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July 15, 2021

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A Black Lives Matter March vs. Med Mal Laws

In past posts, I’ve written about the absurdly low cap on non-economic damages in Maryland medical malpractice cases (the cap for, among other things, physical pain, grief, and the loss of the enjoyment of life).

I have urged state lawmakers to eliminate the cap–to bring Maryland in line with many other states.

Well, there has been some movement … in California.

Well, California is like Maryland: both states have a cap on non-economic damages in medical malpractice cases, and the caps are ridiculously low.

In past posts, I’ve noted that these low caps are an underappreciated civil rights issue.

Folks in California are beginning to treat it like such. Read the report and watch the video:

Changing Med Mal Damages Cap in Virginia? What’s Up with Maryland?

In Virginia, a bipartisan group of senators is leading an effort to “cancel the cap,” to eliminate the cap on damages that can be recovered by an injured person in a medical malpractice case. This is a big deal. For the residents of Virginia and also for the efforts or the hope that it could inspire in neighboring states,  like our state of Maryland.

Virginia, right now, has one of the strictest, most unjust, most ridiculous caps on damages that injured people can recover if they’ve been injured on account of a doctor, or a nurse, or a hospital’s negligence.   

The cap limits the damages a person can recover to a little over $2,000,000.

Now, $2,000,000 is a lot of money from one perspective. I think a lot of people would be happy to have $2,000,000 in the bank, but $2,000,000 isn’t as great as it once seemed to be. Most of us realize this, especially when we see news anchors talk about stimulus bills that are worth 1.9 trillion dollars every evening. Further, when the cost of healthcare continues to rise, when the cost of treating conditions caused by the medical malpractice continues to rise, $2,000,000 often seems downright unfair.

If someone is injured by a doctor’s negligence, by a doctor’s failure to exercise the requisite skill, and then the injured person’s attorney proves in court that the injured person will have future medical costs of 10 million dollars, then $2,000,000 begins to feel like pennies.

The injured person and their family will be on the hook for the other $8,000,000. Meanwhile the injured person–due to the doctor’s negligence–might not be in the physical or mental state to earn any money, let alone $8 million.

A misdiagnosis, a screwed-up surgery, a delivery doctor missing signs of fetal distress, or various other forms of medical malpractice can leave a patient needing medical care for the rest of their life.

And that’s why it’s so important that people in Virginia applaud the state senators who are fighting to eliminate the damages cap.

Now, Maryland also has a statute that limits the amount of compensation a plaintiff can receive for certain damages in a medical malpractice case. While not as bad a Virginia’s cap, it also is unfair to victims and should be eliminated.

Can You Sue for the Exacerbation of a Prior Injury in Maryland?

A patient (the plaintiff) in a medical malpractice case is, generally, ill or disabled when he or she goes under the care of the doctor (the defendant). Can such a plaintiff win a medical malpractice case, if the only injury he or she suffered is the worsening of an already existing injury?

The simple answer, for Maryland, is yes. A plaintiff can successfully seek money damages for the aggravation of a preexisting injury.

The question, however, is a fair one.

After all, if the previous injury or condition relates to the same part of the body that the plaintiff is seeking compensation for, then it can create problems for the jury in determining what would be fair compensation for the injury the defendant’s negligence actually caused.

Further, at trial, the defendant doctor may even argue that, while the plaintiff has an injury, the plaintiff has not been further injured. The lack of a substantial, additional injury could be a persuasive defense, likely creating in the jury a reluctance to find the defendant doctor to blame.

Preexisting injury cases present special challenges. Many plaintiff attorneys will avoid taking them, but not all of us will.

If you have suffered an injury due to the negligence of a medical professional in Maryland, you may have questions about your legal options. If you have not yet started a lawsuit and are contemplating bringing one, I encourage you to contact me today. I can answer your legal questions and would love to talk with you. You can reach me at 410-513-9978 or by email at stefan.akorli@fintusinjuryfirm.com.

As a Patient, a Black Doctor Is Struck by Racial Bias in Healthcare

The simple truth is that the healthcare system in the United States is biased against black patients. Numerous studies, some of which have been the subject of posts on this blog, reveal this bias. But, let’s face it, many people are unaware of this bias, and many people who are aware don’t regard eliminating the bias as a priority. Look no further than a recent leaked video call between Joe Biden, Kamala Harris, and civil rights leaders: in the 100-minute call, there was not a single specific mention of racial bias in the healthcare system.

If–during the darkest days of a global health crisis–neither civil rights leaders, nor the black vice president elect, nor the Democratic president-elect mention racial bias in the healthcare system, are these biases really that significant?

They are! A tearjerker of an article in The New York Times¸ “Black Doctor Dies of Covid-19 After Complaining of Racist Treatment,”makes this answer plenty clear.

The article tells the story of a 52-year-old, black patient fighting coronavirus. From her hospital bed, the patient, with oxygen tubes going into her nose and teary eyes, held her smartphone and hit record. In the video, the patient relayed an experience that many black Americans may find as relatable as being mistreated by the police: she relayed her dissatisfaction with the medical treatment she was receiving.

But hang on a minute. This was not an ordinary patient. What separated this patient from most is that she herself was a medical doctor.  

Rest in Peace, Dr. Susan Moore

In the video, which went viral after she posted it to Facebook, Dr. Susan Moore said, among other things, that a white doctor at the hospital had downplayed her complaints of pain. He told her that he felt uncomfortable giving her more narcotics to treat her pain and suggested that she would be discharged from the hospital. She said, in the video, “I was crushed.” She continued, “He made me feel like I was a drug addict.” She did not get the treatment and the respect she said she deserved.

