Fusco v. Shannon

Decision Date20 March 2013
Docket NumberNo. 2819,Sept. Term, 2010.,2819
Citation63 A.3d 145,210 Md.App. 399
PartiesMafalda FUSCO, et al. v. Kevin J. SHANNON, et al.
CourtCourt of Special Appeals of Maryland


Megan E. Oleszewski (Michael J. Belsky, Henry L. Belsky, Schlachman, Belsky & Weiner, PA, on brief), Baltimore, MD, for Appellant.

Michelle R. Mitchell (Robert J. Farley, Wharton, Levin, Ehrmantraut & Klein, PA, on the brief), Annapolis, MD, for Appellee.

Panel: MEREDITH, HOTTEN, and GARY G. LEASURE (Specially Assigned), JJ.


Following the death of Anthony Fusco, Sr. (“Mr. Fusco”), appellants, Mafalda Fusco and the surviving children, filed a complaint in the Circuit Court for Prince George's County against appellees, Kevin Shannon, M.D. (“Dr. Shannon”) and his practice, Hematology–Oncology Consultants, P.A. (“H.O. Consultants”). Appellants alleged that Dr. Shannon failed to obtain Mr. Fusco's informed consent regarding the risks associated with the administered drug, Amifostine. Appellants further contended that the direct and proximate result of appellees' failure caused Mr. Fusco to sustain injuries and ultimately his death. During discovery, appellants identified James Trovato, Pharm.D. (“Dr. Trovato”), a pharmacist, but not a medical doctor, as an expert witness to support their lack of informed consent claim.1

In addition to their motion for summary judgment, appellees filed a motion in limine to exclude Dr. Trovato's de bene esse deposition, alleging that appellants failed to present an expert witness who could testify that appellees breached their duty of obtaining Mr. Fusco's informed consent. In opposition, appellants argued that appellees failed to demonstrate that Dr. Trovato was not qualified to testify as an expert witness. Following a hearing on December 21, 2010, the trial court denied the motion for summary judgment, but granted the motion in limine. Pursuant to the court's order, appellants filed a proffer of Dr. Trovato's anticipated trial testimony.

During the hearing on January 7, 2011, the court disallowed Dr. Trovato's testimony in its entirety. Appellees renewed their motion for summary judgment, but it was denied. Following the trial on January 10 through January 19, 2011, the jury returned a verdict for appellees. Appellants noted an appeal on February 15, 2011, and presented two questions for our review:

1. Did the trial court improperly grant the appellees' motion to exclude the testimony of James Trovato, Pharm.D. on the basis that he was not able to testify as to the five elements of an informed consent case as outlined in Sard v. Hardy?

2. Did the trial court's consistent misapplication and misinterpretation of the holding in University of Maryland Medical System Corporation v. Waldt lead to the repeated erroneous denial of appellants' admission of evidence relating to the approved uses of Amifostine?

For the reasons that follow, we reverse the judgment of the circuit court.


On June 26, 2001, Mr. Fusco, eighty-two years of age at the time, was diagnosed with prostate cancer. On December 27, 2002, Walid Mufarrij, M.D. (“Dr. Mufarrij”), a urologist, examined Mr. Fusco and determined that the cancer was “low-risk,” so Mr. Fusco selected “watchful waiting” as his treatment plan. On February 21, 2003, Dr. Mufarrij and Mr. Fusco discussed additional options, to which Mr. Fusco elected a combination of radiotherapy and hormone treatment. Dr. Mufarrij conducted the hormone regimen, but referred Mr. Fusco to Lawrence Shombert, M.D. (“Dr. Shombert”) for radiotherapy.

On March 6, 2003, Mr. Fusco consulted Dr. Shombert, who explained the nature of radiation, including the need for a commonly used radiation protectant, which would possibly eliminate inflammation of the urinary bladder and rectum. Dr. Shombert referred Mr. Fusco to Dr. Shannon, and on March 12, 2003, they discussed a radiation protectant regimen. While testifying at trial, Dr. Shannon insisted that he discussed the following with Mr. Fusco:

Very generally, with respect just to the [A]mifostine, we discussed the potential benefits which, again, is to, is a cytoprotective agent to reduce the risk of radiation induced injury to the organs of the, the bladder and the rectum. The potential side effects, the significant side effects, which, very briefly, can affect, [A]mifostine can affect blood pressure. It can affect the GI system in the way of causing nausea, and it can cause a local or slightly more extensive skin reaction and the alternatives, which, unfortunately, are none. We still don't have any alternatives to [A]mifostine, and, and I explain [ed] a little bit about how our office works. How the, the dose would be given which is to say subcutaneously, an injection in the arm, rather than an intravenous formation, and other general things to come well hydrated, that it would have to be given on a daily basis prior to radiation. So, the mechanics of administration I spoke of, and with respect to [A]mifostine, that, in general, was, was it.

Between April 15, 2003 and May 15, 2003, Mr. Fusco underwent approximately twenty-three injections of 500 milligrams of Amifostine. On May 16, 2003, Mr. Fusco was administered an Amifostine shot, and Dr. Shannon recorded that Mr. Fusco denied “headaches, visual disturbances, sores in the mouth, difficulty swallowing.... No nausea, vomiting, diarrhea and no dysuria. He has no known drug allergies.... No evidence of rash or inflammation.”

