Maryland Medical Malpractice Lawyers

The medical malpractice lawyers at Foran & Foran, P.A. have over 44 years of combined experience in handling injury cases including medical malpractice cases. We understand how important these cases can be in your life and how they can impact your life and will strive to provide you with the best personal service possible.

Our medical malpractice attorneys are licensed to practice law in Maryland and the District of Columbia . The Maryland Courts and the District of Columbia Courts each have their very own unique policies, procedures and laws that must be followed.

If you or someone you know was injured in a medical malpractice case and/or has incurred medical bills and lost wages, you need to find the right medical malpractice lawyer. Call the medical malpractice law firm of Foran & Foran, P.A. today! We can help. The best threat that you have as an injured person is the ability to file a lawsuit. Make sure you are represented by a personal injury law firm that will file a lawsuit on your behalf where appropriate.

Examples of Medical Malpractice

Cancer Misdiagnosis Fetal Asphyxia and Hypoxemia Cerebral Palsy - Recently Updated Paralysis / Quadriplegia / Paraplegia Erb's Palsy / Brachial Plexus Palsy Shoulder Dystocia / Brachial Plexus Injury Brain damage

Hospital or Nursing Home Acquired Infections Heart Attacks MRSA Failure to Diagnose Misdiagnoses Amputation Wrongful Death Hospital Negligence Pharmaceutical errors

       An experienced medical malpractice attorney can earn his/her fee by obtaining a higher result than what an insurance company may otherwise pay to an unrepresented person. One threat that insurance companies understand and sometimes respond to with a fair settlement is the threat of filing a lawsuit. If the insurance company is not fair, a lawsuit becomes the only reasonable alternative.

       Medical malpractice occurs when a doctor, hospital or other healthcare provider is negligent by failing to meet the recognized standard of care in the medical community, the failure of which is the proximate cause of the claimed injury or death. A health care provider can be negligent by actions or inactions. The degree of care required means that degree of care that a reasonably competent provider would use under similar circumstances. A bad result does not necessarily mean that there was malpractice. A risk and complication associated with a procedure does not necessarily imply that there is any negligence. A hospital, similarly, is required to use the same degree or care that a reasonably competent hospital would use under similar circumstances. Because of the complexity of the medical issues involved, it is imperative that the Plaintiff have an expert witness to prove both the deviation from the applicable standard of care and the causal relationship of the claimed injury to the alleged malpractice. These claims are very expensive to present properly so close attention to detail is required.

       A medical provider is required to explain his or her treatment plan with the patient so that all material risks are explained and the patient can make an intelligent decision whether to undergo the treatment plan. This is called informed consent.

Examples of breach of the standard of care

In order to prove medical malpractice claims, an attorney must be able to prove that the treating physician/hospital breached a standard of in the medical community. Some specific examples of the standard of care and breach of the standard of care follow herein.

A. EMERGENCY ROOM BREACH OF STANDARD OF CARE

There are many high-risk areas for emergency room physicians and nurses. Some of those areas include myocardial infarction (heart attack), fractures (broken bones), meningitis (inflammation of membranes around the brain), wounds, appendicitis, ectopic pregnancies. It is up to the emergency room doctors to provide sufficient appraisal of and treatment for a patient who considers himself acutely ill or injured and goes to the emergency room for consultation. Anytime a patient’s health is in jeopardy because of any medical condition, it is incumbent upon the emergency room physicians to act appropriately. Similarly, where there is a serious impairment to bodily function or serious dysfunction of any bodily organ or part, the emergency room physician must act appropriately.

The Joint Commission on Accreditation and Health Care Organizations suggests that the emergency department of a hospital must be integrated with other units and departments of the hospital. Similarly, it must be prepared for its responsibilities through proper training and educational programs. It must be directed by a physician member of the active medical staff and well-organized and staffed according to the nature of health care required. There must be written policies and procedures in place. It must be designed and equipped to ensure safe and appropriate care of patients. It must maintain medical records for every patient which shall be included in the permanent hospital record. An emergency department must also maintain quality control mechanisms which should be monitored and periodically evaluated so that any problems that are identified can be resolved. It is important to note that in emergency departments there are actually certain times of the day that it is more likely that malpractice may occur. For example, statistics suggest that more malpractice occurs between 6:00p.m. and 1:00a.m. on weekends and holidays, midnight to 7:00a.m. on weekdays, and during shift changes. During many of these times, there is less availability of the ancillary services of the hospital such as radiology, laboratory and the like. When these back-up resources are in a state of flux or change or there are minimal members of staff available for consultation, there is more chance of medical malpractice occurring. Similarly, if attending physicians work long shifts, they are more likely to commit malpractice towards the end of their shift.

Another concern involves the transfer of a patient from the emergency department to in-patient in the hospital. The on-call attending physician thereafter becomes the primary person responsible for the health of the patient and must come to observe the patient within a reasonable time. Similarly, the admitting physician, not the emergency physician, should be writing the admitting orders.

