Background Facts
Maryland Appellate Court Applies Virginia Law: The plaintiff underwent a six-and-a-half hour liposuction procedure in Virginia by a cosmetic surgeon who resided in Maryland. The plaintiff suffered a severe infection that she contended through her experts was introduced into her abdomen during the procedure in Virginia. The plaintiff provided the defendant with notice one month before the trial that she intended to rely on Virginia law in her Maryland medical malpractice lawsuit.
The Maryland medical malpractice jury awarded the plaintiff a total of $2,300,900 in damages, which included non-economic damages of $2,000,000, economic damages of $60,000, and medical expenses in the amount of $240,900. The defendant sought to limit the plaintiff’s noneconomic damages award pursuant to Maryland’s cap on noneconomic damages in medical malpractice cases, and attempted to reduce the amount of past medical expenses awarded by the jury under Maryland law that limits past medical expenses to the amount actually paid by the plaintiff. The trial court reduced the total award to $1,055,900, plus interest and costs, and the parties disputed which state’s law governs the damages recoverable.
The Appellate Court of Maryland held in its unreported opinion filed on June 29, 2023: “Here, Ms. Blackston gave notice of her intent to rely on Virginia law regarding damages in the pre-trial statement, which was filed more than one month before the start of trial. We conclude that this afforded appellees sufficient time to object and challenge the reliance on foreign law or to change their trial tactics. The notice was reasonable and in compliance with CJ § 10-504. Accordingly, Ms. Blackston is entitled to the maximum damages under Virginia law, i.e., $2,150,000.”
The Appellate Court of Maryland further held: “It is well settled under Maryland law that a statutory cap on non-economic damages is a matter of substantive tort law and not procedural law … we conclude that a statutory cap on past medical expenses also is a matter of substantive tort law … A cause of action for medical negligence arises where the injury first comes into existence, not where the ultimate damage is suffered … Here, Ms. Blackston had a legally cognizable injury on the day of the procedure. Dr. Raminemi and Dr. Frank both testified that the infection was introduced during the procedure in Virginia, and none of appellees’ experts could definitively state to the contrary. The evidence, therefore, was that Ms. Blackston was “injured” during the surgery in Virginia, and Virginia law applies with respect to the damages recoverable.”
Source Blackston v. Doctors Weight Loss Centers, Inc., No. 553 September Term, 2022.
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