Surgical errors can have devastating consequences for a patient and his or her family. In the worst cases, these errors can lead to a patient’s death. When surgeons cause preventable harm, they may be liable for malpractice. If you believe that you or someone close to you was injured by a surgeon’s mistake or carelessness, we can help. At Arfaa Law Group, our diligent Baltimore surgical malpractice attorneys can scrutinize the facts of your case and decide the feasibility of your claim.
In Barbosa v. Osbourne, a Maryland high court recently held that a patient’s mistreatment of himself or herself prior to seeking medical care cannot later serve as a physician’s defense against a malpractice claim. In other words, the pre-treatment conduct of a patient is irrelevant in determining whether a physician is liable for violating the standard of care in rendering medical services to that patient.
The facts of the case are as follows. The plaintiffs filed a medical malpractice case against the defendant physician, claiming that the doctor negligently cut the plaintiff’s bile duct while surgically removing his inflamed gallbladder. As a defense, the defendant invoked the plaintiff’s supposed contributory negligence in failing to seek treatment for his severe abdominal pains in a timely manner. The court ultimately concluded that since the plaintiff’s alleged negligence preceded any medical treatment that the plaintiff received from the doctor, the defendant’s contributory negligence defense had no basis in the law.
In Maryland, medical malpractice occurs when a medical professional causes an injury or death by failing to use the level of care that another medical professional in the same specialty would have used under the same or similar circumstances. The burden of proof in medical malpractice cases is on the plaintiff, who must establish the following elements by the greater weight of the evidence:
- The defendant owed a duty of care;
- The defendant violated the duty of care;
- The defendant’s violation caused the patient’s injury; and
- The plaintiff suffered measurable damages.
Maryland is one of a few states in the United States that continue to follow the “contributory negligence” doctrine, under which any finding of fault on the part of the plaintiff prevents the recovery of any damages. While most states follow the rule of “comparative negligence,” which reduces the plaintiff’s total award by his or her percentage of fault, contributory negligence bars the plaintiff from recovering anything if the defendant’s fault is anything less than 100 percent. This is quite a harsh rule for plaintiffs.
While some surgeries carry inherent risks, in some cases, a surgeon’s negligence is the cause of patient harm. If you or someone you love suffered a preventable injury due to a surgeon’s error or wrongdoing, you could recover monetary damages for your harm. At Arfaa Law Group, our skilled Baltimore surgical malpractice attorneys can examine your situation and figure out whether Maryland laws apply. To discuss your situation in more detail, call us at 410-889-1850 or contact us online.
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