of trial-by-ambush.

The Appellate Court balanced the absence of a valid reason for the fourteen-month delay against the prejudice of delaying an already heavily derailed case. The court held that the trial judge acted with reference to guiding legal principles. The Appellate Court found that the ruling was firmly supported by logic and the facts on record. It concluded that the trial court did not commit an abuse of discretion.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Reopening Discovery & Medical Malpractice

The abuse of discretion standard is very deferential. The trial judge could have decided this issue either way and it likely would not have been reversed on appeal. 

Some medical malpractice lawyers do not take the depositions of the opponents’ expert witnesses for strategic reasons. The deposition can give the expert the opportunity to prepare and a preview of questions the lawyer will ask at trial. In most instances medical malpractice lawyers choose to conduct the depositions. However, the argument that the earlier lawyer’s failure to depose the experts had resulted in prejudice was likely to face an uphill battle. Combined with detailed expert witness reports having been provided to the plaintiffs, these factors provided grounds that the trial judge could rule against reopening discovery. 

The plaintiff’s attempt to reopen discovery was not frivolous. The trial was months away. There was time to conduct the depositions in a way that would not further delay the case or cause extreme prejudice to the defense. Some judges may have allowed such a request. One of the reasons that the request was not successful here was the multiple prior lengthy delays in the case.

Practical Considerations

A replacement lawyer joining a case has to be realistic. The court may not allow expert depositions in a circumstance like this. Filing the motion to reopen discovery is a fine way to proceed. As discussed above, it could have gone either way.

However, there is a more concerning situation here. It happens whenever a lawyer withdrawals from a case. There has to be a concern that a major problem has occurred with respect to the ability to win. That could be a problem with evidence coming out that is harmful to your claim. It could also be damage to the relationship between attorney and client.

We don’t know whether either of those situations were present here. However, it is notable that multiple rounds of prior counsel withdrew from the case (including experienced medical malpractice lawyers). Then the plaintiffs lost the case of trial.

It appears that the plaintiffs represented themselves on appeal.

Stay tuned for Part Two of this series. I will analyze the trial court’s exclusion of the plaintiffs’ expert cardiology testimony. It regarded off-label drug availability under the Daubert-Rochkind standard.

You can read other Blog posts on cases involving Discovery 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.

The Baltimore Medical Malpractice Lawyer Blog reports on a birth injury jury verdict. At our Baltimore medical malpractice law firm, we review many cases where families face lifelong challenges because of a medical provider’s mistakes. Birth injuries are among the most devastating types of medical malpractice we handle. When a medical team fails to follow standard protocols during labor and delivery, a healthy pregnancy can quickly turn into a tragedy. This post is about medical malpractice and excess use of Pitocin.

A recent medical malpractice trial brought this reality into sharp focus. A jury awarded over $10 million to young girl and her family following a multi-week trial. The young child suffered severe, permanent brain damage at birth due to medical malpractice committed by a doctor and nurse.

Despite clear evidence that the medical team deviated from acceptable standards of care, the hospital and its insurance providers refused to settle the case before or during the trial. Instead, the defense tried to shift the blame onto the mother. The jury rejected this defense, holding the medical providers fully accountable. The multi-million-dollar verdict will ensure the child has the financial support necessary to cover her extensive, lifelong medical and care needs.

This case centers on a highly potent and commonly used labor-inducing drug: Pitocin. The jury found that the medical staff administered excessive amounts of the drug. This triggered prolonged contractions that deprived the baby of oxygen before birth. This preventable oxygen deprivation resulted in permanent brain damage and cerebral palsy.

To understand why this happens—and how it constitutes medical malpractice—it is vital to understand what Pitocin is, how it should be managed, and the severe physiological toll its misuse takes on an unborn baby.

A Brief History of Pitocin: Use and Guidelines

Oxytocin is a natural hormone that the human body produces that, among other functions, stimulates uterine contractions during labor. In the early 20th century, scientists discovered that pituitary extracts could mimic this effect. By the 1950s, a synthetic version of oxytocin developed. This synthetic hormone’s brand name is Pitocin.

Because Pitocin can effectively start or speed up labor, it became a standard tool in labor and delivery wards across the country. However, its strength and unpredictability quickly became apparent. In 2007, the Institute for Safe Medication Practices labeled synthetic oxytocin a “high-alert medication.“  They placed it in the same risk category as insulin and heparin. This was because of its high potential to cause significant patient harm when misused. The Food and Drug Administration (FDA) also enforces strict “black box” warnings on Pitocin. They explicitly stated that it is not indicated for elective induction of labor. This means it should not be used simply for convenience.

Who Should Receive Pitocin?

