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1 UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No September Term, 2013 METROPOLITAN GASTROENTEROLOGY GROUP, P.C., ET AL. v. LORRAINE SZIGETY, ET VIR. Zarnoch, Hotten, Arthur, JJ. Opinion by Zarnoch, J. Filed: March 13, 2015

2 In this medical malpractice case, the jury rendered a verdict in favor of appellees Kenneth Szigety, individually, and Lorraine Szigety individually and as personal representative of the estate of their daughter, Adrienne Szigety (collectively, the Szigetys). Appellants Dr. Michael Keegan, Metropolitan Gastroenterology Group, P.C., and Capital Digestive Care, LLC (collectively, Metropolitan), seek our review of an order of the Circuit Court for Montgomery County that denied Metropolitan s motion for judgment notwithstanding the verdict, a new trial or remittitur. We affirm in part and reverse in part. FACTS On February 18, 2008, Adrienne Szigety, then twenty-six years old, visited her primary care physician, Dr. Charles Umosella, with complaints of blood in her stool for two to three days. She also reported gastrointestinal pressure, bloating, and a five pound weight loss. Dr. Umosella instructed Adrienne to follow up with him on February 21, which she did, and when she still reported blood in her stool, Dr. Umosella referred her to Dr. Keegan, a gastroenterologist and member of Metropolitan, 1 for an endoscopy and colonoscopy. After meeting with Adrienne, Dr. Keegan created a plan to perform an EGD and a colonoscopy 2 and, if negative, to evaluate the small intestine, to address the dark red blood in her stool, the upper and lower abdominal pain, and her recent weight loss. 1 Metropolitan is a division of Capital Digestive Care, LLC. 2 EGD is the abbreviation for esophagogastroduodenoscopy, which is a visual inspection of the upper gastroenterology gastrointestinal tract. See McKitrick v. Barnhart, 364 F. Supp. 2d 1272, 1280 (D. Kan. 2005) (citing Stedman s Medical Dictionary 619 (26th ed.1995)). A colonoscopy is a visual inspection of the colon and rectal area. See 1

3 On February 27, 2008, Dr. Keegan performed an EGD and colonoscopy on Adrienne. The colonoscopy revealed small red lesions (angioestasias vs. petechiae vs. colitis) in the proximal, middle, and distal sigmoid colon, diverticulosis of the transverse colon, and grade 1 internal hemorrhoids. At this time, Dr. Keegan was provided with family history documenting a history of colon polyps, which could put Adrienne at a higher risk for colon cancer. Dr. Keegan met with Adrienne and her parents after the procedure to discuss the results. Adrienne testified at her deposition regarding the substance of the conversation: I can remember it perfectly. As soon as the procedure was over, my father was there, my mother was there, I was there. We were taken into a small kind of meeting room so he could debrief us on the results and the findings of the two procedures. He focused primarily on the colonoscopy. And again, he told us he primarily focused on reaching findings of the grade one hemorrhoids and the vascular malformations, which was mainly the focus of his conversation. And he attributed those two to the bleeding. He said these were most likely the cause of the bleeding.... When we had left his office, like I said, after having that meeting with my parents and my family, there was no discussion whatsoever about follow-up appointments. Nothing was mentioned.... But at the same time, when we had a full out discussion at length with Dr. Keegan, my father specifically asked him if it could be cancer and he immediately ruled it out.... I m specifically referring to the comment from Dr. Keegan when my father specifically asked him if it could be cancer. Asked him outright. The room was silent. There s no one else talking. And then Dr. Keegan immediately responded no. Dr. Keegan told the Szigetys that the colonoscopy had ruled out cancer, and that hemorrhoids or benign telangiectasias was causing her bleeding. In fact, he did not see any bleeding during the procedure so could not determine an undisputable source. The EGD Clement v. California Dep t of Corr., 220 F. Supp. 2d 1098, 1102 (N.D. Cal. 2002) (citing Stedman s Medical Dictionary 367 (26th ed.1995)). 2