If the emergency physician does not have the degree of knowledge, skill or training which is commensurate with that of a referring physician in a specialty and the patient’s condition or illness requires that higher degree of knowledge, skill and training, it is incumbent upon the emergency physician to refer a patient to the specialist promptly. Prior to any transfer as an in-patient, the emergency room must do a medical screening examination of the patient in the emergency department. A physician must determine whether the patient is suffering from an emergency medical condition.

All patients in an emergency room must be treated alike. In other words, there cannot be a distinction between paying or non-paying patients or patients with a particular insurance coverage. Moreover, it would be inappropriate to try to transfer an unstable patient without the consent of the patient or a person acting on their behalf. It is incumbent upon the emergency room as well, prior to transfer, to establish an adequate airway and ventilation for the patient, control hemorrhage, splinting fractures where necessary, assuring access routes for fluid administration, initiating fluid replacement where necessary, and assuring that vital signs are adequate. Clearly, a hospital that has an emergency department must admit any patient who has an unmistakable emergency.

As indicated above, medical records must be maintained for each patient. These records must include the pertinent patient information, nurses notes, physicians notes, test results, follow up instructions, and consultants notes. In order to evaluate the standard of care provided by the emergency room, the attorney must read the nurses notes and see if they agree with what the physician has stated in his/her notes. Further, he must assure that the physician’s notes reflect appropriate historical and physical findings. The attorney should assure that the test results are mentioned in the physicians notes such that it is clear that the physician was aware of the test results. Similarly, there must be a review of the follow up instructions documented in the records to determine if they are reasonable and complete. Sometimes it is important to establish a timeline indicating when the physicians were notified and/or arrived in the emergency room for consultation. Often one can determine by the notes whether the physician actually saw the patient or simply phoned in orders. Finally, it becomes important to analyze the hospital emergency room’s written policies to determine whether they followed their own policies in any given case.

1. STANDARD OF CARE - MYOCARDIAL INFACTION

One of the more serious events presented to an emergency room physician is a myocardial infarction. The electrical function of a heart is regulated by a specialized conduction system. Anytime there is a suggestion of heart involvement, it is likely that an electrocardiogram would be utilized to assess the cardiac electrical activity.
It is important for the emergency room physician to assess whether the blood that is pumped into the lungs is being properly oxygenated and releases carbon dioxide, waste products, and then pumped to the other tissues. Because this movement generates systolic and diastolic pressures, blood pressures must be monitored appropriately.

A temporary lack of oxygen to the heart muscle produces angina which is a term that simple means heart pain under these circumstances. When the blood supply to an area of the heart is interrupted, myocardial infarction may occur. As a result, that portion of the heart muscle may become necrotic. The type of infarction is often determined by the location where it occurs.

It is important for the emergency room physician to obtain a proper history regarding myocardial chest pain. The physician must determine the location, the pressing or heaviness quality of the pain, any shortness of breath and/or sweatiness. Moreover, he must determine whether there is a family history of heart problems, a prior myocardial event, whether the patient smokes cigarettes, whether the patient suffers from hypertension, diabetes, and/or any unusual stresses. Even though there may be another reason for the pain that the patient may complain of, pain that is also suggestive of myocardial problems should be treated as such until absolutely proven otherwise. The attending physician must determine whether there is any distention of neck veins, any unusual lung or heart sounds, or any swelling of the legs in order to determine the cardiac status of the patient.

A test that is often used in the diagnosis of acute myocardial infarction is the CPK-MB isoenzyme level laboratory test. This level frequently rises within the first few hours and remains elevated for approximately forty-eight hours after a myocardial event. In any event, myocardial infarction cannot be excluded even if this level is normal, particularly if the results are obtained less than four hours after the patient first complained of symptoms.

An emergency room physician will likely also order a chest x-ray to determine whether heart failure is evident. Again, a chest x-ray is not conclusive and myocardial involvement cannot be totally ruled out just because of a normal x-ray since clinical findings may suggest otherwise. In some cases, the attending physician must place a catheter into the heart of the patient which may reveal helpful information for patient management. Moreover, coronary angiography will also assist in the visualization of any cardiac involvement. An echocardiogram allows the treating physician to evaluate ventricular function. In some cases, the attending physician may order treadmill testing prior to discharge in order to assist in any prognosis. This however, must be done under controlled circumstances.

Myocardial infarction is just one thing that might cause chest pain. In addition, there are other, less serious, causes of chest pain such as heartburn, esophageal spasm, peptic ulcer, pleurisy, costochondritis, pericarditis, pneumonia, strained muscle and hyper-ventilation. Although these conditions do warrant consultation, they are not as high risk as other potential problems.

There are other problems of chest pain which are serious and are similar to the pain found in myocardial infarction. Angina pectoris, pulmonary embolism, pneumothorax, aortic dissections are some of these examples, each of which must be treated on an emergent basis.