Pitocin is for medical inductions or labor augmentation when continuing the pregnancy poses a greater risk to the mother or child than delivering. Appropriate clinical scenarios include:

• Preeclampsia or severe maternal hypertension
• Maternal diabetes
• Premature rupture of membranes (the mother’s water breaks, but labor does not start naturally)
• Uterine inertia (contractions are too weak or have stopped entirely, halting labor progress)

Who Should NOT Receive Pitocin?

The FDA and obstetric guidelines explicitly outline contraindications where Pitocin can cause severe injuries. Medical providers should generally not use it if the mother or baby has any of the following conditions:

• Significant cephalopelvic disproportion (the baby’s head is too large to fit through the mother’s pelvis)
• Unfavorable fetal positions (such as a transverse lie)
• Fetal distress when delivery is not imminent
• Placenta previa or vasa previa (complications involving the location of the placenta or blood vessels)
• A hyperactive or hypertonic uterus
• A history of major uterine surgery, including a previous classical Cesarean section (due to the high risk of uterine rupture).

Strict Guidelines for Safe Administration – Excess Pitocin Medical Malpractice

Because every patient responds differently to the drug, medical protocols dictate that Pitocin must be administered conservatively.

1. Low and Slow Dosing: Medical providers must start it at a very low dose via an intravenous (IV) pump and titrated (increased) slowly and incrementally.
2. Continuous Monitoring: The medical team must utilize continuous electronic fetal monitoring to track the baby’s heart rate alongside a uterine tocodynamometer to measure the frequency and duration of contractions.
3. Active Management: Once an acceptable contraction pattern is achieved (typically one strong contraction every 2 to 3 minutes, lasting 80 to 90 seconds), there is no medical justification to increase the dosage. If the baby shows signs of distress, the nurse or doctor must immediately turn down or shut off the Pitocin drip.

The Danger of Misuse: How Excess Pitocin Causes Brain Damage – Medical Malpractice

When medical providers violate these safety guidelines and administer excessive Pitocin—as occurred in this $10 million case—the consequences can be catastrophic. The progression from a high dosage of medication to a permanent neurological disability follows a specific, devastating chain reaction:

Excessive Pitocin Administration

Uterine Tachysystole (Contractions too long, strong, or frequent)

Placental Compression (Blood flow restricted; no rest time to recharge)

Fetal Hypoxia / Asphyxia (Severe oxygen deprivation)

Hypoxic-Ischemic Encephalopathy (Permanent brain cell death)

Cerebral Palsy

1. Excessive Pitocin Leads to Uterine Tachysystole

When excess Pitocin from medical malpractice is introduced into the mother’s bloodstream, it overstimulates the uterine muscles. This triggers a condition known as uterine tachysystole or hyperstimulation. Instead of normal, rhythmic contractions with healthy resting periods in between, the uterus contracts too frequently (more than five contractions in a 10-minute window), too intensely, or for prolonged periods without relaxing.

2. Tachysystole Deprives the Baby of Oxygen

An unborn baby does not breathe air; instead, they receive oxygen-rich blood from the mother through the placenta and umbilical cord. During a normal uterine contraction, the blood vessels supplying the placenta are temporarily compressed, briefly slowing down the exchange of oxygen. This is normal, and a healthy fetus can tolerate it, provided there is an adequate resting period between contractions. During that rest phase, the placenta recharges with fresh, oxygenated blood.

When excessive Pitocin causes prolonged or rapid-fire contractions, the uterus never fully relaxes. The continuous pressure clamps down on the blood vessels, restricting or completely cutting off the blood and oxygen supply to the baby. The baby is effectively forced to hold their breath through back-to-back contractions without a chance to recover, resulting in severe oxygen deprivation (fetal hypoxia or birth asphyxia).

3. Oxygen Deprivation Causes Permanent Brain Damage

Without sufficient oxygen, the baby’s brain cells quickly begin to starve and die. This specific type of brain injury is HIE: Hypoxic Ischemic Encephalopathy. As the period of asphyxia extends, the baby’s body attempts to survive by shifting to anaerobic metabolism, which causes a dangerous buildup of acid in the blood (metabolic acidosis), further destroying fragile brain tissue.

4. Brain Damage Manifests as Cerebral Palsy

The areas of the brain most vulnerable to oxygen deprivation during labor are those responsible for motor control, movement, and muscle coordination. When HIE permanently destroys these tracking centers, the child develops Cerebral Palsy (CP). Cerebral palsy is a lifelong, non-progressive but uncurable neurological disorder that impacts muscle tone, posture, balance, and voluntary movement. Children with severe cerebral palsy may struggle with spastic limbs, have difficulty walking, require feeding tubes, and face profound cognitive or developmental delays, necessitating around-the-clock medical attention for the rest of their lives.

