The Maryland Court of Appeals> overturned a lower court in a 4-3 decision in Goldberg v. Boone, a Montgomery County informed consent case.
Plaintiff underwent a mastoidectomy (an operation on the mastoid bone, which is the prominent bone behind the ear, to remove a cholesteatomoa (a rare condition in which skin cells proliferate and debris collects within the middle ear). During the procedure the doctor accidentally drilled a hole into Plaintiff’s skull.
Sixteen years later, Plaintiff saw the medical malpractice defendant otolaryngologist in Rockville, Maryland. The Defendant doctor determined that Plaintiff had another cholesteatomoa and performed an outpatient revisionary mastoidectomy on Plaintiff to remove the second cholesteatomoa.
The day after the procedure, Mr. Boone began having trouble reading, remembering names and recalling words. Subsequent MRI and CT scans revealed hemorrhaging and an opening in his skull.
Plaintiff’ filed a complaint against the subsequent doctor, alleging the doctor committed malpractice by negligently puncturing the Plaintiff’s brain with a surgical instrument during the revisionary mastoidectomy, causing Plaintiff serious and permanent brain damage. Plaintiff also alleged that the defendant medical doctor failed to inform Plaintiff that, because of the hole in his skull, the procedure would be more complex than a standard revisionary mastoidectomy and that there was a risk of sustaining brain damage from the procedure. Moreover, Plaintiff alleged that there were surgeons more experienced available to perform the procedure in Maryland than the defendant, who had performed only one revisionary mastoidectomy in the past three years.
After two days of deliberations, the jury awarded Plaintiff $113,000 for loss of past and future earning capacity, $355,000 for past and future medical expenses and $475,000 for non-economic damages. The total award was $943,000.
The Maryland Court of Appeals’ opinion is a long one. I think two issues are of particular interest: one just for general interest; the second makes what may not be new law but certainly flushes out the extent to which the decision on what information should be conveyed to the patient in informed consent medical malpractice cases is left to the jury. The issues are:
(1) Where a retained expert is asked a single cross-examination question about his prior inconsistent testimony when testifying on behalf of one infamous Maryland sniper defendant, does that question warrant reversal of the denial of a mistrial motion?
(2) Whether it is a jury question on informed consent when the defendant medical doctor did not disclose his relative inexperience in performing the procedure and advising the Plaintiff that there were more experienced doctors in Maryland available to perform the procedure.
With respect to the former issue, here is the relevant portion of the trial transcript where Plaintiff’s medical malpractice attorney is cross-examining Defendant’s expert:
[LAWYER FOR PLAINTIFF]: Now, other people who have talked with Mr. Boone or talked about Mr. Boone or given therapy to Mr. Boone have talked about him not being aware, not having full insight into the degree of the anger that he has or the anger that he expresses. Wouldn’t you agree that is fairly common in these kinds of patients, that they are not fully, they don’t have full insight into all of their problems?
MEDICAL EXPERT: I wouldn’t say that. I mean, it happens, but I’m not, (a) I’m not sure that’s the case in this case at all, and (b) it certainly is, yeah, it’s common, but it’s also commonly not the case —
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[ LAWYER FOR PLAINTIFF]: Okay. I mean, you are hired here basically as a minimizer, aren’t you?
[LAWYER FOR DEFENDANT]: Objection, Your Honor.
THE COURT: Overruled.
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[ LAWYER FOR PLAINTIFF]: Okay. Now, the very last case you testified, you testified against my client, Sharon Burke. You said she had a mild problem, too. Do you remember that?
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[MEDICAL MALPRACTICE LAWYER FOR PLAINTIFF]: She flunked 55 out of 60 tests you gave her and still you called it a “mild” problem. Don’t you recall that?
MEDICAL EXPERT: I recall that I diagnosed her with dementia.
[MEDICAL MALPRACTICE LAWYER FOR PLAINTIFF]: Sir, don’t you remember you used the word “mild”in your courtroom testimony?
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MEDICAL EXPERT: I said it was milder than some, as you may recall, but that she had a moderately severe dementia syndrome.
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[LAWYER FOR PLAINTIFF]: Now, the case before that, that you testified in court, was a criminal case, right?
MEDICAL EXPERT: I’m not sure.
[LAWYER FOR PLAINTIFF]: Okay. Well, you testified a young man, about 18 years old, and you did a daylong battery of tests on him and he tested abnormal in one or two tests, right?
MEDICAL EXPERT: Oh, yes. I know who you are speaking of.
[ LAWYER FOR PLAINTIFF]: Okay. He was only abnormal in one or two tests?
MEDICAL EXPERT: That’s right.
[ LAWYER FOR PLAINTIFF]: Okay. And that young man, you were willing to come into court and testify that he might have been brainwashed into murdering 10 people in the sniper thing, isn’t that true?
[LAWYER FOR DEFENDANT]: Objection, Your Honor.
MEDICAL EXPERT: That is absolutely incorrect and outrageous.
THE COURT: Sustained.
[LAWYER FOR PLAINTIFF]: Well, let’s talk about it for a minute.
MEDICAL EXPERT: Yes.
[LAWYER FOR PLAINTIFF]: The young man’s name – –
[COUNSEL FOR DR. GOLDBERG]: May we approach, Your Honor?