Standard treatment in an emergency room for acute myocardial infarction should include EKG monitoring, intra venous access with an IV line or a Heparin lock, oxygen administration, pain control, antiarrhythmic medication, are examples that play a critical role in the treatment of emergency department patients. Other modalities of treatment may include reperfusion therapy, beta-blocking drugs, intravenous nitroglycerin, calcium-channel blockers, and aspirin.

It is extremely important for the attending physician to identify complications that are frequently associated with acute myocardial infarction. The physician must determine if there is some irregularity in the cardiac rhythm. Abnormally fast rhythm (tachyarrhythmias) or abnormally slow rhythms (bradyarrhythmias) or what some physicians simply lump together as dysrhythmias are important issues to be resolved by the attending physician. Dysrhythmias of ventricular origin present particularly dangerous situations for the attending physician in the emergency room. These require prompt defibrillation by placing electrically charged paddles on the chest to release electrical current through the skin and chest wall to the heart in order to provide an electrical countershock. The intent therefore, is to restore the normalcy of the altered electrical condition.

If there is a suspicion of inflammation in the fibrous sac that surrounds the heart, (pericardium), anti-inflammatory agents are usually required. If a patient is confined to bedrest because of heartfailure, there is also a probability of a predisposition to clot formation in the veins, most in the pelvic and lower extremities. If the clots break off in pieces and travel to the lungs, a pulmonary embolism may form which can cause serious problems with the respiratory and circulatory systems and can eventually lead to death. Accordingly, when bedrest is ordered, usually an anti-coagulant such as Heparin is used, since it seems to reduce the chances of a pulmonary embolism. A ventricular aneurysm results from a thin out-pocketing of the ventricular wall. This can lead to increased chest pain, heart failure, dysrhythmias, and emboli.

It is not unusual for patients to have a significant number of complications when they suffer from an acute myocardial infarction. However, a skilled attending physician can certainly minimize the danger involved and keep the situation as benign as possible. However, the attending physician must understand that certain events can be fatal.

2. STANDARD OF CARE - ABDOMINAL PAIN

The emergency room physician is often faced with a patient who complains of significant abdominal pain. There are very high risk areas where abdominal pain is involved such as appendicitis, ectopic pregnancy, abdominal aortic aneurysm and a perforated peptic ulcer. The emergency room physician must take a careful medical history from a patient with acute abdominal pain. Often it is very important to determine when the onset of the pain began because abrupt pain frequently suggests rupture of an organ or occlusion of its blood supply. Usually such things as an inflammatory response or obstructive type situation tend to develop over long periods of time rather than abruptly. The emergency room physician must understand that the more serious problems begin with the most serious pain. It is also helpful to determine if the original location of the pain changes, which might suggest referred pain.

The emergency room physician must obtain a history as to whether nausea, vomiting or loss of appetite is involved. For example, appendicitis is often preceded by loss of appetite. Whether vomiting preceded the pain is also something the emergency room physician must determine. It is far more significant if the pain preceded the vomiting. Moreover, the emergency room physician must determine whether there was any drug, alcohol, or prescription medicine intake that might lead the physician to make a misdiagnosis without this information. An emergency room physician must determine if there is a presence of peritonitis in the abdominal area. The physician must take orthostatic blood pressure readings to determine whether the intravascular volume is depleted in the emergency room patient. He should determine whether the mucous membranes in the mouth and nose are dry since these could lead to a diagnosis of dehydration. If a patient lies quietly, a peritoneal irritation might be suggested. On the other hand, if a person is in obvious pain, that patient may be suffering from spasm or colic.

A proper exam by an emergency room physician should determine whether there are bowel sounds that are present. It is particularly important if there are no bowel signs because this often suggests peritonitis, which also frequently includes abdominal rigidity and tenderness.
Whenever an emergency room patient complains of severe abdominal pain, a genio-rectal exam is required. Moreover, the emergency room physician would likely also have to examine other organ systems, especially the heart and lungs to determine any involvement of those organs.
There are various laboratory and/or diagnostic tests available to the emergency room physicians to assist in a diagnosis. For exampled, urinaylsis, white blood cell count, blood sugar, amylase, and serum pregnancy tests are frequently helpful in the diagnosis of severe abdominal pain. An x-ray of the abdomen can also assist with regard to determining whether there is free air, air fluid levels or dilation of the bowel and/or abnormal calcifications in the abdominal area. An abdominal ultrasound or barium enema is sometimes helpful depending on the differential diagnosis.
There are many lower risk types of abdominal pain. These include peptic ulcer, diabetic ketoacidosis, diverticulitis, mesenteric adenitis, bowel obstruction, gastritis, gastroenteritis. Although these are serious, they are less life-threatening than other causes of abdominal pain such as appendicitis, ectopic pregnancy, ruptured abdominal aortic aneurysm and perforarted peptic ulcer. Clearly the emergency room physician must consider the high-risk causes of abdominal pain first and rule them out prior to any final diagnosis. If there is a high-risk cause of the abdominal pain that is diagnosed, it is clearly necessary for the emergency department physician to obtain a surgical consultation.

