Here is some pro-justice news of interest out of Maryland. The Maryland Supreme Court has reinstated a $13 Million verdict to a mother who gave birth to a baby (also a plaintiff in the suit) born with cerebral palsy. But, the important aspect of the case is an apparent expansion of the informed consent doctrine in Maryland. Essentially, the ruling stands for the proposition that a doctor must, in addition to informing a patient of the risks of surgery, also inform the patient of the potential consequences of not undergoing a particular medical procedure. In this case, the pregnant woman was having a "complicated" pregnancy and was not told that an optional, immediate Cesarean section could have resulted in a healthy baby.
The court held:
“The gravamen of an informed consent claim … is a…duty to communicate information to enable a patient to make an intelligent and informed choice after full and frank disclosure of material risk information and the benefit of data regarding a proposed course of medical treatment,”
Critics of the opinion feel that the decision unnecessarily expands the informed consent doctrine into the area of medical advice.
In September 2001, Peggy McQuitty and her son Dylan sued her obstetrician in Baltimore County Circuit Court, alleging he had breached the duty of informed consent.
The lawsuit, filed in September 2001, claimed that the doctor could have, but didn’t offer the mother the option of an immediate Cesarean section when she was 32 weeks pregnant, even though an ultrasound had revealed an abnormality in her uterus; only ten days later, she suffered a complete uterine abruption and required an emergency C-section.
The jury found in favor of the plaintiffs and awarded $13 Million; the trial judge granted the defense request for a JNOV. The trial judge and the Court of Appeals opined that informed consent did not cover a doctor’s inaction. Obviously, the highest court in Maryland disagreed:
“We shall hold that an informed consent claim may be asserted by a patient in the absence of a battery or affirmative violation of the patient’s physical integrity, because it is the duty of a healthcare provider to inform a patient of material information, or information that a practitioner knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment or procedure…”
Amen to that. Lawsuit Financial congratulates the plaintiffs and their dedicated attorneys on their hard-fought victory. Readers may notice that this case was originally filed in September 2001. The case was tried and twice appealed. It has taken eight long years to finally resolve in the plaintiff’s favor. Contentious cases are easily and persistently fought by the defense because insurance is usually involved; deep pocket insurance companies pay the freight and "delay, deny, confuse and refuse" in an attempt to persuade the plaintiff to settle too early and for too little compensation.
It is very difficult for an injured or disabled plaintiff to sustain any decent standard of living while a serious lawsuit drags its way through the system. Often, litigation delays result in serious financial distress and a plaintiff who will take anything offered to resolve the case. If she can scrape by and wait for fair resolution, she should, absolutely, do so and she should be so encouraged by her attorney.
For people who can’t scrape by, however, the answer should not be a substantially compromised settlement of a valuable claim at the point of a financial gun. Such a result would benefit only the doctor or insurance company that placed the unfortunate plaintiff in that circumstance in the first instance. Strategically placed lawsuit funding , in these situations, may be used to solve plaintiff’s immediate financial needs, provide periodic litigation funding support throughout the remainder of the case, and allow the plaintiff to fight the litigation with less worry about making ends meet.
It is not for every plaintiff; it is not for every litigation situation, but it is a strategic tool that the litigator should be aware of, keep in his or her litigation tool box, and pull out on an as-needed basis. Properly and timely utilized, legal finance can enhance the value of your cases and your practice. An experience, ethical lawsuit finance partner can be a tremendous asset to you and your practice.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.