The Court of Special Appeals of Maryland (“Maryland Appellate Court”), Maryland’s intermediate appellate court, stated in its unreported opinion dated August 6, 2020, “It’s not often that a plaintiff loses a jury trial after winning on a summary judgment motion. But that’s what happened to appellant Anne Kelly Billing in her action against appellee, Dr. James Moulsdale, on her claims for Informed Consent and professional negligence.”

The Underlying Facts

Ms. Billing alleged that when she went to her appointment with Dr. Moulsdale for an examination for kidney stones, Dr. Moulsdale used the opportunity to conduct digital examinations of her vagina and rectum, examinations that had nothing to do with the treatment of her kidney stones. The court granted Ms. Billing’s motion for summary judgment on the informed consent count. Days before the trial started, the parties reached an agreement under which Dr. Moulsdale waived any defense to the informed consent claim as well as the right to challenge or dispute the court’s summary judgment ruling. In return, Ms. Billing dropped her intentional tort claims and agreed to limit her recovery to $1,000,000.

Ms. Billing went to trial believing that the jury’s sole task regarding her informed consent claim was to determine the amount of damages due to her. The trial court, however, interpreted the summary judgment opinion in a more limited way, paving the way for the jury’s defense verdicts on both the informed consent and negligence counts. The plaintiff appealed.

Maryland Appellate Court Opinion

Maryland Informed Consent

In Maryland, the elements of an informed consent claim include the duty to disclose to the patient material information that a physician 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; breach of that duty by failing to make an adequate disclosure; and that the breach was the proximate cause of the patient’s injuries.

The Maryland Appellate Court stated that the summary judgment (“SJ”) court had determined: “These exams were of no medical value to Ms. Billing’s treatment for kidney stones. Had she been told they were not medically necessary, she would have declined to have her bare breasts manually manipulated ostensibly to listen to her heart and lungs or to have the intrusive vaginal and rectal examinations.”

The trial court had instructed the jury: “Regarding the claim for informed consent the Court has ruled that Dr. Moulsdale did not obtain informed consent for the treatment of a kidney stone.” The Maryland Appellate Court ruled that “the statement given to the jury was a misinterpretation of the Memorandum Opinion [granting summary judgment],” explaining that the summary judgment court “use of the phrase “for the treatment of kidney stones” merely explained why there was no medical necessity for the examinations and why it did not matter to Ms. Billing’s implied consent claim that Dr. Moulsdale’s practice was to inform all new patients that he performed such examinations as part of an overall examination … If there was anything that Ms. Billing did consent to, it was an examination for kidney stones. That’s why she went to Dr. Moulsdale’s office in the first place, and why the SJ court determined that there was no medical necessity for the pelvic and rectal examinations, which the SJ court concluded should have been disclosed to Ms. Billing.”

The Maryland Appellate Court explained: “The Summary Judgment established that (i) Ms. Billing prevailed on the informed consent claim; (ii) Dr. Moulsdale digitally penetrated Ms. Billing’s rectum and vagina “under the guise” of treating kidney stones; (iii) given the purpose for Ms. Billing’s visit to Dr. Moulsdale, there was no medical necessity for such exams; and (iv) Dr. Moulsdale was required, but failed, to disclose the lack of medical necessity for those examinations. Instead of disclosing these findings and conclusions to the jury, the incorrect statement enabled Dr. Moulsdale to play the role of the magnanimous defendant by “conceding” that he didn’t get informed consent for the treatment of kidney stones, and then shrug off that fact as “no big deal” because he wasn’t even treating her for kidney stones that day. Thus, in addition to handing Dr. Moulsdale a new defense to the informed consent claim (notwithstanding his waiver of any liability defenses), the anodyne description obscured the seriousness of the misconduct that had been established by the Summary Judgment.”

The Maryland Appellate Court held: “we hold that the SJ court decided each element of the informed consent claim, including that Ms. Billing was injured as a proximate result of Dr. Moulsdale’s breach of his duty to obtain informed consent. The only issue left for the jury to decide on the informed consent claim was the amount of compensatory damages. The trial court erred in sending the issue of causation to the jury.”

The Maryland Appellate Court concluded: “On remand, as to the informed consent count, the jury’s sole task will be to determine “what, if any, award will fairly compensate” Ms. Billing for Dr. Mousdale’s failure to obtain informed consent for his touching of Ms. Billing’s naked breasts and his digital examination of her vagina and rectum. See Maryland Civil Jury Instruction (“MPJI-Cv”) 10:1.14. Further, irrespective of the resulting impact on the negligence claim (as to which we express no opinion), the jury should be informed accurately about the findings in the Memorandum Opinion and SJ Order. The Pretrial Stipulation, including without limitation Dr. Moulsdale’s agreement not to dispute the correctness of the Memorandum Opinion, remains fully binding on the parties.”

Source Billing v. Moulsdale, No. 3287 September Term, 2018.

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