3. STANDARD OF CARE - BACTERIAL MENINGITIS

The brain and the spinal cord is protected by and enclosed by three connective tissue membranes called meninges. If any of these connective tissues become inflamed and infected, bacterial meningitis may result. Improperly diagnosed bacterial meningitis can lead to death. Often bacterial meningitis, particularly in children, might be associated with an underlying problem. For example, sinus infection, sore throat in younger patients and urinary tract infection or pneumonia in older patients may lead to the spread of bacteria to the meninges. In the event there is a direct trauma to the head, bacteria similarly might find a way of entering the meninges and subarachnoid space. The emergency room physician must obtain an appropriate history to determine whether there were respiratory symptoms that preceded the possible diagnosis of meningitis. Similarly, the physician must determine whether there was a rapid onset of headache, confusion, lethargy or loss of consciousness. If would be required for the emergency room physician, particularly for children, to have a high suspicion index of meningitis so that the possible diagnosis is not neglected. Meningitis requires immediate and effective treatment measures since the disease is life-threatening. An emergency room physician must be alert to any fever, rash, any signs of meningeal irritation, such as drowsiness, stiff neck or back, neurological findings such as seizure or swelling of the optic nerve, difficulty speaking or visual field defects.

It is particularly important for the emergency room physician to determine whether the patient has been on antibiotics for any other reason because the antibiotics may or may not be appropriate for the treatment of meningitis. Indeed, the antibiotics may mask other symptoms. One critical diagnostic procedure used in determining the presence of meningitis is a spinal tap. A needle is inserted into the subarachnoid space of the lower back in order to obtain cerebrospinal fluid for laboratory analysis. If there is significant pressure within the brain or a bleeding disorder, a spinal tap might not be ordered. On the other hand, a CT scan is frequently not used unless there is a fear of a lesion of some sort. There is too much delay in obtaining a CT scan, particularly since the spinal tap should be done immediately. An x-ray may also be obtained because it might reveal the presence of pneumonia or sinus infection which is sometimes part of the meningitis diagnosis. If possible, the emergency room physician must start antibiotic therapy for meningitis within thirty minutes of presentation. If given, the antibiotics should not be given orally. The most effective antibiotic treatment is intravenous.
If it is determined by culture that the cerebrospinal fluid reveals viral meningitis as opposed to bacterial meningitis, this might not be as dangerous a condition. Most often the treatment for viral meningitis is bed rest and observation. In the diagnosis of bacterial meningitis it is important for the emergency room physician to understand that although fever might be present in adult, it is not always present in an infant. Indeed, as far as infants are concerned, hypothermia may present itself.

As a result of bacterial meningitis, there are various complications that might become involved such as neurologic problems, shock, coagulation problems, sepsis and prolonged fever. The emergency room physician must be alert to these potential problems in both the original diagnosis and treatment regimen prescribed.

4. STANDARD OF CARE - BONE FRACTURES

Because bone fractures are frequently present as a result of significant trauma, an emergency room patient should be diagnosed as a victim of possible multi-system problems. The patient should be examined regarding the presence or absence of other life-threatening problems. It should be determined whether the fracture is open or closed, displaced or non-displaced. The physician must determine whether there is circulation to the area of the fracture, particularly distal to the fracture. The emergency room physician must also assess whether the nerve supply to the area of the fracture is sufficient and whether there are any other associated injuries resulting from the fracture.
An open fracture is one that breaks the skin. X-rays are the required standard of care for any suspicion of bone fracture. An x-ray can determine whether the fracture is greenstick (incomplete), transverse, oblique, spiral, comminuted, impacted, or compression in nature. An x-ray also assists in determining the proper realignment or what is commonly called reduction of the fracture.

The emergency room physician must make sure the patient is stabilized before proceeding with other diagnostic measures. This includes assuring a proper airway, determining whether there is proper circulatory condition along with hemorrhage control, intravenous fluids if necessary, neurological exam and determining whether other areas are injured. The physician can’t simply look just at the fractured area itself since often a break is associated with other injury. On the initial exam the emergency room physician should be looking for any obvious deformity, swelling, bruising, tenderness, lack of function, or crepitis when the body part is moved.

Frequently it is suggested that x-rays include one joint above and one joint below the injury in order to rule out potential problems. Similarly, if there is concern as to whether a fracture is present, a splint should be applied with a recommendation of elevation of the fractured bone and non-use until the patient is seen in follow up with an orthopedic consult. Similarly, if the emergency room physician’s interpretation of the x-ray is different from the radiologist’s report, there should be some follow up with the patient and clear discharge instructions as to what should be done in the future by the patient. These instructions must be unambiguous and in writing. If a fracture is relatively uncomplicated, the treating physician must reduce the fracture, immobilize it and preserve function. Reducing the fracture means moving the bone ends to their normal position if possible. Immobilization is important in order to maintain proper alignment, prevent movement that could cause nonunion, and to relieve pain.
In the event there is an open fracture, surgery is usually required. The wound must be explored and cleaned appropriately and the bone fragments repaired as much as is possible under the circumstances. In addition, the emergency room physician should provide a tetanus shot if one has not been received by the patient within the last ten years.

