As with most other business and investment decisions, attorneys are forced to evaluate the merits of malpractice claims and perform a cost-benefit analysis to ensure, to the extent possible, that the time and money invested will bring a return of that investment and adequate compensation to the victim after case expenses and attorneys' fees are paid. Many potential clients contact our office with legitimate negligence claims that we must reject because the cost of pursuing those claims will exceed the likely recovery. Thus, there is a group of small malpractice claims that fall into the proverbial "black hole" where the claim is legitimate but simply cannot be pursued economically.
It's very unfortunate that the costs of litigation are so high. There is essentially no limit at the trial level on the number of expert witnesses a given party may call to support their position. Costs of litigation, including expert fees, trial exhibits, medical records, PowerPoint presentations and the like, can easily rise above $100,000.
Although in Maryland the General Assembly created the Health Claims Dispute Resolution Office as an administrative prerequisite to state court litigation, where the concept in its creation was to streamline malpractice litigation by limiting the number of experts who can be called in a particular field, creating a "fast track" for "trial" of the case, and formulating helpful procedural rules not present in the Maryland Rules of Civil Procedure, the sad reality is that health claims arbitration in Maryland is never used, i.e., the parties waive out of the process at a very early stage, primarily because the findings of the three member arbitration panel who would decide the case have no binding effect in the sense that the losing party can appeal the decision de novo, which means the appeal results in a second trial with more witnesses and lots of wasted time and resources at the arbitration level.
The Maryland General Assembly should consider creating specialized trial courts to deal with medical malpractice claims, where the judges and staff are trained in the nuances of medical malpractice litigation, and who can assist litigants by promptly and efficiently dealing with issues the arise consistently in such cases, such as expert qualifications, compliance with conditions precedent to litigation such as certificates of qualified experts, discovery disputes,and issues related to the scientific, medical and factual validity of the evidence proposed for admission at trial. Specialized malpractice tribunals could also formulate specific procedural rules that limit the length of trial depending on the complexities of the medicine, and restrict parties from indulging in expert "overkill" or spending the opposing party "into the ground." These courts could provide a forum for expedient and efficient resolution of the smaller claims that are presently rejected for the above-stated reasons by most malpractice law firms in the state.
The time has come for specialized malpractice tribunals whether or not health claims arbitration remains a prerequisiteto full blown litigation in state court. Please feel free to post your opinions on this subject on the Belsky, Weinberg & Horowitz medical malpractice blog or contact our attorneys for more information.