Schwartz v. Johnson
206 Md. App. 458
Md. Ct. Spec. App.2012Background
- Johnson sued Schwartz for medical negligence and vicarious liability in a five-day trial.
- Johnson moved in limine to bar any evidence of informed consent; the court granted the motion.
- During trial, Dwoskin testified with opinions not disclosed in discovery; court allowed as rebuttal.
- Juror 4 faced notes about possible bias/opinion; trial court denied strikes and replacement.
- Verdict: negligence found; damages awarded: past medical expenses $23,791.19 and non-economic damages $650,000.
- Appellants challenged the rulings on informed consent, juror issues, and undisclosed expert testimony; circuit court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Assumption of risk defense admissibility | Schwartz argues assumption of risk applies in medical malpractice. | Schwartz contends assumption of risk is viable to defeat liability. | Assumption of risk not available in this medical malpractice case. |
| Informed consent evidence in malpractice case | Evidence of informed consent is irrelevant to lack of informed consent claim; may confuse jury. | Informed consent evidence supports assumption of risk/standard-of-care defenses. | Trial court did not abuse discretion in excluding informed consent evidence. |
| Juror bias/misconduct and replacement | Juror 4 demonstrated bias and inattentiveness warranting replacement. | Court properly evaluated demeanor; no prejudice from juror conduct. | Court did not abuse discretion; Juror 4 was not replaced. |
| Rebuttal testimony of undisclosed expert theory | Dwoskin’s bowing theory was undisclosed and prejudicial surprise. | Dwoskin's testimony was proper rebuttal to appellants’ theory and discovery requirements were not violated. | Admission of rebuttal evidence was proper; no reversible error. |
Key Cases Cited
- ADM P’ship v. Martin, 348 Md. 84 (Md. 1997) (defines elements of assumption of risk and its effect as a complete bar)
- Newell v. Richards, 323 Md. 717 (Md. 1991) (rare circumstance where assumption of risk applies in medical malpractice)
- McQuitty v. Spangler, 410 Md. 1 (Md. 2009) (distinguishes informed consent from medical malpractice theories)
- Hayes v. Camel, 283 Conn. 475 (Conn. 2007) (informed consent evidence is irrelevant and prejudicial when lack of informed consent is not at issue)
- Boyle v. Revici, 961 F.2d 1060 (2d Cir. 1992) (express or implied assumption of risk in unconventional treatment contexts)
- King v. Clark, 709 N.E.2d 1043 (Ind. Ct. App. 1999) (assumption of risk recognized where patient refused treatment)
- Lyons v. Walker Reg’l Med. Ctr., 868 So.2d 1071 (Ala. 2003) (rejecting obligation to continue treatment when patient declines)
- Hall v. State, 223 Md. 158 (Md. 1960) (deference to trial court on juror credibility and misconduct findings)
- Riffey v. fonder, 36 Md.App. 633 (Md. Ct. Spec. App. 1977) (defines rebuttal evidence and its limits)