Again, I must discuss two cases of medical malpractice which I feel best demonstrate the quagmire our health care system finds itself in. One is a medical malpractice case against a hospital. It follows that this case also has a merit of only 33.48 percent. Nevertheless, there is a legal strategy that tips the scale by not permitting testimony discussing conditions occurring in another country, where the first 17 weeks of fetal development occurred because, if the patient’s immigration history is known, it may be prejudicial. However, it is essential to the defense. Nevertheless, a jury does not know and returns the largest plaintiff verdict for medical malpractice in United States (U.S.) history, $229.6 million. Yet, during trial, defense attorneys for the hospital do nothing to counter this strategy when it is in the interest of their client, if not their duty, to cast doubt on the plaintiff’s case by emphasizing the first 17 weeks of gestation. Two years later, the verdict is overturned by an appellate court. The court rules that plaintiff attorneys fail to prove negligence. During this time these attorneys are handsomely paid.
While this first case represents a non-meritorious lawsuit, which should have been dismissed, a second medical malpractice case against a hospital represents a meritorious lawsuit, which should not have been dismissed. This case has a merit of 90 plus percent. The case involves a hepatic duct injury from a laparoscopic cholecystectomy necessitating two major corrective surgeries, which include a partial hepatic resection and the removal of 12 surgical clips from the patient’s abdomen. There is also an intervening pulmonary embolism. Furthermore, the operative report for the laparoscopic cholecystectomy does not indicate that the hepatocystic triangle, referred to as the “critical view of safety,” is properly visualized. Ordinarily, a hepatic duct injury, placing 12 clips in the abdomen, the failure to visualize the hepatocystic triangle, and the failure to convert to an open procedure are prima facie evidence for a medical error during a laparoscopic cholecystectomy. However, there is a legal strategy which obscures this. The legal strategy is as follows: A self-represented plaintiff, who is also an attorney, retains a qualified medical expert, who prepares a certificate of merit, which states that, based on a reasonable degree of medical certainty, the standard of care is breached during the cholecystectomy; the hepatic duct is injured; and the laparoscopic procedure is not converted to an open procedure when it should be.
When discovery concludes, the presiding judge decides that, for procedural reasons, the certificate of merit presented by the self-represented plaintiff and prepared by a qualified medical expert does not comply with Maryland’s standards and it is, therefore, inadmissible. The defense attorney motions for a partial summary judgment in favor of the hospital and the motion is granted. The plaintiff files post-judgment motions and appeals. During each subsequent proceeding, the same judge presides. Needless to say, the Code of Conduct for United States Judges discourages such behavior, which can undermine a fair trial. These standards even extend to the “appearance of impropriety.” Most other judges would likely recuse themselves in subsequent hearings so as not to run afoul of the appearance of undermining a fair trial. Not so here. Then come two unexpected rulings. One challenges the partial summary judgment. The other challenges the failure to recuse. First, on January 20, 2026, the Supreme Court of the United States rules that, because of procedural diversity among states involving certificates of merit, such a certificate must specify “implicitly, but with unmistakable clarity” that the plaintiff is entitled to relief. The certificate of merit presented by the self-represented plaintiff complies with this. Next, on February 10, 2026, the relevant federal appellate authority issues a disciplinary order against the presiding judge for workplace misconduct involving law clerks. How this second case ultimately concludes is yet to be determined. It has been three years since the partial summary judgment.
Both cases have lifespans of over three years. In both cases, there are legal strategies which undermine a fair trial. Meanwhile, defense attorneys are paid by the same malpractice carrier for the hospital system. Medical experts are paid by their respective attorneys. The malpractice carrier for the health system is paid by all doctors in that network. The malpractice carrier also makes money from investments. The only ones not paid are the plaintiff attorneys and the self-represented plaintiff. They absorb all their transaction costs. In both cases, all patients of the same health care system continue to receive services and they and/or their third-party payers pay these medical bills. These payments offset medical malpractice overheads for these cases. This is how rules of economics work. This is why a paradigm shift in medical malpractice litigation is much needed. This is also how each of us can make a difference if we so choose.
Howard Smith is an obstetrics-gynecology physician.
