Articles Posted in Maryland Law

The Maryland Court of Appeals just issued its decision in the Coleman v. Soccer Association of Columbia case regarding whether to abandon the doctrine of contributory negligence (if a plaintiff is the least bit negligent, the plaintiff loses) in favor of the doctrine of comparative negligence (if a plaintiff is negligent, the plaintiff’s recovery is reduced by the percentage of the plaintiff’s negligence). Those on the victims’ side will say that this decision is a refusal to move from an antiquated doctrine to a modern doctrine. Those on the corporate and insurance side will consider this a win.

As set forth in the decision, contributory negligence traces its roots to 1809 in England. Almost all states in the U.S. subsequently adopted the doctrine contributory negligence. But over the years, all but four states and the District of Columbia have adopted comparative negligence. Those states that have abandoned the doctrine of contributory negligence have done so on the basis that is not fair to prevent a plaintiff from recovering when the defendant is negligent and the plaintiff is only 1/10th of 1% negligent.

In the Coleman decision, the Maryland Court of Appeals recognized that it had the authority to change from contributory negligence to comparative negligence since it was that court that originally adopted contributory negligence. However, the court said that for such a change to take place the Maryland legislature should make the change.

The Food and Drug Administration (FDA) regulates prescription drugs and medical devices to ensure that these products are safe and effective for their intended use. Frequently, medical professionals see clinical uses for medical devises that lie outside of the FDA-approved labeling. This is a practice known as “off label use.”

While off label use of a medical device may be legal, a prescription drug or medical device should not be used “off label” without a patient’s consent. In Maryland, and in most states, the medical malpractice doctrine of “informed consent” requires that doctors (in a non-emergency setting) present the patient with important information about the nature of their ailment, the nature of the proposed treatment, the probability of success of contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment. This information allows the patient to decide which course of action to pursue.

In the recent Maryland case of Fusco v Shannon, the Court of Special Appeals held that a pharmacist was qualified to testify regarding off label use of a prescription drug in an medical malpractice informed consent case. The case involved an 82-year old man, Mafalda Fusco, who was diagnosed with prostate cancer and elected to undergo radiotherapy treatment. The physician to whom he was referred for this treatment explained the nature of radiation, including the need for a commonly used radiation protectant, Amifostine. Mr. Fusco underwent 23 injections of Amifostine and later suffered from a serious reaction, which causally contributed to his death.

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