In January, I wrote about Marcantonio v. Moen, an Anne Arundel County medical malpractice lawsuit that was dismissed on summary judgment by the trial court. 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 as a result of the negligence to recover an award. So while she was statistically likely to defeat the cancer even with the malpractice, she died.
The post focused on the dissent of Judge Timothy E. Meredith who contended that the requirement that the decedent’s chance of survival should not – as a matter of fundamental mathematics – revolve around the question of whether there was a 51% decrease in the likelihood the decedent would survive. Because if you had a 90% chance of living and defendant’s negligence takes you down to 60% and you die, there is a 75% chance you died as a result of the 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 issue of what probabilities are required to bring a medical malpractice lawsuit for wrongful death. But the Plaintiffs were ordered 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 summery judgment when I was a defense lawyer that was 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 the area of statutory construction.
I think a lot of people were looking to this opinion to see if the new more liberal makeup of the Maryland Court of Appeals was going to lead to real changes in some of the 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 the hopes of many malpractice lawyers in Maryland looking for a more moderate view on what level of harm must be caused to sustain a medical malpractice lawsuit in a cancer misdiagnosis case are set back by this unanimous opinion.