Medical Malpractice and Informed Consent in Maryland: New Maryland Court of Appeals Opinion

malpractice maryland appellateBig summer for the Maryland Court of Appeals in personal injury/medical malpractice appellate opinions. The latest in a recent spate of Maryland high court opinions, McQuitty v. Spangler, involves a tragic case of a boy who was born with severe cerebral palsy.

Facts of this Birth Injury Case

The plaintiff’s lawyer argued at trial in Baltimore County that the doctor breached the duty to obtain her informed consent.  The allegation is that when he failed to inform the mother, who was hospitalized for a partial-placental-abruption, of risks and available alternative treatments related to material changes in her pregnancy: a second partial-placental-abruption, oligohydramnios, and intrauterine growth restriction. A partial placental abruption is the premature separation of a portion of a woman’s placenta from the interior wall of her uterus. Partial placental abruptions vary in degree but the larger the separation, the greater the risk to the unborn child.

The mother faced an awful choice: either take the baby early or assume the risks that come. No one should have to even have the option of making such an awful decision. The informed consent argument in this malpractice case was that material facts were learned about the degree of separation on which a reasonable person could have made a different decision, and the doctor allegedly did not communicate these facts to the patient.

At trial, which found the doctor did not commit medical malpractice, the jury could not reach a verdict on the question of informed consent. In a second trial held two years later, the jury awarded the family over $13 million. Even in a cerebral palsy case, that is a big verdict in a Baltimore County, a place plaintiffs’ lawyers universally believe is a challenging jurisdiction.
From a trial tactics standpoint, you cannot help but wonder if the Plaintiffs’ malpractice lawyers had an easier time getting through to the jury by focusing on a single issue—informed consent. Even an informed consent cerebral palsy case will be complicated—claiming medical malpractice caused the cerebral palsy is even a more complex argument.

The Result

The defendant doctor’s lawyer sought a judgment, notwithstanding the verdict. The trial court and the Maryland Court of Special Appeals agreed, holding that Maryland’s doctrine of informed consent only applies to affirmative violations of the patient’s physical integrity. There has to be treatment pursued that should not have been pursued in an informed consent claim. The doctors’ lawyers understandably cited Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145 (1993), in which the court concluded that lack of informed consent is like a battery, requiring an “affirmative violation of the patient’s physical integrity.”

The Maryland high court did something courts rarely do: it decided that Reed was just wrong and a deviation from the common law. The court found that an informed consent lawsuit in Maryland can stand where the doctor withholds material information about a proposed course of medical treatment, or about an ongoing course of medical treatment, causing the patient to decide about medical treatment that he/she would not have made with better information if that decision caused harm to the patient or her unborn child.

This is a very important decision that every Maryland malpractice lawyer needs to read. You can find it here.  The University of Baltimore Law Forum also wrote a good article on this case. This case went on and on.  This is a 2015 opinion on the same case by the Maryland Court of Special Appeals and a 2016 opinion from our high court.



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