McQuitty v. Spangler, 137, September Term, 2008.

• Decision Date: 24 July 2009
• Docket Number: No. 137, September Term, 2008.,137, September Term, 2008.
• Citation: 976 A.2d 1020,410 Md. 1
• Parties: Dylan McQUITTY, a minor, et al. v. Donald SPANGLER, et al.
• Court: Court of Special Appeals of Maryland

976 A.2d 1020

410 Md. 1

Dylan McQUITTY, a minor, et al. v. Donald SPANGLER, et al.

No. 137, September Term, 2008.

Court of Appeals of Maryland.

July 24, 2009.

Reconsideration Denied August 20, 2009.

Henry E. Dugan, Jr. (Bruce J. Babij, George S. Tolley, III, Dugan, Babij & Tolley, LLC, Timonium), on brief, for Petitioners.

D.C. Offutt, Jr. (Randall L. Saunders, Offutt Nord, PLLC, Huntington, WV, Robert J. Farley, Wharton, Levin, Ehrmantraut & Klein, P.A., Annapolis), on brief, for Respondents.

Denis C. Mitchell, Stein, Mitchell & Muse, LLP, Washington, DC, Amicus Curiae.

Albert D. Brault, John F. Brault, Brault Graham, LLC, Rockville, Amici Curiae.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, BARBERA and JOHN C. ELDRIDGE (Retired, specially assigned), JJ.

BATTAGLIA, J.

In this case we explore the boundaries of the doctrine of informed consent in the context of a healthcare provider's treatment of a patient. Petitioner, Peggy McQuitty, mother of Dylan McQuitty, who was born on May 8, 1995 with severe cerebral palsy, sued Dr. Donald Spangler in the Circuit Court for Baltimore County. In addition to alleging medical malpractice, Ms. McQuitty alleged that he breached his duty to obtain her informed consent to treatment, when he failed to inform her, after she consented to hospitalization and treatment for a partial-placental-abruption,¹ of risks and available alternative treatments related to material changes in her pregnancy, those being a second partial-placental-abruption, oligohydramnios,² and intrauterine growth restriction.³

During a trial in April of 2004, a jury returned a verdict in favor of Dr. Spangler on the medical malpractice claim, but could not reach a verdict on the informed consent claim. A second trial, only addressing the informed consent issue, took place in September of 2006, and the jury awarded the McQuittys $13,078,515.00 in damages. Dr. Spangler moved for judgment notwithstanding the verdict, which the trial judge granted, holding that, "it is well established in Maryland that the doctrine of informed consent pertains only to affirmative violations of the patient's physical integrity." The McQuittys appealed to the Court of Special Appeals, which, in an unpublished opinion, affirmed, on the same basis as that relied upon by the trial judge. The McQuittys petitioned this Court for certiorari, which we granted, McQuitty v. Spangler, 406 Md. 744, 962 A.2d 370 (2008), to address two questions, which we have reordered:

I. Does an informed consent claim exist under Maryland law in the absence of damages caused by a battery committed by the physician?

II. Does an informed consent claim exist under Maryland law where a physician withholds material information from his patient about changes in her medical status, which would have negated her consent to further delay in operative treatment, causing harm?⁴

We shall hold that an informed consent claim may be asserted by a patient in the absence of a battery or affirmative violation of the patient's physical integrity, because it is the duty of a health care provider to inform a patient of material information, or information that a practitioner "knows or ought to know would be significant to a reasonable person in the patient's position in deciding whether or not to submit to a particular medical treatment or procedure." Sard v. Hardy, 281 Md. 432, 444, 379 A.2d 1014, 1022 (1977).

I. Facts

We adopt the facts set forth by the Court of Special Appeals in its unreported opinion:

Peggy McQuitty was twenty-eight weeks pregnant when admitted to Franklin Square Hospital Center on March 30, 1995. While she was a patient at Franklin Square Hospital, Dr. Spangler, an obstetrician, was her primary attending physician. The physical complaint which brought her to the hospital was vaginal bleeding. Dr. Spangler ordered that an ultrasound be performed. That ultrasound revealed a partial placental abruption, which is a premature separation of the placenta from the uterus. This condition is irreversible and can lead to fetal death. There is no cure or treatment that will restore the function of that tissue once it has become detached from the uterus. And, the greater the extent or degree of placental separation, the greater the reduction of the perfusion of oxygen and nutrients to the fetus and the greater the risk of fetal morbidity.

