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.

Here, 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. Because 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 sued 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 $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. The plaintiff chose to seek 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) because 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 designation of experts that were resolved in the Defendants’ favor under the “discretion of the trial court” umbrella. It still makes for an interesting read in a unique fact pattern involving expert designations throughout two different cases. The case also quotes a lively exchange between counsel (both well respected Maryland medical malpractice attorneys) at a deposition where one lawyer dealt with a dispute by hanging up the phone (which later received the court’s tacit approval).

Still, the Maryland Court of Special Appeals overruled the Baltimore City Circuit Court Judge because 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 different types of claims:

Catheterization: 39%
Failed Sterilization: 35%
Foreign Objects Left in Body: 66%
Lack of Informed Consent: 25%
Post-surgical Infection: 43%
Medical Malpractice Overall: 36%

This is very interesting data, particularly regarding the recovery rates for post-surgical infection. Obviously, the claim least likely to prevail in one based on informed consent.

In Maryland, we are not required to get 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 alternatives to treatment and (5)whether or not disclosure would be detrimental to a patient. In fact, the testimony of the defendant medical doctor can also provide this testimony (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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