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 Baltimore Medical Malpractice Lawyer Mark Kopec 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.

In most cases, a Maryland medical malpractice lawyer files the case in the state where all aspects of the malpractice occurred. As a result, the applicable law is clear because only one state is involved. Consequently, there is no choice of law issue.

However, there are times when the elements of the malpractice occur in more than one state. For example, the breach of professional standards happened in one state. The injury occurred in another. In that situation, choice of law principles governs.

In this post, I discuss a Maryland case on choice of law and provide commentary for the Maryland medical malpractice lawyer. The case is Blackston v. Doctors Weight Loss Centers, Inc. The Appellate Court of Maryland issued an unreported opinion on June 29, 2023.

Facts

The plaintiff went for a liposuction procedure and suffered permanent injuries. The doctor performed the procedure at his office in Alexandria, VA. However, the plaintiff filed the case in the Circuit Court for Prince George’s County, MD, because that is where the doctor lived. (Op. at 1, 12). 

The parties disputed the plaintiff’s condition following the procedure and their communications. The dispute was over when the plaintiff got an infection and the doctor’s response to it. The plaintiff ultimately was hospitalized with a MRSA infection. (Id. at 4-5).

In the pretrial statement, the plaintiff’s lawyer asserted that Virginia law applied to damages. (Id. at 5-6). 

Judgment

The jury awarded $2,300,900, which consisted of $2,000,000 in non-economic damages (pain and suffering), $60,000 in economic damages, and $240,900 in medical expenses. (Id. at 1).

This case involved arguments over which state’s damage cap applied. Maryland had a $775,000 cap on non-economic damages. CJP 3-2A-09(b). Using that cap would reduce the judgment to $1,055,900. Virginia had a $2,150,000 cap on all damages. Virginia Code 8.01-581.15. In considering post-trial motions, the trial court applied the Maryland cap and accordingly reduced the verdict to $1,055,900. (Id. at 1, 17-18).

Appellate Court Decision

Choice of Law

The Appellate Court discussed the principles that apply in a choice of law analysis. Maryland uses the traditional choice of law principle of lex loci delicti. If the tort events happen in multiple states, then the applicable substantive law is where the injury occurred. Injury is the last event required to constitute the tort. Injury occurs when the plaintiff first suffers harm, even if additional harm results elsewhere. However, the law of the presiding court governs procedural matters. (Id. at 18).

The caps on non-economic damages and past medical expenses are substantive law. As a result, the Court looked at where the injury first came into existence. The Court found that the injury occurred on the day of the procedure in Virginia, where the doctor did the treatment. The injury happened before the plaintiff returned home to Maryland. The plaintiff’s experts had testified that the procedure had introduced the infection while the doctor performed it. Consequently, Virginia law applied. (Id. at 20).

Notice of Choice of Law

The defense also argued that the plaintiff had given insufficient notice of her intention to rely on Virginia law. CJ 10-504 requires reasonable notice. The lawyer can provide this in a pleading or other written notice. The law requires a party to give the other an adequate opportunity to prepare an argument on the applicable law. If there is no unfair surprise, a party can provide notice up to the start of the trial. (Id. at 21).

The Court noted that the plaintiff had given notice of intent to rely on Virginia law in the pretrial statement that she filed more than one month before the start of the trial. The Court concluded that the notice was sufficient to allow the defense to respond and change trial tactics if necessary. (Id. at 21-22). As a result, the court directed the trial court to apply the Virginia cap and enter a judgment of $2,150,000.

Commentary By the Baltimore Medical Malpractice Lawyer

Choice of Law & Venue

The circumstances that led to this choice of law situation are interesting. The doctor performed the procedure in a state different from where he lived. That is not usually the case.

As a result, the plaintiff could choose under Maryland’s venue provision to file in the doctor’s home county, Prince George’s County, MD. CJP 6-201 allowed the plaintiff to sue where the defendant resides or engages in business.

The plaintiff’s lawyer probably evaluated Prince George’s County, MD, as more friendly to medical malpractice claims than Alexandria, VA. However, the plaintiff could still benefit from Virginia law’s higher cap by giving the required notice. As a result, the plaintiff had the best of both worlds – better jurisdiction and higher cap. Consequently, the plaintiff received almost $1.1 million than if the Court had applied Maryland’s cap.

The defense had options, too. Maryland Rule 2-327(c) provides that a court can transfer a case if it is for the convenience of the parties and witnesses and serves the interests of justice. This transfer is called forum non conveniens. The trial court docket does not show the defense filing such a motion. There is no indication of facts that would have supported such a motion here. However, it is a defense option in cases with supporting facts.

Notice of Choice of Law

The Court’s analysis shows that timing is essential for the notice of intention to rely on foreign law. Notification must be reasonable and allow the opposing party to prepare a response and change tactics if necessary. Strategically, the Maryland medical malpractice lawyer should give notice as early as possible. Early communication can foreclose the other side from arguing unfair surprise or prejudice. For example, suppose a lawyer conveys this intention at the beginning of the discovery period. That would prevent the opposing party from arguing that it would have conducted discovery or trial preparation differently.

Conclusion

In September 2023, the Supreme Court of Maryland agreed to review this case. The Court docket shows an oral argument set for January 2024. This Blog will continue to follow the lawsuit.

Update

On July 31, 2024, the Supreme Court of Maryland affirmed the Appellate Court’s decision, which I discuss in a Blog post.

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.