In a published opinion of the Appellate Court of Maryland filed on March 1, 2024, the appellant was seen in the emergency room with complaints of her right foot being cool and pale, with symptoms increasing when leg elevated. The emergency medicine doctor found pedal pulses but ankle brachial index score for the right foot was abnormal. The doctor found diminished arterial blood flow that was not emergent/urgent. She advised the appellant to see a vascular surgeon in three to five days, giving her a name and contact information, and to return to the emergency room before then if her symptoms worsened.
Two days later, the appellant returned to the emergency room with increased symptoms and was admitted to the hospital. A vascular surgeon was called for a consult, which was not labeled “stat,” but did not see the appellant that day or the next. The appellant was suffering from right lower extremity ischemia due to diminished arterial blood flow.
When other interventions did not work, the appellant underwent a below-the-knee amputation of the right leg. She and her husband sued the emergency room physician and the vascular surgeon (and other physicians later dismissed) and the entities they worked for, alleging ordinary medical negligence against both and lack of informed consent against the emergency medicine physician. At trial, at the close of the appellant’s case-in-chief, the court granted judgment in favor of the emergency medicine physician on the informed consent claim. The jury returned a defense verdict on all counts submitted to it.
The trial court precluded the appellant’s board-certified vascular surgery expert from testifying during trial that the emergency medicine physician breached the standard of care by not arranging an immediate consultation by a vascular surgeon. Because the emergency medicine physician was board certified, standard of care testimony against her only could be given by a physician board certified in the same or a “related” specialty. Specialties are related for this purpose when under the circumstances of the case they overlap or involve symmetry of treatment.
Related Specialities
In this Maryland medical malpractice case, the emergency medicine physician’s role was to evaluate patients on the front-line. The vascular surgeon was not a front-line caregiver who would determine whether a consultation was needed but was a specialist who saw patients upon referral or consultation. As such, the Appellate Court of Maryland held that the trial court’s ruling that the physicians were not in related specialties in the context of this case was not an abuse of discretion.
Informed Consent
The appellant contended that the emergency room physician’s recommendations were a “treatment plan” and therefore she was required to obtain the appellant’s informed consent, including advising her of reasonable alternative treatment options. These included treatments the emergency medicine physician was not recommending, such as admission to the hospital, because in her medical judgment the appellant did not need them at that time. They were the same treatments the appellant was claiming the emergency medicine physician breached the standard of care by not performing. The trial court granted judgment in favor of the emergency medicine physician, ruling that this evidence was legally insufficient to prove breach of the disclosure duty imposed by the doctrine of informed consent. The Appellate Court of Maryland held that the trial court did not err: the recommendations were not a treatment plan and, if they were, the doctrine of informed consent does not impose on a physician a duty to disclose treatment options that he or she does not recommend because they are not indicated. Such a claim is grounded in ordinary medical negligence, not informed consent.
Standard of Care (Defendant’s Internal Rule)
Nonetheless, the Appellate Court of Maryland held that the trial court abused its discretion by ruling that the appellant’s vascular surgery expert could not opine that the vascular surgeon breached the standard of care by failing to perform a consult on the appellant within two to three hours of being advised of her condition. The trial court had accepted that an internal rule of the vascular surgeon’s medical practice, that a consult request that is not designated “stat” may be performed within 24 hours of the request, established the standard of care, and ruled that the appellant’s expert witness could not testify to the contrary. The Appellate Court of Maryland held that an internal rule of a defendant, and in particular of a health care provider, does not fix the standard of care, which under well-settled Maryland law is a national standard of care.
Source Janet Jarvis Street, et al. v. Upper Chesapeake Medical Center, Inc., et al., No. 696, September Term, 2022.
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