4 report stated that she should follow up with an endoscopist within six weeks, while the colonoscopy report said to follow up in six days for the biopsy results. Aside from this follow-up, the next step was for Adrienne to see Dr. Keegan in the office within 6 weeks to evaluate the symptoms and treatment. Six days later, on March 4, Adrienne called Dr. Keegan to discuss the biopsy results. During the phone call, she reported hard bowel movements. Dr. Keegan told her to [t]ake a fiber supplement such as Benefiber or Citrucel and a stool softener once a day. After this phone call, Dr. Keegan explained: I wanted to see her back within a few weeks to see if that part of the treatment was working; and if not, then we could discuss her symptoms in detail, and we, I could examine her, and we could decide on what the next step was. At trial, Adrienne s boyfriend, Reynold Lee said she took the stool softeners as recommended. Over the next several months, Adrienne returned to her primary care physician, Dr. Umosella, for other medical reasons. According to Adrienne s complaint, during her visit with Dr. Umosella on June 25, 2008, she was not advised on the potential miss rate for colonoscopy procedures. During this visit, Adrienne stated that Dr. Umosella assured [her] that her rectal bleeding was caused by the benign colonoscopy findings and was nothing to worry about. In November 2009, Adrienne returned to Dr. Keegan with intensified rectal bleeding. At this time, Dr. Keegan believed that this bleeding was likely from hemorrhoids or another distal source. He ordered a complete blood count (CBC), flexible 3

5 sigmoidoscopy, CT scan, and Anusol-HC suppositories. 3 On December 7, 2009, Dr. Keegan performed a flexible sigmoidoscopy, which revealed a polyp or mass in the proximal rectum. Other tests were conducted, including a second colonoscopy on December 15, On December 23, 2009, Adrienne was diagnosed with stage III colorectal cancer. By this point, the cancer had already metastasized. Adrienne underwent intensive chemotherapy, radiation therapy, and surgical intervention to fight the cancer and was hospitalized for various complications. To assist Adrienne, her mother, Lorraine Szigety, took on the role of nurse in early She was present at the majority of Adrienne s appointments, assisted with her chemotherapy and dealt with the issues that arose when Adrienne suffered from infections. Lorraine explained during her testimony at trial that the nurses were overworked and that she was there to help make Adrienne more comfortable. This gratuitous care included home care between January 2010 and October The total number of hours Lorraine estimated that she spent caring for Adrienne during her cancer treatment was 2060 hours, with expenses totaling $43, On October 8, 2011, Adrienne died at the age of 30. Her medical bills totaled $486, A flexible sigmoidoscopy is procedure, similar to a colonoscopy, used to examine the colon. See Southern v. United States, 503 F. Supp. 2d 829, 837 (W.D. Tex. 2007). 4

6 LEGAL PROCEEDINGS On May 13, 2011, Adrienne filed a claim of medical negligence against Metropolitan, asserting that appellants failed to timely diagnose her cancer. 4 Additionally, she alleged lack of informed consent, contending that she was not informed of the material risks and complications of continued rectal bleeding. Metropolitan asserted affirmative defenses, such as contributory negligence and assumption of the risk, arguing that Adrienne did not properly follow-up with the treatment plan and office visits. On November 10, 2011, after Adrienne s death, the Szigetys amended their complaint to continue the litigation as the personal representative of the Estate of Adrienne and to add the count of wrongful death and survival action. On June 26, 2012, the parties filed motions in limine. Metropolitan filed a motion in limine to exclude the Szigetys informed consent claim and to preclude the Szigetys claim for gratuitous care, which the Szigetys opposed. The Szigetys filed a motion to exclude all evidence of contributory negligence, which Metropolitan opposed. On July 11, 2012, the circuit court held a pre-trial hearing to rule on the parties motions in limine and denied the motions. On July 16, 2012, the Szigetys filed a motion for reconsideration to preclude evidence of contributory negligence, which Metropolitan opposed. The circuit court did not rule on this motion, but took it under advisement during the trial. 4 On April 20, 2011, Adrienne originally filed the case in the Maryland Health Care Alternative Dispute Resolution Office. The parties waived arbitration and the case was transferred to the circuit court. 5

