When attorneys file claims for medical malpractice on behalf of their clients, they often name not only the doctor but also the institution as negligent. But a recent decision by the Court of Appeals of Maryland may put an end to such practices in specific scenarios involving managed care organizations (MCOs) and contractors.
The details of the case
The plaintiff was a 54 years old woman who had been receiving Medicaid benefits since 1997. When she needed to see a podiatrist, she chose one from a list of 38 providers who were listed as contractors by her MCO. The podiatrist recommended surgery at a hospital that did not participate with the MCO. The plaintiff underwent the surgery, and the podiatrist did a follow-up with the plaintiff. But at the plaintiff’s second follow up, a nurse noticed gangrene and a surgery was scheduled, which resulted in partial amputation of the foot, as well as a scar that ran from the woman’s ankle to her thigh.
Why this case is not cut and dry
The patient sued for surgical malpractice – allegedly, her podiatrist did not warn her that she had a circulatory condition which could lead to additional injury or serious side effects from the surgery – and she won. The plaintiff also included the MCO in her lawsuit, and the original jury found them liable under the theory of apparent agency.
The problem, however, is the title of the podiatrist; he was not an MCO employee. He was a contractor. Furthermore, the appellate court found that there was not sufficient evidence to link the podiatrist to the MCO outside inclusion on the list of providers and a referral form for the surgery. So while the Court of Appeals does not say that apparent agency is an invalid argument, it does say that relationships between an MCO and a provider, so long as they’re clearly defined, may exclude an MCO from being named in a lawsuit. (Or at least, naming the MCO won’t necessarily help.)
Surgical malpractice lawsuits are notoriously complex. For more information about medical malpractice, please visit our website at plaxenadler.com.
