In Billing v. Moulsdale, the Maryland Court of Special Appeals overturned a defense verdict and granted the plaintiff a new trial in malpractice lawsuit on damages only.
What the doctor was found to have done as a matter of law is pretty gross doctor are pretty gross. Essentially, and you can read the case if you want all the details, the doctor performed a breast and vaginal exam on a patient that was completely unrelated to the care he was providing.
Was this a onetime thing? It never is. Dr. Moulsdale surrendered his medical license after more women than just the plaintiff accused him of performing unwarranted and unnecessary breast, pelvic and rectal examinations on several female patients.
Facts of Billing v. Moulsdale
The plaintiff went to see the defendant, Dr. Moulsdale, for an examination relating to kidney stones. At the appointment, Dr. Moulsdale had the plaintiff disrobe and then performed examinations of the plaintiff’s breasts, vagina and rectum. These unnecessary examinations had nothing to do with her kidney stones. Plaintiff did not give her consent. The plaintiff sued Dr. Moulsdale asserting intentional tort claims and claims for lack of informed consent and professional negligence. The latter claims triggered insurance coverage of the Doctors Company.
Plaintiff moved for partial summary judgment on her claim of informed consent. The motion was granted. Just prior to trial, the parties entered into a pretrial stipulation in which the doctor waived his defense on informed consent (including any appeal of the summary judgment motion). In exchange, the plaintiff agreed to drop her intentional tort claims and cap her damages at $1 million. This is a win-win for everyone. The plaintiff did not want to lose her negligence counts. Because winning on just the intentional tort claims might cause the Doctors’ Company from disclaiming coverage because it excludes intentional acts. The doctor, meanwhile, gets the protection of any judgment being with his coverage limits.
So we have a trial on damages as to how much the jury should award? Right? Not so much.
At the opening of the trial, there was a debate on how to handle the Summary Judgment and how to instruct the jury on it. Plaintiff wanted to read parts of the summary judgment memorandum opinion stating what Dr. Moulsdale did wrong. Dr. Moulsdale’s defense lawyers argued that the jury should only be told that the summary judgment order determined that Dr. Moulsdale did not obtain informed consent for kidney stone treatment.
The trial judge sided with Dr. Moulsdale on this issue and gave the jury the following instruction at the opening of trial regarding the Summary Judgment ruling on informed consent:
Regarding the claim for informed consent the court has ruled that Dr. Moulsdale did not obtain informed consent (for the treatment of a kidney stone).
This issue came up once again at the close of the trial when the parties debated what was left for the jury to decide on the issue of informed consent. Plaintiff’s malpractice attorney logically claimed that the granting of summary judgment established that she was injured by the lack of informed consent. The jury was only left to decide the amount of damages she should get for it.
Dr. Moulsdale’s lawyers saw it differently. They argued that the summary judgment ruling did not resolve the issue of whether his failure to obtain informed consent caused any injury to [the plaintiff] and that the jury should resolve this issue. Once again, the trial judge sided with Dr. Moulsdale, and the jury instructions included the following question:
“Do you find that the lack of informed consent caused damage to the Plaintiff?”
The jury entered a verdict in favor of the defendant, finding the plaintiff had not been harmed. This appeal followed.
Issue on Appeal
On appeal, the plaintiff argued that the trial court wrongfully submitted the element of proximate cause to the jury. She claimed that the summary judgment ruling on her informed consent claim and the pretrial stipulation basically resolved the issue of duty, breach, causation, and damages in her favor. Accordingly, plaintiffs’ lawyers contended that the jury should only have been asked to decide how much money she should get.
Dr. Moulsdale obviously took a much more narrow view of the summary judgment ruling and what it resolved.
Court’s Holding in Billing v. Moulsdale
The Maryland Court of Special Appeals ruled that the summary judgment did in fact conclude that the plaintiff was injured by the failure to obtain informed consent. The court agreed with the plaintiff that the only issue left for the jury to decide should have been the amount of damages she should get. In the court’s view, there was simply no way to reconcile Dr. Moulsdale’s absurdly narrow interpretation of the summary judgment ruling with the express words of the SJ Order or Memorandum Opinion.
The summary judgment ruling found that the plaintiff was entitled to judgment as a matter of law on her informed consent claim. This meant she had satisfied ALL of the elements of a claim for lack of informed consent, including causation and injury. The Court held that when summary judgment is granted as to a cause of action, it necessarily means that each and every element of that cause of action has been satisfied.
My Analysis of Billing v. Moulsdale
The tactics by defense counsel in this case were very bait and switch, right? But the game is the game, as Omar Little taught us. Defense lawyers are going to defense lawyer. If plaintiffs’ lawyers had it over again, they would have made that stipulation spell the whole thing out. “Defendant concedes that the summary judgment order includes duty, breach, causation, and damages. Therefore, the only remaining issue to be decided by the jury on the informed consent count is how much, if any, to award.”
Of course, it is easy to get on your high horse on a blog. I could have made the same mistake as these plaintiffs’ lawyers. (I don’t know who they are; I can’t find the briefs online.) When you had a case like this, you are always worried because you know at the end of the day, this is an intentional tort. They smartly pled it with negligence and informed consent counts. But we all know what this guy did. It has intent written all over it. So when you get a stipulation that locks in your negligence counts and gets rid of the intentional torts, you jump on it quickly. Who would have thought the jury would not have pushed past this arguably trivial issue? (It does not make me want to race to the courthouse steps in Hartford County to seek justice.)
Ironically, the plaintiff is the big winner in all of this. The delay and stress with this appeal can’t be minimized. But that was the wrong jury for her to hear her case. I’m not sure they wouldn’t have written down a “$0” for the award even if the summary judgment had been properly presented to the jury. Now she gets another jury that I would think would likely be far more receptive to her claims than this one was.
Ultimately, it all worked out like it should, consistent with Maryland law.
One final thought. This is an unreported opinion. This means the next time this same thing happens, there will be a vacuum of what the law should be. Why? I don’t get it.