To understand liability you have to appreciate that each person has a duty to each other person to act as a reasonable and prudent person. (ie: don't be careless). Officially the legal definition of negligence is "Negligence is doing something that a person using reasonable care would not do, or not doing something that a person using reasonable care would do. Reasonable care means that caution, attention or skill a reasonable person would use under similar circumstances.".  

In a medical malpractice case in Maryland what defines an act of negligence changes slightly. The Courts in Maryland have defined the duty owed by a doctor. In the 1975 case of  Shilkret v. Annapolis Emergency Hospital Ass'n, 349 A.2d 245, 276 Md. 187 (Md., 1975) Maryland courts rejected the locality argument for establishing the standard of care to be exercised by doctors in favor of the national standard and further stated a physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances. Under this standard advances in the profession, availability of facilities, specialization or general practice, proximity of specialists and special facilities, together with all other relevant considerations, are to be taken into account.

Medical malpractice in Maryland is unique in several other ways that are different then other tort negligence claims. For example while every tort is controlled by a statute of limitation the limitations period in medical malpractice cases is different then, for example, the auto accident case. In a Maryland medical malpractice case you must file suit with in the earlier of five years from the injury or three years from when the injury was discovered. See Maryland Annotated Code Courts and Judicial Proceedings Article Section 5-109, in suits against health care providers: (a) An action for damages for an injury arising out of the rendering  or failure to render professional services by a health care provider, as defined in � 3-2A-01 of this article, shall be filed within the earlier of: (1) Five years of the time the injury was committed;  or (2) Three years of the date the injury was discovered. (b) Except as provided in subsection (c) of this section, if the claimant was under the age of 11 years at the time the injury was committed, the time limitations prescribed in subsection (a) of this section shall commence when the claimant reaches the age of 11 years. (c) (1) The provisions of subsection (b) of this section may not be applied to an action for damages for an injury: (i) To the reproductive system of the claimant;  or (ii) Caused by a foreign object negligently left in the claimant's body. (2) In an action for damages for an injury described in this subsection, if the claimant was under the age of 16 years at the time the injury was committed, the time limitations prescribed in  subsection (a) of this section shall commence when the claimant reaches the age of 16 years. (d) For the purposes of this section, the filing of a claim with the Health Claims Arbitration Office in accordance with � 3-2A-04 of this article shall be deemed the filing of an action. (e) The provisions of � 5-201 of this title that relate to a cause of action of a minor may not be construed as limiting the application of  subsection (b) or (c) of this section. (f) Nothing contained in this section may be construed as limiting the application of the provisions of :(1) � 5-201 of this title that relate to a cause of action of a mental incompetent;  or(2) � 5-203 of this title. 

Like all other tort claim medical malpractice claims in Maryland are subject to a cap on non economic damages. Oddly in a Maryland medical malpractice claim the wrongful death and survivor actions are combined into one action and subject to a cap not to exceed $812,000.00. This cap on non economic damages often creates an outrageous result where it is cheaper to the doctor's liability insurer if the minor child  patient dies, then it is if the patient lives and is seriously and permanently injured.

Additionally in Maryland there is what is called the 20% rule. The issue was addressed in in Witte v. Azarian where the court addressed what kind of activities �directly involve testimony in personal injury claims,� within the meaning of CJ section 3-2A-04(b)(4), so as to constitute the numerator in the 20 Percent Rule. The court reasoned that the operative statutory phrase at issue (�activities that directly involve testimony in personal injury claims�), was ambiguous, as its meaning could not be ascertained from its plain language, and that, in light of the legislative history of the Act as amended, including the amendments establishing the certificate of qualified expert requirement, that language had to be read narrowly, so as to avoid �creat[ing] an unreasonable impediment to the pursuit, or defense, of a common law right of action� for medical negligence. The Court determined a standard to determine the issue as follows:

A more reasonable approach, we think, is to regard the statute as including only (1) the time the doctor spends in, or traveling to or from, court or deposition for the purpose of testifying, waiting to testify, or observing events in preparation for testifying, (2) the time spent assisting an attorney or other member of a litigation team in developing or responding to interrogatories and other forms of discovery, (3) the time spent in reviewing notes and other materials, preparing reports, and conferring with attorneys, insurance adjusters, other members of a litigation team, the patient, or others after being informed that the doctor will likely be called upon to sign an affidavit or otherwise testify, and (4) the time spent on any similar activity that has a clear and direct relationship to testimony to be given by the doctor or the doctor's preparation to give testimony.

The certificate of merit, which is required to be filed as a condition precedent, outlines very specific requirements affecting the qualifications of the health care provider attesting to the deviation from the standard of care and the testimony that healthcare provider would offer at trial. The  certificate of merit must contain an outline of the credentials of attesting expert. In the event the defendant doctor is board certified than the expert must also be board certified in the same or a related healthcare field or the expert must have taught in the defendant's specialty healthcare field all within five years of the date of the alleged negligence. Additionally the certificate of service must establish the standard of care to be exercised, specifically identify the doctors who breached that standard of care, identify how the doctors did in fact breach that standard of care, and establish a causal connection between the breach in the standard of care and the injury sustained. As a final matter the expert cannot devote more than 20% of his professional activities to testifying in personal injury cases. This 20% rule as it is outlined above includes preparation and travel to actual court testimony. An excellent case on point is Carroll v. Konits. It is worth noting that a defective certificate of merit can be attacked at any time during the litigation. To the extent that the certificate of merit is found to be defective the case will be dismissed without prejudice. This means that the case can be re filed however is still subject to applicable statutes of limitations.

I can assist you and your family if you or your child or family member have been the victim of a doctors or a hospitals careless decisions. I have provided some information below on various injuries that often arise as a result of a doctor's careless behavior. If you think you have been injured as a result of a careless doctor or hospital give me a call I will discuss the case with you right over the phone. I can travel to your home or meet you at my office, if you prefer.