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Seth M. Goldberg, et al. v. Billy Karl Boone, No. 21, Sept. Term 2006. MEDICAL MALPRACTICE - MISTRIAL - INFORMED CONSENT Petitioner, Seth M. Goldberg, M.D., sought review of the Court of Special Appeals' judgment determining that the Circuit C ourt for M ontgom ery County erred in submitting an informed consent instruction to the jury because physicians in M aryland do no t have a du ty to inform the ir patients that there are other, more experienced surgeons in the region, but that the erro r did not w arrant a new trial on the issue of negligence. Dr. Goldberg also sought review of the intermed iate appellate court's conclusion that the cross-examination questions regarding one of the D.C. snipers asked of one of Dr. Gold berg's exp ert witnesse s was so p rejudicial as to w arrant a new trial on the sole issue of damages. The Court of Appea ls reversed th e Court of Specia l Appeals 's judgme nt, conclud ing that, although the line of questioning about the sniper case was improper, its prejudicial effects did not transcend the trial judge's curative measures so as to warrant a new trial. The Court also determined that the trial judge h ad prope rly instructed the jury on the issue of informed consent because whether a reasonable person, in Mr. Boone 's position, would have deemed the fac t that there were other, more experienc ed surgeo ns in the region as material to the decision whether to risk having the revisionary mastoidectomy undertaken by Dr. Goldberg was a factual issue for the jury to determine.

IN THE COURT OF APPEALS OF MARYLAND

No. 21 September Term, 2006

SETH M. GO LDB ERG , et al.

v.

BILLY KARL BOONE

Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ.

Opinion by Battaglia, J. Bell, C.J., Ra ker and G reene, JJ., Diss ent.

Filed: December 12, 2006

This case arises out of a me dical malpractice action brou ght by Responden t, Billy Karl Boone, against Petitioners, Seth M. Goldberg, M.D. and Aesthetic Facial Surgery Center of Rockville, Ltd. ("Dr. Goldberg"), for injuries Mr. Boone sustained in the course of undergoing a revisionary mastoidectomy. Dr. Goldberg filed a petition for writ of certiorari, seeking review of a judgment of the Court of Special Appeals and posing the followin g questions: 1. Wheth er the failure to grant a mistrial on the grounds that Plaintiff's counsel intentionally introduced improper and inflammatory evidence conce rning the recent sniper shootings in Montgomery County entitles the Defendants to a new trial on both liability and damages? 2. Whether the submission to the jury of the issue of lack of informed consent for failure to advise of a more experienced surgeon and breach of the standard of care for the same failure constitutes prejudicial error, warra nting a new trial on liability and damages? 3. Was it error not to require proof of causation as to whether a more experienced surgeon would not have caused the same or similar in jury? 1 Mr. Boone also filed a cross-petition presenting two issues: 1. Where a retained expert is asked a single cross-examination question about his p rior inconsiste nt testimony in a highly publicized case, does that question warrant reversal of the denial of a mistrial motion, when the defendants never sou ght to preclude such questioning in advance, never sought a curative instruction, and did not mov e for mistrial until a day later, especially when the trial court rejected defense counsel's claims

1

Because the answer to both question number two, whether the su bmission to the jury of the issue of informed consent warranted a new trial on liability, and question number three, whether it was error n ot to require proof of cau sation as to whether a more experienced surgeon would not have caused the same or similar injury, is dependent upon the interpretation of the doctrine of informed consent, we have collapsed the discussion of the two into one.

of improper personal attacks and commended all counsel for the "highest de gree of pro fessionalism " through out the trial? 2. If this Cou rt considers th e request of the defen dants to vac ate the circuit court's judgment on liability on the neglige nce coun t, did the Court of Special Appeals correctly conclude that, as a matter of law, a surgeon with little experience in a complex procedure perform ed close to th e brain had no duty to inform h is patient of the abundance of more experien ced specia lists available? We granted both pe titions. Goldberg v. Boone, 393 M d. 242, 900 A.2d 74 9 (2006). W e shall hold that the trial judg e did not ab use his discre tion in refusin g to declare a mistrial or in subm itting the in form ed co nsen t instruction to the jury. I. Facts In 1983, Billy Karl Boone underwent a mastoidectomy2 to remove a cholesteatomoa3

