Verdicts

Consent Form Did Not Mention This Complication

A man who underwent plastic surgery on his chin and ended up being unable to close his lips was awarded $550,000 by a Maryland jury on April 30 because he was not warned of the possibility of this complication and therefore did not give informed consent to the procedure. Mahler v. Johns Hopkins Hospital Inc., No. 24-C-01-004153 (Baltimore City, Md., Cir. Ct.).

NEW YORK

Medical Expert's Qualifications Must Be Disclosed to Defendant

A defendant has a right to know the plaintiff's expert's qualifications, including information on his or her schooling, board certifications, residencies and training. Muniz v. Our Lady of Mercy Medical Center, N.Y.L.J. 5/1/03 (Renwick, J.).

In this medical malpractice action, Plaintiff alleged that defendants were liable for failure to diagnose and treat Plaintiff's diabetes, which caused the amputation of his legs and ultimate demise. Concerning his medical expert, the information provided by Plaintiff was that the expert is licensed to practice in the State of New York with a specialty in 'endocrinology and diabetology.” Defendants claim that this perfunctory disclosure fails to comply with CPLR ”3101[d][1][I], which requires a plaintiff to disclose the qualifications of an expert, yet allows the shielding of the medical expert's identity. Specifically, defendants objected to plaintiff's failure to disclose the expert's pedigree information, namely the medical school attended by his expert, the boards that have certified his expert, and the locations of his expert's internships, residencies, and/or fellowships. Plaintiff, relying on cases such as Duran v. NYCHA, 182 Misc.2d 233(Sup. Ct. Bronx County, 1999; Justice Green), argued that although earlier decisions had required disclosure of details about the expert's qualifications, advances in technology that enable parties to identify the expert from the details supplied renders such requirement obsolete.

Noting that New York's Second and Fourth departments of the appellate division, are divided on the issue and that the state's First Department had not conclusively addressed the issue, the court adhered to a Second Department decision, holding that a defendant is entitled to disclosure of plaintiff's expert's qualifications in “reasonable detail” unless plaintiff demonstrates that disclosure would reveal the expert's identity or subject the expert to pressure or harassment. The court ordered disclosure, ruling that plaintiff failed to meet his burden.

TEXAS

Court Affirms Summary Judgment Ruling for Failure To Comply with Rule

A Texas trial court properly granted summary judgment in this medical malpractice suit, as the only document presented by appellants in response to the motion was a doctor's report that was neither verified nor accompanied by an affidavit, as is required by Texas Rule of Civil Procedure 166a(e). Morom v. Heredia, No. 13-01-539-CV, 4/24/03 (13th Ct. of App., Corpus Christi, TX). In addition, although appellants cited to a different affidavit filed during another proceeding in the trial court, and claimed that this other affidavit set out their expert's experience in family practice, this second affidavit was not produced in response to summary judgment and was not even incorporated by reference into the appellants' response to the motion for summary judgment. Therefore, the expert's report itself failed to raise a fact issue sufficient to defeat summary judgment.