The Court of Special Appeals of Maryland (“Maryland Appellate Court”), in it unpublished opinion dated February 1, 2021, overturned a Maryland medical malpractice jury’s award of $229,640,000 in a birth injury medical malpractice case. The jury had awarded $3,620,000 for past medical expenses, $200,000,000 for future medical expenses, $1,020,000 for loss of earnings, and $25,000,000 for non-economic damages (which was was later remitted from $25,000,000 to $740,000 to comply with Maryland’s statutory cap on noneconomic damages for Maryland medical malpractice claims. MD.CODE,CTS & JUD. PROC. ART. (“CJP”) § 3-2A-09(c)(2)).
The Underlying Facts
In May 2018, Erica Byrom bought suit against Johns Hopkins Bayview Medical Center (“Bayview”) on behalf of herself and her child, Zubida, asserting that Zubida’s injuries were sustained exclusively during the labor and delivery process. In three counts, Ms. Byrom asserted that Bayview had violated her right to informed consent in regard to her delivery options and had provided negligent treatment to her and Zubida by inducing vaginal labor without fetal monitoring rather than performing a cesarean section.
At trial, Ms. Byrom did not testify and presented her case entirely through the testimony of expert witnesses. To support her allegations of negligent treatment, Ms. Byrom presented Dr. Michael Cardwell, a maternal-fetal medicine specialist, who testified that he believed that Bayview had erroneously focused on negative warnings rather than giving Ms. Byrom encouragement for a positive outcome to convince her to consent to a cesarean section. He further testified that because under the circumstances the only safe option for delivery was by cesarean section, Bayview had violated the standard of care by offering induction of vaginal delivery as a treatment option and by discontinuing fetal monitoring.
To support her claim that Bayview breached her right to informed consent, Ms. Byrom relied on Dr. Corinne Leach, a neonatologist who testified that Bayview’s prenatal evaluation of Zubida was inaccurate and Ms. Byrom’s doctors had overstated the likelihood that Zubida would be born with severe disabilities due to pregnancy complications and prematurity.
The Maryland birth injury jury found in favor of Ms. Byrom and Zubida on all counts and awarded damages in the amount of $229,640,000. Bayview moved for judgment notwithstanding the verdict and a new trial. The trial court denied both motions, and the defendants appealed.
Maryland Appellate Court Opinion
The Maryland Appellate Court held: “Because we conclude that the evidence presented at trial was not sufficient to support findings of either negligent treatment or breach of informed consent, we hold that the trial court erred by not granting Bayview’s motions for judgment notwithstanding the verdict. We reverse the judgments.”
Informed Consent In Maryland
For consent to be “informed,” before beginning a treatment or procedure (whether physical or nonphysical), a healthcare professional must provide the patient with “a fair and reasonable” explanation about the “material risks,” specifically, those risks that the healthcare professional knows or should know would be significant to a reasonable person in the patient’s position. Although there is no specific checklist that dictates what information must be provided to a patient to satisfy the right to informed consent, a healthcare professional is generally required to provide a patient with information concerning: (1) the nature of the patient’s ailment; (2) the nature of the proposed treatment; (3) the probability of success of the contemplated treatment; (4) alternative methods of treatment; (5) the risk of failure or unfortunate side effects associated with the contemplated treatment; and (6) other factors that a reasonable patient would consider material in making a decision to undergo a particular treatment.
An objective standard of reasonableness is applied. For consent to be informed, a medical professional must provide information that 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. It is a breach of a patient’s right to informed consent for a doctor to withhold information that is material to the patient’s assessments of the risks and benefits prior to engaging in a treatment or a procedure. In identifying the material risks, it is not relevant whether a treatment (or an alternative) would be contraindicated for a specific patient under a professional standard of care. Rather, this materiality test focuses on the needs of a patient to have enough information to make an informed decision. To prevail in a case alleging lack of informed consent, the patient must prove that a reasonable person would not have consented to the treatment if the risk had been disclosed at the time the decision was made. While expert testimony might be necessary to help the trier of fact understand the nature of the treatment and the likelihood of the risks, expert testimony is not required to determine what information would have been material to the patient in making a decision.