There are many complications that can be associated with fractures including infection, non-union, necrosis, mal-union and shortening of the bone. Moreover, because there are major blood vessels, arteries and veins surrounding most bones, there can also be damage to those structures. Injuries to nerves, tendons, joints are some of the things to be considered.
There are some very high-risk fractures that the emergency room physician must be careful with during consultation and treatment. A Colles fracture involves a fracture at the radius and two forearm bones. These types of fractures are frequently caused by a fall where the hand is used to break the fall. Unfortunately, mal-union can occur in the first week after reduction of a Colles fracture. Accordingly, the standard of care would require follow up x-rays to assure proper healing. The physician must also consider whether compression of the median nerve has occurred because atrophy can result. Similarly, compression of the median nerve may lead to carpal tunnel syndrome. Moreover, in a Colles fracture, the tendon that assists in the extension of the thumb can be damaged. This frequently results from the edema and failure of blood supply. A Colles fracture is one that should not be missed by a trained emergency room physician.
Another very high risk fracture is known as the navicular fracture. The navicular bone is located at the end of the radius and ulna. It is a small bone in the wrist and the diagnosis of this fracture can be missed if not considered appropriately by the emergency room physician. The anatomic snuff box must be palpated by the emergency room physician to determine if a navicular fracture is present. When pressed, the anatomic snuff box will cause pain in the presence of a navicular fracture. Even if x-rays, which are the required standard of care, are normal and there is still the presence of pain in this area, the potential navicular fracture must be immobilized and the patient must be advised to seek a consultation with an orthopedic surgeon. Unfortunately, this type of fracture may not be seen in an x-ray within hours after the occurrence. Again, improper diagnosis of this fracture may lead to delayed union, non-union, necrosis and arthritis. The emergency room physician should be very careful not to simply diagnosis a sprained wrist since navicular fractures often appear within a week after initial injury.

Pelvic fractures also are high-risk fractures that an emergency room physician must consider. The pelvis includes many bones, the most significant of which for purposes of fracture are the sacrum and coccyx. It is particularly important for the emergency room physician to consider what is called the pelvic ring at the bottom of the pelvis. If there is a complete fracture of the two bones comprising the pelvic ring, or what is called a disrupted pelvic fracture, serious complications can result. A non-disrupted pelvic fracture is usually just treated with bedrest and pain medication. A disrupted pelvic fracture can cause damage to the bladder or urethra. In any event, the emergency room physician must obtain and urinalysis to check for blood. In the event that pubic bones are separated as a result of the fracture, a cast should be used for several weeks to ensure proper healing. If appropriate measures are not taken with a pelvic fracture, nerve damage, shock, bladder or urethra rupture can result with accompanying problems that will expose the medical practitioner to a malpractice claim. Moreover, lumbosacral nerves may be stretched or torn as a result of the fracture. Unfortunately, significant hemorrhaging can occur following a pelvic fracture and blood loss must be considered by the attending physician.

Femur fractures also are high-risk fractures. These fractures are almost always caused by trauma such as a motor vehicle collision. Often they result in displacement of the fragments of the bone. This can cause delayed union, non-union, or mal-union. Moreover, there can be problems with bleeding and associated injuries to the hip or pelvic areas. The emergency room patient should be given proper splinting, ice, elevation and pain medication and be advised to return if the pain persists for more than twenty-four hours.

5. STANDARD OF CARE - SKINS WOUNDS

There are various types of wounds that an emergency room physician will be faced with during the course of his treatment of emergency patients. These include abrasions, lacerations, avulsions and punctures. Abrasions, of course, are the least serious of these injuries. The outer layer of the skin is usually scratched off, frequently this occurs with elbows, with knees, rug burns and the like. An incision, on the other hand, is usually made be a sharp object. Depending on how deep the incision is, it could involve muscle, blood vessels, tendons and nerves. A laceration is a wound that usually comes from a tearing or scraping type action and leaves a jagged edge. An injury caused by glass, a piece of metal might, for example, cause a laceration. A puncture is something that goes through the skin and effects all the tissues of the body in that particular area that it penetrates. Examples of a puncture could be a nail, splinter or a knife injury. An avulsion injury usually means that the tissue or skin is torn loose or pulled off completely. An amputation, of course, suggests the complete removal of a body part such as a finger, toe, arm or a leg. A crush injury is usually considered an injury where the skin and bones are involved and significant soft tissue injury results. This might be the result of a heavy object falling on fingers or toes.

