Maryland Appellate Decision Emphasizes Difference Between Medical Malpractice and Informed Consent Claims

In a decision released last year, the Maryland Court of Special Appeals made a ruling that allowed the plaintiff in the case of Fusco v. Shannon, 63 A.3d 145 (MD Special Court of Appeals 2013) to have her case retired after a jury ruled in favor of the defendant at trial. The Court ruled that the lower court applied the wrong standard and incorrectly excluded testimony from an expert proposed by the plaintiffs, which may have changed the result of the trial if it was heard by the jury.

The Facts of the Case
hospital-corridor-1057587-m.jpgThe plaintiff’s husband was diagnosed with prostate cancer in 2003 and began treatment, which included radiation. At the suggestion of the defendant, the plaintiff was also treated with Amifostine, a drug that is used to lessen the severity of the side effects of radiation. After receiving about 25 injections in the first month of treatment, the man began to suffer a severe rash, which the defendant theorized was the result of a reaction to the Amifostine, and the man was hospitalized with Stevens-Johnson Syndrome.

The man’s condition worsened and he was transferred to a burn center and diagnosed with Toxic Epidermal Necrolysis Syndrome. The man remained hospitalized for three months, until he was released to a rehabilitation center. Shortly after his release he was re-hospitalized with acute pneumonia. The hospital’s treatment was unsuccessful, and the man later died. The medical examiner listed Toxic Epidermal Necrolysis Syndrome as the cause of death.

After her husband’s death, the plaintiff filed a medical malpractice and wrongful death suit against the defendant. The lawsuit alleged that the doctor who prescribed and provided the Amifostine failed to obtain informed consent from the patient before beginning treatment. As part of the case, the plaintiff submitted testimony from a pharmacist regarding the risks of Amifostine in treating prostate cancer. In response to this testimony, the defendant moved the court to exclude the pharmacist’s testimony because he was not a medical doctor and therefore not qualified to be an expert in the case. The court granted the defendant’s motion, and the case proceeded to trial without the pharmacist’s testimony, where the jury ruled in favor of the defendants, and the plaintiff appealed.

The Appellate Decision
The appeals court reversed the lower court’s decision, finding that the standard for admitting expert testimony for an informed consent claim was different than that for a medical malpractice claim, and the testimony should have been allowed. The court ruled that the pharmacist’s testimony was addressing the risks of the drug on a patient in the deceased person’s condition, and not concerning what the prescribing doctor told or should have the patient prior to obtaining consent for the treatment. As a result of the court’s ruling, the case will return to the lower court for a new trial, and the plaintiff may be compensated for her husband’s death.

Have You Been the Victim of Medical Malpractice?

The difference between a medical malpractice claim and an informed consent claim can be difficult to discern, and this case demonstrates how important that difference can be. Without a skilled attorney arguing the case properly, a victim could see their meritorious claims or arguments rejected. The malpractice attorneys at Wais, Vogelstein, Forman & Offutt have the experience that is needed to know exactly how to proceed on your claim. If you or someone you love has been injured or killed in the care of a medical professional, Wais, Vogelstein, Forman & Offutt wants to help. Call (410) 567-0800 to schedule a free consultation, or contact us through the website today.

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