Accountability in the Delivery Room for Excess Pitocin & Medical Malpractice

Every hospital has clear protocols regarding Pitocin administration. Labor and delivery nurses have training to read electronic fetal monitor strips. If the monitor shows “late decelerations” (drops in the baby’s heart rate following a contraction) or if the contractions are occurring too closely together, the standard of care requires the medical staff to intervene. They must stop the Pitocin, administer oxygen to the mother, or prepare for an emergency Cesarean section if the fetal distress cannot be resolved.

When a doctor or nurse ignores the warning signs on a monitor strip and continues to push Pitocin despite a hyperstimulated uterus, it crosses the line from a known medical risk into clear medical malpractice.

The $10 million verdict highlighted here serves as a reminder of why strict medical accountability is necessary. Preventable birth injuries leave families with overwhelming emotional and financial burdens. No amount of money can undo the neurological damage inflicted upon a child. However, a successful medical malpractice lawsuit provides the vital financial resources required to pay for specialized therapies, home modifications, medical equipment, and adaptive care.

If your child was diagnosed with cerebral palsy or HIE and you suspect that labor-inducing drugs like Pitocin were mismanaged during delivery, you have the right to seek answers. Our legal team will thoroughly investigate the medical records. We will hold negligent medical institutions accountable for the injuries they cause. Contact our medical malpractice lawyer to discuss your legal options.

You can read other case reports in the Blog, including Pitocin Misuse $951M, and 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.

Introduction

The Baltimore Medical Malpractice Lawyer Blog reports on a recent Appellate Court of Maryland reported opinion. It is on the legal landscape surrounding psychiatric immunity for medical malpractice and third-party liability. The case is Jacob Caples, et al. v. Sinai Hospital of Baltimore, Inc., et al. (No. 1527, September Term, 2024; filed May 1, 2026). The court addressed an issue regarding the statutory immunity traditionally granted to mental health care providers. 

Specifically, the court was asked to determine whether the Circuit Court for Baltimore City erred. It dismissed a wrongful death lawsuit under Maryland Code, Courts and Judicial Proceedings Article (“CJP”) section 5-609. This statute generally protects psychiatric professionals from civil liability for failing to predict or warn of a patient’s violent behavior. In reversing the lower court’s dismissal, the Appellate Court applied a legal precedent: psychiatric immunity does not apply when a patient expresses generalized homicidal intent and is directly discharged into the care of a readily identifiable victim within a foreseeable zone of danger.

Factual Background – Psychiatric Care Immunity & Medical Malpractice

The tragic facts under review are derived from the plaintiffs’ complaint and an accompanying case summary prepared by a doctor.  On November 17, 2020, the patient voluntarily admitted himself to the inpatient psychiatric unit at the defendant hospital after experiencing severe suicidal ideation involving a plan to harm himself with a knife. Hospital’s initial documentation recorded that the patient suffered from suicidal tendencies, irrational suspicion thoughts, and catatonic symptoms.

While hospitalized, the patient’s psychological state deteriorated into severe homicidal ideation. Hospital records revealed that on two separate occasions—including the very morning of his discharge—the patient explicitly told hospital staff that he wanted to kill “anyone that came near him” and “anyone who comes close”. Furthermore, the patient twice failed to check the assessment boxes confirming he was free of homicidal or suicidal thoughts on paper forms provided by staff. He also exhibited episodes of aggression that required chemical restraint/medication.

Despite these indicators, on November 24, 2020—just four hours after his second homicidal declaration—hospital discharged the patient “home to wife”. The hospital signed off on his release into the care of his spouse, without providing her, or the patient’s outpatient provider, any warning regarding his explicit homicidal ideations or aggressive episodes.

Eight days later, the patient acted on those thoughts. He bludgeoned and stabbed his wife to death in their home. A court later convicted the patient of first-degree murder and found him criminally responsible, resulting in a life sentence.

The Parties and Their Arguments

The action was brought in April 2024 by the adult sons of the decedent, and the decedent’s father, and as co-representatives of the estate. They filed a wrongful death and survival lawsuit alleging that the hospital and nurse practitioner who authorized the discharge were profoundly negligent in failing to warn the decedent of the imminent danger she faced.

The Defense’s Position

The hospital moved to dismiss the case prior to discovery, operating on literal interpretation of the immunity statute CJP § 5-609. The hospital argued it was completely insulated from liability because:

• Patient did not explicitly name his wife as his target, meaning he had not identified a “specified victim or group of victims” under the text of the law.
• His statements did not communicate an “imminent” threat since he did not act aggressively before discharge and explicitly denied homicidal intent directly prior to walking out the door.
• Relying on the 1999 case Falk v. Southern Maryland Hospital, Inc., hospital claimed that verbal declarations alone do not establish a legal “propensity for violence” without prior overt acts of violence.

