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
The 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.