The emergency room physician must be particularly careful with regard to the medical history of the patient. The physician must understand whether the patient has a history of diabetes or some other type of vascular disease that would effect the healing process and follow up treatment. If is particularly important for the emergency room physician to understand any problems that a patient might have with a specific antibiotic. If a patient has known allergies, antibiotics that might incite those allergies must be avoided. Similarly, the emergency room physician must determine whether a tetanus shot had been provided within the last ten years. In most cases, wounds that are treated within eight hours and are not otherwise seriously infected, can be treated and closed by the emergency room physician. On the other hand, wounds that are of longer duration and from significant trauma, and involve tissue destruction, should require a referral to a specialist, such as an infectious disease consult and/or plastic surgeon.
Initially the emergency room physician must stop bleeding or hemorrhaging. Moreover, the physician must inspect the area of the wound to assure proper circulation, nerve function, tendon function, and whether any foreign bodies are located within the wound area. Similarly, the emergency room physician must consider the possibility of a fracture of a bone in the area. It is essential that the wound be cleaned immediately, and sometimes irrigated with a syringe. Moreover, it is likely that the wound should be treated with an antiseptic solutions, surrounding the wound area but not necessarily placed within the wound itself depending on the exposed tissue. Because wounds can be very painful, sometimes the emergency room physician should anesthetize the area. After the wound is debrided, and bleeding is stopped, the wound should be closed by the proper device which might be a clamp, bandage or stitching if necessary.

If there is concern of the presence of a foreign object in the wound area, it would be essential for the emergency room physician to obtain an x-ray. If there is concern of tendon laceration, a very careful physical examination must be conducted.

B. EXAMPLES OF STANDARD OF CARE: OBSTRETICS, GYNECOLOGY, PERINATAL, NEONATAL MEDICINE

1. STANDARD OF CARE - MULTIPLE BIRTHS

Mothers with multiple births are far more likely to be hospitalized with complications such as pre-eclampsia and pulmonary embolism. A high degree of triplets and quadruplets have at least one child with a major handicap such as cerebral palsy. Accordingly, it is extremely important for the OB/GYN to be extremely careful in monitoring the expectant mother with multiple children. Ultrasound in the first trimester is certainly recommended for diagnostic purposes and determination of anmionichity and chorionicty, ruling out monoamniotic twins and early loss of fetus. In the second trimester, it becomes important in detecting anomalies, abnormal growth or dichorionic twins, assessment of the cervix, assessment of the amniotic fluid volume and genetic testing. In the third trimester, ultrasound is important to determine abnormal fetal growth, anti-partum fetal surveillance and assessment of the cervix. It is important to diagnosis amnionicity and chroionicity, the number and position of the fetuses, the number and position placentas, the thickness of the membrane, the sex of the fetuses and to confirm monoamniotic twins. When there are twin pregnancies, a cervix shorter than 25 mm at twenty-four weeks suggests delivery before thirty-two, thirty-five and thirty-seven weeks. Digital examination is not as objective. It is clearly not easy to scan twins and it is even more difficult with triplets or quadruplets.
The general practice OB/GYN should be extremely careful following multiple births without some specialization involved. Failure to diagnosis appropriately, an inaccurate dating, lack of recognizing the implications of amnionicity and chorionicity, the failure to detect anomalies and failure to provide genetic counseling for twins can certainly lead to malpractice claims. It is also important for the OB/GYN to educate the patient about pre-term labor issue/risks. Failure or delay of diagnosis of this problem, failure to give steroids or inappropriate use of Tocolytic therapy or inappropriate use of cerclage can also lead to malpractice claims. Moreover, there needs to be close follow up of twins being treated for pre-term labor either in or out of the hospital. The OB/GYN must have experience in managing pre-term labor in twins or face the real prospect of a claim being made. Delay in transferring a patient to a higher level facility in order to prevent post-birth injury due to lack of specialized neonatal care can also lead to claims against the OB/GYN and/or hospital.
Other issues involved in multiple birth situations include lack of experience in performing vaginal delivery, failure to properly advise the mother about her various options for delivery, the lack of ultrasound in labor and delivery, failure to have two OB/GYN doctors available for a twin vaginal delivery, failure to properly monitor at appropriate intervals the second twin delivered and failure to prepare for possible emergency cesarean of the second twin.

The OB/GYN can expect to be questioned about his loss of income for his failure to refer a multiple birth situation to a specialist in the event that a problem occurs. A jury certainly would not want to hear or suspect that a doctor failed to refer a patient to a specialist merely because he was concerned about a loss of income.

2. STANDARD OF CARE - RESUSITATION OF PREMATURE INFANTS

Unfortunately, there are significant changes in cardiac and respiratory physiology associated with the birth of an infant. These may include elimination of lung fluid, decrease in pulmonary artery pressure, increased systemic vascular resistance. These and other changes may be delayed because of prematurity. It is important for the OB/GYN to react quickly and recognize cardio-respiratory failure and the need for immediate resuscitation. Clearly, immediate intervention of an infant in cardio-respiratory trouble can have far-reaching consequences on later neonatal course.

