Medical Malpractice

Some doctors bury their mistakes.  The rest of us must live with the consequences of medical malpractice and other negligent treatment, misdiagnosis, and errors that often spell the difference between life and death.

Physicians and other health care providers may be held liable for negligence in cases where they fail to use the degree of care and skill which reasonably competent practitioners would exercise in similar circumstances.  The same is true for hospitals and other facilities that fail to exercise reasonable care for the welfare of their patients.

Not every bad result gives rise to a medical malpractice claim.  Indeed, there are many risks involved in medical treatment.  But, even then, doctors must explain these risks to patients before treating them and obtain their patients' "informed consent" to treatment.  In fulfilling the duty to disclose, the physician must reveal to the patient the nature of the ailment, the nature of the proposed treatment, the probability of success of the proposed treatment and any alternatives, and the material risks of unfortunate outcomes associated with such treatment.

Though doctors must be open and honest with their patients, even the law recognizes the importance of "bedside manner" in some cases.  If a complete and candid disclosure of possible alternatives and consequences would probably harm the patient's physical or psychological well-being, or where the patient is incapable of giving his or her consent by reason of mental disability or infancy, a physician may withhold such disclosures without liability.  The same is true in situations where patients expressly request that they not be told.

As with other negligence cases in Maryland and in the District of Columbia, a patient's "contributory negligence" will preclude recovery for medical malpractice.  Patients cannot recover if their negligence caused the injury.  The defendant has the burden of proving by a preponderance of the evidence that a patient's negligence was a cause of the patient's injury.  However, if a health care provider has caused injury to a patient, a patient's later negligence that adds to the effect of the injury will not bar recovery, but may mitigate or lessen the amount of damages awarded.