Big summer for the Maryland Court of Appeals in personal injury/medical malpractice appeals opinions. The latest in a recent spate of Maryland high court opinions, McQuitty v. Spangler, involves a tragic case of a boy who was born with severe cerebral palsy. Plaintiff’s lawyer argued at trial in Baltimore County that the doctor breached the duty to obtain her informed consent when he failed to inform the mother, who was hospitalized for a partial-placental-abruption, of risks and available alternative treatments related to material changes in her pregnancy: a second partial-placental-abruption, oligohydramnios, and intrauterine growth restriction. A partial-placental abruption is the premature separation of a portion of a woman’s placenta from the interior wall of her uterus. Partial-placental abruption vary in degree but the larger the separation, the greater the risk to the unborn child.
The mother in this case faced an awful choice: either take the baby early or assume the risks that come. No one should have to even have the option of making such an awful decision. The informed consent argument in this malpractice case was that material facts were learned about the degree of separation on which a reasonable person could have made a different decision, and these facts allegedly were not communicated by the doctor to the patient.
At trial, which found the doctor did not commit medical malpractice, the jury was unable to reach a verdict on the question of informed consent. In a second trial held two years later, the jury awarded the family over $13 million. Even in a cerebral palsy case, that is a big verdict in a Baltimore Court, a place plaintiffs’ lawyers universally believe is a challenging jurisdiction.
From a trial tactics standpoint, you cannot help but wonder if Plaintiffs’ malpractice lawyers had an easier time getting through to the jury by focusing on a single issue – informed consent. Even an informed consent cerebral palsy case is going to be complicated – claiming medical malpractice caused the cerebral palsy is even a more complex argument.
Defendant doctor’s lawyer sought judgment notwithstanding the verdict. The trial court and the Maryland Court of Special Appeals agreed, holding that, Maryland’s doctrine of informed consent only applies to affirmative violations of the patient’s physical integrity. In other words, there has to be treatment that was pursued that should not have been pursued for an informed consent claim. The doctors’ lawyers understandably cited Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145 (1993), in which the court concluded that lack of informed consent is similar to a battery, requiring an “affirmative violation of the patient’s physical integrity.”
The Maryland high court did something courts rarely do: it decided that Reed was just wrong and a deviation from the common law. Accordingly, the court found that an informed consent lawsuit in Maryland can stand where the doctor withholds material information about a proposed course of medical treatment, or about an ongoing course of medical treatment, thereby causing the patient to make a decision about medical treatment that he/she would not have made with better information if that decision caused harm to the patient or her unborn child.
This is a very important decision that every Maryland malpractice lawyer needs to read. You can find it here.