Do You Need a Certificate in an Informed Consent Case?

New 3rd Circuit Informed Consent Opinion.

Do you need an affidavit/certificate of merit in an informed consent case? Last week, the 3rd Circuit said that you do need a certificate under New Jersey law in Mulholland v. doctorpointThomas Jefferson University Hospitals. This blog post is about this case and how the result would likely be different under Maryland law.

Crazy facts. Plaintiff had kidney problems and a co-worker, the unsung hero of the story, offered to give him one of his. Plaintiff had the HHV-6 virus, a herpes virus. Plaintiff alleged that his doctors neglected to tell him that he had herpes and how that would impact the risks and benefits associated with the success of the transplant surgery.

That sounds bogus enough. You needed a kidney, right? But plaintiff further alleged that the donor had the CMV virus. What is the CMV virus? Let’s just say you might have it and not know it. It is easily transmittable but rarely a problem for anyone. But plaintiff argued that if he had been advised by defendants of the donor’s positive CMV blood test result or his own positive HHV-6 result, he would have chosen to receive a kidney from his wife instead of his co-worker.

So your wife would have given you a kidney, but you took one from a co-worker instead? Did the co-worker know that when he offered you the kidney? Crazy. Court TV needs to do an “Inside the Lines” type of story this case.

Anyway, the plaintiff had problems with the kidney that I’ll bet you were not related to the CMV virus. He wanted to bring a medical malpractice case and he or his lawyers tried to get experts. The two experts they found would not sign an affidavit of merit because a donor being positive for CMV is so common that it would not cause an obligation to inform a transplant patient about the risk of infection. (They later found a family medicine practitioner who clearly did not have the expertise to render an opinion.)

The 3rd Circuit affirmed the trial court’s entry of summary judgment, finding that under New Jersey law, an affidavit is a necessary predicate to a lack-of-informed-consent action.

I suspect you don’t need a certificate of merit in filing a medical § 3-2A-04 (“[u]nless the sole issue in the claim is lack of informed consent” . . . claimant must file a certificate). Still, while you may not need an expert on informed consent, one way or the other a plaintiff needs expert testimony on what the risks of the procedure were. Can a plaintiff rely exclusively on the testimony of the defendant or defendant’s expert to support the plaintiff’s case? That’s a good question I can’t answer. It would be wild to watch this play itself out. What if the expert/defendant provided the testimony but refused to say it was to a reasonable degree of medical probability? It is an appellate case waiting to happen.

Still, for a plaintiff left with no other choice, I think it would all work out somehow. Maryland law does permit calling an opposing party as an expert witness and I have to think that would extend to the opposing parties’ expert witnesses.

You can find the court’s opinion here. For more flavor on this case, read this District Court opinion.

  • You can see a sample kidney transplant gone wrong lawsuit here
  • What is your malpractice claim worth?
  • Informed consent verdict for Miller & Zois client for $1.5 million in 2016
Updated:
  • Ron, you expertly point out what would happen in Maryland and what has happened in NJ now.

    Let me share with you what happens in New York in this situation.

    Before a lawyer is permitted to file a medical malpractice lawsuit in NY, an attorney must have a medical expert review all the records.

    The expert must confirm that there is wrongdoing, that the wrongdoing caused injury and that the injury is significant and/or permanent.

    In NY, the doctor need not prepare and will not sign an affidavit or affirmation confirming his conclusions or opinions. Instead, the attorney is required to affirm that he has consulted with a qualified physician who believes there is a valid and meritorious case.

    So, the attorney is the one who provides the certificate of merit, and the court relies on the attorney to affirm this rather than the doctor.

    The name of the expert who evaluates this case is never disclosed.

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