The Plaintiffs’ Position

The plaintiffs countered that they had pled more than enough facts to bypass statutory immunity. They argued that hospital possessed direct knowledge of the patient’s violent inclinations. Most importantly, they asserted that because the hospital specifically discharged the patient directly into the care of his wife to return to their shared home, the hospital knew exactly who would be in his immediate physical proximity. Therefore, she was a readily identifiable victim within an obvious, localized zone of danger

The Court’s Decision on Psychiatric Care Immunity & Medical Malpractice

The Appellate Court of Maryland reversed the Baltimore City Circuit Court’s dismissal and remanded the case for trial. The court broke the text of CJP § 5-609 down into three key elements: Foreseeability/Specificity of the Victim, Imminent Threat, and Propensity for Violence.

1. Foreseeability and the “Zone of Danger”

The court distinguished this case from prior landmarks like Falk, Shaw v. Glickman, and Furr v. Spring Grove State Hospital. In those older cases, patients either escaped or were released broad-scale into the general public, making the pool of potential victims vast and unpredictable.

Here, the court noted that “anyone who comes close” is technically a broad category. However, the hospital possessed concrete knowledge of who would fit that definition. The hospital knew the patient was going home with his wife. The court explicitly held:

“Where a patient expresses an intent to kill or harm anyone in their proximity, we hold that the provider, at a minimum, must warn those to whom the patient is being discharged, as they are undoubtedly ascertainable potential victims within a zone of danger.” 

2. Deconstructing “Imminent Threat”

The court rejected the hospital’s claim that a temporary, last-minute denial of homicidal thoughts or a lack of overt acts erased the immediacy of the danger. Citing dictionary definitions and criminal law parallels (Porter v. State), the court noted that “imminent” simply means “ready to take place” or “happening soon”. Given that the patient made severe threats the morning of his discharge, whether the threat was legally “imminent” is a question of fact for a jury to evaluate, not a matter of law for a judge to dismiss.

3. Establishing a “Propensity for Violence”

Finally, the court ruled that an “overt violent act” is not a prerequisite to establishing a propensity for violence.  A history of suicidal ideation mixed with recurrent homicidal thoughts, a failure to verify safety on written assessments, and a documented need for aggressive-episode medication are legally sufficient to allow a jury to conclude a patient is naturally inclined toward violence.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Psychiatric Care Immunity & Medical Malpractice

As a Baltimore medical malpractice lawyers, I closely watch how courts interpret medical immunity laws. The Appellate Court’s decision in Caples v. Sinai Hospital is a well-reasoned, correctly decided opinion that applies common sense to psychiatric liability in Maryland.

The court rightfully looked past semantics to address the reality of clinical proximity. The patient stated he would kill “anyone who comes close.” When the hospital released him to go home with his wife, his wife became a definitive, predictable target. To claim she was an “unforeseeable” victim places form over substance.

When a hospital actively facilitates a discharge directly into the hands of a loved one, they hold an unyielding ethical and legal obligation to disclose that the patient voiced a desire to kill the very people surrounding him.

This ruling is a victory for patient advocacy, domestic safety, and medical accountability in Maryland.  It ensures that the families of victims who suffer from horrific, preventable tragedies will finally get their day in court.

Practical Considerations – Psychiatric Care Immunity & Medical Malpractice

While the plaintiffs will get their day in court, the practical challenges in these cases make it too early to celebrate. The court’s opinion was focused on facts in a light most favorable to the plaintiffs. The defendants can be counted on to develop a record supporting their release of the patient.

The defense will develop the picture by that the time of discharge, the patient was denying that he was going to hurt anybody. The hospital also likely will give the big picture challenges of treating patients who often will go back-and-forth between making threats and taking them back over the course of days in the hospital.

Causation

I suspect that the defense also will vigorously challenge causation. The murder was not until eight days after the discharge. The hospital can be counted on to develop, including through deposing the adult son, what happened during those days. The aim will be to make a case that even if the hospital had disclosed the exact things that happened during the patient’s hospitalization, that nothing different would’ve happened. In other words, the wife and adult son still would have taken the patient home. There is no indication that anything happened in those eight days that caused the wife and adult son to seek further treatment for the patient on an emergency basis. There was a follow up appointment the day before the murder. The parties will further explore all of this in discovery.

These are very tough cases for plaintiffs in general. Of course, further development of the case also could expose additional facts that are helpful to the plaintiffs. Not many of these types of cases get past motions or go to trial. If this one goes to trial, it should be interesting.

