Published by Arfaa Law Group
Patients rely on their medical providers to communicate clearly about risks, alternatives, and potential complications so they can make informed choices about their care. When a provider fails to convey essential information before a procedure or delivery, the legal consequences may unfold years later in contentious litigation. A recent decision from a Maryland court demonstrates how the evidentiary burdens in informed consent claims can determine the outcome before a jury ever hears the case. If your child suffered harm at birth, it is smart to talk to a Baltimore medical malpractice attorney to understand how Maryland law applies to your circumstances.
Case Setting
Allegedly, the plaintiff received obstetric care from the defendant physician during two pregnancies several years apart. During the first delivery in 2002, the baby was born without a diagnosis of shoulder dystocia, although a delivery record contained conflicting check marks referencing the condition. Both the plaintiff and the defendant recalled the first delivery as difficult but uncomplicated by shoulder dystocia, and no delivery note was written to document the event.
Reportedly, the plaintiff returned to the defendant for prenatal care in 2006 while pregnant with her second child. Because neither the plaintiff nor the defendant knew of any shoulder dystocia in the earlier birth, the defendant did not consider this factor when counseling the plaintiff about delivery options, and no discussion of a cesarean section took place. The plaintiff later went into spontaneous labor, and during delivery, a serious shoulder dystocia occurred, resulting in a permanent brachial plexus injury to the infant.
Allegedly, the plaintiff filed suit in 2011, alleging medical negligence, and later added a claim for lack of informed consent. The case had multiple continuances due to issues with expert witnesses. At trial in 2015, the plaintiff abandoned the negligence claim and pursued only a claim for informed consent.
It is alleged that shortly before trial, the plaintiff attempted to subpoena one of the defendants’ expert witnesses. The trial court granted a motion to quash the subpoena, finding the request improper because of a lack of disclosure, a lack of arrangements for compensation, and a significant trial delay. At the close of the plaintiff’s case, the defendants moved for judgment, which the court granted, concluding that the plaintiff had not presented legally sufficient expert testimony. The plaintiff appealed.
Pleading Requirements in Birth Injury Cases
The court began by examining whether the trial court correctly granted judgment in favor of the defendants on the informed consent claim. The court applied the established standard requiring expert testimony to explain material risks, therapeutic alternatives, and the medical significance of those risks. Although the plaintiff questioned the defendant physician as an adverse witness, the court emphasized that expert testimony is admissible only when the witness has been formally qualified and received as an expert. Because the plaintiff did not identify the defendant physician as an expert before trial or offer her as an expert at trial, the court found that the foundational requirements for expert testimony were not satisfied.
The court further concluded that even assuming the adverse testimony could be treated as expert opinion, the plaintiff still failed to establish a prima facie case. The doctrine of informed consent obligates a provider to disclose material risks that would be significant to a reasonable patient.
In the absence of clear evidence that a prior shoulder dystocia occurred, and in light of the defendant’s testimony that the plaintiff did not meet the criteria for a cesarean section, the court held that the provider had no duty to counsel the plaintiff about risks associated with shoulder dystocia before the second delivery. Without proof of a duty to warn or evidence connecting the alleged nondisclosure to the injury, the claim could not proceed.
The court next addressed whether the circuit court abused its discretion in quashing the plaintiff’s subpoena of the defendants’ retained expert. The court reviewed the circumstances, including the plaintiff’s failure to disclose the expert in pretrial filings, failure to compensate or coordinate with the expert, and late-stage attempts to call the witness. The court affirmed that trial courts have broad discretion in managing discovery and witness issues and found no abuse of discretion. The court additionally noted that the plaintiff made no substantive proffer of the expert’s expected testimony, leaving no basis to determine whether exclusion caused prejudice. For these reasons, the court affirmed the trial court’s judgment.
Meet with a Trusted Baltimore Medical Malpractice Attorney
If you or your child suffered preventable harm during pregnancy, labor, or delivery, the trusted Baltimore medical malpractice attorneys at Arfaa Law Group can help you evaluate whether informed consent or medical negligence principles may apply to your case. Call our office at (410) 889-1850 or contact us online to arrange a consultation. We proudly serve clients throughout Baltimore and nearby Maryland communities.