Belsky Weinberg & Horowitz, LLC A Personal Injury & Workers’ Compensation Law Firm

Court of Appeals Rules in Another Important Informed Consent Case

The Court of Appeals of Maryland today issued a very important opinion on the issue of an expert's qualifications to testify in a medical malpractice trial. In University of Maryland Medical System v. Waldt,the court ruled that "[a]n expert witness was properly prevented from testifying about the standard of care in a medical malpractice case under § 3-2A-04(b)(4) of the Courts & Judicial Proceedings Article when the expert devoted annually more than 20 percent of his professional activities to activities that directly involved testimony in personal injury claims. Activities are 'professional activities' when the activity contributes to or advances the profession to which the individual belongs or involves the individual's active participation in that profession. Professional activities include time devoted to testifying and engaging in peer review of journal articles, but do not include time devoted to reading journal articles, observing procedures, discussing patients with other professionals, and attending conferences when those activities are undertaken for personal or leisurely reasons. The question of whether the expert was sufficiently qualified to testify regarding informed consent was not preserved for appellate review because the plaintiff did not make a sufficient proffer on the trial record of what the substance of the expert's testimony would have been. In addition, the trial judge did not err or abuse her discretion then she evaluated the expert's testimony and qualifications in concluded that the expert did not have a sufficient factual basis on which to render an expert opinion on informed consent."

The case was a divisive one for the judges, with three of seven judges (Atkins, Eldridge and Raker) dissenting on the majority's conclusion that the trial judge properly excluded the expert from testifying in the informed consent portion of the trial because he did not have sufficient qualifications, and in upholding the intermediate appellate court's opinion that the plaintiffs' attorney did not make a sufficient proffer that the expert would have testified that the lack of FDA approval for the stenting device that allegedly caused brain injury was a material issue that should have been disclosed. The majority concluded that the attorney simply proffered that the expert would have testified that the device was not FDA approved for the proposed use without stating more about the expert's opinion on the materiality of that information.

The dissenting judges disagreed and found the lack of FDA approval material in-and-of- itself and was a sufficient proffer to preserve the issue for appeal. Had the issue been before the three dissenting judges, they would have reversed and ordered a new trial on the informed consent claim.

Three judges, (Raker, Bell and Eldridge) dissented on the majority's ruling that the plaintiffs' expert devoted more than 20 percent of his time to activities directly involving testimony in personal injury claims and would have defined more broadly the term "professional activities" to include the expert's review of journals, attendance at medical education seminars, watching other physicians perform surgeries and procedures, and in speaking with colleagues about their patients and the care they render to others. Had those activities been considered "professional," the expert's time spent testifying in personal injury cases would have fallen below the 20 percent threshold and he would have been permitted to testify. The majority, however, rejected those activities as being "professional" since they did not contribute to or advance the profession but were merely leisurely pursuits that benefitted only the physician/expert personally and not patients or the health care profession generally. Sadly for the plaintiffs, under the majority's formula for calculating the 20 percent threshold, the expert exceeded that number by less than 1 percent (20.66%).

We previously reported on the recent case of McQuitty v. Spangler.That case clarified that an informed consent claim may exist even when there is no invasive procedure and that some information is so important that, if it would lead a reasonable person to forego a procedure, it is, by definition, material. The Court of Appeals' decision today in Waldt now raises doubts as to exactly what constitutes a valid informed consent case and raises particular concern in situations where a procedure is new and where physicians do not have significant experience performing them. This is particularly troubling since it will be increasingly difficult under the standard in Waldt to find an expert who is qualified to testify at trial where he or she has not actually performed the new procedure, but who has extensive experience doing related, older procedures and/or who has studied the literature on those procedures but who has not actually performed them. The case also potentially undermines the Court's prior holding in Goldberg v. Boone, 396 Md. 94 (2006), where it held that a physician is required to disclose more information than simply the risks. In that case, the physician was deemed to have breached his duty to obtain his patient's informed consent by not advising the patient that other physicians had more experience with the proposed procedure than he did. The Court held that a jury could find such information material and it should have been disclosed even though it did not involve an outright risk.

The lawyers atBelsky, Weinberg & Horowitzhave litigated successfully informed consent cases of a variety of sorts. The most recent victory came in the case ofMahler v. Johns Hopkins Hospital, which was tried twice in Baltimore City. That case was ultimately settled for a confidential amount and had a very complicated procedural history. Should you have a question or concern as to whether you or a family member received adequate informed consent before undergoing a procedure, please contactAlan J.Belskywho will provide a consultation free-of-charge.

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