You can read other Blog posts on cases involving Immunity 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.

The Baltimore Medical Malpractice Lawyer Blog reports and discusses a jury verdict involving a fatal anesthesia complication that resulted from alleged excess anesthesia and medical malpractice. The result has sent a clear message to the medical community regarding the non-negotiable nature of patient monitoring and risk assessment. The case, which resulted in a $13.75 million jury verdict, highlights the devastating consequences that arise when standard protocols are ignored and communication between medical providers breaks down. While the financial figure is substantial, the true weight of the case lies in the preventable nature of the tragedy—a patient undergoing a diagnostic procedure lost their life due to failures in dose management and respiratory monitoring.

The Mechanics of Fatal Hypoxic Brain Injury – Excess Anesthesia & Medical Malpractice

At the center of this case is the administration of an excess dose of anesthesia, which led to a fatal hypoxic brain injury. To understand the gravity of this error, one must understand how anesthesia interacts with the human body. Anesthesia is to suppress the central nervous system to facilitate medical procedures. However, when the dose is excessive, this suppression extends to the brain’s respiratory centers.

Hypoxia occurs when the body or a region of the body is deprived of adequate oxygen supply at the tissue level. In a clinical setting, excessive sedation can lead to hypoventilation (dangerously shallow breathing) or complete apnea (cessation of breathing). When oxygen levels in the blood drop, the brain is the first organ to suffer. Brain cells are incredibly sensitive to oxygen deprivation; within minutes of oxygen loss, neurons begin to die. This cascade of cellular death is hypoxic-ischemic injury. In this specific case, the lack of oxygen reached a critical threshold, leading to irreversible damage that ultimately proved fatal, resulting in a wrongful death claim.

Recognizing Respiratory Failure During Procedures

The ability to recognize respiratory failure in its earliest stages is perhaps the most critical skill for any anesthesia provider. This is particularly true when the medical malpractice allegation is excess anesthesia. During a procedure, several key indicators signal that a patient’s respiratory system is struggling:

• Pulse Oximetry (SpO2): A rapid or steady decline in oxygen saturation levels is a primary warning sign.
• Capnography (EtCO2): This measures the carbon dioxide exhaled by the patient. A flatline or significant decrease in the EtCO2 waveform often indicates airway obstruction or apnea.
• Physical Observation: Clinicians must look for chest rise and fall. If the patient is making respiratory efforts but no air is moving, an obstruction is likely.
• Skin Tone: Cyanosis, or a bluish tint to the skin and lips, is a late-stage sign of profound hypoxia.

In this case, the assistant allegedly failed to recognize the patient’s respiratory failure in time. The delay in recognition allowed the situation to escalate from a manageable respiratory event into a full cardiac arrest.

The Critical Response and the Impact of Delay

When medical providers identify respiratory distress, they must respond immediately. This typically involves the “ABC” (Airway, Breathing, Circulation) protocol: repositioning the airway, providing supplemental oxygen via bag-valve-mask ventilation, and, if necessary, intubating the patient to secure the airway. If these steps are not taken instantly, the heart, starved of oxygen, will eventually stop.

The report indicates that the failure to recognize the patient’s respiratory failure resulted in an eight-minute loss of pulse. This is a staggering amount of time in a medical setting. For every minute that passes without a pulse, the chances of a positive neurological outcome decrease significantly. By the eight-minute mark, the brain has sustained profound, widespread damage. Although the patient was resuscitated, the damage was done, leading to a decline that ended in hospice care due to sepsis.

High-Risk Profiles and Adjusting Care

A primary point of contention in the medical malpractice trial was alleged excess anesthesia that flowed from the failure to adjust care based on the patient’s known risk factors. The patient was heavy and suffered from obstructive sleep apnea (OSA). These are not merely background conditions; they fundamentally change the safety profile of anesthesia.

Patients with morbid obesity have decreased functional residual capacity, meaning they have less “oxygen reserve” in their lungs. When they stop breathing, their oxygen levels plummet much faster than a non-heavy patient. Furthermore, OSA makes the airway highly prone to collapse under sedation. For such high-risk individuals, the standard of care requires:

• Reduced dosages of sedative agents to prevent over-sedation.
• Continuous, vigilant monitoring of the airway and respiratory effort.
• Advanced airway equipment at the bedside for immediate use.

The defendants reportedly failed to implement these safeguards, treating a high-risk patient with a “one-size-fits-all” approach that proved catastrophic.

The Supervising Relationship: Anesthesiologist and Assistant – Excess Anesthesia & Medical Malpractice

The legal liability in this case split between the anesthesiologist assistant (82.5%) and the supervising anesthesiologist (17.5%). This division highlights the breakdown in the “Anesthesia Care Team” model. In this model, the supervising physician is responsible for the pre-operative assessment and for identifying risks that the assistant must manage during the procedure.