7 On July 30, 2012, the two-week trial began. During opening statements, Adrienne s counsel stated: Everyone agrees that Ms. Szigety died from metastatic rectal cancer. The defendants admit that she had rectal cancer on February 27th, 2008, when she had the colonoscopy. The defendants admits, [sic] their experts admit that it was 1.0 to 1.5 centimeters on February 27th, Dr. Keegan has admitted that he didn t tell the patient that the colonoscopy was inconclusive.... Their defenses are that she was already metastatic and incurable in February 2008; that her rectal cancer, while it was present, and it was already 1.0 to 1.5 centimeters, kit [sic] was okay to miss the lesion during the colonoscopy. At trial, medical experts in gastroenterology, colorectal surgery, and oncology testified on the standard of care applicable to Dr. Keegan s treatment of Adrienne. They also opined on whether his treatment caused her cancer to progress to the point of incurability. Dr. Mark Gordon, a general surgeon with a special interest in colorectal disease, explained that the smallest area of miss rate [for lesions] is the rectum and that it was a breach of the standard of care for Dr. Keegan to miss the cancer as it was clearly there. He further expressed that to a reasonable degree of medical certainty, it was his opinion that Adrienne s cancer was a highly curable tumor [as r]ectal cancer, [which] when found early, has a very high cure rate. Dr. Solny, an expert retained by the Szigetys testified that Dr. Keegan should have informed Adrienne that a colonoscopy is an imperfect technology. He further explained that Adrienne wasn t given the intellectual basis of her coming back because she thought she was in the clear. On August 2, 2012, Metropolitan renewed the motion to exclude the informed consent claim, which the Szigetys opposed. Again, the court chose not to immediately rule on this motion. On August 7, 2012, Metropolitan made a motion for judgment, seeking 6

8 rejection of the Szigetys claims of negligence and informed consent. Metropolitan also moved to strike all evidence relating to the informed consent claim. On August 8, 2012, after Metropolitan renewed their motion for judgment, the circuit court entered its ruling. The court denied the motion for judgment as to negligence, finding that the Szigetys had demonstrated a prima facie case of negligence, but granted the motion to exclude the informed consent claim. Accordingly, Metropolitan moved to strike any informed consent evidence again in light of the rulings, but the circuit court denied the motion. On the issue of contributory negligence, the circuit court heard argument on whether Metropolitan satisfied its burden of proof on causation. The circuit court found that Metropolitan had not proven causation and precluded that affirmative defense from going to jury. Metropolitan objected and moved to strike evidence relating to causation for the Szigetys breach of standard of care claim because no testimony was provided to show what would have occurred after February 27th if Ms. Szigety would have returned to the office. The court denied this portion of the motion, stating that the Szigetys had put forth a prima facie case for the breach of the standard of care claim. Metropolitan also moved to strike evidence related to the informed consent claim because there was no causal connection between any of the statements made by Dr. Keegan as it relates to any followup treatment after the colonoscopy. The court found that it would be impossible to go back and strike any testimony that relates to informed consent because there was so much of it and it was woven through the testimony of so many witnesses. In denying this 7

9 motion, the court noted that the jury would be told that the informed consent issue was not before them. The circuit court declined to instruct the jury on contributory negligence or assumption of the risk. Metropolitan objected before the instructions were given and took exception afterward. They also objected to the exclusion of contributory negligence and assumption of the risk from the verdict sheet. On August 10, 2012, the jury returned a verdict in favor of the Szigetys and awarded the Szigetys a total of $5,778, The total was based on $3,193, for Lorraine and Kenneth Szigety s wrongful death claim and $2,584, for the medical negligence claim on behalf of the Estate of Adrienne. 5 On August 20, Metropolitan filed a motion seeking a new trial, contending that the circuit court erroneously precluded Defendants contributory negligence and assumption of the risk defenses from going to the jury and that the verdict was not supported by the evidence. Metropolitan also asked the court to 5 The verdict sheet broke down the total amount of damages awarded as follows: Awarded to Lorraine and Kenneth Szigety: Non-economic damages: $3,000, Past Gratuitous/Attendant Care: $ 43, Future Parental Services $ 150, Total: $3,193, Awarded to the Estate of Adrienne Szigety: Past medical Expenses: $ 486, Funeral Expenses: $ 5, Past Lost Wages: $ 93, Non-Economic Damages: $2,000, Total: $2,584,

