Standard of Care: Street v. UCMC 4
This post is part 4 of a series on the recent Maryland medical malpractice case of Street v. Upper Chesapeake Medical Center, Inc., and focuses on the standard of care ruling, and where the case stands on remand. The Appellate Court of Maryland issued a reported opinion on March 1, 2024.
In part 1, I addressed when an expert is in a “similar specialty” to that of the defendant doctor. CJP 3-2A-02(c)(2)(ii)(1)(B). In part 2, I addressed the Court’s ruling on the issue of peremptory challenges. I then in part 3 addressed the informed consent ruling and where the case is on remand.
Facts
Here, I will repeat the basic facts of the case. The plaintiff sued a hospital, an emergency room doctor, a vascular surgeon, and their practice groups. She alleged that as a result of breaches of the standard of care, she had to undergo a below-the-knee amputation. After a two-week trial, the jury then returned a defense verdict, and the plaintiff appealed. (Op. at 1).
On June 16, 2017, the plaintiff went to the emergency room. Her right foot was numb, pale, and cool. An ultrasound showed an abnormal Ankle-Brachial Index (ABI). After a physical exam, Dr. Lu found no emergent vascular compromise to warrant emergent intervention. However, due to the low ABI, she recommended follow-up with vascular surgery if symptoms continued (Id. at 3-4).
On June 18, the plaintiff then returned to the ER. She reported that the pain was worse and the top of her foot was icy cold. ER Dr. Bassi admitted the plaintiff. The ER doctor requested a vascular surgery consultation. The consultation did not occur for two days. (Id. at 5-6).
Maryland Standard of Care
The trial court precluded the plaintiff’s vascular surgeon expert from testifying that the defendant’s vascular surgeon breached the standard of care by not doing a consult on June 18 or 19. The defendant practice group had a policy of responding to non-stat consult requests within 24 hours. Moreover, Dr. Lu requested a consultation with the group. Dr. Gonze was not on call on the 19th. Therefore, the trial court precluded the plaintiff from arguing that the failure to consult on either day was a breach.
The Appellate Court ruled that the trial erred in finding that the group’s response policy established the standard of care and that no other evidence could be offered (Id. at 51). The policy can be evidence of the standard of care but cannot control that issue (Id. at 52-53).
Commentary on the Maryland Standard of Care
The defense’s argument that the vascular surgeon group’s policy set the standard of care can be easily dismissed by looking at the ramifications. Such a rule would encourage self-serving guidelines that would be far looser than quality patient care would require. In addition, there would be varying policies within a hospital among specialists of the same type and among hospitals in a community. Moreover, as groups and hospitals amend policies, patients would face differing policies depending on whether they present before or after a policy change. All of this would be under the fiction that these vastly differing and constantly changing policies reflect a reliable and consistent standard of care.
Next for the Standard of Care Claim
Maryland Supreme Court
At this time, the deadline for seeking review in the Maryland Supreme Court has not run. The Appellate Court’s opinion was not a complete win for either side, and as a result, either can seek review in the highest court. However, the Supreme Court does not have to accept any such appeal—it is discretionary. Given the overall soundness of the Appellate Court’s ruling, I would be surprised if either party sought such a review, and I would be even more surprised if the Supreme Court would grant it.
Maryland Circuit Court
As a result, the likely next step is remand in the circuit court, in the Appellate Court’s opinion. The plaintiff’s initial case had a standard of care claim against the ER physician on the 16th for not requesting a vascular consult. It also alleged negligence on the part of the vascular surgeon for waiting until the 20th to do a consult requested on the 18th.
In the first trial, the jury determined that the ER doctor on the 16th did not breach the standard of care. The next jury will not revisit that decision. The first jury, however, had not been allowed to consider the vascular surgeon’s failure on the 18th and 19th. The plaintiff will present this new claim to the jury on remand.
From just reading the opinion, there needs to be more known to comment in detail on the plaintiff’s prospects on the standard of care claim against the vascular surgeon on remand. However, the plaintiff’s causation case has become more difficult. The window of negligence has been reduced from 4 days (16th-20th) to 2 days (18th-20th).
The plaintiff has to show that an earlier vascular surgery consult would have resulted in treatment that saved the leg. The earlier the consult, the better prospects for such proof. If the next jury finds a breach of the standard of care, it will have to determine if the vascular surgeon could have saved the leg in those two days.
Mark Kopec is a top-rated medical malpractice lawyer. The Kopec Law Firm is located in Baltimore and helps clients throughout Maryland and Washington, D.C. You can contact him on 800-604-0704 for a free consultation. Thank you for reading the Maryland Medical Malpractice Lawyer Blog.