Federal and State Nursing Home and Malpractice Statutes
A. Statute of Limitations, Maryland Courts and Judicial Proceedings, § 5-109
The statute of limitations sets the time period in which a lawsuit must be filed or it is barred forever. In Maryland, all malpractice cases must be filed within 3 years of the time that the injury was discovered or within 5 years of the date the injury was committed. The five-year period generally applied where you were unable to discovery the injury within the 3 year period. Wrongful death actions are also 3 years.
B. Maryland Malpractice Caps or limits on Damages, Code of MD section 3-2A-09.
Maryland has a cap on non-economic damages, or those that do not involve lost income and medical bills. In Maryland you can only recover the following for pain, suffering or other non-economic damages, including grief suffered from the loss of a loved one.
2016 = $770,000
2017 = $785,000
2018 = $800,000
2019 = $815,000
2020 = $830,000
2021 = $845,000
Wrongful death damages are also subject to caps, which can be impacted by the number of surviving beneficiaries. Total non-economic damages cannot exceed 125% of the cap applicable in the year you filed the suit, regardless of the number of beneficiaries or defendants.
Additionally, Maryland has caps against the Government. No recovery against the Maryland Government can exceed $200,000. (Md. Code Ann, State Govt. § 12-104)
Relevant Statute regarding caps in Maryland:
- Claims against health care providers with damages more than required jurisdictional amount
- The Health Care Malpractice Claims Statute:Maryland’s Response to the Medical Malpractice Crisis
C. Maryland Expert Witness Certification Requirements
Before a malpractice lawsuit can be filed against a healthcare provider in Maryland, a Plaintiff must file expert certifications, both a report and certificate of merit. This certificate must be filed within 90 days of the filing of a medical malpractice complaint. Initial cases must also be filed before the Health Care Alternative Dispute Resolution Office that also provides a process for mandatory arbitration of any malpractice case, unless either party opts for removal to Circuit Court. See Md. Code Ann, Cts & Jud. Prod. § 3-@A-04. Most malpractice attorneys regularly opt out of litigating their case before the Alternative Dispute resolution Office.
D. Contributory Negligence Applies in Maryland
Maryland still applies the out of date concept of pure contributory negligence, where just 1% of negligence on the part of the injured victim can bar recovery. It’s important to retain qualified legal counsel who can help address this arcane law. In the 2012 case of Coleman v. Soccer Association of Columbia the Maryland Court of Appeals failed to do away with contributory negligence.
In long-term care cases patients often suffer from dementia or other conditions which may render them incapable of committing contributory negligence as a matter of law.
Under Maryland law the failure to wear a seatbelt cannot be considered as evidence of contributory negligence.
E. Spousal Privilege, MD Courts and Judicial Proceedings,§ 9-105
One spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage.
F. Maryland Informed Consent Principles
Every healthcare provider has an obligation to inform you of the material risks and benefits of a medical procedure so you can make an informed decision. The failure to advise a patient about significant risks of a procedure or operation provides a claim for breach of informed consent.
In McQuitty v. Spangler, the Maryland Court of Appeals held that a doctor is liable to his patient for his failure to disclose material risks, even when the treatment is not a surgical procedure.
G. Maryland Rule 5:702 (Testimony by Experts)
Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.
If you have questions about Maryland law or if you or a loved one have been abused or neglected by a health care provider, call us for a free consultation:
Law Office of Jeffrey J. Downey, PC
8270 Greensboro Drive, Suite 810
McLean, VA 22102
On the web at www.jeffdowney.com
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