Professional standards dictate that the supervising physician must clearly communicate the patient’s risk profile to the assistant. In this case, the supervising anesthesiologist reportedly failed to warn the assistant of the patient’s condition or provide additional safeguards. While the assistant is directly responsible for monitoring the patient, the supervisor’s failure to “set the stage” for safety created a precarious environment. The jury’s verdict reflects this dual responsibility: while the person at the head of the bed bears the brunt of the liability for failing to react, the supervisor is held accountable for the systemic failure of communication and oversight.

Earlier recognition of the airway obstruction could have prevented the outcome. — Trial Expert Witness Testimony 

Excess Anesthesia – Medical Malpractice

This case serves as a somber reminder of the stakes involved in anesthesia, including medical malpractice attributed to excess anesthesia. It underscores that medical errors are rarely the result of a single mistake, but rather a chain of failures—poor communication, ignored risk factors, and delayed clinical recognition. For the medical community, the lesson is clear: vigilance is the only defense against the inherent risks of sedation.

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.

The Baltimore Medical malpractice Lawyer Blog provides this post to analyze the May 4, 2026, Appellate Court of Maryland reported opinion in James Smith, Jr., et al. v. Upper Chesapeake Medical Center Inc. In the early months of 2020, the healthcare landscape transformed overnight. Hospitals pivoted to manage a global pandemic. The legal system considered how traditional standards of medical malpractice would apply to providers operating under “crisis standards of care.”  This legal opinion clarified the scope of statutory immunity for medical malpractice by healthcare providers during the COVID catastrophic health emergency.

Factual Background: A Patient in the Eye of the Storm

On March 5, 2020, the Maryland Governor declared a state of emergency and a catastrophic health emergency due to the COVID-19 pandemic. This declaration triggered specific powers under the Public Safety Article (“PS”) of the Maryland Code. It allowed the state to relax licensing requirements, mandate the suspension of elective procedures, and implement strict infection control protocols.

On April 5, 2020, the plainitff admitted to the emergency room at Upper Chesapeake Medical Center. He was suffering from acute respiratory failure, low oxygen, and intermittent fevers. Because his symptoms mirrored those of COVID-19, the hospital classified him as a “Person Under Investigation” (PUI). Medical providers intubated the plaintiff, placed him on a ventilator in the Intensive Care Unit (ICU), and kept him in strict isolation.

Throughout his stay, the plaintiff tested negative for COVID-19 on April 8, April 11, and April 29. Despite the negative tests, his deteriorating respiratory status and high clinical suspicion led the hospital to maintain his PUI status and isolation precautions until April 22, 2020, in accordance with their emergency response policies.

During this period, the plaintiff required repositioning every two hours to prevent skin breakdown. However, the hospital’s documentation indicated that staff failed to meet this standard between April 7 and April 14. On April 14, medical providers discovered a deep tissue injury on his sacrum. This injury progressed into an infected sacral decubitus ulcer that required multiple debridement and skin graft procedures. It ultimately left the plaintiff permanently disabled.

The Parties and Their Legal Arguments – COVID Immunity for Medical Malpractice

Plaintiffs

The litigation involved a patient and his spouse (the plaintiffs). They filed a negligence and loss of consortium lawsuit against a medical center and its health system (the defendants) in the Circuit Court for Harford County. This followed a permanent injury sustained during a month-long hospitalization in April 2020. The core of the dispute centered on whether statutory immunity under PS § 14-3A-06 shielded the hospital. That statute protects healthcare providers acting in good faith under a catastrophic health emergency proclamation.

The plaintiffs sought a narrow, patient-specific application of the immunity statute. They argued that while the patient initially admitted with symptoms consistent with COVID-19, this thereby justified a period of immunity. However, that protection should have “popped like a bubble” once multiple tests returned negative. According to their theory, once the medical providers ruled out the virus, the patient transitioned to “non-COVID” status. The hospital was then required to adhere to the normal, routine standard of care for his subsequent treatment. They contended that the failure to perform routine preventative measures, such as body repositioning to avoid deep tissue injuries, was a “normal” medical error unrelated to the pandemic emergency.

Defendants

In contrast, the defendants argued for a broader, operational interpretation of the law. They asserted that the pandemic’s impact was systemic. It could not be extricated from the care of any individual patient in an acute setting. The hospital provided evidence that it was operating under an Emergency Response Plan that mandated restrictive protocols for all “Persons Under Investigation” (PUI), regardless of their final diagnosis. These protocols included:

• Strict requirements for staff to don and doff full Personal Protective Equipment (PPE) before and after entering patient rooms.
• Policies aimed at conserving limited PPE and minimizing staff exposure, which reduced the frequency with which nurses and doctors could physically enter rooms.
• The use of “temporary disaster privileges” and modified documentation practices due to the “chaotic and busy” environment of the ICU.

