Posted on April 09, 2008 in Medical Malpractice

Over the last few years, more and more nursing homes have been requiring patients to sign binding arbitration clauses before admitting patients to the home, thereby preventing patients from later filing a medical malpractice claim in court against the nursing home, even in the case of egregious malpractice. Because arbitration is stacked against the patient, and the patients have no bargaining power to avoid the arbitration clauses, these clauses are unfair.

Finally, Congress is taking notice. Today, U.S. Senator Mel Martinez (R-FL) introduced legislation to protect dispute resolution options for residents of nursing homes. The measure is in direct response to the increasing practice of nursing home facilities requiring patients to agree to arbitration as the sole vehicle for dispute resolution prior to admittance to a facility. Joining Senator Martinez in this effort as lead-cosponsor is Senator Herb Kohl (D-WI).

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 Posted on April 09, 2008 in Medical Malpractice

Many people are confused about what "medical malpractice" is and what it means in Maryland. The term medical malpractice simply means a negligence case against a health care provider, usually a doctor, nurse, hospital or nursing home. In order to bring a medical malpractice case in Maryland, the plaintiff (the party who files the case) generally must be able to prove (1) that the doctor, hospital or nursing home violated the standard of care; (2) that the doctor, hospital or nursing home was a cause of some injury or damage to the plaintiff; and (3) that the plaintiff suffered injuries and damage, and what the value is of those injuries and damages.

Another type of medical malpractice case in Maryland is an informed consent case. Generally, before a doctor provides non-emergency medical treatment to a patient, the doctor is required to explain the treatment to the patient and to warn of any material risks or dangers of the treatment, so that that patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment. A material risk is one which a doctor knows or should know would be significant to a reasonable person in the plaintiff’s position in deciding whether or not to have the particular medical treatment or procedure. The doctors’ duty to disclose material risks is measured by whether a reasonable person in the position of the plaintiff would have considered the risk to be a material risk. Technically, an informed consent case is not a medical malpractice case. As set forth above, in a true medical malpractice case, the plaintiff proves that the doctor, nurse, hospital or nursing home did not do something or did something improperly. In an informed consent case, however, the treatment and/or procedure may have been performed properly, but the information provided to the plaintiff was not enough for them to make an informed decision, and as a result of making that uninformed decision to have the procedure, the plaintiff was injured.

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