Pharmacist Can Give Expert Testimony About Physician’s Duty to Obtain Informed Consent, Maryland Appellate Court Rules

Johns_Hopkins_Hospital.jpgA pharmacist may offer expert testimony in a wrongful death lawsuit regarding a physician’s alleged failure to obtain a patient’s informed consent, according to a ruling by the Maryland Court of Special Appeals. Fusco v. Shannon, 63 A.3d 145 (Md. Spec. App. 2013). The trial court excluded testimony from the plaintiffs’ expert witness, a pharmacist, holding that he was not qualified to offer an opinion on a physician’s professional duties. The case went to trial without the pharmacist’s testimony, and the jury found in favor of the defendants. The appellate court reversed the judgment and remanded the case to the trial court.

The decedent, Anthony Fusco, Sr., was eighty-two years old when he received a diagnosis of “low-risk” prostate cancer in 2001. By early 2003, he and his doctor decided to begin a course of treatment that included radiotherapy. He met with a doctor who explained the nature and risks of radiation treatments, including possible inflammation of surrounding organs. The doctor referred him to Dr. Shannon to prescribe a protectant medication to reduce the risk of radiation damage. Dr. Shannon prescribed Amifostine, and would later claim that he explained the risks associated with the drug, such as nausea, skin reactions, and blood pressure issues.

The Amifostine treatments began in April 2003 and continued for about a month. He received twenty-three injections, seemingly without incident, but on May 17, 2003, the day after receiving his twenty-fourth dose, Mr. Fusco was hospitalized with a severe skin reaction. He was diagnosed with Stevens-Johnson syndrome, a rare but serious skin condition, which Dr. Shannon suggested was a reaction to the Amifosine. After several hospitalizations, Mr. Fusco died of a stroke allegedly resulting from Stevens-Johnson on December 4, 2003.

Mr. Fusco’s family sued Dr. Shannon for failing to obtain his patient’s informed consent regarding the Amifostine. A claim for lack of informed consent is different from a negligence claim. It requires a plaintiff to prove, via expert testimony, that a defendant failed to meet one or more of the five factors identified in Sard v. Hardy, 281 Md. 432 (1977): (1) the inherent risks of a treatment, (2) the likelihood of the treatment’s success, (3) how frequently particular risks occur, (4) alternatives to the treatment, and (5) any potential detriment to disclosing the risks to the patient. Id. at 448.

The plaintiffs offered the testimony of a doctor of pharmacy (Pharm.D.), not a medical doctor (M.D.), regarding Dr. Shannon’s alleged failure to obtain informed consent. The defendants moved to exclude the testimony, and the trial court ultimately agreed. The Court of Special Appeals considered whether the trial court erred by excluding the pharmacist’s expert opinion. It reviewed cases from Maryland and other jurisdictions in which a court excluded a pharmacist’s expert testimony against a physician, and found that most of those cases sounded in negligence law, not informed consent. Maryland law might prohibit a pharmacist from giving expert testimony regarding a physician’s standard of care in a medical malpractice claim, but the court held that it does not prevent a pharmacists from testifying regarding informed consent and the Sard factors.

The Maryland attorneys at Lebowitz & Mzhen can assist victims of medication errors, who have been injured by drugs prescribed, dispensed, or administered incorrectly. Contact us today online or at (800) 654-1949 for a free and confidential consultation to discuss your case.

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Photo credit: By Lizardraley99 (Own work) [CC-BY-SA-3.0], via Wikimedia Commons.

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