The hospital maintained that because these emergency-driven protocols directly altered the delivery of care and resource allocation, the staff was acting in “good faith” under the Governor’s proclamation. They argued that it was illogical to expect providers to “switch gears” and maintain two different standards of care simultaneously within the same unit based on fluctuating test results.

The Court’s Decision on COVID Immunity for Medical Malpractice

The Appellate Court of Maryland affirmed the circuit court’s grant of summary judgment in favor of the hospital. The court held that statutory immunity under PS § 14-3A-06 does not hinge on whether a patient actually has the illness caused by the biological agent (COVID-19).

Key Findings

Key findings of the court included:

1. Good Faith as the Compass: The court emphasized that the General Assembly conditioned immunity on two factors. First, acting in good faith. Second, acting under a catastrophic health emergency proclamation. There was no dispute that the hospital acted in good faith.
2. Rejection of the “Bubble” Theory: The court found the plaintiffs’ “clean break” argument—that immunity should evaporate upon a negative test—to be “unreasonable and unrealistic”. It noted that it would force providers to run two different systems of care in the same ICU. There is one for COVID patients and one for non-COVID patients. That would “defy logic” and create “minefields” for frontline workers.
3. Systemic Impact: The court recognized that the emergency proclamation required the hospital to adopt modified protocols that “undoubtedly” affected the resources and level of care available to all patients. Because the hospital’s deviations from the standard of care were grounded in good-faith protocols responding to the emergency (such as PPE conservation and isolation policies), the hospital was entitled to immunity.
4. Legislative Intent: The court looked at the history of the statute (originally passed post-9/11). It noted that the law was intended to ensure hospitals had the capacity to handle large-scale epidemics without the paralyzing fear of liability for every deviation from normal routine caused by the crisis.

In conclusion, the court held that the statute does not provide “absolute” or “blanket” immunity for all actions. However, it protects care delivered in good faith in compliance with emergency directives. Because the hospital’s pandemic response directly influenced the plaintiffs care, immunity shielded the hospital from the negligence claim.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Covid Immunity in Medical Malpractice

The court’s decision highlights a significant shift in the legal burden typically found in medical malpractice litigation. Under a standard negligence framework, every case is assessed based on the specific “facts and circumstances” confronting the provider at the time of the alleged error. Ordinarily, a defendant hospital might be required to demonstrate specifically how the pressures of a pandemic—such as staffing shortages or equipment scarcity—directly prevented them from meeting the standard of care in a particular instance.

However, the application of PS § 14-3A-06 suggests that the government may have overextended immunity. It may go beyond what is strictly necessary to protect providers from the “chaos” of a crisis. It centers the defense on a broad “good faith” standard rather than a specific showing of impossibility or extreme difficulty. Therefore, there is no need for the hospital to prove a direct causal link between the pandemic and the specific failure to reposition the patient.

Critical Points

Critical points regarding this legal threshold include:

• The Good Faith Blanket: The hospital was not required to show that the pandemic made repositioning this specific patient impossible. They only had to show they were acting in “good faith” under a general emergency response plan.
• Presumptive Immunity: First, the hospital establishes it was following state-mandated or internal emergency protocols. Then immunity attaches regardless of whether those protocols were the actual reason the standard of care was missed.
• Shift in Accountability: The “bubble” theory is where immunity would lift once a patient tested negative. The court rejected it and prioritized systemic operational protection over individual patient outcomes.

This creates a robust shield for the healthcare industry during times of crisis. However, it arguably leaves patients who suffer “routine” injuries with little recourse. In a catastrophic emergency, the mere existence of a “good faith” effort to follow emergency protocols is sufficient. This waives liability, even if the provider could have reasonably met the standard of care despite the surrounding circumstances. This is a high bar for plaintiff. The statutory immunity provided by the General Assembly functions less like a nuanced defense. Rather, more like a broad jurisdictional bar for nearly any care delivered during a declared emergency.

You can read other Blog posts on Immunity, including another COVID case: Statutory Immunity: Constantine v. BWEP

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.

The Baltimore Medical malpractice Lawyer Blog reports a recent medical malpractice verdict that serves as a somber reminder of the catastrophic consequences that can arise when medical providers ignore fundamental clinical standards.  A jury awarded $25 million in a wrongful death case involving a 15-year-old patient. She presented with alarming symptoms. However, medical providers sent her home with an incorrect diagnosis. She suffered a fatal cardiac arrest days later. Medical malpractice failed to detect a life-threatening chest effusion.

