In January, I wrote about Marcantonio v. Moen, an Anne Arundel County medical malpractice lawsuit that the trial court dismissed on summary judgment. The malpractice lawsuit alleges wrongful death as the result of an OB/GYN’s misinterpreting a sonogram and failing to order sufficient tests to follow up on the woman’s symptoms.
Because of this failure to diagnose, the Plaintiff claims that his wife’s chances of survival went down from 80% to 50%-60%. The Maryland Court of Special Appeals found that there has to be a 51% likelihood that the person would have died but for the negligence. So in this case, she would have to have a 29% chance of living because of the negligence to recover an award. So while she was statistically likely to defeat cancer even with the malpractice, she died.
The post focused on Judge Timothy E. Meredith’s dissent, who contended that the requirement that the decedent’s chance of survival should not—as a matter of fundamental mathematics—revolve around whether there was a 51% decrease in the likelihood the decedent would survive. Because if you had a 90% chance of living and the defendant’s negligence takes you down to 60% and you die, there is a 75% chance you died because of negligence.
The Maryland Court of Appeals reversed that decision last week in an opinion by Judge Greene. I grabbed the opinion and—cheater that I am—ran to the punch line of who won. So I concluded that the court made their decision based on the required probabilities to bring a medical malpractice lawsuit for wrongful death. But the court ordered the Plaintiffs a new trial for a different reason having to do with sham affidavits (relying on Pittman v. Atlantic Realty, a case I argued and won on summary judgment when I was a defense lawyer ultimately vacated by the Maryland Court of Appeals).
Okay, fine, I thought, the issue remains unresolved. But in a footnote to the very last sentence in the opinion, the court notes that the Maryland legislature has not amended Maryland’s wrongful death statute since the court decided Weimer v. Hetrick—the case relied upon by the Maryland Court of Special Appeals – and that the court is not included to overrule prior authority, particularly in statutory construction.
I think many people were looking to this opinion to see if the new more liberal makeup of the Maryland Court of Appeals would lead to actual changes in some more archaic rulings in Maryland medical malpractice and personal injury cases. And, sure, I know this footnote is dicta that is—by its own words—inconclusive on the issue and is not necessarily the view of every judge on the Maryland Court of Appeals. But many malpractice lawyers in Maryland had hopes of a more moderate view on the level of harm caused to sustain a medical malpractice lawsuit in a cancer misdiagnosis case. Those hopes have now receded after this unanimous opinion.
Fennell v. Southern Maryland Hospital Center
While we are on this subject, let’s look at the related case of Fennell v. Southern Maryland Hospital Center from 1990. In this case, the plaintiffs filed a wrongful death and survival action alleging hospital malpractice. The hospital filed a motion for summary judgment under the premise that the victim had only a 40% chance of survival. So doctors can just malpractice them to their hearts’ content? That makes no sense. And a 40% chance of survival is everything if it is all that you have. But the court granted the motion. But the plaintiffs appealed arguing that the survival claim should at least survive.
The Maryland high court did not budge. “We are unwilling to relax traditional rules of causation and create a new tort allowing full recovery for causing death by causing a loss of less than 50% chance of survival.” So I’ll give Maryland law this: it is not ambiguous on this point.