In its unreported decision rendered on March 13, 2015, the Court of Special Appeals of Maryland (“Appellate Court”) had to decide whether the Maryland medical malpractice jury’s verdict in favor of the plaintiffs should be upheld.
The Appellate Court held that it was proper for the trial court to have decided to not instruct the jury on the affirmative defense of contributory negligence because the defendants did not satisfy their burden to present additional evidence to show that a woman, whose diagnosis of colorectal cancer was delayed, was aware of the need for further medical testing, or that she negligently failed to follow a treatment plan put in place by the defendants.
The Appellate Court further held that it was proper for the trial court to grant the plaintiffs’ motion for judgment on the issue of assumption of the risk because the defendants had not established that the woman knew about the risk, appreciated the risk, and voluntarily assumed the risk (“[a]ny reasonable person when told directly by their doctor that cancer was not a concern could not assume the risk of allowing that cancer to metastasize”).
The Underlying Facts
The 26-year-old woman went to her primary care physician on February 18, 2008, with complaints of blood in her stool for two to three days, gastrointestinal pressure, bloating, and a five pound weight loss. During a follow-up appointment three days later, the woman reported to her primary care physician that she still had blood in her stool, after which she was referred to the defendant gastroenterologist for an endoscopy and colonoscopy.
On February 27, 2008, the defendant gastroenterologist performed an EGD and colonoscopy that “revealed small red lesions (angioestasias vs. petechiae vs. colitis) in the proximal, middle, and distal sigmoid colon, diverticulosis of the transverse colon, and grade 1 internal hemorrhoids.” Despite the woman’s family history of colon polyps, which could put her at a higher risk for colon cancer, the defendant gastroenterologist advised the woman that the colonoscopy had ruled out cancer, and that hemorrhoids or benign telangiectasias were causing her bleeding (however, the defendant he did not see any bleeding during the procedure so he could not determine an undisputable source).
On March 4, 2008, the woman called the defendant gastroenterologist to discuss the biopsy results, during which she reported hard bowel movements. The defendant advised her to take a fiber supplement such as Benefiber or Citrucel and a stool softener once a day, which she did.
In November 2009, the woman returned to the defendant gastroenterologist with intensified rectal bleeding, which the defendant believed was likely from hemorrhoids or another distal source. The defendant ordered a complete blood count (CBC), flexible sigmoidoscopy, CT scan, and Anusol-HC suppositories.
On December 7, 2009, the defendant gastroenterologist performed a flexible sigmoidoscopy that revealed a polyp or mass in the proximal rectum. Further testing was ordered, including a second colonoscopy on December 15, 2009. On December 23, 2009, the woman was diagnosed with stage III colorectal cancer that had already metastasized. The woman had intensive chemotherapy, radiation therapy, and surgical intervention to treat the cancer, and she was hospitalized for various complications. She subsequently died due to cancer.
The Maryland Medical Malpractice Verdict, And The Appeal
The Maryland medical malpractice jury awarded the woman’s parents $3,193,824.09 for their wrongful death claim and $2,584,800.15 to the woman’s estate for the medical negligence claim. The trial judge reduced the portions of the jury’s verdict for noneconomic damages awarded to both the parents and the estate, pursuant to Maryland’s cap on noneconomic damages in medical malpractice claims. The Appellate Court further reduced the noneconomic damages awards, finding that the trial judge had misapplied the reductions required under Maryland law, based on the cause of action that arose in 2009.
Source Metropolitan Gastroenterology Group, P.C., et al., v. Szigety, et al., No. 0025, September Term, 2013.
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