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MEDICAL MALPRACTICE EASTERN SHORE
Medical Malpractice is just another word for negligence; A medical injury,” the term which appears both in § 3-2A-02 (a) and in the effective date clause of the Act, is defined in § 3-2A-01 (f) to mean “injury arising or resulting from the rendering or failure to render health care.” See Oxtoby v. McGowan, 294 Md. 83, 87 (Md. 1983).
A doctor commits medical malpractice when he/she fails to meet the standard of care that a reasonable doctor would meet under the same or similar circumstances. If the doctor’s failure to work at the proper standard of care is the legal and proximate cause of a personal injury – the result is malpractice.
MPJI – CV 19:11 – 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.”
The general principles which ordinarily govern in negligence cases also apply in medical malpractice claims. Benson v. Mays, 245 Md. 632, 636, 227 A. 2d 220 (1967); Sub. Hospital Ass’n v. Mewhinney, 230 Md. 480, 484, 187 A. 2d
671 (1963). In a medical malpractice case the burden of proof rests upon the plaintiff to show a lack of the requisite skill or care on the part of the doctor/defendant. Id. But, whereas the conduct of the average layman charged with negligence is evaluated in terms of the hypothetical conduct of a reasonably prudent person acting under the same or similar circumstances, the standard applied in medical malpractice cases must also take into account the specialized knowledge or skill of the defendant. W. Prosser, Torts § 32 (4th ed. 1971); See Shilkret v. Annapolis Emergency Hospital Asso., 276 Md. 187, 191 (Md. 1975).
Historically, Maryland, as well as the majority of jurisdictions, applied the “date of the wrong” (or time of injury) rule to pinpoint the date that triggered the running of the statute of limitations. Note, Poffenberger v. Risser: The Discovery Principle Is the Rule and Not the Exception, 41 Md.L.Rev. 451, 453, n. 25 (1982) (hereinafter The Discovery Principle). Because some injuries are latent or otherwise difficult to discover, the “date of the wrong” rule could have the effect of barring some claims before plaintiffs could discover that a wrong or a resulting injury had occurred.
The discovery rule is an exception that has evolved to avoid this harsh result. Under the discovery rule, a cause of action accrues at the time the plaintiff first knows or reasonably should have known of the alleged wrong. Poffenberger v. Risser, 290 Md. 631, 636, 431 A.2d 677, 680 (1981). See Newell v. Richards, 323 Md. 717, 723 (Md. 1991).
Although not all medical negligence results in a “medical malpractice” claim – all proven medical malpractice arises out of negligence. Know you rights – call us today. It is essential that if you or a loved one believe that you have been the victim of medical malpractice – you must seek the advise of an attorney as soon as possible. Evidence (documents, testimonials, witnesses) is often fleeting – and therefore time is of the essence.
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