The Court of Special Appeals of Maryland recently reviewed a jury award of $185,000 to a plaintiff for negligent conduct in a medical malpractice case. In Luecke v. Suesse (Md. Ct. Spec. App. Oct. 28, 2016), the plaintiff sued her doctor and her practice group, alleging that they were negligent in failing to arrange a biopsy and render timely treatment for a mass in her breast. The plaintiff’s condition eventually required extensive medical treatment and major surgery. Before trial, the court denied the defendants’ motion to exclude testimony regarding the plaintiff’s chance of survival. The jury ultimately returned a verdict in favor of the plaintiff, awarding $35,000 in past medical expenses and $150,000 in non-economic damages.
On appeal, the defendants argued that the trial court erred in allowing evidence of the plaintiff’s probability of survival, contending that it was irrelevant and highly prejudicial. In particular, the defendants objected to testimony that the plaintiff’s chances of getting a more serious, invasive cancer have increased and that her life expectancy has the potential to be decreased. The defendants contended that the reduced probability of survival was also not compensable under Maryland law as an element of damages because the plaintiff retained a greater than 50% probability of survival. The plaintiff responded that the evidence was relevant to her claim for emotional distress and distinguished it from loss of chance of survival.
In Maryland, a reduction in survival percentage is not compensable and not an element of damages when the patient retains a greater than 50 percent probability of survival. As a result, the appeals court agreed that loss of chance of survival was not an appropriate claim in Luecke. The court went on to address the plaintiff’s claim for recovery for emotional damages, noting that it must arise out of tortious conduct. Specifically, to recover emotional distress damages for fear of contracting a latent disease, a plaintiff must show that (1) she was actually exposed to a toxic substance due to the defendant’s tortious conduct, (2) which led her to fear objectively and reasonably that she would contract a disease, and (3) as a result of the objective and reasonable fear, she manifested a physical injury capable of objective determination.
The appeals court explained that if, as the plaintiff argued, the increased risk of recurrence constituted the “exposure” required in the first element, the plaintiff alleged no physical injury resulting from that increased risk. And, if the delayed diagnosis was sufficient to satisfy the first element, the plaintiff suffered no emotional distress from the delay itself but out of a fear of recurrence. The appeals court held that under Maryland law, the plaintiff could not recover for her slight fear. In weighing the admissibility of the evidence, the court concluded that testimony about the plaintiff’s fear of death was irrelevant and would have an obvious effect on the jury. Accordingly, the court remanded the case back to the trial court for further proceedings excluding the plaintiff’s testimony regarding her chance of survival.
Hiring an experienced trial lawyer whom you trust is often important in bringing your personal injury claim. At Foran & Foran, P.A., we understand that your case is a priority and will work tirelessly to achieve your goals. Our talented Maryland attorneys represent individuals in cases involving medical malpractice, automobile and motorcycle collisions, premises liability, and many other accidents. To confer with one of our knowledgeable associates, contact Foran & Foran, P.A. by phone at (301) 441-2022 or online and schedule a consultation.
More Blog Posts:
Maryland Court Reviews Evidence of Causation in Medical Malpractice Appeal, Maryland Personal Injury Blog, published October 11, 2016
Maryland Court of Special Appeals Rules in Medical Malpractice Case, Maryland Personal Injury Blog, published June 24, 2015