Maryland Medical Malpractice Lawyer Blog

Maryland has enacted significant limitations on the ability of Plaintiffs to use expert witnesses in Maryalnd medical malpractice cases. In 1976, the Maryland Health Claims Arbitration Act was enacted to help address a perceived medical malpractice insurance crisis. In 1986, the legislature further amended the Act to include a certificate of qualified expert requirement. As proposed in Senate Bill 559, an expert only would be qualified to sign a certificate if he or she did not receive 50 percent or more income from testimony and other activities related to personal injury claims. That language was amended to become the 20 Percent Rule; i.e., in order to qualify, a certifying expert cannot devote more than 20 percent of his or her professional activities to activities directly involving testimony in personal injury claims. The dichotomy that the General Assembly sought to reconcile was the desire, on the one hand, to exclude certain “professional witnesses” from the “pool of eligible experts” available to sign certificates of merit, while on the other, it did not want to “shrink” the size of that pool so as to “deny the parties the ability to pursue and defend these [malpractice] claims.” This balance was achieved by the aforementioned language changes which “keyed the critical numerical measurement to time, instead of income,” and narrowing the activities described as “related to” personal injury claims to the more circumscribed world of activities “directly involving testimony in personal injury claims.”

In December 2004, a Maryland General Assembly Special Session passed further amendments to the Act, addressing the issues of how much and what kind of experience an expert witness must have to be qualified to execute a certificate of merit or to testify before a panel or court on the issue of a defendant’s compliance with the standards of care. Those amendments require that a certifying or testifying expert witness: "have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action . . .”

When most people think of a medical malpractice case, they think about the kind of case in which the plaintiff (the party bringing the case) claims that a doctor of hosptial has acted below the standard of care and caused significnat injury in a patient. Another type of medcial malpractice case, however, inolves what is called "informed consent." In the seminal case of Sard v. Hardy, the Maryland Court of Appeals held that the doctrine of informed consent follows logically from the universally recognized rule that a physician treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient. The fountainhead of the doctrine of informed consent is the patient’s right to exercise control of his own body. In order for the patient’s consent to be effective and “informed,” it must have been one that is given after the patient received a fair and reasonable explanation of the contemplated treatment or procedure.

In determining the proper test for measuring the scope of a physician’s duty to disclose risk information, Maryland courts are clear. The appropriate test is not what the physician, in the exercise of his medical judgment thinks a patient should know before acquiescing in a proposed course of treatment, but what the particular patient needs in order to make an intelligent decision. That need is whatever “is material to the patient’s decision. A material risk, in turn, is one which a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment or procedure. In short, whether a physician has fulfilled his duty to disclose, is to be determined by reference to a general standard of reasonable conduct and is not measured by a professional standard of care. Importantly, the law does not allow a physician to substitute his judgment for that of the patient.

From the very beginning, the Maryland Court of Appelas has been clear that there is no bright-line test, or all-inclusive list of items that must be disclosed by a physician in order to procure informed consent. Nevertheless, in Sard, the Court identified five categories of information that generally must be communicated to the patient. (1) the nature of the risks inherent in a particular treatment; (2) the probabilities of therapeutic success; (3) the frequency of the occurrence of particular risks; (4) the nature of available alternatives to treatment; and (5) whether or not disclosure would be detrimental to a patient.

In 2006, the Court of Appeals decided the case of Goldberg v. Boone, its most recent case to address the informed consent doctrine. In keeping with the lack of a bright line test for patient disclosures, this Court held that in addition to the above-referenced five categories, certain “other considerations” may also need to be discussed and resolved on a case-by-case basis, based on the materiality of that information to a patient’s decision. In Goldberg, the issue was whether a physician was obligated to inform his patient that he had performed only one revisionary mastoidectomy over the past three years; and that therefore, there were other more experienced surgeons in the region that could perform the procedure. The Court of Appeals rightly concluded that this information was a valid “other consideration” that would be important to a patient making a decision about whether to go forward with a procedure. The Court further stated that what those ‘other considerations’ may be is determined by what information would be material to a reasonable person in the position of the patient having to decide whether to submit to the medical treatment at issue.