2

A mastoidectomy is an operation on the mastoid bone, "the prominent bone behind the ear." American Medical Association Encyclopedia of Medicine 667 (Charles B. Clayman, M .D., ed., 1989 ). The ma stoid [p]roject[s] from the temporal bone of the skull . . . it is honeycombed with air cells, which are connected to a cavity in the upper part of the bone called the mastoid antrum. This bone, in turn, is connected to the middle ear. As a result, infections of the middle ea r [otitis media ] occasionally spread through the mastoid bone to cause acute mastoiditis. Id. A mastoidectomy is a procedure which involve s "making an incision behind the ear, opening up the mastoid bone, and removing the infected air cells. The wound is stitched up around a drainage tube, which is removed a day or two later." Id. at 667-68.
3

A cholesteatomoa is "[a] rare but serious condition in which skin cells proliferate and debris collects within the middle ear," typically developing as a result of a long-term middleear infe ction. American Medical Association Encyclopedia of Medicine, supra , at 274. -2-

from behind his left middle ear. During the procedure, the doctor perform ing the surgery accidently drilled a hole into Mr. Boone's skull, exposing the dura.4 In November of 1999, Mr. Boone was referred by his primary care physician to Seth M. Goldberg, M.D., an otolaryngolog ist,5 and the sole owner and shareholder of Aesthetic Facial Surgery Center of Rockville, Ltd., due to an ear infection and white, pus-like drainage that Mr. Boone was experiencing in his left ear. Dr. Goldberg determined that Mr. Boone had another

cholesteatomoa and that the condition had the potential of being life-threatening. On January 6, 2000, Dr. Gold berg performed an out-patient revisionary mastoidectomy6 on Mr. Boone to remove the second cholesteatomoa. The day after the procedure, Mr. Boone began experiencing difficulty reading, remembering names, and recalling words. A subsequent MRI scan7 and a CT scan 8 of Mr. Boone's brain revealed hemorrhaging and an apparent openin g in his s kull at th e cite of the hem orrhag ing.

4

Dura is short for "dura mater," which is "the tough fibrous membrane that envelops the brain and spinal cord ex ternal to the arac hnoid a nd the p ia mate r." Merriam-W ebster's Collegiate Dictionary 388 (11th ed. 200 5).
5

An otolaryngologist is an ear, nose and thro at doctor. Stedman's Medical Dictionary 1395 (28th ed. 20 06). A "revisionary" mastoidectomoy is a repe ated mastoidecto my. Webster's II New College Dictionary , supra , at 1067.
7

6

"MRI" is the abbreviation for magnetic resonance imaging. Stedman's Medical Dictionary , supra , at 1135. "CT" is the abbreviation for a computed tomography, which is "im aging ana tomic information from a cross-sectional plane of the body, each image generated by a computer synthesis of x-ray transmission data obtained in many differe nt direct ions in a given p lane." Stedman's Medical Dictionary , supra , at 468. -38

Mr. Boone filed a complaint in the Circuit Court for Montgomery County in December of 2002 against Dr. Goldberg, in which he alleged that Dr. Goldberg had negligently punctured his brain with a su rgical instrument during the rev isionary mastoidecto my, causing serious and permanent brain damage. Mr. Boone also alleged that Dr. Goldb erg faile d to info rm M r. Boone that, due to the hole in his dura, the revisionary procedure would be more complex than a standard revisionary mastoidectomy, that there was a risk of sustaining brain damage from the procedure, and that there were more experienced surgeons to perform the procedure in the region than Dr. Goldberg, who only had performed one revisionary ma stoidectomy in the past three years. In light of these omissions, M r. Boone requested in his pretrial pleadings that the Maryland Civil Pattern Jury Instruction on informed consent be given, which provides: a. Inf ormed C onse nt, G ener ally: Before a physician provides medical treatment to a patient, the physician is required to explain the treatment to the patient and to warn of any material risk or dangers of the treatment, so that the patient can make an intelligent and informed decision about whether or not to go forward with the pro posed treatm ent. This is known as the doctrin e of inform ed conse nt. In fulfilling the duty to disclose, the p hysician is require d to reveal to the patient the nature of the ailment, the nature of the proposed treatment, the probability of success of the proposed treatment and any alternatives, and the material risks of unfortun ate outcom es associated with such treatment. A "material risk" is defined as "a risk which 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 have the particul ar med ical treatm ent or p rocedu re."

