Maryland physicians could see established medical liability law upended if the state’s high court doesn’t reject a trial court’s instructions informing jurors that negligence could be defined by what a “reasonable” layperson would do.

For more than a century, negligence in Maryland medical malpractice cases has been guided by the “reasonably competent” physician standard of care—a standard that juries and judges learn through expert witness testimony.

But when a five-day trial in which a patient sued his neurosurgeon after developing an abscess and bacterial infection after an incision did not heal properly concluded, a Baltimore County Circuit Court judge instructed the jury that they could also consider what a layperson would consider reasonable. When the physician asked the court to have the standard of care measured solely based on the expectations for a neurosurgeon, the judge refused to modify the jury instructions in the case, Armacost v. Davis.

The result: The jury returned a verdict in favor of the patient plaintiff, Mark Armacost.

The physician, Reginald J. Davis, MD, appealed the decision to the Court of Special Appeals of Maryland, which ruled that the jury instructions were improper and ordered a new trial. The case now is before Maryland’s highest court, the Court of Appeals of Maryland. Oral arguments are scheduled for late May.

The Litigation Center of American Medical Association and State Medical Societies joined the Maryland State Medical Society (MedChi) and the Medical Mutual Liability Society of Maryland in an amicus brief that urges justices on the high court to uphold the appellate ruling. Not doing so would have “cataclysmic consequences,” the Litigation Center brief argues, including more meritless lawsuits, higher costs and implications for what standards other professionals “of every stripe and variety” are held to in court.

Troubles with layperson standard

Applying dual stands of care in medical malpractice cases is unworkable, untenable and unwise, the Litigation Center and others say in their brief.

“Informing juries that they must apply only the ‘competent professional’ standard of care prevents lay juries from judging the conduct of specialized professionals with a benchmark that vaults the hypothetical layperson’s ‘reasonable’ judgement over that of the expert’s,” the brief states. “Letting juries nullify professional standards would upend the basic premise that professional malpractice claims involve specialized knowledge and duties that laypeople cannot assess based on their common knowledge.”

That specialized knowledge is especially necessary in medical liability cases because medical procedures are not common knowledge, the brief notes, and juries must rely on expert testimony to determine whether there is unskilled or negligent treatment.

The Court of Special Appeals touched on that in their earlier ruling saying that medical liability cases are usually more complex than general negligence claims and “to ask the jury to go beyond professional standards to determine whether it was reasonable to follow a particular medical court of treatment would in effect ask for the jury’s medical judgment—something that no member of the jury is likely to be capable of giving” without the aid of expert medical testimony.

Longtime standard

The competent professional standard is a well-established part of case law and statutes in Maryland and more than a dozen states.

Blowing up the settled rules would open all professionals up to a layperson’s standard in court, subject physicians to two different standards of care, and potentially raise the number of meritless lawsuits. That figure is already high, with 68 percent of medical liability claims closed in 2015 having been dropped, dismissed or withdrawn. Among the 7 percent of claims that were decided by a trial verdict, 88 percent of verdicts were for the defense, according to a 2018 AMA report.