The Rules of the Road for Doctors: How a Negligence Case Is Built

People call me and say they do not want to bring a medical malpractice case, they want to bring a medical negligence case. I explain that the two are one and the same, and so are medical neglect and medical mistake. A lot of people use these words to mean the same thing, and whichever one you pick, the same ingredients go into the case.

The word malpractice can cause one particular kind of trouble. It leads some people to think a doctor must have done something on purpose, with the intent to hurt them. Because they do not think they could prove that, they decide they have no case. I want families to know the words mean the same thing, so that a label does not talk anyone out of making a call.

I like to explain a case by its ingredients. This chapter takes them in the order I put them together: the rules a doctor is expected to follow, and the doctor who reviews the records or the films and says whether those rules were broken. Then comes a defense that comes up a lot, which is that the doctor was only using judgment. It closes with how I came to learn all of this as a young lawyer. Chapter 1 draws the line between a bad outcome and malpractice, and Chapter 10 returns to the certificate a reviewing doctor signs. Here the subject is the measuring stick itself, and what it takes to hold a doctor up against it.

Start with a car. We all drive, so we all know there are rules of the road. We can look in the Maryland laws and find them: you are not supposed to speed, and you are supposed to stop at a red light. Now let's suppose a driver goes through a stop sign, or does not yield to traffic, and hits your car and injures you. Most of us know what that means. It means negligence, because that other driver did not follow the rules of the road.

Medical negligence works the same way. "Doctors have to follow the rules of the road." For a doctor, those rules are what I call nationally recognized standards, the guidelines for what a doctor should and should not do. What we call a violation of the standard of care is a doctor stepping outside them. I sometimes call these standards laws, because the word may be easier to picture when you are thinking about how a doctor is supposed to act in a given situation.

For those of us who do this for a living, the phrase "standard of care" rolls off the tongue. A lot of people outside the profession have had no reason to hear it, which is why I reach for the driving comparison. The most important thing we have to prove, as I see it, is that violation. So what goes into a medical negligence case first and foremost is showing that the doctor did not follow the rules of the road.

Let's suppose the case involves a radiologist. That is the name for the doctor who reads films: X-rays, CT scans and MRIs. Let's suppose that doctor looks at an X-ray and does not see something that looked suspicious. Or the doctor does see something suspicious and decides there is nothing wrong at all. Either way, the film held something the guidelines say a radiologist should catch, and it was missed or waved off. A doctor who does that has broken the rules of the road, and that is where a medical negligence case begins.

The lawyer is not the one who decides whether a film was misread. The way we prove it further is to consult another doctor, and in this example another radiologist, someone familiar with these rules of the road. In a case like that, the first thing we do is gather the medical films ourselves. Then we have them reviewed by a practicing radiologist. These are practicing doctors who consult with us, and I describe them this way: "They're familiar with the standards of care. They're familiar with all the literature, and they have lots of experience."

Their job is to look at the films and tell us whether what was seen on the X-ray was good or bad. If the answer is yes, this was medical negligence, that doctor did not do what he or she was supposed to do, that is how the case begins. Sometimes the reviewing doctor comes back with a different answer, and that answer deserves its own section.

The term judgment call comes up a lot in medical negligence cases, and you can see why. The doctor being sued is going to want to say there is a recognized standard, I followed that standard, and within that standard there is what we call judgment.

Go back to the radiologist. Let's suppose the doctor saw something suspicious and called the film totally fine. After being sued, the doctor says it was a judgment call, that it was very close. If I had called it cancer or some other big problem, the doctor explains, I would have put the patient through lots of procedures, maybe surgery, maybe biopsies where needles have to be placed into someone's body. And if it is not cancer, I have subjected that person to something they should not have to go through. So I have to use my judgment before I say something is a problem.

Now, that can be a very effective defense, because many people hear it and think, well, everyone can use their judgment, or everybody can have their own way of looking at something. I understand why it lands. But we have to be very clear that we are not talking about a judgment call. We are talking about establishing what the standards of care are, what the rules of the road are. Judgment is real, but it lives inside the standard. A doctor who steps outside the standard cannot fix that afterward by calling the departure a judgment. "That's not the way the law works."

Judgment calls do exist, and I do not say otherwise. There are other areas of cases where they come in, and many times I have to say to my clients, look, this can be a gray area, this can be a judgment call. What I want to be clear about is that medical negligence and a judgment call are not one and the same.

The reviewing radiologist is where that line gets drawn. Sometimes the doctor we consult says yes, this was medical negligence. Sometimes the answer comes back that this was a very hard call. We know now, in hindsight, that it was cancer, but looking at the film at the time, the reviewing doctor may tell us it was a judgment call. That is how we prove the difference between a negligence case and a judgment case: hindsight tells us the outcome, and the reviewer has to tell us what could be seen when the film was read. In a misdiagnosis there are hard calls, and sometimes we cannot prove that what the doctor did was wrong. I take that seriously, because when we bring a lawsuit it has to stand on an excellent foundation.

Everything above depends on one person who is not a lawyer. Without a doctor who is willing to say the care was wrong, the case stops there.

In Maryland that doctor has to be a practicing doctor in the area of medicine the case involves, and the doctor also has to be willing to sign what is called a certificate of qualified expert. It sounds like a tongue twister. What it means is a signed certificate that spells out what the standards of care are and how the doctor we are bringing a lawsuit against violated them. It is generally required, and Chapter 10 takes it apart. For now, what matters is where it sits in the case.

A lot of lawyers get a bad name for just bringing lawsuits. But having the power to bring a lawsuit does not mean I can do whatever I want. The certificate is one of the reasons. I understand the certificate to go with the lawsuit. The law itself, in Maryland Courts and Judicial Proceedings section 3-2A-04(b), allows it to be filed with the complaint or within 90 days after it. Either way, what it means to me is "some doctor has done a quality control inspection of this case" and has said this is a meritorious case. That doctor is also willing to come into court, raise a hand and stand behind the opinion. I think it is an excellent safeguard.

A mistake that sounds obvious does not let us skip this step. A lot of people think that if a doctor operated on the wrong side, the case is automatic and there are no procedures to go through. That is not the way it works. Even then another doctor has to review the medical records and be willing to sign the certificate. The wrong side does let us state an obvious error, and that has a lot of jury appeal. But to get there, we still follow the procedures of a negligence case.

I did not start out in medical malpractice. I grew up in a household where the practice area was personal injury, mostly around auto accident cases, and in law school a good professor taught us torts, which is the legal term for anything that involves a personal injury. That gave me a foundation. Medical malpractice came to me a different way.

I was a young lawyer working at a law firm, and I was exploring whether there were other practice areas that might interest me. Medical malpractice was not my practice area at all. A medical malpractice case was in the office, and my boss at the time asked me if I wanted to take it on. In those days the cases were not as expensive as they are now, so a young lawyer like myself could take one on. I did. "I didn't really know what I was doing at that time. I had some good mentorship, but I took that case on."

That is where it started. I found it was something I liked. "I really do like medicine. I like the whole science of it." I am grateful to the mentor who let me have that experience, and it is what set the whole career off, thirty-five years of it now. I think of that first case as where my own education in the rules of the road for doctors began.

I was lucky to have great mentors along the way. After law school I went to work at a law firm, and I had probably one of the best trial lawyers in Baltimore as my mentor. He showed me the nuts and bolts and how to be a trial lawyer. I think having a mentor may not be as common for young lawyers as it used to be. I still put a case together by the ingredients in this chapter: the rules of the road first, and a practicing doctor to say whether they were followed.