Given Mrs. McQuitty's prior history of having delivered another child by Cesarean section, coupled with the presence of the partial abruption, Dr. Spangler concluded that Mrs. McQuitty could not safely deliver her child vaginally. He believed that for her to deliver a child at that stage would entail too great a risk that the placenta could separate completely from the uterus during labor, which would cause fetal death. Because Mrs. McQuitty had experienced only a partial abruption and as a consequence a portion of the placenta remained attached to the uterus and was functioning as of March 30, 1995, Dr. Spangler developed a plan to deliver the baby by Cesarean section at a later date. As part of his plan, Mrs. McQuitty was kept at the hospital from March 30, 1995, until Dylan was delivered thirty-nine days later on May 8, 1995.

The management plan adopted by Dr. Spangler included physically invasive actions, such as establishing intravenous access for the administration of intravenous fluids and medications; serial injections of Betamethasone, a corticosteroid, and other medications; the insertion of a urethral foley catheter for urine collection and analysis; and the performance of serial blood extractions for hematologic studies. After Dr. Spangler formulated the aforementioned plan, the only question was when the delivery would be performed.

The timing of the Cesarean section delivery, and the circumstances under which it would be performed, affected the relative risk to the unborn infant. Delaying an operative Cesarean section increased the risk of further separation of the placenta from the uterine wall, which was not predicable and, according to expert testimony introduced by the plaintiffs, "could occur at any time." Further, abruption of the placenta would leave the fetus with diminished oxygen, and a complete abruption would leave the fetus without a source of oxygen at all, and would lead to almost immediate death.

On the other hand, an immediate delivery by Cesarean section on March 30, 1995, posed a risk of fetal morbidity due to fetal lung immaturity. The risk associated with prematurity, however, would necessarily decrease over time, as the baby matured and as appropriate medical interventions were implemented. In addition, Mrs. McQuitty's pre-existing hypertension, coupled with the partial placental abruption, would tend to "stress" the fetus and accelerate the natural production of fetal surfactant, which over time would reduce the risk of respiratory difficulties associated with prematurity.

Dr. Spangler met with Mr. and Mrs. McQuitty after he diagnosed the partial placental abruption on March 30, 1995, and informed them that if the placenta continued to separate from the uterus, then the baby would have to be immediately delivered by Cesarean section. Based upon this information from Dr. Spangler, Mr. And Mrs. McQuitty understood that if their son were delivered by immediate Cesarean section on March 30, 1995, he would not likely survive.

The next day, Mrs. McQuitty's condition stabilized with a substantial decrease in the amount of vaginal bleeding. Based upon the information previously provided to her by Dr. Spangler, Mrs. McQuitty consented to Dr. Spangler's management and treatment plan, which was to delay the Cesarean section and otherwise to permit continued administration of intravenous fluids, medicines, etc.

Over the next few weeks, Mrs. McQuitty told Dr. Spangler that she wanted to return home. Dr. Spangler persuaded her not to leave because "there was a very slight possibility that what happened [on March 30, 1995] could happen again," and in light of the fact that the McQuittys lived fifty minutes away, it was important that she stay at the hospital. Mrs. McQuitty was under the impression "that if something happened—even though it wasn't very likely—I was better off being in the hospital because that would—right off the bat they wouldn't have to wait for me to get there for fifty minutes." The plan, according to Mrs. McQuitty, was "barring any emergent situation," they would wait until she was thirty-six weeks along and test to see if Dylan's lungs were mature and then decide what to do.

On April 12, 1995, an ultrasound examination revealed evidence of a new and significant abruption. Although the medical records show that Mrs. McQuitty was informed of the abruption, she testified that she did not remember receiving such information. She testified that she would have remembered being told if she had been advised as to this type of problem with her pregnancy.

On April 28, 1995, another ultrasound revealed the development of an intrauterine growth restriction ("IUGR"). An IUGR develops as a direct result of the decreased perfusion of nutrients to the developing fetus resulting from an abruption. Fetuses that develop IUGR are at an increased risk for intrauterine fetal death, resulting from inadequate nutrition. The ultrasound examination also revealed that the infant's estimated fetal weight had fallen below the 10th percentile for his gestational age. Mrs. McQuitty acknowledged at trial that Dr. Spangler informed her of the IUGR. She claimed, however, that the explanation provided by Dr. Spangler was inadequate because it left her with the mistaken impression that the test simply revealed that her baby would be small. Accordingly, she believed that she simply needed to eat more and drink milk shakes. Even in light of the latest ultrasound findings Dr. Spangler did not offer Mrs. McQuitty the option of having an immediate Cesarean section on April 28, 1995.

On...