Do you need an affidavit/certificate of merit in an informed consent case? Last week, the 3rd Circuit said that you need a certificate under New Jersey law in Mulholland v. Thomas Jefferson University Hospitals. This blog post is about this case and how the result would likely be different under Maryland law.
Do You Need an Expert at Trial in Maryland to Support an Informed Consent Claim?
To support an informed consent claim, expert testimony is “required to establish the nature of the risks inherent in a particular treatment, the probabilities of therapeutic success, the frequency of the occurrence of particular risks, the nature of available alternatives to treatment and whether or not disclosure would be detrimental to a patient.”
So, in Maryland at least, expert testimony is required for informed-consent claims because jurors cannot answer these questions of fact.
But that is a different question from whether you need a certificate. Let’s look at this case.
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 he had herpes and how that would affect the risks and benefits associated with the success of the transplant surgery.
That sounds bogus enough. You needed a kidney, right? But the 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 the defendants of the donor’s positive CMV blood test result or his own positive HHV-6 result, he would have received 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 story in this case.
Anyway, the plaintiff had problems with the kidney 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 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 only on the testimony of the defendant or the 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.
Can You Make an Informed Consent Case into a Battery Claim to Avoid the Expert Requirement?
Don’t try it to avoid medical malpractice by bringing a battery claim for your informed consent case. A claim under the informed consent doctrine must be pled as a tort action for negligence, rather than as one for battery or assault under Maryland law.
- You can see a sample kidney transplant gone wrong lawsuit here
- Maryland federal court opinion that lays out Maryland informed consent and apparent agency law
- What is your malpractice claim worth?
- Informed consent verdict for Miller & Zois client for $1.5 million