It should be noted that, in Goldberg, the disclosure of the surgeon’s experience to the patient was the sole basis of the informed consent claim. In reaching its holding, it can fairly be interpreted this Court believed that an informed consent case could be made out by the failure to disclose this information, alone, without regard for whether this information fit neatly within the five traditional Sard categories of information addressing the material risks, benefits and alternatives of/to the procedure. The significance of the foregoing is clear – the failure to disclose information that falls within the “other considerations” category will, alone, provide the basis for a prima facie informed consent case.

I have successfully handled a number of informed consent cases in Maryland, some resulting in mult-million dollar verdicts and other involving million dollar settlements. Some have been pure informed consent cases, where there was no allegation of negligence. Others have involved both negligence and infofmed consent claims. Informed consent claims can be a very valuable tool in the plaintiffs' attorneys' arsenal, as it is one thing to act below the standard of care, but worse if you have not told the patient things that they should have been told that would have resulted in their not having the (neglignetly performed) procedure performed in the first place.

A deceased woman’s family has been awarded $2.5 million in a medical malpracice case against the woman’s doctor for misdiagnosis of cancer. According to the family, the woman’s doctor’s negligent actions resulted in delayed treatment and severely reduced her chances of survival.

In 2004, the woman, who then was 24 years old, went to her doctor after experiencing blood in her stool. Her doctor diagnosed the problem as hemorrhoids on several occasions, but the real problem was colon and rectal cancer. Because her doctor failed to timely an properly diagnose her cancer, the woman’s condition went untreated for seven more months. She eventually died in 2007 at age 27.

The family argued that she would have had a extremely high probability of survival - 97% - if the doctor had timely diagnosed her cancer, but that due to the delay in diagnosis her survival rate fell below 50%. A copy of an article regarding the case can be found here.

I have successfully handled a number of medical malpractice / medical negligence / medical error cases in Baltimore and other counties in Maryland involving a failure to timely diagnose and treat cancer. In fact, I was involved in a very similar case where a man repeatedly complained of stomach pains over several years and his family doctor, without doing a colonoscopy, simply diagnosed him with irritable bowel. That is a diagnosis of last resort, which can only be made after other things have been excluded. A couple of years after the diagnosis, the man began to lose weight, have greater stomach problems and went to another doctor. He soon underwent the necessary colonoscopy and was diagnosed with advanced colon cancer. After the man died, that case resulted in a multi-million dollar jury verdict.

While it is unusual to develop colon cancer at such a young age, it certainly does happen and health care providers need to be on the lookout for the unusual.

Many of my Maryland medical malpractice clients ask me whether there is any possibility that they can claim or recover punitive damages in their cases. The answer in every case is no. In Maryland, in order to recover puntive damages, the Maryland Court of Appeals (Maryland's "Supreme Court") decided in the 1992 case of Owens-Illinois, Inc. v. Zenobia, that a person must prove that the defendant acted with "actual malice." Actual malice has been defined to mean intent to injury, ill will, or fraud. In a medical malpractice case, I have never seen a case where a physicain intended to injure a patient, or where there was ill will toward a patient that caused injury. Similarly, I have never seen a case of fraud in a medical malpractice case that injure a patient. While I suppose it could happen, it almost never does.

There are, however, times when punitive damages can be claimed in a medical malpractice case involving a defective product. In Zenobia, the Court of Appeals held that in order to prove a claim for punitive damages, a plaintiff must plead and then demonstrate: (1) that the defendant possessed actual knowledge of the product defect; and (2) that the defendant consciously and deliberately disregarded a foreseeable harm that might result from the defect. With respect to a product manufacturer, the Zenobia Court cited with approval academic commentary which stands for the proposition that manufacturer’s requisite level of knowledge “is usually gained through…testing procedures before the marketing or through post-marketing consumer accident reports and complains received by the defendant.” Additionally, actual knowledge also includes the willful refusal to know. Therefore, a defendant cannot shut his eyes or plug his ears when he is presented with evidence of a defect and thereby avoid liability for punitive damages. Id. Simply put, “the test requires a bad faith decision by the defendant to market or distribute the product, knowing of the defect and danger, in conscious disregard of the threat to the safety of those who will be exposed to the product.” While this is not an easy standard to meet, it can be met, and has been met in many cases, where evidence supports such a claim.