10 reduce the noneconomic damage award because it exceeded the statutory limitation set forth in Md. Code (1974, 2013 Repl. Vol.), Courts & Judicial Proceedings Article ( CJP ), 3-2A-09. On February 8, 2013, the court denied Metropolitan s motion for a new trial or for judgment notwithstanding the verdict. However, the circuit court granted in part their motion for remittitur, and reduced the jury s award of noneconomic damages and past medical expenses, though not to the extent sought by Metropolitan. The court entered judgment against Metropolitan on February 20, On March 8, 2013, Metropolitan timely filed its notice of appeal. Additional facts will be provided as necessary in our discussion of the issues. 6 A February 8 judgment was erroneously entered against only Metropolitan Gastroenterology Group, P.C. and not all of the defendants. The amount remained the same in the February 20 judgment. The amount awarded in this judgment was: Lorraine and Kenneth Szigety: Non-economic damages: $521, Past gratuitous/attendant care: $ 43, Future parental services: $150, Total: $715, Estate of Adrienne Szigety: Past medical expenses: $330, Funeral expenses: $ 5, Past lost wages: $ 93, Non-economic damages: $347, Total: $776, After the circuit court s reduction, the non-economic damages totaled $868,750. 9

11 review: QUESTIONS PRESENTED Metropolitan presents the following questions, which we have rephrased, 7 for our 7 In its brief, Metropolitan asks: I. Whether defendants are entitled to a new trial as a result of the prejudice resulting from: (1) The circuit court s error in precluding the jury from considering contributory negligence where both defendants and plaintiffs causation evidence exceeded the threshold of meager evidence; (2) The circuit court s error in precluding the jury s determination of the assumption of the risk defense in this case involving the refusal or delay to undergo recommended treatment; and (3) The circuit court s abuse of discretion in admitting irrelevant informed consent evidence where plaintiffs failed to plead a proper informed consent claim? II. III. If the Court finds defendants are entitled to a new trial, whether plaintiffs are permitted to recover damages for: (1) Past gratuitous care that is not a recoverable medical expense; and (2) Noneconomic damages calculated based on the date plaintiffs latest cause of action arose? If the Court finds defendants are not entitled to a new trial, whether defendants are entitled to remittitur of the judgment by $176, where the circuit court erred in granting excessive damages for: (1) Past gratuitous care that was never billed to anyone; (2) Noneconomic damages calculated based on a date later than the date the underlying cause of action arose; and (3) Past medical expenses without any evidence that the amount granted was paid medical expenses? 10

12 I. Did the circuit court err by precluding contributory negligence and assumption of the risk from consideration by the jury? II. III. Did the circuit court err by admitting evidence related to both informed consent and medical negligence, after striking the informed consent claim? Did the circuit court err by denying in part Metropolitan s motion for remittitur of the judgment? We answer in the negative to the first two questions and affirm the circuit court s decision with respect to the issues of contributory negligence, assumption of the risk, and informed consent. With respect to the third question, we conclude that the court erred in its calculation of the noneconomic damages. DISCUSSION I. Preclusion of Consideration by Jury We review, without deference, the trial court s grant of a motion for judgment in a civil case. D.C. v. Singleton, 425 Md. 398, 406 (2012) (Citation omitted). The circuit court must determine if there is any evidence, no matter how slight, that is legally sufficient to generate a jury question. Thomas v. Panco Mgmt. of Maryland, LLC, 423 Md. 387, 394 (2011) (Quotations omitted). We must review the grant or denial of a motion for judgment by conducting the same analysis as the trial judge. Id. (Citation omitted). In Maryland, litigants are entitled to have their theory of the case presented to the jury, provided the theory is a correct exposition of the law and is supported by the evidence. Collins v. Nat l R.R. Passenger Corp., 417 Md. 217, 229 (2010) (Citation omitted). For this Court to reverse the judgment of the circuit court, the complaining party 11

