What Kind of Malpractice Cases Can You Win?

The Maryland Court of Special Appeals today decided the informed consent medical malpractice case of Mahler v. Johns Hopkins University. The court overturned a Baltimore judge’s decision to grant a motion for judgment notwithstanding the verdict to Johns Hopkins and a defendant doctor.

In this case, the Plaintiff underwent plastic surgery to improve the cosmetic appearance of his chin in 1993. The surgery was performed at Johns Hopkins Hospital by the Defendant surgeon. As a result of that surgery, he suffered permanent disfigurement. Plaintiff argued that there was no informed consent because the Defendant surgeon did not disclose the material risks of the surgery to him. Plaintiff hired a Baltimore medical malpractice attorney, who brought suit against the surgeon and Johns Hopkins Hospital in Baltimore, Maryland.

This case was tried twice. The first trial ended in a verdict for the Plaintiff and an award of $50,000 in economic damages and $500,000 in non-economic damages. Interestingly, the trial judge, Baltimore City Circuit Court Judge Allen Schwait, believed that he had erred in allowing certain evidence at trial (and because he found it excessive as well). To remedy his error, he reduced the malpractice verdict to to $112,500 ($100,000 in non-economic damages and $12,500 in economic damages).

In Maryland, the Plaintiff can either accept a remittitur or reject it and seek a new trial. Plaintiff sought a new trial. After the second trial ended with the Baltimore City jury hung, the court (another Baltimore City Circuit Court judge) granted Johns Hopkins’ motion for judgment notwithstanding the verdict (JNOV) on the basis that the Plaintiff did not make out a prima facie case informed consent case.

There were a lot of issues of interest regarding cumulative expert testimony and the appropriate designation of experts that were resolved in the Defendants’ favor under the “discresion of the trial court” umbrella. It still makes for an interesting read in a unique fact pattern involving expert designations over the course of two different cases. The case also quotes a lively exchange between counsel (both well respected Maryland medical malpractice attorneys) at a deposition where one of the lawyers dealt with a dispute by hanging up the phone (which later recieved the court’s tacit approval).

Still, the Maryland Court of Special Appeals overruled the Baltimore City Circuit Court Judge on the grounds that the court believed that there was sufficient evidence to go to the jury on the question of informed consent. If the jury believed the testimony regarding the risks of the plastic surgery included permanent specific risks and the testimony of the Plaintiff was that these risks were not disclosed, it could have reasonably found that these risks were material and that a reasonable person in the Plaintiff’s position would not have had the surgery, had he been known of those risks.

Jury Verdict Research provides some interesting national data on the likelihood of recovery at trial in a medical malpractice case for various different types of claims:

Catheterization: 39%
Failed Sterilization: 35%
Foreign Object Left in Body: 66%
Lack of Informed Consent: 25%
Post-surgical Infection: 43%
Medical Malpractice Overall: 36%
This is very interesting data, particularly with respect to the recovery rates for post-surgical infection. Obviously, the least likely to prevail in these claims is a claim based on informed consent.

In Maryland, we are not required to obtain expert medical testimony to establish the breach of the doctor’s duty, but such medical expert testimony is required to establish the (1) nature of the risks inherent in a particular treatment, (2) probabilities of therapeutic success, (3) frequency of the occurrence of particular risks, (4) nature of available alternatives to treatment and (5)whether or not disclosure would be detrimental to a patient. In fact, this testimony can also be provided by the testimony of the defendant medical doctor (which is exactly what happened in this case).

In summary, this case is an interesting read both on the law and the facts. Click here to read the full Maryland Court of Appeals opinion.

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