Offered Care: Martinez v. JHH 2
The Baltimore Medical Malpractice Lawyer Blog examines issues in Maryland medical malpractice case opinions. This post is part 2 in a series. I look at a court’s discussion on the distinction between medical malpractice claims. A negligence claim versus an unpled claim for lack of informed consent. Specifically, the issue is to which medical malpractice claim is it relevant whether the hospital offered certain care to the patient. The reported opinion is by the Court of Special Appeals of Maryland (now Appellate Court of Maryland). The case in Martinez v. Johns Hopkins Hospital, 212 Md. App. 634 (2013). In Part 1 of this Blog series, I discussed the admissibility of a non-party nurse-midwife’s standard of care.
Factual Background on Medical Malpractice Offered Care: Negligence Versus Informed Consent
This case arose from a medical malpractice birth injury action filed in the Circuit Court for Baltimore City. The plaintiff was a minor acting through his parents. He alleged that the defendant hospital’s labor and delivery team negligently failed to perform a timely Caesarian section. This delay, the plaintiff contended, caused severe oxygen deprivation, resulting in cerebral palsy (CP), brain damage, and other developmental disorders.
The mother initially attempted a natural home birth with a registered nurse-midwife. After a prolonged labor and obstructed labor, the midwife administered intramuscular injections of Pitocin. She also applied fundal pressure. Realizing the labor was failing, the midwife called an ambulance.
Upon arrival, the hospital’s treating doctors evaluated the mother. They determined to do an “urgent”—but not immediate “emergency”—C-section. The fetal heart monitor indicated the baby was still adequately receiving oxygen. For an urgent C-section, the standard practice is to perform blood testing before administering spinal or epidural anesthesia, which is the safest approach. The hospital staff alleged that the mother was highly uncooperative, combative, and resisted care. This delayed the collection of sufficient blood samples.
Ultimately, after blood results returned and the providers gave anesthesia, they performed the C-section, and the child delivered in poor condition. The plaintiff’s lawsuit rested on a theory of general negligence, asserting that the medical team should have recognized signs of fetal distress and converted the procedure into an emergency C-section, which utilizes rapid general anesthesia rather than waiting for blood work.
Trial
During the two-week trial, a central point of contention was whether the plaintiff was ever “offered” general anesthesia. The plaintiff’s expert witnesses testified that the medical records showed the option was never given to the mother. Moreover, the mother explicitly testified that she was never granted a choice. The hospital repeatedly objected to this line of questioning, arguing that the plaintiff had never filed an informed consent claim. The trial court overruled the objections, and following a $55 million jury verdict, the hospital appealed the admission of this evidence.
The Parties’ Arguments on Appeal – Medical Malpractice Offered Care: Negligence Versus Informed Consent
The Defendant Hospital’s Position
The hospital contended that the trial court committed an abuse of discretion by allowing the plaintiff to introduce evidence that the mother was never offered general anesthesia. They argued that under Maryland law, any allegation that a physician failed to explain a procedure, discuss alternatives, or offer choices belongs within a separate count for a lack of informed consent.
Because the plaintiff only pled general medical negligence, the hospital argued that injecting an “option” or “choice” framework into the trial was irrelevant and prejudicial. It allowed the plaintiff’s counsel to argue during closing statements that a “reasonable mother” would have chosen general anesthesia to save her baby, thereby distracting the jury from the actual technical standard of care governing the doctors’ actions.
The Plaintiff’s Position
The plaintiff argued that the trial court’s evidentiary ruling was proper. They asserted that the failure to offer a treatment required by the standard of care constitutes ordinary medical malpractice, not an informed consent issue.
Furthermore, the plaintiff maintained that the evidence was relevant to rebut the hospital’s defense strategy. The hospital had spent considerable energy painting the mother as combative and blaming her resistance for the timeline delays. The plaintiff argued that showing the hospital never even offered the faster option of general anesthesia was necessary to prove that the delay was caused by systemic hospital inefficiency, rather than any refusal or lack of cooperation on the part of the mother.
The Court’s Ruling on Offered Care & Negligence Versus Informed Consent
The Court of Special Appeals agreed with the hospital. It held that the trial court abused its discretion in admitting the evidence that the hospital did not offer the mother general anesthesia. To provide clear guidance for the trial court on remand, the appellate court outlined the boundaries separating medical negligence from informed consent under Maryland law.
The court emphasized the foundational principle established in Sard v. Hardy: informed consent requires a physician to explain a proposed treatment, disclose material risks, and explain available alternatives so a patient can make an intelligent choice. However, the law is settled that a breach of informed consent must be pled as a separate count. Without an informed consent claim in the complaint, evidence regarding what a patient was or was not offered is irrelevant and carries a potential to confuse the jury.
The court highlighted that the plaintiff’s core theory was that the medical team should have executed an emergency C-section. Under Maryland law:
- The Emergency Exception: Medical emergencies suspend the duty to obtain informed consent, where gravity and urgency make it impractical.
- The Malpractice Metric: If an emergency C-section was required by the standard of care, the doctors had an absolute duty to immediately administer general anesthesia and deliver the child. The patient’s input or “choice” does not factor into that urgent clinical directive.
Irrelevance
Therefore, the question of whether the doctors explicitly offered the mother general anesthesia had no legal relevance to whether they breached the standard of medical care. By allowing the plaintiff’s counsel to hammer home the lack of an “offered option” during closing arguments—asking the jury what a “reasonable mother” would do—the trial court improperly permitted the plaintiff to blend an unpled informed consent theory into a general malpractice case.
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Medical Malpractice Offered Care: Negligence Versus Informed Consent
The appellate court’s discussion of pleading rules with respect to negligence and informed consent is legally sound. However, the specific facts of this case show how messy these concepts can become in the heat of a trial.
First, there is a compelling argument that the plaintiff’s line of questioning was logically relevant to the defense’s narrative. The hospital’s defense regarding the delay focused on the mother being uncooperative and resisting care. Specifically, the hospital claimed that the patient did not want a C-section. In a trial dynamic, if a hospital asserts that a patient refused a procedure, the court should permit the plaintiff to show that the medical staff never offered the procedure.
Second, when evaluating an emergency medical scenario, distinguishing between “offering a treatment” and “performing a treatment” quickly devolves semantics. In an emergency C-section context, a doctor does not sit down with a clipboard to offer choices. They inform the patient of what must happen immediately to save a life. Asking a witness if general anesthesia was “offered” is structurally identical to asking whether the doctors “recognized the need for and prepared to execute” an emergency intervention.
Be Careful With Language Choice
These are unique, overlapping factual layers. Thus, this case is ultimately not the cleanest or best opinion for a definitive discussion on the separation of negligence and informed consent. In a standard elective procedure case, the line can be bright. The doctor messed up the surgery (negligence). Alternatively, they failed to warn the patient of the risks beforehand (informed consent). In a chaotic labor and delivery room, seconds dictate lifelong neurological outcomes. The failure to perform a rapid procedure and the failure to tell the patient you are doing it happen simultaneously.
The court used this case to reinforce strict pleading boundaries. However, practitioners should use it to carefully review the language they choose to prove claims.
You can read other Blog posts on issues of informed consent and other causes of action:
If you believe your child suffered a preventable birth injury due to medical mismanagement or a failure to properly execute emergency procedures in a hospital, contact us today for a comprehensive evaluation of your legal rights.
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.