Maryland Injury Law Center

U.S. District of Judge Richard D. Bennett issued an opinion Monday in Robertson v. Iuliano, an informed consent medical malpractice lawsuit against a neurosurgeon and St. Agnes Hospital.

New Opinion on Apparent Agency and Informed Consent Law in Maryland

The first question you might have is how this malpractice case ended up in federal court instead of Baltimore City Circuit Court, where the claim was filed? Good question, my dear reader. Only a crazy plaintiffs’ med mal lawyer would file in federal court over Baltimore City because Baltimore is just a much better venue.

So what gives? Apparently, after committing an alleged tort in Baltimore City, the doctor moved to Virginia. It seems odd – in fact, crazy – to me that a defendant who commits a tort in Maryland could avail themselves of removal by moving away after the fact. But, in an earlier opinion, the court opined that the plain meaning of the removal statute mandated federal jurisdiction. It is a silly law, but it is the law.

Facts of Robertson v. Iuliano

Anyway, I know little about the underlying facts. But the case sounds weak to me. The plaintiff claims he would not have undergone back surgery to repair a disc at L4-L5. He suffered from moving a dryer for a customer while working at Lowe’s Home Improvement had he known that he might get an infection from the surgery.

St. Agnes and Neurosurgery Services, LLC and St. Agnes Healthcare, Inc. were also sued. Still, the court ruled in their favor and found that they could not be held liable for Dr. Iuliano’s actions because they were not responsible for ensuring their doctors adequately informed their patients of the risk and because there was no actual or apparent agency. The court dismissed the informed consent argument because Maryland law is clear that the duty to obtain informed consent is the doctor’s job. There is no duty to the patient from the hospital unless they “specifically assumed the duty.” I’m not sure why this would be the law. But it is.

Efforts to Amend Complaint Failed

Before the trial, Robertson filed a motion to amend his complaint to clarify that the lack of informed consent included the failure to disclose alternative forms of treatment. He also wanted to increase the amount stated in his complaint. However, the court has denied his motion to amend the complaint.

Why?  According to the Federal Rules of Civil Procedure, an amendment to a pleading should only be denied if it would cause prejudice to the opposing party, there was bad faith on the part of the person making the amendment, or if the amendment would be considered futile. The U.S. Court of Appeals for the Fourth Circuit has interpreted this rule to mean that amendments should be freely allowed as long as justice requires it.

The court agrees with this but says there are limits.  The judge underscored that the deadline to amend the pleadings had already passed and that to be approved, the amendment must satisfy both the “good cause” standard and the standard set by Rule 15(a)(2) of the Rules of Civil Procedure. The court found that Robertson did not satisfy the “good cause” standard and determined that the amendment would be prejudicial to the doctor. The court concluded that allowing the amendment on the eve of a trial would be unfair to the doctor because discovery has been conducted concerning informing the plaintiff of alternative treatment methods. The amendment would essentially add a new claim to the complaint. So that makes sense.

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Anyone who can blithely throw together a joint tortfeasor release in a malpractice or another complicated tort claim without reading the case law 10 times is an absolute expert on these releases or suffers from an extreme case of irrational confidence. Usually, in my experience, it is the latter.

The job of the Maryland appellate courts in dealing with this unavoidably complicated maze is to give Maryland attorneys clear and concise rules in navigating the path. Given a chance to do this in Mercy Medical Center v. Julian, the court took what I think – and more important the dissent thought – is a different path that might lead to more confusion or, maybe better put, lack of trust that the settling parties know the ramification of the settlement. If I’m right about this, it will have a chilling effect on parties settling in a case with multiple defendants.

This case involved a lawsuit alleging that medical malpractice caused cerebral palsy and the ultimate death of a child. Just awful. (I wanted to throw up a picture with this post but I could not think of one even remotely appropriate.) Plaintiffs and Mercy Hospital settled out before trial. The release – called in Maryland a “Swigert Release” – with Mercy provided for a pro-rata reduction of any judgment against doctor defendant if Mercy was found to be a joint tortfeasor.

Before trial, the doctor’s attorney sought and received the production of the release with Mercy. The doctor did not cross-claim, third-party, or otherwise, make any effort to have a determination made whether Mercy was liable. The jury hit the doctor with an $8,000,000 verdict, reduced to just under $2.2 million by the cap on non-economic damages.

So who pays what? Shockingly, a disagreement ensued so everyone sued everyone again. The doctor sued Mercy for contribution. The plaintiffs – who just want their money – sue the doctor again, asking the court to rule that he is not entitled to contribution. The doctor, seeking a declaration that he was not entitled to contribution. The Maryland Court of Special Appeals lessened this train wreck a little by appropriately merging the two actions.  Continue reading

There is an interesting medical malpractice case on appeal in Ohio – Longbottom v. Mercy Hospital – that I thought deserved a quick blog post today. The case poses some interesting questions on how far outside the box of the case a jury can go in making inferences that were not directly raised by the parties.

The facts are awful, and it pains me to write them out. A nine-year-old boy suffered a head injury at his home. He went to the emergency room. The doctors there checked him out but did not give him a CT scan even though, you know, it is nine-year-old boy with potentially a serious head injury. He went home and went to sleep. The boy woke up in the middle of the night, throwing up and gasping for air. He suffered brain damage and now walks with a limp because of a blood clot.

The big issue was whether the decision not to order a CT scan was a breach of the standard of care. Simple malpractice case, really. The plaintiffs’ experts did not offer opinion testimony whether the doctor had properly instructed the parents on monitoring the child or that such a failure was the proximate cause of the injuries.

But here is the thing: juries do the craziest things. Again, the plaintiffs tried the case on the sole theory that the ER doctor should have ordered a CT scan during the emergency room visit. The jury rejected this argument but substituted its own new theory that the ER doctor failed to instruct the plaintiffs about head injuries. The jury awarded plaintiffs $2.7 million. Continue reading