laparoscopic cholecystectomy that was inflamed, infected, scarred and whatnot and you injured that duct, in my opinion, that would be not within the standard of care, as opposed to something that looked absolutely straightforward to you and turned out in retrospect not to be. So to give you a certain percent of a one percent I cannot, but is appreciable[.]
Q. So in answer to my question you don’t know what percentage of that one percent – that sub subset we’re talking about involved cases like Ms. Smith?
A. I know my personal experience would be probably, well, would be more than .5 percent ––of straightforward cases similar to Ms. Smith’s as far as no bleeding or inflammation. As far as the national statistics, I cannot quote you a multi-institutional review on that at this moment in time.
* * * Q. I said, do you know of those
straightforward cases where none of these complicating factors where present, do you know how many of those ended up in litiga- tion, and a further question, how many of those is the doctor held accountable for?
* * * A. What percentage of them?
Q. Yes? A. No. No, I have no idea. In summary, trial counsel should file
a motion in limine and object when evi- dence in support of the issue is elicited by the defense to preserve the appellate issue. If the trial court lets the evidence in, cross-examine the defense experts on the issue and ask for a limiting instruction as well. Object to improper argument on the topic and, if the court rules against you, pick up on the theme and argue that if all of the doctors in the United States do it correctly 99 times out of 100, then that one percent must be due to negligence. Find out how many times the defense experts have encountered the
same or similar situation as occurred in your case and find out how many times they correctly performed the procedure in the face of those circumstances. It is a safe bet that defense experts have faced a case with similar circumstances and that they did not make the mistake that the defendant made in your case. Now that we have been armed with a
few well-reasoned decisions, albeit from courts outside of Maryland, we should work to preclude or curtail any evidence of informed consent in medical negligence cases where lack of informed consent has not been raised by the plaintiff. The underlying evidentiary principles that support these rulings are the same in Maryland as they are in these other states. The issue is simply too confusing for the jury to understand and there is a great likelihood that the average juror will equate the plaintiff giving informed con- sent with the plaintiff consenting to the injuries which later occurred as a result of the defendant’s negligence. If we use the basis set forth in the Ohio and Virginia cases and preserve the issue for appeal, we should have success in precluding this evidence.
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Gary Blankenship Summer 2006 1-800-284-4650 Trial Reporter Tom Dolny 25
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