Did her race have anything to do with it? Mountains of research articles indicate that black patients often receive treatment inferior to their white counterparts, especially when it comes to pain management. In her video, Dr. Moore addressed the question plainly: “I put forth and I maintain if I was white, I wouldn’t have to go through [hoops to get pain medicine].”

But go through it, she did–until she made a viral video. After making the video complaining of the medical treatment, Dr. Moore received care that she said “adequately treated” her pain, and she was eventually sent home.

A little more than two weeks after she posted the video–and just a few days before Christmas– she died. According to her 19-year-old son, she died of complications from coronavirus.

What’s the bottom line?

Until we make it a priority to wrestle with racial bias in medical treatment so many of us and our loved ones will needlessly suffer and needlessly die.

What Can Be Done to Improve Healthcare for Blacks in America

There are many things we can do. From my perspective as an attorney, I’ll mention two.

First, we can and should hold treating doctors accountable. All too often people who are injured by doctors never seek the help of an attorney. Suing a doctor for his or her negligence is about putting justice into business and improving healthcare.

Second, we should urge civil rights organizations, like the NAACP, to push lawmakers–especially those in blue states–to fix medical malpractice laws. For example, in Maryland, lawmakers should lengthen the applicable statute of limitations and eliminate the cap on damages for pain and suffering.

It’s crucial to remember that when black people lose their lives, or limbs, or organs, or loved ones because of racial bias in healthcare and then the law limits their ability to sue and recover substantial damages for the loss, that’s a civil rights issue.

38 Races for Governor in the Next 2 Years–Wow!

After the death of George Floyd earlier this year, a group of black healthcare leaders said the medical system must confront the ingrained biases within the medical profession. For years prior to Floyd’s death, medical research has shown that, in America, blacks receive inferior medical treatment, compared to whites.

In some blog posts, I have pointed out that one way we should aim to fix healthcare inequality is by holding our elected officials, at the state-level, accountable. We should hold them accountable to fix laws that underpin healthcare inequality, such as laws that limit damages, laws that limit the time an injured person must file a lawsuit, and laws that limit liability.

Governors play a key role in state lawmaking. For example, in Maryland, the governor signs bills passed by the General Assembly into law, or she vetoes them, or she allows them to become law by neither signing nor vetoing.

This year–with its health crisis, lockdowns, and debates about immunity from COVID lawsuits–showed just how important governors can be.[1]

Soon many Americans will have the opportunity to choose new governors. As Politico astutely observes, the next two years could dramatically reshape who occupies the governors’ mansions.

According to Politico, “[t]hirty-eight of 50 states—accounting for nearly 85 percent of the U.S. population—will hold gubernatorial elections between 2021 and 2022.”

Maryland is one of them.

Maryland’s Gubernatorial Election

In Maryland, Governor Larry Hogan will not be running for election.  About the race for governor in Maryland, Politico writes:

Lt. Gov. Boyd Rutherford, a Black Republican, has the inside track for the GOP nomination after serving alongside the popular Hogan for eight years. But Rutherford has never been on a ballot on his own, and the GOP primary electorate may seek a Trumpier candidate after Hogan’s record of criticizing the outgoing president.

The article continues:

The flood of Democratic candidates started with long-time state Comptroller Peter Franchot but won’t end there. Reps. David Trone, Kweisi Mfume and Anthony Brown — who lost to Hogan in 2014 — are possible candidates.

It will be interesting to see if the candidates have a plan for reducing race-based disparities in the quality of healthcare hospitals, doctors, and nurses provide. It will be interesting to see if any of the gubernatorial candidates across the nation have a plan.

I’ll be the first to volunteer for or donate to a candidate who does.


[1] Interestingly, some of the nation’s Democratic governors kowtowed to lobbyists and seemingly told ordinary folks to kick rocks: for example, Rhode Island Gov. Gina Raimondo bashed proposals to expand Medicare to cover everyone, approved health insurance companies’ steep premium increases during the pandemic, and jumped at the chance to help lobbyists by shielding nursing homes from coronavirus-related lawsuits.

Why Birth Injuries Are a Special Risk for So Many in the US

As Americans, we like to think of ourselves as belonging to the greatest country in the world. However, the dispiriting truth is that when it comes to many facets of life, we’re just a middling, average, not-so-special group. The pandemic has laid this bare. While the world’s most populous nation, China, has successfully escaped the grips of the COVID-19 pandemic, we’re still losing thousands of parents, siblings, grandparents, and cousins every day.  

Should it be surprising that America is not exceptional when it comes to dealing with the pandemic, a health crisis? Absolutely not.

Just look at birth injury statistics.

When it comes to maternal death rates among developed nations, the United States is worst. To put it plainly, the United States is the most dangerous place in the developed world to give birth. About 700 mothers die, and more than 50,000 mothers suffer severe injuries during childbirth each year. Significantly, according to a USA Today investigation, a least half of these deaths could have been prevented and half of the injuries reduced or prevented with better care. What’s more, the maternal death and injury rate in the US has continued to climb; the maternal death and injury rate in the world’s other developed nations, they’ve been decreasing.

When it comes to birth injuries suffered by infants, the statistics also present a gloomy picture for the United States. Look at the statistic for injuries suffered per thousand births. In the United States, there are 47.8 injuries to infants for each 1,000 births. In France there are 39.7. In Austria, 41.6. In Australia, 41.7. In Italy, 43.2. In Spain, 43.4. In Finland, 43.8. In the UK, 43.8. In Germany, 43.8.

What can be done?

We can and should hold doctors accountable for the errors they make. All too often individuals who are injured by doctors never seek the help of a medical malpractice attorney. Suing a doctor for his or her negligence is not about putting the doctor out of business; it’s about putting justice and good healthcare practices into business.