Flesh eating bacteria

A man who lost a leg to flesh-eating bacteria after refusing a CAT scan cannot hold the doctor liable for failing to convince him to have the test, the state's highest court held yesterday.

The Court of Appeals affirmed a Worcester County jury's verdict for Dr. Pamela Zorn in a suit by Richard H. Landon and his wife.

Landon argued that Zorn never warned him about the life- threatening consequences of his refusal, and that he should have been allowed to question potential jurors about their views on tort reform.

The latter issue drew friend-of-the-court briefs from both the Maryland Trial Lawyers Association and the Maryland Defense Counsel Inc.

In its amicus brief, the Maryland Trial Lawyers Association argues that the Court of Special Appeals 'left open' the issue in a prior case, Judge Clayton Greene Jr. wrote yesterday. The Maryland Defense Counsel contends that, although the trial court in this case made the correct decision, we should take this opportunity to expand voir dire when an appropriate factual basis is proffered.

The court declined that opportunity - in large part because the Landons' proposed question never actually mentioned tort reform.

It was the Landons' responsibility to propound voir dire questions designed to elicit potential bias from jurors, and not to bootstrap a tort reform argument on appeal to a general question inquiring into any potential 'bias or prejudice' against plaintiffs in personal injury or medical malpractice cases, Greene wrote.

Nor did the trial judge err in refusing to give proposed instructions on contributory negligence or informed consent.

In Maryland, a cause of action for lack of informed consent must be based on a failure of a physician in a non-emergency situation to get consent from a patient prior to performing an affirmative act on the patient, Greene wrote.

There was no evidence presented to support a conclusion that Dr. Zorn committed any affirmative action in violation of Mr. Landon's physical integrity, the court concluded. Dr. Zorn recommended a diagnostic test, and Mr. Landon refused to submit to that test.

Against medical advice

Landon went to the emergency room at Atlantic General Hospital in Berlin with flu-like symptoms and an aching leg on the morning of Jan. 8, 2001. (The hospital was not a party to this action.)

He was seen by Zorn, who, according to yesterday's opinion, tried at length to talk him into having a CAT scan, saying she could not properly diagnose him without it.

Landon refused, saying he wanted to go home and go to sleep. Zorn offered to keep him under observation for a while longer, but he refused that, too. He was discharged against medical advice at 12:15 p.m.

About 4:45 p.m., Joann Landon called the emergency department with a question about her husband's medications. She talked to Zorn, who again pressed for a CAT scan. Mrs. Landon said she would try to get her husband to return to the hospital.

Zorn finished her shift, went home and was getting ready for bed when she learned that Mr. Landon had never returned. She called Mrs. Landon and told her to take her husband to the hospital, even if she had to call 911.

Mr. Landon returned to the hospital just after midnight and was transferred to the R Adams Crowley Shock Trauma Unit at the University of Maryland. There, he was diagnosed with a group A beta hemolytic streptococcal infection and underwent multiple surgeries, including amputation of his right leg at the hip.

Expansion unjustified

The Landons sued Zorn for medical malpractice in Worcester County Circuit Court, claiming she negligently failed to diagnose necrotizing faciitis (commonly known as flesh-eating bacteria). After a two-week trial, the jury found Zorn was not negligent.

The Landons appealed. The Court of Appeals took the matter before consideration by the Court of Special Appeals and affirmed.

Greene noted that the court had dealt with voir dire questions on tort reform more than 40 years ago.

Even if a juror had formed or expressed an opinion as to the adequacies or inadequacies of jury verdicts in negligence cases, that fact would not have disqualified him, the Court of Appeals said in the 1961 case of Kujawa v. Baltimore Transit Co.

In 1993, the Court of Special Appeals dealt with the issue in Williams v. Mayor and City Counsel of Baltimore. It was asked to adopt the contrary reasoning of a 1979 Montana case, Borkoski v. Yost, but found no need to reach the issue.

The Court of Appeals reached a similar result.

We decline the Landons' request to adopt the basic principles of Borkoski and to apply them to the facts of the case sub judice, the court concluded. The facts of this case do not warrant our expansion of the scope of voir dire in Maryland.

WHAT THE COURT HELD

Case:

Landon v. Zorn, CA No. 146, Sept. Term 2004. Reported. Opinion by Greene, J. Filed Oct. 6, 2005.

Issue:

Did the lower court err in (1) declining a voir dire question about bias or prejudice against medical-malpractice plaintiffs; or (2) refusing jury instructions on informed consent?

Holding:

No; affirmed. (1) The question was not designed to reveal a potential cause for disqualification. (2) The allegation (failure to warn of the consequences of refusing to take a medical test) doesn't state a cause of action for lack of informed consent.

Counsel:

Michael Winkelman for appellants; Curtis H. Booth for appellees; Michael Wein and David M. Kopstein for amicus MTLA; Harry S. Johnson for amicus Maryland Defense Counsel Inc.

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