Choice of Law: Doctor’s v. Blackston
The Baltimore Medical Malpractice Lawyer Blog is dedicated to discussing and analyzing significant Maryland appellate opinions in medical malpractice cases. On July 31, 2024, the Maryland Supreme Court issued an important opinion in Doctor’s Weight Loss Centers, Inc. v. Blackston, No. 17 (July 31, 2024). The case revolved around the choice of law for a damage cap. The lawsuit was a medical malpractice case that the plaintiff filed in Maryland, a decision that this Blog had previously featured in a prior post.
The case delved into Maryland’s choice of law rule lex loci delicti. That rule is the substantive law of the place where the wrong occurred. This is where the last element of medical malpractice occurred. The central issue was whether the plaintiff’s cause of action arose in Virginia or Maryland, a determination that would dictate which state’s damage cap would apply (Op. at 1).
Factual Background
The plaintiff filed her lawsuit in the Circuit Court for Prince George’s County, specifically alleging damages for surgical error medical malpractice and failure to obtain informed consent for a liposuction procedure. The jury found for the plaintiff on both claims and awarded non-economic damages of $2,000,000, economic damages of $60,000, and an additional $240,900 in medical expenses. However, the court did not ask the jury to determine where the plaintiff was first injured. (Id. at 1-2).
Afterward, the defense filed a motion for remittitur. The circuit court partially granted it, consequently reducing the non-economic damages to $755,000 under Maryland’s statutory cap on non-economic damages. CJ 3-2A-09(b). The Appellate Court of Maryland reversed, holding that Virginia’s cap applies because Virginia was where she was infected and first injured, completing her claim. Virginia had a $2.15 million cap on total damages. VA. Code 8.01-581.15. (Id. at 2).
This issue arose because the doctor practiced in Virginia but lived in Prince George’s County, Maryland. The defendant doctor performed a Smart Liposuction procedure on the plaintiff, and she reported an abnormally high amount of pain throughout the procedure. (Id. at 4-5).
Post-op, the plaintiff returned for a follow-up appointment complaining of significant pain, fever, and nausea. Her symptoms continued to worsen over the next several days. (Id. at 5). The plaintiff ultimately was diagnosed with MRSA and hospitalized, where she received five surgeries. (Id. at 6).
The plaintiff filed a pretrial statement stating that the Virginia damages cap applied to the case. (Id. at 7).
The plaintiff’s plastic surgery expert opined that many infections occurred deep in the soft tissue and the procedure introduced them. (Id. at 8). The plaintiff’s infectious disease expert agreed. (Id. at 9). He added that infections don’t manifest immediately after surgery. It takes time before signs and symptoms appear. (Id.).
Maryland Supreme Court
The Supreme Court underlines that it is the jury’s responsibility to decide the factual question regarding the last act leading to medical malpractice. The court suggests identifying the jurisdiction where the plaintiff first suffered injury due to the conduct for which the doctor was found liable. In this case, neither party requested the court to submit this issue to the jury, and neither party objected that it was not submitted.
Statutory damage caps are substantive law and determined by the place of the wrong. The law of the forum determines procedural law. (Id. at 16 fn. 11).
The defense argued that even if the procedure seeded the plaintiff with bacteria in Virginia, it did not manifest into an infection until she was back in Maryland, as the bacteria grew, multiplied, and subsequently reached a threshold. Since antibiotics can intervene to stop an infection from developing, it is the development of infection that causes injury, not the introduction of bacteria. (Id. at 18).
A cause of action for medical malpractice occurs when the plaintiff first experiences any injury even though all of the damage has not happened. (Id. at 21).
The Supreme Court underscores the significance of the plaintiff’s experts’ testimony in establishing the place and time of the injury. Based on the number of infection sites and the depth of the infections, the experts’ opinion that the infection started in Virginia was deemed sufficient by the court.
The Supreme Court noted that the Appellate Court stated that the plaintiff’s signing of the informed consent form in Virginia rendered Virginia law applicable. The Supreme Court said that was inaccurate. The same injury analysis from medical malpractice claims also applies to informed consent (Id. at 14 fn. 9).
Commentary by the Baltimore Medical Malpractice Lawyer on Choice of Law for Damage Cap
I believe the Supreme Court got this decision correct. The court also guided lawyers who will address this issue in the future. The parties can request that the jury determine the place of injury.
The court also stated multiple times that the defense did not challenge the admissibility of the plaintiff’s experts’ testimony regarding when and where the injury occurred. Plaintiffs must be prepared for that kind of challenge in future cases.
In addition, in the Blog post on the Appellate Court opinion in this case, I discussed the strategy that led to the plaintiff filing suit in Maryland and a possible defense response. I also discussed the requirement of notice of intention to rely on foreign law and how to comply. Accordingly, I recommend reading that post with this one.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.