-Loralie D. Ma, M.D.
Medical Malpractice in Maryland: State of the Art New Threats
While the medical malpractice front in Maryland has been a bit under the radar lately, it would be imprudent of us, as physicians, not to realize the very real threats facing us.
While the actual number of claims in the last few years has decreased, the payouts on successfully tried cases, has risen, in some cases, dramatically.
The medical malpractice lawyers are gearing up on both old and new fronts, in order to maximize revenue from malpractice cases and find new legal maneuvers in order to find new mechanisms under which to try medical malpractice cases.
The following are a few examples.
- Raising or abolishing caps on noneconomic damages: Legislation was introduced last session and will almost certainly be introduced this session, to either raise the cap on noneconomic damages or abolish it completely. Last session, legislation asked to triple the cap on noneconomic damages. Maryland already has one of the most lax caps in the country, and so far this effort has not been successful. However, increased vigilance for similar bills is necessary.
- Changing the current Mary-land standard of contributory negligence to that of comparative negligence:
In jurisdictions with contributory negligence, evidence is admissible regarding the plain-tiff’s (patient’s) own contribution to their condition.
For example, if a physician tells a patient that they had an abnormal chest x-ray result and need a chest CT and the patient doesn’t get one, despite the physician’s office trying to contact the patient, and if the patient then returns at a later date with advanced cancer, the fact that they did not get the recommended scan is admissible.
In states with comparative negligence, that information is not admissible in the courtroom.
The Trial Bar has long tried to turn over Maryland’s Contributo-ry negligence standard, most re-cently in the case of Coleman v. Soccer Association of Columbia. The verdict to keep Contributory negligence was close at the Court of Appeals and there will doubt-less be more challenges in the future.
- Recent challenge to allow awards for punitive damages without malice:
Until recently, in order to receive punitive damages in an injury case (which includes medical malpractice cases), it was necessary to prove malice on the part of the defendant.
However, in a recent Maryland case, in an intermediate court, it was ruled that punitive damages were allowed for the plaintiff in the absence of malicious intent from the defendant. Therefore, in the case of a medical malpractice lawsuit, even if the physician or other healthcare provider did not have malicious intent, punitive damages could have been awarded, in addition to economic and noneconomic damages.
However, thanks to an appeal to Maryland’s highest court, the Court of Appeals, where MedChi filed an amicus brief with Medical Mutual, the intermediate court’s ruling was overturned. This high-lights the importance of organized medicine’s vigilance in recognizing and fighting challenges to Maryland physicians’ practice of medicine.
- Recent advent of creative mechanisms of increasing economic damages: Specialists in the evaluation of noneconomic damages have taken to creative mechanisms of increasing the overall amount of noneconomic damages, and in birth injury cases, this has led to multimillion dollar estimates of lifetime care.
These are just some examples of the means used against physicians and other health-care providers in order to maximize medical malpractice awards in our current system.
While it is certainly true that medical errors and medical malpractice occurs, our “lottery system” in the United States almost certainly guarantees that the appropriate compensation for medical errors will not be able to occur, when the system’s huge payouts to some does not allow for a fairer system for appropriate compensation, to more patients.
This will be my last newsletter as President of the Baltimore County Medical Association. It has been my great honor and pleasure to serve the physicians of Baltimore County. This year our new BCMA website was unveiled, so please check it out. This website was not only my work, but the work of our past president, Dr. Neri Cohen, and many others on the BCMA Board of Governors, as well as our Executive Director, Mr. Russel Kujan and his assistant, Mr. Michael Anderson, to whom I am grateful. I am also looking forward to the induction our incoming BCMA president, Dr. Theodore Houk. Again, thanks to our BCMA for allowing me to serve as your President this past year.
Beyond Chicken Soup: Jews and Medicine in America
Opens March 13, 2016
For centuries, Jews have considered medicine a calling—an occupation of learning and good deeds, vital to all communities and worthy of high respect. Historians point out that “few occupations are as immediately linked to a group as medicine is to the Jews,” a connection that has be-come “the stuff of legend and stereotype, both positive and negative, and a source of pride, amusement, entertainment, and folklore.” At the same time, Jewish bodies and behaviors have been the subject of medical scrutiny and debate. The exhibit will examine how medicine has shaped the way Jews are seen, and see themselves. Focusing on the Jewish experience in the US, Jews and Medicine in America will show how the field of medicine has been a vehicle, by turns, for discrimination, acculturation, and strengthening Jewish identity.