This case highlights a critical breakdown in the diagnostic process. The patient sought care for chest swelling, respiratory distress, and visible distended veins—symptoms that signal an acute medical crisis. Yet, providers failed to perform basic physical examinations, review medical history, or order essential imaging. The resulting $25 million award reflects the magnitude of this preventable loss and the jury’s finding of negligence.

The Failure to Recognize Critical Symptoms

When the teenage patient presented to the medical group, the clinical signs were profound. The presence of distended veins on the chest and worsening respiratory symptoms are classic “red flags” for obstruction or pressure within the thoracic cavity. Instead of investigating these life-threatening indicators, the medical providers diagnosed the patient with gynecomastia.

Why It Was Not Likely Gynecomastia Gynecomastia is a condition with the benign enlargement of glandular breast tissue. It typically happens with hormonal imbalances. While it can occur in adolescents, it generally presents as a localized tissue change. Crucially, gynecomastia does not cause distended veins across the chest, nor does it cause worsening respiratory symptoms. By attributing systemic and vascular symptoms to a localized tissue condition, providers missed the evidence of a more dangerous underlying process.

The Missed Diagnoses: Pleural and Pericardial Effusions

The patient’s symptoms were chest swelling and difficulty breathing. These pointed toward a fluid buildup in the chest, which imaging later confirmed. This likely took the form of a pleural effusion or a pericardial effusion:

• Pleural Effusion: This occurs when excess fluid collects in the pleural space. That is the area between the lungs and the chest wall. As the fluid volume increases, it compresses the lungs, making it increasingly difficult to breathe.
• Pericardial Effusion: This involves fluid buildup in the sac surrounding the heart (the pericardium). This is particularly dangerous because the fluid exerts pressure on the heart, preventing it from filling properly with blood.

Essential Testing and What It Could Have Shown – Chest Effusion Medical Malpractice

The verdict established that the death was “entirely preventable” because medical providers did not utilize basic, standard-of-care diagnostic tools.. If providers had followed protocol, several tests could have identified the crisis immediately:

1. Chest X-Ray: A simple, non-invasive X-ray is often the first line of defense. It would have revealed an enlarged heart silhouette or “white-out” areas over the lung fields, indicating fluid. This takes only minutes and provides immediate visual evidence of a chest abnormality.
2. Computed Tomography (CT) Scan: A CT scan provides a detailed cross-sectional view of the chest. It would have not only confirmed the presence of fluid but could have identified the root cause—such as a mass—that was likely obstructing blood flow and causing the visible distended veins.
3. Complete Physical Examination & Vital Signs: Obtaining a full set of vitals and performing a thorough exam would have alerted providers to the severity of the respiratory distress and vascular changes, necessitating immediate imaging.

Life-Saving Treatment Possibilities

Had medical providers performed imaging, medical intervention could have stabilized the patient and prevented the fatal outcome. Treatment for severe fluid buildup is highly effective when performed timely:

• Thoracentesis: For a pleural effusion, a needle is inserted through the chest wall into the pleural space to drain the fluid. This immediately relieves pressure on the lungs.
• Pericardiocentesis: If fluid is compressing the heart, a needle is used to drain the pericardial sac. Even removing a small amount of fluid can dramatically improve the heart’s ability to pump blood.
• Emergency Intervention: Upon being admitted to the pediatric ICU, the patient received emergency intervention, but by that time, the condition had progressed too far to prevent cardiac arrest.

From Misdiagnosis to Cardiac Arrest – Chest Effusion & Medical Malpractice

The progression from an untreated chest condition to cardiac arrest is a tragic physiological sequence.  In this case, the fluid buildup reached a critical threshold.

What is Cardiac Arrest? Unlike a heart attack (a circulation problem where blood flow to the heart muscle is blocked), cardiac arrest is a sudden loss of heart function, breathing, and consciousness. In the context of massive fluid buildup, the arrest is often “obstructive.” As fluid accumulates, the pressure within the chest increases. Eventually, this pressure becomes so high that the heart can no longer expand to receive returning blood. If the heart cannot fill, it cannot pump. This leads to a rapid drop in blood pressure and the heart’s electrical system fails because the muscle is starved of oxygen and under physical duress.

Conclusion on Chest Effusion and Medical Malpractice

The $25 million verdict is more than just a financial award. It is a statement on the necessity of clinical diligence.  The failure to perform a physical exam and order basic imaging turned a treatable condition into a fatal one. For the medical community, the lesson is clear: symptoms like distended veins and respiratory distress must never be dismissed without thorough objective testing.

If you have suffered permanent injury from a chest effusion, 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

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.