13 on appeal [must] show[] error and prejudice. McQuay v. Schertle, 126 Md. App. 556, 587 (1999). As explained below, in our view, Metropolitan was unable to show either error or prejudice based on the evidence. A. Contributory Negligence Metropolitan contends that the circuit court erred by precluding their contributory negligence claim from going to the jury. They argue that they proved causation through their own evidence and evidence presented by the Szigetys, including the fact that had Adrienne returned before July 2009, her cancer would have been diagnosed. They point to evidence that Adrienne failed to adhere to Dr. Keegan s oral and written instructions concerning follow-up care after her appointment and telephone call. They also note that Adrienne s primary care physician, Dr. Umosella, instructed her to see Dr. Keegan three times after February The Szigetys contend that the circuit court was correct in finding that Metropolitan failed to meet the burden for proving contributory negligence because Dr. Keegan did not testify about what he would have done to diagnose her rectal cancer had she returned to his office. They emphasize the fact that Metropolitan did not offer evidence as to what Dr. Keegan s treatment plan would have been to diagnose the cancer or what other diagnostic tests he would have performed. Additionally, the Szigetys argue that the evidence from Metropolitan s expert witnesses pointed to what a reasonable physician should do to diagnose rectal cancer, not what Dr. Keegan would have done. They assert that Adrienne was not given time sensitive deadlines or explanations that she needed more diagnostic tests to be contributorily negligent. 12

14 Contributory negligence is an affirmative defense and is explained as the degree of reasonable and ordinary care that a plaintiff fails to undertake in the face of an appreciable risk which cooperates with the defendant s negligence in bringing about the plaintiff s harm. McQuay, 126 Md. App. at 568. This question of fact is typically reserved to the jury, unless no reasonable person could find in favor of the plaintiff on the issue of contributory negligence. Id. at 569. Metropolitan, as the defendant, bears the burden of establishing that Adrienne was contributorily negligent in failing to return to Dr. Keegan or in failing to follow the recommended treatment plan in order to present this defense to the jury. Such evidence must be legally sufficient, which can only be sustained by offering more than a mere scintilla of evidence, amounting to [] more than surmise, possibility, or conjecture that such other party has been guilty of negligence. Fowler v. Smith, 240 Md. 240, 247 (1965). Such evidence must be of legal probative force and evidential value. Id. The circuit court concluded that Metropolitan did not present sufficient evidence to allow the jury to hear the contributory negligence defense. The circuit court cited Wheeler v. Katzoff, 242 Md. 431, 436 (1966), where the Court of Appeals explained that the court should either instruct the jury that the plaintiff was not contributorily negligent as a matter of law or not instruct it at all as to such negligence. The failure of Metropolitan s argument was summed up by the court: Somewhere... there would have needed to be some evidence as to what it is Dr. Keegan would have done. And based on Dr. Keegan s testimony,... there was nothing that I could find that said he would have administered a second colonoscopy, and indeed, it appears that he was satisfied that he had found the cause of the bleeding. 13