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The physician's duty to disclose material risks to the patient is based upon an objective standard rather than a subjective standard. This means that the question of whether a risk is a "material risk" is based upon whether a reasonable person in the position of the patient would have considered the risk to be a material risk. Whether the patient would have consented to the procedure, if informe d of the risk, is a relevant factor to be considered, but is not conclusive. The physician is not required to divulge all risks, but only those which are material to the intelligent d ecision of a reasonab ly prudent p atient. b. Informed Co nsent (Limitations on D uty to Disclose): The physician has a qualified privilege to withho ld information on therapeutic grounds, as in those cas es where a comple te and candid disclosure of possible alternatives and consequences more likely than not might have a detrimental effect on the physical or psychological well-being of the patient, or where the patient is incapable of giving his or her consent by reason of mental disability or infancy, or has specifically requested that he or she not be told. Maryland Civil Pattern Jury Instruction 27 : 4 (2006). During the trial, M r. Boone put on several med ical experts who testified that D r. Goldberg should have disclosed that the revision ary mastoidec tomy posed a risk of bra in damage, and also that it would have been prudent for Dr. Goldberg to have referred Mr. Boone to a surgeon more experienced in performing such a revisionary mastoidectomy as complex as Mr. Boone's. Dr. Goldberg also put on sev eral medica l experts, one of who m was D r. David Schretlen, a neuropsychologist9 who had performed extensive neuropsychological

A neurops ychologist is a doctor of neu rops ychology, " [a] speci alty of psychology concerned with the study of the relationships between the brain and behavior, including the -5-

9

examinations of Mr. Boone. On cross-examination of Dr. Schretlen the following dialogue occurred: [COUNSEL FOR MR. BOO NE]: N ow, other p eople who have talked with Mr. Boone or talked about Mr. Boone or given therapy to Mr. Boone have talked about him not being aware, not having fu ll insight into the degree of the anger that he has or the anger that he expresses. Wouldn't you agree that is fairly common in these kinds of patients, that they are not fully, they don't have full insight into all of their problems? SCHRETLEN: I wouldn 't say that. I mean, it happens, but I'm not, (a) I'm not sure that's the case in this case at all, and (b) it certainly is, yeah, it's common, but it's also commonly not the case -*** [COUNSEL FOR MR . BOO NE]: O kay. I mean, you are hired here basically as a minimizer, aren't you? [COUNSEL FOR D R. GOL DBER G]: Objection, You r Honor. THE COU RT: Overruled. *** [COUNSEL FOR MR. BOONE]: Okay. Now, the very last case you testified, you testified against my client, Sharon Burke. You said she had a mild problem, too. Do you remem ber that? *** [COUNSEL FOR M R. BO ONE ]: She flunked 55 out of 60 tests you gave her and still you called it a "mild" problem. Don't you recall that?

use of psychological tests and assessment techniques to diagnose specific cognitive and behavioral deficits and to prescribe rehabilitation strategie s for the ir remed iation." Stedman's Medical Dictionary , supra , at 1314. -6-

SCHRETLEN: I recall that I diagnosed her with dementia, [Counsel for M r. Boone]. [COUNSEL FOR MR. BOONE]: Sir, don't you remember you used the w ord " mild " in yo ur co urtro om testim ony? *** SCHRETLEN: I said it was milder than some, as you may recall, but that she had a moderately severe dementia syndrome. *** [COUNSEL FOR MR. BO ONE]: Now, the case before that, that you testified in court, was a criminal ca se, right? SCHRETLE N: I'm not sure. [COUNSEL FOR MR. BOONE]: Okay. Well, you testified a young man, about 18 years old, and you did a daylong battery of tests on him and he teste d abnorm al in one or tw o tests, right? SCHRETLE N: Oh, yes. I know who you are speaking of. [COUNSEL FOR M R. BOO NE]: Okay. He was only abnormal in one or two tests? SCHR ETLE N: That's right. [COUNSEL FOR MR. BOONE]: Okay. And that young man, you were willing to come into court and testify that he might have been brainwashed into murdering 10 people in the sniper thing, isn't that true? [COUNSEL FOR DR. GO LDBE RG]: Objection , Your Hono r. SCHRET LEN: That is absolutely incorrect and outrageous. THE COU RT: Sustained. [COUNSEL FOR M R. BO ONE ]: Well, let's talk about it for a -7-

