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Salvagno v. Frew9/3/2004
rity. Appellants also filed a motion to dismiss the complaint, arguing that because the claimants had not filed a certificate, they had failed to arbitrate, which is a "pre-condition to any court action."
Following a hearing, the circuit court granted the claimants' petition to nullify, vacated the chairperson's order of dismissal, and denied appellants' motion to dismiss the complaint, stating:
(a) After the dismissal of [Count I], [the claimants'] ... cause of action became one in which the sole issue was lack of informed consent, (the claim for loss of consortium being derivative of the lack of informed consent claim and in the nature of damages only). Under ... [C.J.] § 3-2A-04(b), the [claimants] were therefore not required to file a certificate of qualified expert on the matter of lack of informed consent. The [chairperson's] dismissal of ... [Counts II and III] exceeded her scope of authority in light of the language of ... [C.J.] § 3-2A-04(b);
(b) Maryland law on informed consent, as set out in Sard v. Hardy, 281 Md. 432 (1977), does not impose a necessary requirement upon the [claimants] to present expert testimony in order to meet their burden of proof as to the materiality of the risk from [claimant] William Frew's perspective. Sard at 447 makes clear that Maryland has adopted a general or lay standard of reasonableness set by law and independent of medical custom, which standard imposes no requirement of expert testimony to establish scope or breach of a physician's duty to disclose. However, at Sard 448 , such expert testimony would be required to establish the nature of the risks inherent in a particular treatment, the probabilities of therapeutic success, the frequency of the occurrence of particular risks, the nature of available alternatives to treatment and whether or not disclosure would be detrimental to a patient. In light of Sard, the [chairperson's] dismissal of [Counts II and III] with no opportunity to present the case, was premature;
(c) State use of Miles v. Brainin, 224 Md. 156 (1961), permits the [claimants] to elicit expert testimony from a defendant called as an adverse witness. Brainan does not, however, go so far as to permit the [claimants] to name a defendant as their sole expert witness and then to rely upon that defendant's testimony alone to prove every aspect of their lack of informed consent claim.
This timely appeal followed.
DISCUSSION
I. Motion to Dismiss
Relying on Watts v. King, 143 Md. App. 293, 794 A.2d 723 (2002), and Bailey v. Woel, 302 Md. 38, 485 A.2d 265 (1984), appellants argue that the circuit court "exceeded its jurisdiction" by denying the motion to dismiss the complaint. Because a medical malpractice claim must be submitted to mandatory arbitration before the HCAO as a "condition precedent" to the filing of any court action, appellants contend that the claimants "failed" to arbitrate the claim by not designating an independent expert. Therefore, they may not file the complaint in the circuit court. Appellees concede that "expert testimony is needed" to prove the claim for lack of informed consent, but, citing State use and Benefit of Miles v. Brainin, 224 Md. 156, 167 A.2d 117 (1961), they argue that, instead of designating their own expert, they could rely on Dr. Salvagno's testimony to establish the "material risks of the procedure, . . . the alternatives, and . . . the percentages of success for each approach." Therefore, they did not fail to arbitrate their claim.
Under the doctrine of informed consent, "a physician, treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or a
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