In the age of “tort reform,” some people still think that a jury will hear a frivolous birth injury case. This is good talk for politicians and other television and media commentators, but the truth of the matter is that in Maryland at least, this requirement prevents frivolous birth injury cases.
At the conclusion of this birth injury educational article, you will have a better understanding of this issue and why in many instances, the public is not well informed as to what goes into bringing these cases to a jury. As always, remember that this article is written based on how these cases are litigated in the state of Maryland.
WHAT IS A FRIVOLOUS LAWSUIT?
Before getting to the main point of this article, I am going to explain what is meant by a frivolous lawsuit. A frivolous lawsuit is one that does not have any legal merit and has no factual basis for any claim. Based on the facts that exist, there is no cause of action under the law that would present itself.
One of the best ways of understanding a frivolous lawsuit would be through a simple example. Let us say that two women are walking past each other at a grocery store. They are both at the front door, with one woman walking into the store and the other woman is walking out of the store. The woman walking into the store says hello to the woman walking out of the store. Upset that the woman walking into the store said something to her, the woman walking out of the store files a lawsuit against the woman walking into the store for breach of contract.
In the above example, you can see how this lawsuit would be considered frivolous. There are no facts in this situation which would give rise to some sort of breach of contract action. No facts exist to even remotely suggest there is a contract between the two women.
THIS REQUIREMENT PREVENTS FRIVOLOUS BIRTH INJURY CASES
Under Maryland law to prove a birth injury case the law has certain steps which must be met. One of these requirements is the certificate of qualified expert. The reason this requirement prevents frivolous birth injury cases is included in this requirement, the attesting expert must state the departure from the standard of care, and how that departure is the proximate cause of the injury, addressing each defendant that is named in the case.
Housed in the certificate of qualified expert is a requirement that the expert write a report that outlines the applicable standard of care and outline facts of the case which demonstrate how or why the defendant did not met the standard. Remember, this report must be based on the facts of the case.
What this reinforces is that a birth injury case in Maryland cannot be filed without a set of facts which create an action for a jury or fact-finder to decide. The fact that the defense might “disagree” with whether there is a departure of the standard of care does not mean that the case is frivolous because there is a medical expert on the other side of the case outline facts in which a jury could decide the case on behalf of the plaintiff, as with the defense expert and the defense.
DO YOU NEED AN INVESTIGATION INTO YOUR BABY’S BRAIN INJURY AT BIRTH?
Hopefully now you have a better understanding of some of the issues in which these cases present. If a birth injury case makes its way to a jury, there is more than likely no way the case is going to be frivolous because of the legal hurdles which ensure there is a factual bases for the cause of action and claim(s).
To speak with me further regarding what may have happened during your baby’s delivery just pick up the phone and call me. I talk with families all the time about birth injury issues. These issues range from what we talked about in above regarding HIE, but also cerebral palsy and other birth trauma issues.
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