15 So I don t think that... the allegation that someone didn t return to see a doctor in the abstract is sufficient to show contributory negligence. So I think you need to go a step farther and show... if the patient had done so then what would have happened, what is it that Dr. Keegan would have done that would have made a difference, and that s the part that I find lacking here. Metropolitan s contention that Maryland law only requires a minimal amount of evidence to establish causation is misplaced. The evidence presented does not clearly establish that Adrienne was informed that she had been instructed to return to Dr. Keegan. An expert s opinion testimony may not amount to conjecture, speculation, or incompetent evidence. Giant Food, Inc. v. Booker, 152 Md. App. 166, (2003) (Quotations omitted). While Metropolitan did provide expert testimony as to causation, this alone is not sufficient to present the issue to a jury. The factual basis for an expert medical opinion must amount to more than a because I think so or a because I say so situation. City Homes, Inc. v. Hazelwood, 210 Md. App. 615, 691 (2013). For example, the Court found that a medical expert lacked a sufficient factual basis when she testified at one point that she was merely identifying potential risk and could not make any statement as to causation with certainty. Ross v. Hous. Auth. of Baltimore City, 430 Md. 648, 664 (2013). The Court explained that her opinion was as likely to confuse as to assist a jury, and thus, was not admissible. Id. The evidence presented by Metropolitan was purely hypothetical, relying on what Dr. Keegan would have done if Adrienne had returned. The court s order denying Metropolitan s post-trial motions further explained the court s reasoning: No evidence was presented to demonstrate that Dr. Keegan would have taken different actions to diagnose rectal cancer had the Plaintiff returned to his office, Plaintiff received no treatment plan, no deadline in her instructions from Dr. Keegan, no time-sensitive recommendations about the risk of 14

16 developing metastatic rectal cancer, nor any explanation that she required further diagnostic testing to determine the cause of her rectal bleeding and to rule out cancer. We agree that without additional evidence to show that Adrienne was aware of the need for further testing, or that she negligently failed to follow a treatment plan put in place by Dr. Keegan, any presentation of the contributory negligence defense would only confuse the jury. Metropolitan did not satisfy its burden and therefore, we see no error in the circuit court s decision not to instruct the jury on this affirmative defense. B. Assumption of the Risk Metropolitan contends that the circuit court erred by not allowing the jury to consider assumption of the risk. Metropolitan argues it was error to rule that the assumption of the risk defense was only permissible in informed consent cases. They also argue that they satisfied their burden of production on the issue. They argue that assumption of the risk is valid because they assert that Adrienne refused or delayed treatment by not returning to Dr. Keegan s office for follow-up. The Szigetys contend that the circuit court was correct in finding that Metropolitan did not meet their burden for proving assumption of the risk. They argue that Metropolitan did not introduce evidence that Adrienne had any knowledge or appreciation that Dr. Keegan failed to properly diagnose her rectal cancer, nor did she refuse or delay recommended treatment. They assert that Dr. Keegan eliminated that possibility for Adrienne: Appellants do not and cannot cite to a case for the proposition that failure to follow a treatment plan for one condition is tantamount to assumption of the risk of a 15

17 completely different condition. The Szigetys also note that Metropolitan s evidence was that her cancer was already incurable by the time of the colonoscopy. To establish an assumption of the risk defense, Maryland law requires that a defendant prove that (1) the plaintiff had knowledge of the risk of the danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of danger. Thomas, 423 Md. at 395. This doctrine rests upon an intentional and voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward her and to take her chances from harm from a particular risk. ADM P ship v. Martin, 348 Md. 84, 91 (1997) (Citations omitted). The knowledge and appreciation elements are viewed by an objective standard, while the voluntary exposure to the risk must involve some manifestation of consent to relieve the defendant of the obligation of reasonable conduct. Id. at 92 (Citation and quotations omitted). Therefore, in order for a plaintiff to assume voluntarily a risk of danger, there must exist the willingness of the plaintiff to take an informed chance. Id. (Citation and quotations omitted). An act becomes voluntary when the [individual] is given a clear and reasonable choice either to act or not act, and then chooses willingly to act. Id. at 93. Assumption of the risk is only a viable defense if the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff. Thomas, 423 Md. at 398 (emphasis in original) (Citation omitted). If there is a dispute as to whether the risk is assumed or not, that question is usually left to the jury because the role of the fact finder is to assess the 16