minute. SCHRET LEN: Yes. [COU NSEL F OR M R. BOO NE]: The young man's name - [COUNSEL FOR DR. GOL DBERG]: May we approach, Your Honor? *** This is an outrage. I am not getting into the sniper syndrome, and I don't hav e the record s and I don 't have - - and it has no relevance to this ca se. And this is only the kind of crossexamination that I heard once before in my career and that came from Marvin Ellin in a case , and I objected to it then and I do now. We don't know an ything about these other cases. [COU NSEL FOR M R. BO ONE ]: I tried to lay a fairly careful foundation before I asked him the question, which is that he testified he tested a young man over a period of eight hours, and this young man he tested only tested abnormal on one or two of the tests he gave him, and yet he was w illing to come into court and testify on his beh alf. Ma ybe I phrased it wrong on the ultimate outcome, but he is one of the star witnesses for the defense on this issue of whether or not he had some dissociative disorder. The point is that he will minimize on one side or maximize on the other side. T hat is the point I a m trying to make here. I think it is absolutely fair. THE COURT: All right. I am not going to allow you to get into this area. Objection sustained. [COU NSEL FOR D R. GO LDB ERG ]: All right. The next day, before the jury entered the courtroom, counsel for Dr. Goldberg requested that the judge declare a mistrial, stating: [COUNSEL FOR DR. GOLDBE RG]: I've been very concerned -8-

about cross-exam ination of D r. Schretlen th at's highly inflammatory and this is a hearsay issue, and counsel . . . in a calculated questioning brought out in his questioning that it was the sniper case he found that the defen dant was brainwa shed in which it was anyone who ever lived in this area knows what that is and that's Lee Malvo. It was on the front page of every paper in this area. The killings occurred near this courthouse. Everybody is involved and it was calculated to prejudice the Defense, even though after he had gotten the question out, the Court sustaine d the ob jection. M y first concern the damage had been don e and acc ordingly, I respec tfully move fo r a mistrial. The judg e then listened to argume nt from co unsel for M r. Boone a s to his rationale for the questions: [COUNSEL FOR MR. BO ONE]: My intent was to bring out, and I have brought out previously that, I was trying to impeach his credibility on being a minimizer or a maximizer, as the case may call for, and in that case, the point was, and it was the most recent trial that he testified in before my other trial. It was right on his list and if they had any prob lem with m e getting into it, they certainly could have mentioned it, but my point was that he testified - THE COU RT: Well, they did. They objected. [COUNSEL FOR MR. BO ONE]: No, but I mean, I mean, ahead of time because it was right on this list of, that [Counsel for Dr. Goldberg] gave me a list of the man's testimonial appearances before he appeared and it was very prominent on the list. S o my point was that he did an eigh t hour test on this other guy, found only one abno rmal test in the entire eight hours and still was willing to come into court and testify as he did, and I thought that was quite a legitimate contrast to, you know, coming into court and saying that somebody else who has several abnormal test results is hardly damaging at all, and I agree, it's, that's why I was trying to avoid the name of the case .... The judge ultimately denied the motion for a mistrial, stating: -9-

THE COURT: I think the purpose was clear or the inference was clear that [Counsel for Mr. Boone] was trying to suggest that he was called regularly as a minimizer initially by your office and then when he went to the Malvo case, that essentially he's a hired gun , and then I th ink that wa s the purpo se that he would, at least that's what I took, that he was trying to show that he would testify essentially for whoever hired him, whoever paid him . *** THE COUR T: And I don't think it rises to the level of a mistrial. So I'm going to d eny the motio n for a mis trial. At the close of all evidence, counsel for Dr. Goldberg requested that the judge not submit the instruction on the doctrine of informed consent to the jury because Mr. Boone had failed to establish proximate cause. Dr. Goldberg argued that Mr. Boone had failed to put on any evidenc e establishing that, had the s pecific data that Mr. Boone complained of been disclosed by Dr. Goldberg, Mr. Boone would have chosen not to have had the operation or, alter nativ ely, that had Mr. Bo one gone to a m ore experienced surgeon, he would have, more likely than not, experienced better results. The judge denied Dr. Goldberg's motion, explaining: THE COURT: I think that what [Mr. Boone is] saying is that, and I guess this is where I'm having trouble is, what [Mr. Boone is] saying is if, in fact, he had been i nformed correctly, he wou ld have had the option to go somewhere else for treatment from somebody who would not have done this or who would have increased his chances. I mean that's wha t - - I guess you're going to have to - - they're saying that the adequate disclosure would have reasonably been expected to have caused this person to decline the treatment with this do ctor. [COUNSEL FOR DR. GOLDBERG]: And go somewhere else? -10-