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This is an outrage. I am not getting into the sniper syndrome, and I don’t have the records and I don’t have – – and it has no relevance to this case. And this is only the kind of cross-examination that I heard once before in my career and that came from Marvin Ellin in a case, and I objected to it then and I do now. We don’t know anything about these other cases.
[ LAWYER FOR PLAINTIFF]: I tried to lay a fairly careful foundation before I asked him the question, which is that he testified he tested a young man over a period of eight hours, and this young man he tested only tested abnormal on one or two of the tests he gave him, and yet he was willing to come into court and testify on his behalf. Maybe I phrased it wrong on the ultimate outcome, but he is one of the star witnesses for the defense on this issue of whether or not he had some dissociative disorder.
The point is that he will minimize on one side or maximize on the other side. That is the point I am trying to make here. I think it is absolutely fair.
THE COURT: All right. I am not going to allow you to get into this area. Objection sustained.
[ LAWYER FOR PLAINTIFF]: All right.
The next day, before the jury entered the courtroom, counsel for Dr. Goldberg requested that the judge declare a mistrial, stating:
[DEFENDANT’S LAWYER]: I’ve been very concerned about cross-examination of [Defendant’s expert] that’s highly inflammatory and this is a hearsay issue, and counsel . . . in a calculated questioning brought out in his questioning that it was the sniper case he found that the defendant was brainwashed in which it was anyone who ever lived in this area knows what that is and that’s Lee Malvo. It was on the front page of every paper in this area. The killings occurred near this courthouse. Everybody is involved and it was calculated to prejudice the Defense, even though after he had gotten the question out, the Court sustained the objection. My first concern the damage had been done and accordingly, I respectfully move for a mistrial.
The judge then listened to argument from counsel for Plaintiff as to his rationale for the questions:
[LAWYER FOR PLAINTIFF]: My intent was to bring out, and I have brought out previously that, I was trying to impeach his credibility on being a minimizer or a maximizer, as the case may call for, and in that case, the point was, and it was the most recent trial that he testified in before my other trial. It was right on his list and if they had any problem with me getting into it, they certainly could have mentioned it, but my point was that he testified – –
THE COURT: Well, they did. They objected.
[LAWYER FOR PLAINTIFF]: No, but I mean, I mean, ahead of time because it was right on this list of, that [counsel for Defendant] gave me a list of the man’s testimonial appearances before he appeared and it was very prominent on the list. So my point was that he did an eight hour test on this other guy, found only one abnormal test in the entire eight hours and still was willing to come into court and testify as he did, and I thought that was quite a legitimate contrast to, you know, coming into court and saying that somebody else who has several abnormal test results is hardly damaging at all, and I agree, it’s, that’s why I was trying to avoid the name of the case . . . .
The Montgomery Court Circuit Court judge denied Defendant’s lawyer’s motion for a mistrial, ruling that:
THE COURT: I think the purpose was clear or the inference was clear that [Counsel for Mr. Boone] was trying to suggest that he was called regularly as a minimizer initially by your office and then when he went to the Malvo case, that essentially he’s a hired gun, and then I think that was the purpose that he would, at least that’s what I took, that he was trying to show that he would testify essentially for whoever hired him, whoever paid him.
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THE COURT: And I don’t think it rises to the level of a mistrial. So I’m going to deny the motion for a mistrial
The court did not condone Plaintiff’s lawyer’s conduct in asking questions about a “sniper” in Montgomery County where many of the sniper shootings took place because such questions could easily be construed as a base appeal to the jurors’ passions and prejudices. (I would argue that the “prejudice” is merely the logical conclusion the jury would reach: if the medical expert can spin the cold blooded sniper killings, he can spin anything.) But, the court found, even if improper, it was immediately truncated by the Montgomery County trial judge sustaining the objection. While the court obviously knows that you cannot unring that bell once a lawyer plants a seed in the jury’s mind, regardless of whether the objection is sustained, it found that the improper question played a minor role in the trial and that its prejudicial effects did not transcend the trial judge’s curative measures. More to the point, the trial judge’s failure to grant a mistrial was clearly within the judge’s discretion.
Nothing earth shattering about this part of the opinion because of the expert’s connection to the sniper shootings and because I found interesting the Plaintiff’s malpractice lawyer’s attempt to plant that seed in the jury’s mind, regardless of whether the objection was sustained. In the end, certainly defendant’s lawyer must have known of the issue and should have filed a pretrial motion in limine seeking an order that Plaintiff’s attorney not be permitted to ask that question. That might be hindsight analysis, but it is true.
The second issue the Court of Appeals addressed is whether there is a jury question on informed consent when the defendant medical doctor did not advise the patient that he had performed this procedure only once in the last three years. The defendant doctor’s attorney cited case law from Hawaii, Washington, New York and Pennsylvania that a physician does not have the duty to inform the patient that there are other, more experienced surgeons in the locality.
The court found that in spite of this persuasive authority from other jurisdictions, in Maryland there is no bright-line test or all-inclusive list of items that must be disclosed by a doctor in order to procure informed consent from a patient. The court 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 in issue; causality is demonstrated if a reasonable person in the patient’s position would have withheld consent to the surgery or therapy had that material data been disclosed. Therefore, the reasonable person “expert” must make the call as to whether this is something the reasonable patient would have expected to have been told.
Very interesting case that also touched on the doctrine of lost chance and the interplay of that doctrine with informed consent. To read the entire opinion, click here.