Jews and Medicine in America contributes to the contemporary conversation about health and medicine by illuminating the social meanings and values intrinsic to medical interactions. The exhibit will surprise diverse audiences by uncovering the often-overlooked cultural history embedded in a scientific enterprise. It probes questions important to all Americans: how do medical categories shape identity; what are the impacts of medical authority; where did our current health care institutions come from; and how does culture influence the medical construction of biological difference. The experiences of Jews, as both practitioners and patients, offer a case study in the formative impact of medicine on cultural and social identity, as well as the impact of cultural values on medicine.
Each section of the immersive exhibit explores an aspect of American Jews’ experience with medicine, as well as the broad-er relationships between medicine and identity: the use of admissions quotas to regulate who enters medical school; the ritualized roles of patient and practitioner in the office visit; the sectarian hospital as a refuge from discrimination and a locus of community pride; the search for biological definitions of identity in the laboratory; and presentation of self in the fitness center. The aim is to offer visitors experiences that will encourage critical inquiry into present-day issues in medicine that pertain to their own lives and communities.
While the exhibit emphasizes the experiences of individuals and institutions operating in the secular world, it also explores Jewish practice and belief. A series of strategically-placed panels will address visitors’ curiosity about the interplay be-tween religion and science. Topics include: What are the issues in the con-temporary debate over circumcision? Why is kosher food thought to be healthful, while the Ashkenazi diet is some-times called a “heart attack on a plate?” How are religious laws about the body applied to new technologies, such as organ donation? Even: does chicken soup relieve the common cold? Few of these questions have definitive answers, but they serve as intriguing entry points for deeper engagement.
The exhibit will be on view at the Jewish Museum of Maryland through January 16th, 2017.
Have You Signed Up to Be Physician of the Day?
MedChi has been staffing the First Aid Room in Annapolis during session. The First Aid Room, located in the basement of the State House, is equipped with oxygen, hospital bed, wheelchair, crutches, thermometers, stethoscope, and blood pressure cuff. A nurse is also on the premises every day and rarely do you en-counter anything more than colds or the flu, so the Physician of the Day can spend some time in the chambers observing the Senate and House conducting the work of our state government. There are also a variety of over-the-counter medications provided including aspirin, cough and cold preparations, and antacids. Volunteers are asked to bring their own prescription pads in the event treatment requires prescribed medication.
Please take a day to help with this project. It is actually fun and very interesting. We hope you will volunteer this year. Emeritus physicians with active licenses are encouraged to participate. They were an enormous help last year.
Volunteers may wish to speak with the senator or delegates from their own district while serving in this capacity, in which case Stephanie Wisniewski would
be helpful in making the connection. Stephanie will provide briefing materials that will aid volunteers in speaking knowledgeably to their legislators on MedChi agenda items.
Time slots consist of Monday evenings from 5 to 9 pm, Tuesdays, Wednesdays, and Thursdays from 9 am to 3 pm, and Fridays from 9 am to 1 pm throughout the session (most legislators leave after lunch on Friday). There will also be a schedule of hearings and meetings that deal with health-related issues posted right in the First Aid Room. Volunteers are encouraged to sit in on these meetings as well.
If you are interested in participating, please feel free to contact Stephanie Wisniewski at (410) 539-0872, ext. 6001, or firstname.lastname@example.org. A fax back form may be downloaded HERE. The Legislative Session runs from Wednesday, January 14, through Monday, April 13, 2015. There is also a wealth of knowledge about the Maryland General Assembly available at their homepage.
Physicians House Call on Annapolis
Thank you to all who were attended the BCMA’s Physicians House Call on Annapolis. We visited many of our legislators last week discussing our legislative agenda, in particular, Medicaid parity, medical malpractice, and physician licensing fee deferment to other professional boards.
The physicians who drove and carpooled to Annapolis to talk to their legislators are a vital part of our success. The Maryland General Assembly session doesn’t announce Sine Die until Monday, April 11, 2016. If you want to visit with your legislators, let us know. We can tell you what our agenda is and schedule that appointment.
Our trip to Annapolis was a week later than usual this year. We plan to go back to our regular schedule next year with the Physicians’ House Call on the last Wednesday of February, so place it on your calendar now. You can reach Russ and Mike at the BCMA office by calling (410) 296-1232 or email email@example.com.