The standard of care for an OB/GYN in this situation is, based upon the best available scientific evidence in order to properly intervene with appropriate resuscitation efforts. It is important, for example, for the OB/GYN to maintain temperature within a normal range at the time of birth, this then becomes important in neonatal resuscitation as well. Unfortunately, a premature infant can have his/her body temperature drop quickly in the delivery room. This can result in catastrophic consequences including death. The OB/GYN must understand and prepare for the infant’s core temperature decreasing rapidly because of evaporative losses from the wet body. Moreover, the cold delivery room environment can also cause radiant and convective heat losses. Studies have shown that a naked, wet, term infant loses significant skin temperature and core temperature within thirty minutes of birth. Although some degree of cooling is appropriate for initiation of breathing and stimulation of thyroid function and at times could be helpful for the term infant at risk for possible cerebral injury, maintenance of the body temperature at or near 37 degrees Centigrade has been suggested as the appropriate standard of care for neonates. A pre-term infant has more difficulty maintaining temperature than a term infant does by peripheral vasoconstriction. Therefore, it is very important for the pre-term baby’s health to reduce the chance of hypothermia and maintain appropriate body temperature immediately after birth. Accordingly, it would be important to have available external heat such as radiant warmers to provide this consistency required. For pre-term infants, it may also be advisable to have the baby wrapped in transparent polythene that has a high rate of radiant heat transmission; however, it would be important to also monitor the temperature of the baby because this technique may produce elevated temperature.
A premature infant is very vulnerable to lung injury. A pneumothorax may develop into chronic lung disease. Therefore, it is very important for the OB/GYN to manage the infant initially in a correct way to prevent chronic lung disease; however, the physician must be careful to avoid excessive lung inflation. In the event that the physician is convinced that ongoing ventilation is required, positive and expiratory pressure should be utilized quickly in order to prevent the complete deflation of the lungs at the end of expiration as well as establishing and maintaining functional residual capacity. Otherwise, subsequent hyaline membrane disease may result.

Spontaneously breathing premature infants present other issues. Often an endotracheal intubation is used for resuscitation. If an infant is not intubated, a procedure known as continuous and expiratory pressure may be applied. However, this procedure is still in the developmental stage. There is concern, for example, about other organ morbidity with the use of continuous expiratory pressure.

Many experts are concerned about adverse effects of one-hundred percent oxygen as it relates to respiratory physiology, cerebral circulation and tissue damage from oxygen free radicals. Similarly, there are concerns about tissue damage from oxygen deprivation. Therefore, careful administration of a variable concentration of oxygen appears to be the standard of care. However, it must be monitored closely so that excessive oxygen is not used especially in the premature baby. Finally, appropriate dosing and administration of medicine is important with regard to resuscitation of the pre-term infant. Epinephrine is usually provided by venous access. Although it is also known to be provided by endotracheal means, this is not the accepted procedure at the present time.

3. STANDARD OF CARE - CERVICAL CANCER

There are various risk factors involved regarding cervical cancer. Primarily, these are sexual activity, cigarette smoking and immune system alterations. The American College of Obstetricians suggests that annual cytology screening three years after the initiation of sexual activity is required but no later than twenty-one years of age. Women younger than age thirty should have the screening every year, women between age thirty and older may have screening every two to three years provided there is no prior history of problems, no HIV infection and they have three prior negative pap smears.

Treatment of stage for stage IA1 cervical cancer would suggest the need for total hysterectomy or cone biopsy; for IA2, IB1 a radical hysterectomy, radial trachelectomy or radiation therapy; for stage IB2 chemo-radiation treatment followed by total hysterectomy. Some experts, however suggest that a radical hysterectomy of stage IB2 would be appropriate followed by radiation and chemotherapy.

Complications following a radical hysterectomy could include major urinary tract injuries, blood loss, bladder dysfunction, as well as other potential problems. The treating physician must understand, however that sexual histories are often not very accurate, clearly the sexual history of the patient’s partners are almost impossible to discover. Most experts agree that conservative surgery would be appropriate for very early discovered carcinoma. Some suggest the potential use of radical trachelectomy for stage IA2 and selected IB patients. Clearly, however, multi-modality therapy is standard.

4. STANDARD OF CARE - EARLY DETECTION OF FETAL MALFORMATIONS

Fetal sonography can provide valuable information regarding malformations in the fetus. In addition to the anatomy, the sonographer should look for the amniotic fluid volume, the placenta, the fetal presentation, the umbilical cord, the cervix, the gestational age and growth and the maternal uterus and adnexa. After eighteen weeks, the sonographer can look much more clearly at the head and neck, the brain anatomy, the lip and palette, the heart, including the four chamber view of the heart, the outflow tracts of the heart, the abdomen including the stomach, kidneys, bladder, umbilical cord, the spine and the extremities including the presence or absence of arms or legs. Unfortunately, many medical professionals are unable to read the sonography films appropriately. They frequently do not identify various problem areas. If they are unable to read the sonography results, they should be referring the patient to a specialist when any abnormality is suspected.

