Maryland Medical Malpractice Summary

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Statutes of Limitations

Any medical malpractice action must be filed either within five years from the date when the injury was committed or three years from the date when the injury was discovered, whichever is earlier. Md. Code Ann., Cts. & Jud. Proc. § 5-109 (1995). Against a minor, the statute does not begin to run until a claimant has reached the age of eleven, and if the action involves a foreign object or injury to the reproductive system, the statute does not begin to run until the claimant is sixteen. Id. Maryland’s highest court has held that the five-year part of the statute is not measured from the date treatment ends and does not violate the state constitution. Hill v. Fitzgerald, 304 Md. 689, 501 A.2d 27 (1985).

A wrongful death action brought by the decedent’s dependents must be filed within three years after death. Md. Code Ann., Cts. & Jud. Proc. § 3-904 (1995). This statute applies to a wrongful death action brought on a medical malpractice theory, while § 5-109 applies to a survival action brought by the decedent’s estate. Geisz v. Greater Baltimore Medical Center, 313 Md. 301, 545 A.2d 658 (1988).

Contributory or Comparative Negligence

Maryland is one of the few remaining states that recognizes the traditional common law doctrine of contributory negligence. Harrison v. Montgomery County Bd. of Ed., 295 Md. 442, 456 A.2d 894 (1983). Thus, any negligence by a claimant will bar his recovery completely.

Joint and Several Liability

Joint tortfeasors are jointly and severally liable; each must assume and bear the responsibility for the misconduct of all. Carroll v. Kerrigen, 173 Md. 627, 197 A. 127 (1938); Cooper v. Bikle, 334 Md. 608, 640 A.2d 1120 (1994).

Contribution

A joint tortfeasor who pays more than his pro rata share has a right of contribution against other joint tortfeasors whose liability was extinguished by the judgment or settlement and who have not paid their pro rata share. Md. Code Ann., Cts. & Jud. Proc. § 3-1402 (Supp. 1997). The tortfeasors’ pro rata shares are determined by dividing the judgment equally among the tortfeasors. Lahocki v. Contee Sand & Travel Co., 41 Md. App. 579, 398 A.2d 490 (Ct. Spec. App. 1979), rev’d on other grounds sub nom. General Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039 (1980).

Vicarious Liability

In Maryland, a hospital may, under appropriate circumstances, be held responsible for the negligent acts of its independently- contracted physicians, based on principles of apparent agency. Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121 (1977) (holding that an apparent agency relationship existed because the hospital did nothing to indicate an emergency physician’s true status as an independent contractor).

Expert Testimony

Within 90 days of filing a medical malpractice claim with the Health Claims Arbitration Office, a claimant must file a certificate from a qualified expert attesting to departure from standard of care and that the departure was the proximate cause of the alleged injury. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04 (Supp. 1997). The section contains qualifications the expert must meet. Id. See Arbitration for a discussion of the necessity of initiating arbitration before filing a lawsuit.

Damage Caps

Maryland imposes a limit on recoverable non-economic damages for any personal injury cause of action for medical malpractice accruing after July 1, 1986. Md. Code Ann., Cts. & Jud. Proc. § 11-108 (Supp. 1997). The limit was originally $350,000, but for causes of actions arising on or after October 1, 1994, the limit has been increased to $500,000. Id. Beginning October 1, 1995, and every October 1 thereafter, the limit on non-economic damages is increased by $15,000. Id. Non-economic damages include pain and suffering, inconvenience, physical impairment, disfigurement, loss of consortium, and other non-pecuniary damages, but not punitive damages. Id. The damage cap applies to each “direct victim” of the tort and all those claiming injury by or through him. Id.; Oaks v. Connors, 339 Md. 24, 660 A.2d 423 (1995) (a single cap applies to the injured person’s claim and the spouse’s consortium claim). This statute does not violate Maryland’s constitution. Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992).

Prior to the 1994 amendment, the statute had been held not to apply to wrongful death cases. United States v. Streidel, 329 Md. 533, 620 A.2d 905 (1993). However, the statute now provides that the cap applies to wrongful death, and that the total recovery of all beneficiaries in a wrongful death case cannot exceed 150 percent of the cap. Md. Code Ann., Cts. & Jud. Proc. § 11-108 (Supp. 1997).

Statutory Cap on Attorneys’ Fees

When attorneys’ fees are in dispute, the claimed fees must first be approved by the arbitration panel or court. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-07 (1995).

Periodic Payments

Maryland courts and arbitration panels are afforded the power to order that future damages be paid in the form of periodic payments, subject to adequate security. Md. Code Ann., Cts. & Jud. Proc. § 11-109 (1995). Upon the death of a claimant receiving periodic payments, the unpaid balance for future medical expenses reverts to the defendant. Id.

Collateral Source Rule

In Maryland, evidence of the claimant’s receipt of payments from collateral sources may not be admitted to reduce his damages. Schreiber v. Cherry Hill Construction Co., 105 Md. App. 462, 660 A.2d 970 (Ct. Spec. App.), cert. denied, 340 Md. 500, 667 A.2d 341 (1995).

Pre-Judgment Interest

Maryland law does not recognize pre-judgment interest on tort claims for personal injury. Lawhorne v. Employers Ins. Co. of Wausau, 343 Md. 111, 680 A.2d 518 (1996).

Patient Compensation Funds and Physician Insurance

Maryland does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.

Immunities

Under Md. Code Ann., State Gov’t § 12-104 (Supp. 1997), the state has waived its sovereign immunity to the extent of $100,000 per claim. However, such immunity still applies with respect to punitive damages and pre-judgment interest. Md. Code Ann., Cts. & Jud. Proc. § 5-522(a) (Supp. 1997). A claimant must provide written notice of his claim within one year of the injury. If the claim is denied, a lawsuit must be filed within three years after the cause of action arises or the claim is barred. Md. Code Ann., State Gov’t § 12-106 (Supp. 1997).

The liability of any local government in Maryland is capped at $200,000 per claim and $500,000 per occurrence. Md. Code Ann., Cts. & Jud. Proc. § 5-303 (Supp. 1997). Local governments are immune from liability for punitive damages. Id. The purchase of liability insurance does not waive the entity’s immunity. See Quecedo v. Montgomery County, 264 Md. 590, 287 A.2d 257 (1972) (holding that in the absence of statute to the contrary, a county that maintains liability insurance does not waive its immunity).

Charitable hospitals carrying liability insurance in an amount not less than $100,000 are not liable for damages in excess of the limits of coverage. Md. Code Ann., Cts. & Jud. Proc. § 5-632 (Supp. 1997). However, that immunity does not extend to the employees of charitable hospitals. Wood v. Abell, 268 Md. 214, 300 A.2d 665 (1973).

Arbitration

Until recently, all claims for medical malpractice had to be reviewed by an arbitration panel under the aegis of the Health Claims Arbitration Office. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02 (1995). The law formerly allowed a waiver of arbitration if agreed by all parties, Md. Code Ann., Cts. & Jud. Proc. § 3-2A-06A (Supp. 1997), but for claims filed after October 1, 1995, unilateral waiver is permitted. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-06B (Supp. 1997).

If the arbitration panel determines that a health care provider is liable to the claimant or claimants, it then itemizes and apportions damages. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-05 (1995). Although any party may reject the panel’s findings, those findings are admissible and presumed correct in any subsequent court proceedings, unless vacated by the court. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-06 (1995). If a subsequent verdict is not more favorable to the rejecting party, the rejecting party is liable to the other for costs. Id.

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Revision Date: February 6, 1998