The Maryland Appellate Court stated: “To prove that Bayview had violated her right to informed consent, Ms. Byrom needed to show that, as she was weighing her treatment options, there was some material piece of information withheld by her doctors that, if she had known about it, would have changed her decision. But there is no such evidence in the record.”
“Because Ms. Byrom did not testify at trial, the jury could only speculate about her subjective impressions and motivations, but the position advocated by plaintiffs’ counsel at trial was that Bayview’s overemphasis on the risk that the fetus could be born with severe disabilities had given Ms. Byrom such a negative impression that she gave up hope and, as a result, she made her treatment decision based on her own comfort rather than for the benefit of the fetus.”
“The question to be answered here is whether Bayview conveyed to Ms. Byrom the information that would be material to an expectant mother with severe preeclampsia who needed to make an informed decision about her care. Ms. Byrom was counseled that there were two treatment options: (1) induced vaginal delivery or (2) a cesarean section. Bayview made clear that the recommended treatment was a cesarean section and repeatedly stressed that that procedure gave the fetus the best chance for survival. Bayview repeatedly cautioned against inducing vaginal delivery and warned that the laboring process would put stress on the fetus and could result in severe permanent disability or death.”
“For Bayview to have violated Ms. Byrom’s right to informed consent, the record would have to show that when she was making her decision to decline a cesarean section, a reasonably prudent patient in her position would not have understood that, inherent in Bayview’s treatment recommendation, was the possibility that the baby would live. Against Bayview’s clear advice, Ms. Byrom refused to consent to a cesarean section unless her own life was in danger. She chose to induce vaginal delivery despite Bayview’s warnings. The consequences were tragic. The injuries to the baby were just as Bayview warned. But the record clearly shows that Ms. Byrom received all of the material information necessary to make an informed decision about her care.”
Medical Negligence Claim (Negligent Communication Claim)
The Maryland Appellate Court stated, “Ms. Byrom’s main theory of negligence is based on what she characterizes as negligent communication. She begins by noting that when she was first admitted to Bayview, she consented to a cesarean section to save the baby’s life, but then later withdrew that consent. Her lawyers claim that she changed her consent in this way only because Bayview had told her that there was almost no chance that the baby would survive and if it did, it would be severely disabled … to show causation for her negligence claim, Ms. Byrom needed to offer some piece of evidence showing that the communication caused her decision.”
The Maryland Appellate Court stated, “The only evidence in the record stating any reason for Ms. Byrom’s decision, however, came from the provider notes in her medical records … Ms. Byrom’s experts (and attorneys) disputed the reasons given in her medical records and speculated that the actual reason was that Bayview had erroneously convinced her there was no hope for the baby no matter what. But in the absence of evidence supporting that theory of causation—which could only have come from Ms. Byrom or her family, none of whom testified—Ms. Byrom’s negligent communication claim must fail.”
“Ms. Byrom’s experts also asserted that it was a violation of the standard of care for Bayview to have removed the fetal monitor before and during the induction of labor because without it, the doctors could not be alerted to fetal distress necessitating a cesarean section for the fetus’s life and health. As noted above, Bayview provided testimony that it was its standard practice to turn off the fetal monitor when the mother has declined surgical intervention so that the mother does not have to hear it. See supra, n.4. More critically for negligence purposes, Bayview took these actions only because of the treatment decisions that Ms. Byrom made, against Bayview’s advice.”
The Maryland Appellate Court concluded: “There is no evidence in the record that Bayview withheld any material information from Ms. Byrom that violated her right to informed consent, nor is there any evidence that Bayview was negligent in providing treatment. We hold, therefore, that the trial court erred in denying Bayview’s motions for judgment notwithstanding the verdict.”
Source Johns Hopkins Bayview Medical Center, Inc. v. Byrom, No. 1585 September Term, 2019.
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