5. STANDARD OF CARE - BREAST CANCER

The diagnosis of breast cancer is easily one of the most common reasons why physicians are sued for medical malpractice. Obviously, the patient should disclose any specific problems they have with regard to current signs or symptoms of breast cancer that may not be obvious or apparent to the examining physician. The history and physical examination needs to be a thorough, accurate and a well documented exam. If there is a suspicious finding, prompt intervention is required. If there are ambiguous or less specific findings, the management of the problem would still require a deliberate plan. Unfamiliarity with the breast evaluation would require the physician to refer the patient to a specialist. Notes documenting the exam that are illegible are virtually always deemed ambiguous. The location of any cysts discovered should be not only stated in the written record but also reflected in a drawing of the breast itself. On the other hand, if the clinical notes do not clearly suggest a separate location for a presumed benign mass, which was eventually determined to be malignant, the doctor could easily find himself in the middle of a malpractice claim. Moreover, it is the doctor’s responsibility to clearly communicate the results of the examination with the patient and document the communication. In addition, the physician should tell the patient what limitations are inherent in the examination so that further diagnostic measures may be taken if deemed appropriate. The screening mammography may also be required depending on family history or other circumstances to ensure that there is no claim or speculation that the cancer could have been determined at an earlier time.
If a physician accepts a patient on a self-referral basis, that physician has the duty to provide the physical examination and communicate the results to the patient. Moreover, a physician cannot simply rely on a normal imaging or screening study where there is a clinically suspicious mass. Rather, the discovery of a suspicious mass necessarily obligates the physician to further investigation and intervention.
Where there are alternative management strategies available and a benign finding is suggested, it would clearly be a breach the standard of care to fail to consider alternative management strategies. Therefore, if the physician observed a solid mass, a tissue diagnosis would be the appropriate standard of care. The growing mass would certainly cause more heightened suspicion than information in mammography screening. In the event a physician does recommend a biopsy, that recommendation should be clearly documented in his records. Moreover, tissue diagnosis would be necessary in order to consider surgery.
Even when there is no major area of concern in an initial examination, if a breast is found to be lumpy or bumpy, this should provide enough information for the physician to do follow up exams in shorter intervals than otherwise might be required.

The mammogram interpretation is also subject to a reasonable standard of care requirement. If abnormalities are adequately determined, they must be characterized as such in the reading. The tissue samples taken for the various techniques utilized to determine biopsy results also have an effect on possible claims. Even if the test results are negative but the sampling results are from fine needle aspiration or core biopsy but are inconsistent with a clinical course or mammographic findings, continued follow up may be required.
Although cessation of the physician patient relationship after a normal breast examination may relieve the physician of further responsibility, a physician cannot simply abandon the patient and fail to follow up or refer the patient were a clinical abnormality was observed. Indeed, depending on the patient’s condition, a more heightened responsibility may result on the part of the physician. A physician who does not normally read mammograms and/or is not a specialist, still has a duty to refer a patient to a specialist, particularly in view of a test that might be positive. In addition, if a patient’s clinical condition clearly suggests a growing mass and there is a negative biopsy report, it is the responsibility of the physician to see this discrepancy in the report and re-evaluate additional management options. This is particularly true where limiting tissue sampling techniques are used.

6. STANDARD OF CARE - INFORMED CONSENT

There are various requirements of informed consent including state law, federal law, hospital standards, ACOG, American Medical Association Code of Ethics and Food and Drug Administration regulations. The common law of Maryland in several cases therein require the doctor to reveal to his patient the nature of the ailment, the nature of proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment. In order to prevail in an informed consent claim, the patient must be able to prove there was no emergency need for the medical treatment, the physician did not inform the patient of the material risks of the treatment, a reasonable person in the patient’s position would not have consented to the treatment if the physician had disclosed all the risks, and the patient’s injuries were causally related to the treatment. 42 CFR, section 482.51 indicates that hospitals who participate in the Medicare program must provide informed consent to its patients. JCAHO standards and the American Hospital Association Patient’s Bill of Rights also suggest the need for informed consent. ACOG in its technical bulletin # 136 indicates the necessity of informed consent. The American Medical Association Code of Ethics E-8.08 and E-10.01 sets forth similar standards for its members. Informed consent is required for surgery, mode of delivery of a baby, anesthesia, medications, tests that carry risks, medical advice based upon tests, who will be doing the suggested procedure, clinical trials, conditions that raise the risk of a bad outcome, any suggested new technology or equipment and any change in condition or plan of treatment is indicated. Often a doctor will suggest that informed consent was not required because the treatment was of an emergency situation. Sometimes the doctor may indicate that the patient verbally consented to the treatment regimen. These conversations should always be documented. In virtually all cases, the written approval of the patient should be obtained even though many hospitals have a general consent form,

Also be sure to read our Frequently Asked Questions about Medical Malpractice

Resources

• Maryland Circuit Court Locations
• Maryland District Court Locations
• Maryland Court of Appeals
• Miscellaneous Administrative Commissions or Hearings Division in D.C.
• Superior Court of the District of Columbia
• District of Columbia Court of Appeals
• Maryland Court of Special Appeals

 

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