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Maryland’s Common Law Continues to Evolve: McQuitty v. Spangler Eliminates the Physical Invasion Requirement for Informed Consent Cases

Published on Aug 24, 2009 at 1:53 pm in General Blogs.

On July 24th, the Court of Appeals of Maryland issued McQuitty v. Spangler, No. 137, Sept. Term, 2008, in which the Court effectively abrogated its prior holding in Reed v. Campagnolo, 332 Md. 226 (1993) that an informed consent cause of action must involve a failure to communicate a material risk of a surgery, treatment or procedure which is invasive in nature, and may not arise from a failure to communicate medical information where no affirmative treatment or procedure is involved.

The Court’s decision in McQuitty is an interesting development in the common law of informed consent, and is another example of the Court’s willingness to review and reverse its prior decisions in the face of outdated and misunderstood rulings from the Court on important issues of our times. These events of reversal are both fascinating and encouraging and demonstrate the vitality and usefulness of our living common law. I am pleased to again have the opportunity to write on this new development in the law of torts.

Informed consent is common law cause of action wrought with conflict and confusion. A concept that would seem so simple from the words of the seminal Maryland case of Sard v. Hardy–that a person is entitled to all information that would be material to his or her decision to proceed with or forego a treatment or procedure– has created a host of unanswered questions for the bench and the bar. For example: “Is informed consent a separate cause of action or is it simply part and parcel of a pure negligence claim?” “Is expert testimony required to get an informed consent case to the jury?” “Why did the legislature in enacting the health claims arbitration procedures exclude informed consent cases from the requirement that an expert certify the merits of the claim before suit can be filed in a circuit court?” “Must the health care provider’s conduct involve physically invasive procedures for a breach of informed consent to occur, or may a claim arise simply by virtue of the withholding of information or simple inaction that would have been rejected by a reasonable person had they been given the opportunity?”

Although many of these questions remain unanswered, the Court of Appeals in its July 24th decision in McQuitty resolved that breaches of informed consent may arise in the absence of a physically invasive treatment or procedure and that a provider’s failure to communicate an appropriate course of care where no procedure has yet been performed but was merely contemplated is sufficient to constitute a breach of informed consent. Although a plain reading of the seminal Maryland case of Sard v. Hardywould bear out the holding in McQuitty, several cases that preceded McQuitty required a different outcome.

In Reed v. Campagnolo, 332 Md. 226 (1993), the Court of Appeals unanimously held that a cause of action for informed consent does not exist when the allegedly negligent conduct involves a failure to inform a patient of the availability, risks and benefits of testing for birth defects because it did not involve an affirmative treatment or act as opposed to advice or passive inaction. The Court was reluctant to leave to reasonable people the question as to whether certain testing and the options available if such tests revealed an abnormality would be desirable to a patient, or more specifically, whether they could decide on their own whether the information was “material.” The Reed Court concluded the issue of informed consent should be submitted to a jury only after expert testimony established the materiality of the information and thus was more a pure negligence action than an informed consent case that reasonable jurors could decide on their own.

Until the Court’s decision in McQuittyReed and the subsequent cases of Landon v. Zorn, 389 Md. 206, 230 (2005) and Arrabal v. Crew-Taylor, 159 Md. App. 668, 684 (2004) represented the law in this state as it relates to informed consent. Landon re-affirmed that the doctrine of informed consent was inapplicable when a doctor failed to recommend a diagnostic test. In Arrabal, the Court of Special Appeals rejected an informed consent claim grounded in the physician’s failure to offer an emergency Cesarean section after detecting fetal distress. Both cases (and others) are now effectively overruled by McQuitty.

The facts of McQuitty are not much different than those of Reedand Landon. The plaintiff suffered from partial placental abruption at an early stage in her pregnancy. The defendant, her ob-gyn, decided that because of the seriousness of the condition and the extended distance between the plaintiff’s home and the hospital, it would be best for her to remain hospitalized until the baby was delivered. The plan at the time was to delivery the child at thirty-five weeks. During the course of Ms. McQuitty’s six week stay at the hospital, her fetus’ condition worsened, the abruption became more pronounced, and there were signs of fetal distress. The defendant was aware of the worsening condition but did not offer the plaintiff a choice to deliver early to avoid catastrophic consequences. According to plaintiff’s experts, even though the baby was not full term at that time, he would have been born and remained healthy. Ultimately, the fetus went into full blown distress due to oxygen and nutrient deprivation, was delivered emergently, and suffered from profound health conditions that could have been avoided, according to plaintiffs’ experts, had the fetus been delivered earlier when the signs of fetal compromise were or should have been known.

