Archives: May 2018

May 2018 Newsletter

Maryland trial court attempts to redefine liability standards Under consideration by Maryland’s highest court is a case that attempts to redefine professional standards of care – and negate the testimony of expert witnesses. The basis of the case stems from a medical liability trial in which instructions provided to the jury deviated from well-established law on measuring standard of care as what a ‘reasonably competent’ physician would be expected to do, per expert witness testimony. Instead, the jury was instructed to consider only what a ‘reasonable layperson’ would do – potentially warping how physician negligence is defined. The Litigation Center of American Medical Association and State Medical Societies joined the Maryland State Medical Society (MedChi) and the Medical Mutual Liability Society of Maryland in filing an amicus brief that not only cited the likely increase in meritless lawsuits and implications for standards of other professionals in court, but also noted that experts must be relied on because medical procedures are not common knowledge. “Letting juries nullify professional standards would upend the basic premise that professional malpractice claims involve specialized knowledge and duties that laypeople cannot assess based on their common knowledge,” the brief states. A lower appeals court agreed that…

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Minn. Court Sets Expert Report Deadline For Med Mal Cases

Law360 (April 30, 2018, 8:14 PM EDT) — A Minnesota appeals court on Monday effectively created a bright-line rule regarding how much time plaintiffs have to file an expert opinion in medical malpractice cases, saying plaintiffs have 180 days to file after the start of discovery, which begins no later than 30 days after the defendant’s answer. In a published opinion, a three-judge Court of Appeals panel revived a lawsuit brought by patient Ann Firkus accusing Dr. Dana Harms of unspecified medical malpractice. The suit had been tossed by the trial judge for Firkus’ failure to submit a medical expert’s affidavit within 180 days of the start of discovery as required by the state’s expert-review statute, Section 145.682 of the Minnesota Statutes. The panel said because the statute’s language is ambiguous as to when discovery actually begins, it looked to the statute’s legislative history and determined that discovery commences, for purposes of the expert-review statute, no later than 30 days after the defendant files an answer to a complaint. The appeals court explained that a 2014 amendment to the expert-review statute, changing the 180-day deadline to begin running after the start of discovery rather than the date the suit is…

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Judge Stops State Plan to Take $200M Out of Malpractice Fund

HARRISBURG, Pa. (AP) — A federal judge on Thursday blew a $200 million hole in Pennsylvania‘s state budget by throwing out a law that appropriated the surplus from a state-created medical malpractice insurer of last resort. U.S. District Judge Christopher Conner sided with the Pennsylvania Professional Liability Joint Underwriting Association and declared the 2017 law violated the U.S. Constitution. Conner said the fund is private property that may not be seized by the government without fair compensation. The fund, he wrote, “has a perceptible benefit: it assures availability of medical professional liability coverage throughout the commonwealth at no public cost. By the same token, it also has a consequence: the General Assembly cannot claim carte blanche access to the association’s assets.” The law that authorized the transfer was the annual amendments to the Fiscal Code , a critical part of the $32 billion budget. The wider implications of the Fiscal Code’s fate were not immediately clear. House Republican spokesman Steve Miskin said they are reviewing their options, “especially in light of what appears to be an absolutely overly broad order — that goes way beyond the legal of the case.” The fund consists of money from policyholder premiums and investment income…

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Top court to decide: Should doctors be held to lay standard?

Maryland physicians could see established medical liability law upended if the state’s high court doesn’t reject a trial court’s instructions informing jurors that negligence could be defined by what a “reasonable” layperson would do. For more than a century, negligence in Maryland medical malpractice cases has been guided by the “reasonably competent” physician standard of care—a standard that juries and judges learn through expert witness testimony. But when a five-day trial in which a patient sued his neurosurgeon after developing an abscess and bacterial infection after an incision did not heal properly concluded, a Baltimore County Circuit Court judge instructed the jury that they could also consider what a layperson would consider reasonable. When the physician asked the court to have the standard of care measured solely based on the expectations for a neurosurgeon, the judge refused to modify the jury instructions in the case, Armacost v. Davis. The result: The jury returned a verdict in favor of the patient plaintiff, Mark Armacost. The physician, Reginald J. Davis, MD, appealed the decision to the Court of Special Appeals of Maryland, which ruled that the jury instructions were improper and ordered a new trial. The case now is before Maryland’s highest court, the Court…

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