The next day, on May 17, 2003, Mr. Fusco was hospitalized at Doctors CommunityHospital in Lanham, Maryland for symptoms of acute onset of systemic rash and lip swelling. Dr. Shannon was notified, and theorized that Mr. Fusco had a reaction to the Amifostine. The reaction resulted in Stevens–Johnson Syndrome.2

On May 20, 2003, Mr. Fusco was transferred to Johns Hopkins Burn Center in Baltimore, Maryland for further treatment. He was informed that his condition advanced to Toxic Epidermal Necrolysis Syndrome.3 On August 5, 2003, Mr. Fusco was admitted into Magnolia Center Nursing Home in Lanham, Maryland for physical and occupational therapy and wound care. On October 6, 2003, he was re-admitted to Doctors Community Hospital due to an onset of acute pneumonia and fever. He was described as being at “a high risk for aspiration.” 4 As a result, the hospital performed a tube insertion procedure. Unfortunately, the hospital's treatments proved to be unsuccessful, and Mr. Fusco died on December 4, 2003, from a stroke. No autopsy was performed, but the medical examiner listed arteriosclerotic cardiovascular disease with a contributing factor of Toxic Epidermal Necrolysis Syndrome as the cause of death.

On April 23, 2007, appellants filed wrongful death and survival actions against Dr. Mufarrij, Dr. Shombert, Dr. Shannon, and H.O. Consultants. On December 21, 2010, the court granted motions for summary judgment relating to Drs. Mufarrij and Shombert, finding that “the duty to obtain informed consent only arose to the physician who provided the treatment.”Hence, the claims against Drs. Mufarrij and Shombert were dismissed, and they are not parties to this appeal.

The event giving rise to this appeal occurred when appellees filed a joint motion in limine to preclude Dr. Trovato's de bene esse deposition. In pertinent part, Dr. Trovato opined that Amifostine was inappropriately used or should not have been used for Mr. Fusco, since he was undergoing radiation therapy for prostate cancer. Appellees argued that Dr. Trovato's testimony should have been excluded because (1) he was not a physician, and thereby not qualified to render opinions concerning a physician's advisement to obtain informed consent and (2) his testimony offered criticisms sounding in standard of care.

On December 16, 2010,5 appellants filed a response to appellees' joint motion in limine, asserting that (1) case law did not require that Dr. Trovato be a medical doctor, and (2) his testimony regarding the use of Amifostine established the drug's risks, benefits, and alternatives. On December 21, 2010, the court granted appellees'motion in limine, finding that (1) Dr. Trovato did not testify regarding the standard of care for an expert in an informed consent case; (2) his testimony was more aligned with negligence than informed consent; (3) his testimony did not incorporate the Sard v. Hardy factors; and (4) he was a pharmacist, not a physician. After the ruling, the court offered appellants the opportunity to file a proffer of Dr. Trovato's anticipated trial testimony, which was submitted on December 27, 2010.

On January 7, 2011, during the second motions hearing, despite Dr. Trovato's extensive qualifications, the court ruled that he would not be permitted to testify because (1) he was a pharmacist and [did] not have the ability to give the full demarcation of what [was] involved in informed consent[,] and (2) his testimony would “confuse and disenchant the jury in their ability to determine what the doctrine of informed consent” denoted because the proffer did not give a completeness to the overall treatment plan. Appellees then renewed their motion for summary judgment, which was denied. On January 10 through January 19, 2011, following a jury trial, a verdict was returned in favor of appellees.6 Appellants filed this timely appeal, to which appellees filed a cross-appeal that we need not resolve.


Under Md. Rule 5–702, supra, “the admissibility of expert testimony is within the sound discretion of the trial judge and will not be disturbed on appeal unless clearly erroneous.” In re Adoption/Guardianship of Tatianna B., 417 Md. 259, 263, 9 A.3d 502 (2010) (citing Blackwell v. Wyeth, 408 Md. 575, 618, 971 A.2d 235 (2009)) (quoting Wilson v. State, 370 Md. 191, 200, 803 A.2d 1034 (2002)). We therefore review a ruling to admit expert witnesses under the abuse of discretion standard. Morton v. State, 200 Md.App. 529, 545, 28 A.3d 98 (2011) (citing Oken v. State, 327...

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4 cases
  • Shannon v. Fusco
    • United States
    • Maryland Court of Appeals
    • April 24, 2014
    ...regarding oncology medications, including Amifostine, and therefore, should have been permitted to testify. Fusco v. Shannon, 210 Md.App. 399, 428, 63 A.3d 145, 162 (2013). Dr. Shannon and Hematology–Oncology Consultants, thereafter, filed a petition for certiorari, which we granted, to con......
  • Shannon v. Fusco
    • United States
    • Court of Special Appeals of Maryland
    • April 24, 2014
    ...regarding oncology medications, including Amifostine, and therefore, should have been permitted to testify. Fusco v. Shannon, 210 Md. App. 399, 428, 63 A.3d 145, 162 (2013). Dr. Shannon and Hematology-Oncology Consultants, thereafter, filed a petition for certiorari, which we granted, to co......
  • Snyder v. State
    • United States
    • Court of Special Appeals of Maryland
    • March 20, 2013
  • Shannon v. Fusco, 119 Sept.Term 2013
    • United States
    • Maryland Court of Appeals
    • July 3, 2013
    ...A.3d 474Shannonv.FuscoNo. 119 Sept.Term 2013Court of Appeals of MarylandJuly 03, 2013 OPINION TEXT STARTS HERE Reported below: 210 Md.App. 399, 63 A.3d 145. Disposition: ...

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