The case was tried twice. In the first case, the jury returned a verdict in favor of the defendant physician on the issue of negligence but was deadlocked on the issue of breach of informed consent. A new trial on that claim was ordered on the informed consent case and the second jury returned a $13 million verdict. The trial judge granted defendant’s motion NOV. That decision was affirmed by the Court of Special Appeals in an unreported opinion. The Court of Appeals reversed and remanded the case for consideration of a remittitur motion filed by the defendant.

The decision by plaintiffs’ counsel to challenge the settled common law was clearly motivated in part by the needs of the profoundly handicapped child, the outcome of the two trials, and by glimmers of hope emanating from a several cases that appeared not to require a physical invasion despite the holdings in Reed and Landon.

In Faya v. Almaraz, 329 Md. 435 (1993), for example, the Court affirmed a claim of informed consent based upon a physician’s failure to disclose to his patient that he was infected with the AIDS virus. And in Goldberg v. Boone, 396 Md. 94 (2006), the Court held that it was correct for the trial judge to submit an informed consent claim to the jury where the evidence reveled that a physician did not inform his patient that he had limited experience in performing a surgery and that other surgeons were more experienced with the surgery.

Clearly, the Court could have preserved the precedent of Reed by rejecting the McQuittys’ allegations of breach, which fit neatly into the cast of physician inaction with no attendant physically invasive treatment. Or it could have focused on the accompanying physical intrusions which occurred during the treatment process to distinguish the case from Reed. Indeed, although plaintiffs’ counsel argued in the alternative that they had satisfied the physical invasion requirement by evidence of the insertion of intravenous lines, serial injections of certain medications, the insertion of a foley catheter and serial extraction of blood for analysis, they also pressed for an outright change in the common law. In the end, the Court ultimately refused to indulge in a disingenuous attempt to preserve the holding in Reedand unequivocally ended twenty-five years of confusion and inconsistency by eliminating the physical intrusion requirement:

“What has confused the understanding of the doctrine of informed consent, nevertheless, is the apparent introduction of a physical invasion requirement in Reed. . . . In that case, when attempting to distinguish a failure to recommend or instruct about a diagnostic procedure from a failure to obtained informed consent, we cited the New York case of Karlsons v. Guerinot, 57 A.D.2d 73 (Ny.App.Div. 1997). In so doing, we shifted the focus of the doctrine of informed consent from a healthcare provider’s duty to divulge material information to a patient to the act undertaken by the provider.”

* ** *

Viewed with the benefit of hindsight, our reference to Karlsons deviated from our common law roots, as well as from cases in which we have explicitly stated that an allegation of lack of informed consent sounds in negligence, as opposed to battery or assault, in direct contravention to Karlsons.

In the present case, we are reviewing the grant of judgment notwithstanding the verdict premised upon the requirement of a physical invasion. We hold today that this is not a requirement to sustain an informed consent claim.

The influence of public policy, sometimes referred to as the fifth element in tort, drives the evolution of the common law as typified in McQuitty. As of late, issues of health care predominate the national agenda. Medical treatment and the availability of more accurate and specific medical information are certainly becoming increasingly important in medical decision making. The internet has helped to educate patients about their medical conditions. According to the President’s Council of Economic Advisors who are pressing for health care reform, many Americans are receiving too much treatment with little overall net benefit. Today, decisions to forego medical treatments are as important as decisions to undergo them. The McQuitty decision appears to embrace all of these concepts and brings much needed clarification to the law of informed consent while giving patients greater autonomy over their own health care decisions.

The lawyers at Belsky, Weinberg & Horowitz have litigated successfully informed consent cases of a variety of sorts. The most recent victory came in the case of Mahler 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 contact Alan J.Belsky who will provide a consultation free-of-charge.