18 credibility of the evidence and to draw a conclusion from among the inferences which may be reasonably drawn from that evidence. Id. at 399 (Internal citations omitted). There was undisputed evidence that Adrienne did not assume the risk of rectal cancer. As noted by the circuit court, Metropolitan did not introduce any evidence that [Adrienne] had any knowledge or appreciation that Dr. Keegan failed to properly diagnose her rectal cancer, and therefore, she could not assume a risk that failing to return Dr. Keegan would allow her rectal cancer to terminally metastasize. The unrefuted testimony at trial through Adrienne s videotaped deposition demonstrated that when Dr. Keegan was specifically asked whether the rectal bleeding could be cancer, his unequivocal answer was no. We agree with the circuit court that Metropolitan did not establish that Adrienne knew about the risk, appreciated the risk and voluntarily assumed the risk. Any reasonable person when told directly by their doctor that cancer was not a concern could not assume the risk of allowing that cancer to metastasize. Adrienne did not know of the risk and therefore could not assume the risk. It was proper for the circuit court to grant the motion for judgment on this issue and withhold the assumption of the risk defense from the jury s consideration. II. Informed Consent Evidence Metropolitan contends that the circuit court abused its discretion in admitting evidence on informed consent. Appellants argue that because the circuit court granted their request to preclude the Szigetys claim of lack of informed consent from the jury, the evidence was prejudicial and irrelevant. The Szigetys contend that although the evidence presented could be theoretically used for an informed consent claim, the trial court 17

19 properly admitted it as part of the medical negligence claim. They argue that the evidence for both claims was inextricably intertwined, because both were grounded in Dr. Keegan s failure to properly treat and diagnose Adrienne. We review a circuit court s evidentiary rulings under an abuse of discretion standard. Brown v. Daniel Realty Co., 409 Md. 565, 601 (2009). Under this standard, [a]n abuse of discretion lies where no reasonable person would share the view taken by the trial judge. Id. (Citation omitted). The decision will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. Id. (Citation omitted). Informed consent claims and medical negligence claims are different causes of action: Breach of informed consent and medical malpractice claims both sound in negligence, but are separate, disparate theories of liability. McQuitty v. Spangler, 410 Md. 1, 18 (2009). In instances where only medical negligence is pleaded, whether the plaintiff patient had given informed consent to a procedure generally is irrelevant and carries great potential for the confusion of the jury... and the information given to the plaintiff is not at issue. Schwartz v. Johnson, 206 Md. App. 458, 485 (2012) (Citation and quotations omitted). When there is a risk that the jury will misuse the evidence that relates to informed consent, it could be an abuse of discretion if the evidence is submitted to the jury. Id. at 486. Here, the Szigetys failed to properly plead and prove an informed consent claim under Maryland Law by intermingling negligence and informed consent allegations. 18

20 Therefore, the only issue on appeal is whether the circuit court abused its discretion by not removing all discussion of informed consent from the evidence submitted to the jury. In our view, this was not an abuse of discretion and is not subject to reversal. The circuit court clearly explained the difficulty in removing all traces of the informed consent claim: And here s the problem I have is that, you know, informed consent was discussed by both sides throughout the trial, and it s woven in the testimony of many witnesses in one way or another... But in an ideal world it would be nice to be able to go back and strike any testimony that relates to informed consent, but the problem is I don t know how I would identify for the jury what testimony it was that related to the informed consent because there was so much of it and it was woven through the testimony of so many witnesses, I don t think I could do that if I wanted to... I do think the jury needs to be told that informed consent is not an issue before the jury, and I ll find a way to do that. But other than doing that, I m not sure there s any profit in going back and parsing out which evidence dealt with it and which didn t, other than just telling them it s not an issue before them. It is clear from this discussion that the circuit court took into account the potential confusion that this evidence could pose to the jury. The evidence specifically related to the information given to Adrienne Szigety[, which was] at issue and there was no risk the jury would misuse that evidence. It was so intertwined with the medical negligence claim that any attempt to remove all evidence relating to informed consent would likely have caused more confusion for the jury. In light of the deficiencies of attempting to strike past evidence, it was not an error or abuse of discretion for the circuit court to remedy the problem with a jury instruction. III. Remittitur of the Judgment Metropolitan contends that although the circuit court reduced the jury s verdict, the reduction was not sufficient. Specifically, appellants argue that the court erred by including 19

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