Your baby has suffered a brain injury at birth, and you think that the OB is responsible for the cause of the injury. You learn that the OB has insurance, can you tell the jury this fact in a birth injury case to help with your case? This is a topic that is of great importance because every once and a while we have families who contact us regarding their baby’s brain injury point this fact out. In their reasoning, they point to the fact that since the OB has insurance, they are not paying out of pocket for the injury they have caused, and the jury should know this fact.
This topic can be state specific and will be discussed based on Maryland law. If you are in another jurisdiction, you want to make sure that you speak with you attorney in your jurisdiction about the law in your area on this issue.
PROVING MEDICAL MALPRACTICE IN MARYLAND…
To understand the issue of insurance, you need to understand how we prove medical malpractice in Maryland. Medical malpractice is a form of tort law and is under the umbrella of negligence. Negligence is Maryland consists of four elements. The elements are the following:
- DUTY
- BREACH OF DUTY
- CAUSATION
- DAMAGES
Also included in what must be proven is the issue of the standard of care. Medical experts must give an opinion as to not only the standard of care, but also whether there was a departure from the standard of care which caused the injury. To get to this position, the medical experts will review all the necessary information provided in the case through medical records and client visits if needed. Without this information, your birth injury claim against the doctor and or hospital will fail in most cases.
OB HAS INSURANCE CAN YOU TELL THE JURY THIS IN A BIRTH INJURY CASE?
As to the question regarding the OB has insurance can you tell the jury this in a birth injury case, the answer is going to be in general no. If you step back and think about the foundation that I gave above, it makes sense that the fact that the OB has insurance is not needed in a trial on whether medical malpractice occurred.
One of the main roles of a trial judge is to make sure that the jury is not confused about the issues present in the case, and that the law is properly applied to the facts. To prove medical malpractice, which is what a birth injury claim based on negligence is all about, you must show the departure from the standard of care, which caused the injury. The jury is to use the facts that they have in the trial to render a verdict. The fact that the OB has insurance is irrelevant to the determination the jury must render regarding whether negligence took place in the facts before the jury.
Bringing up insurance can run the risk of the doctor having an unfair trial because the jury might just say, “well the doctor has insurance, they ain’t paying the claim anyways.” If this is the case, the jury may not apply the law to the facts of the case. So again the answer to the question of, the OB has insurance can you tell the jury this fact in a birth injury case, is going to be in general, no.
DO YOU HAVE MORE QUESTIONS ABOUT YOUR BABY’S BIRTH INJURY?
To speak with me further about your child’s injury at birth this is what I invite you to do. Pick up the phone and call me. I speak with families all the time regarding birth trauma and brain injuries, as this is what we do.
You can reach me at 301-850-4832.
Marcus B. Boston, Esq.
2 Wisconsin Circle, Suite 700
Chevy Chase, Maryland 20815
1-833-4 BABY HELP