The “Rescue Doctrine” – A Little Known Legal Concept

Published on Jun 29, 2009 at 1:31 pm in General Blogs.

In Wagner v. International Railway, 232 N.Y. 176, 133 N.E. 437 (1921), the learned jurist Benjamin Cardozo first espoused that “danger invites rescue.” Many state appellate courts have since followed this principle of law and hold that a rescuer who suffers injuries during an attempt to rescue a person who is placed in a position of peril as the result of the negligence of another may recover from that person all damages sustained during the rescue.

In addition, it is almost universally accepted in state and federal courts throughout the United States that one who witnesses a person in imminent or immediate peril though the negligence of another cannot be charged with contributory negligence as a matter of law, in risking his or her own life or serious injury, in attempt to effect a rescue, provided the rescue was not undertaken carelessly or recklessly. One exception to this general rule of recovery is that professional first responders such a firefighters and police officers may not recover for injuries sustained in the course of undertaking a rescue.

The person in need of rescue may also be held responsible in the event he or she negligently causes the need for their own rescue.

The attorneys at Belsky, Weinberg & Horowitz, LLC have successfully used the rescue doctrine to obtain settlements in a variety of cases. In one such case, a motorist negligently used his car jack to prop his vehicle up to perform certain repairs on the side of the highway. The jack collapsed, and the weight of the vehicle crushed the motorist. A bystander witnessed the event, and attempted, albeit futilely, to lift the vehicle off the motorist. As a result, the rescuer sustained multiple disc herniations and recovered a confidential settlement for injuries sustained during the rescue attempt. The motorist survived.

Many experienced lawyers are unaware of the “rescue doctrine” which is a long standing yet little used legal concept. For more information on this doctrine, the reader may wish to consider the following additional legal authorities:

White v. State, No. 1960, Md. Ct. Spec. Appeal (2008);

Flowers v. Rock Creek Terrace, 308 Md. 432 (1987);

Comment, Restitutionary Recovery for Rescuers of Human Life, 74 Cal. L. Rev. 85 (1986)

Terrence Kiley, Modern Tort Liability: Recovery in the ’90s (1990).

Prominent Baltimore Attorney Disbarred Over $1,000 Check

Published on Jun 23, 2009 at 1:34 pm in Legal Malpractice.

Last week, the Court of Appeals of Maryland disbarred Michael U. Gisriel, a well known real estate lawyer who hosted a talk show, and was a past member of the Maryland House of Delegates. This was considered “breaking news” by the Daily Record, Maryland’s legal newspaper. The facts of the case are interesting for several reasons and can be read at the Maryland Judiciary website.

Mr. Gisriel has been retained by clients to resolve a real estate dispute. During the course of the representation, he filed court papers that were later deemed frivolous and the trial court imposed sanctions upon Mr. Gisreal and his client of more than $3,000, which Mr. Gisriel paid to opposing counsel. He was later discharged by the clients, who continued part of their case without an attorney. They ultimately resolved their case at a mediation session where it was agreed they would be paid certain monies being held in escrow by the court.

A $1,000 check was sent by the court trustee to Mr. Gisriel who, without authority, signed the clients’ names to the check and deposited it into his general account. He assumed the payment was in partial reimbursement of the fees he paid on his own behalf and on behalf of the clients as sanctions to opposing counsel. The clients were waiting for their $1,000. When they learned that Mr. Gisriel had signed their names and cashed the check, they reported him to the Maryland Attorney Grievance Commission who sought and obtained disbarment.

Mr. Gisriel had claimed that he honestly believed the check was his to cash and that he didn’t give it more than “five seconds” of thought between receiving the check and endorsing it. The Court found he intentionally misappropriated the funds and that his lack of thought was indicative of deceit and not helpful to his defense.

This case is very unfortunate, Many, including two of the seven judges on the Court of Appeals (Bell and Eldrige (retired), believed the decision was too harsh. The two judges, in a dissenting opinion, indicated they would have indefinitely suspended and not disbarred Gisriel based on his good standing and lack of discipinary problems during his more than 30 years in practice. What is also interesting is that the clients who reported Mr. Gisriel wished to withdraw their grievance and signed an affidavit that the matter had been resolved to their satisfaction and that they didn’t want to bring harm to Mr. Gisriel’s legal career. Those pleas obviously fell upon deaf ears at the Grievance Commission who has the right to do what it wishes notwithstanding what the reporting party wishes.

The bottom line is that an attorney may never sign a client’s name to a check or legal document without their express authority. That is basic law with a little common sense mixed in. This action was viewed as theft, as it very well might have been, and is just another example of how some will risk their careers over very small amounts of money.

At Belsky, Weinberg and Horowitz, we request that clients endorse a limited power of attorney whenever there is a need to sign on behalf of clients. There are more extensive powers of attorneys that can be used in other circumstances. We would be happy to discuss free-of-charge our process for preparing powers of attorney.

Court of Appeals of Maryland Decides Important Case on Proximate Cause

Published on Jun 16, 2009 at 1:40 pm in General Blogs.

On June, 12, 2009, Maryland’s top court rendered a decision inPittway Corporation, et al. and The Ryland Group v. Stephon Collinset al., No. 128, September Term, 2007. See Maryland Judiciary Website at http://mdcourts.gov/opinions/coa/2009/128a07.pdf. The case is important for its discussion of the difference between what are known as “intervening” and “superceding” acts of negligence in cases involving multiple defendants where each acted negligently at different times but where there is only one injury. Determining the extent to which a defendant’s acts are so far removed in time and place from subsequent acts of negligence by other defendants so as to relieve an earlier defendant of liability is a difficult task for any court or jury to determine. The instant case was no different in the degree of complexity of the legal analysis, yet it provides an excellent review of the different types of “causation” issues that a case like this presents and makes clear that trial court judges must usually consider the unique facts of the case before reaching decisions on intervening and superceding acts of negligence which may relieve early defendants of liability.

The case involves tragic facts. A home had been renovated by the owners who converted their basement into a medical office. No permits were pulled for the renovations and electrical work was performed. The home was originally built by Ryland Homes and was renovated by a number of subcontractors. The home was eventually rented out and the basement used for bedrooms. At the time of the original construction and subsequently during the basement renovations, substandard fire detectors were located in the basement with insufficient battery back up. A fire broke out in the home and the children of the renters and their friends were killed or seriously injured when a fire broke out. The plaintiffs alleged that a smoke detector with adequate battery back up would have saved the childrens’ lives.

Suit was filed against a large number of defendants, including the manufacturers of the smoke detector and Ryan Homes, alleging negligence and product defects which resulted in the smoke alarm not working when it should have. The smoke alarm at the time was the one originally installed by Ryland during new home construction and was not changed by the renovating contractors and subcontractors during the basement renovations. The manufacturers argued successfully at trial that the failure of the contractors to install newer battery back up alarms were superceding acts of negligence as a matter of law relieving the manufacturers of liability, particularly since the alarms were in compliance with the building code in place at the time the home was built. The trial court agreed and dismissed the case as to the manufacturers and others, and relied upon the allegations contained within the complaint without considering other factual evidence. Thus, the court granted multiple motions to dismiss on the basis that the moving defendants were relieved of responsibility “as a matter of law” due to the superceding acts of the contractors in not removing and reinstalling more modern smoke detectors.

The Court of Appeals reversed the trial judge’s decision, and determined that a trial court ordinarily may not rule on “causation” issues as a matter of law simply by considering the facts alleged in the lawsuit itself, and must consider other specific factual evidence developed during the discovery phase of the case. In the last footnote of the opinion, however, the court noted that upon remand to the trial court for further consideration of the specific facts surrounding the installation of the detector, the content of certain user manuals, and other factual evidence, the trial could find superceding acts of negligence by the renovating contractors that would justify dismissal of one or more of the moving defendants from the case.

The complexities of the court’s opinion have been omitted and simplified here. Proximate cause is an essential element of every negligence action. Where more than one defendant is involved, the issue of whose acts and omissions “caused” injury are frequently disputed. The lawyers at Belsky, Weinberg & Horowitz keep abreast of the law and legal decisions from our state’s courts. We understand the difficulties presented by issues of proximate cause and have dealt successfully with issues similar to those raised in the Pittway case. Please contact our litigation department should you have further questions about our practice areas or a potential claim you have.

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