THE COU RT: And go somewhere else. [COUNSEL FOR DR. GOL DBERG]: But what would happen somewhere else? THE COURT : Well, that's a good qu estion. It wou ld lessen his chance. That's esse ntially what their expert said but I think that's the issue and I think, under all the facts of the case, it's probab ly approp riate to let the jury co nsider it . . . . The judge then gave the following jury instructions: Now there's also the issue, ladies and gentleman, of informed consent in this case. And in connection with that I tell you before providing a specific type or course of medical treatment to a mentally competent adult patient under non-emergency circumstances, a physician has a duty to obtain the consent of the patient af ter disclosing to the patient: (1) the nature of the condition to be treated; (2) the nature of the treatment being proposed ; (3) the prob ability of success of that treatment; (4) the alterna tives, if any, to the proposed treatment; and (5) every material risk of negative consequences of the treatment being proposed. A material risk is a risk that a physician knows, or ought to know, would be significant to a reasonab le person w ho is being asked to decide whether to consent to a particular medical treatment or procedure. The purpose of the required explanation is to enable th e patient to make an intelligent and informed choice about whether to undergo the treatment being proposed. A physician is liable for an injury caused by the physician's failure to disclose to the pa tient, a m aterial risk . Counsel for Dr. Goldberg then iterated his exception to the informed consent instruction. The jury also was presented with a special verdict sheet including the following questions: 1. Do you find that the defendant, Seth M. G oldber g, M.D ., breached the standard of care in his performance of a radical mastoid ectom y perform ed upo n Billy K . Boon e, Sr.? ______ Yes ______ No 2. If your answer to Question No. 1 is "No", the n go to -11-

Question No. 3. If your answer to Question No. 1 is `Yes", do you find that the breach in the standard of care was a proximate cause of the Plaintiff's injuries? ______ Yes ______ No 3. Do you find that the De fenda nt, Seth M. G oldber g, M.D ., failed to adequately advise the Plaintiff of the risks of his radical mastoidectomy procedu re? If your A nswer to Question No. 3 is "Yes", then go to Question No. 4. ______ Yes ______ No 4. If your answer to Question No. 3 is "Yes", do you find that the failure to ade quately advise the Plaintiff of the risks of the radical mastoidectomy was a proxima te cause of the Plaintiff's injuries? ______ Yes ______ No. 5. If your answ er to Que stion No. 2 or No. 4 is "Yes", what amounts of damage do you award? Past and F uture Earn ing Capa city $ _______ Past and Future Medical and Related Expenses $ _______ Non-Economic Damages $ _______ After deliberating for two days, the jury answered "Yes" to questions one through four and awarded M r. Boone $113,000 for loss of past and future earning capacity, $355,000 for past and future medical expenses and $475,000 for non-econom ic damages, for a total aw ard of $943,000. Dr. Goldberg subsequently filed a motion for judgment notwithstanding the verdict, or in the alternative, motion for a new trial, as well as a motion for a new trial on the issue of future medical damages or in the alternative, a motion for appointment of a conservator, all of which were denied. Dr. Goldberg noted a timely appeal to the Court of Special Appeals arguing that the informed consent instruction should not have been given to the jury and that the trial judge

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abused his discretion in refusing to grant a mistrial in light of counsel for M r. Boone's inflammatory questions o f Dr. Sch retlen, in wh ich he attem pted to portray him as a "minimizer" and alleging in one question that Dr. Schretlen had been willing to testify that one of the alleged "sniper" killers had been brainwashed.10 In a reported opinion, the intermediate appellate co urt held that a s urgeon d oes not ha ve a duty to advise a patient that there are more e xperience d physicians in the locality to perform an operation, and therefore

10

Dr. Goldberg submitted seven questions to the Court of Special Appeals: 1. Whether the trial court erred in submitting to the jury the issue of informed consent in the absence of evidence of proximate cause? 2. Whethe r the trial court erred in submitting to the jury the issue of whether the failure to advise [Mr. Boone] of the availability of a specia list violated the standard of care, in the absence of evidence of proximate cause? 3. Whether the trial court erred in allowing Beverly Whitlock to testify at trial when she was not disclosed as a potential expert witness as required by the trial court's sched uling order? 4. Whet her the tr ial court erred in denying [Dr. Goldberg's] motion for mis trial on th e groun ds that [ Mr. B oone's] counsel intentionally intro duced im prop er an d inf lamm atory evidence concerning the recent sniper shooting, coupled w ith a claim that the Defense experts were hired as "paid minimizers"? 5. Whether the trial court erred in precluding evidence and argument that a verdict for Mr. B oone w ould have an impact on Dr. Goldberg's rep utation and career? 6. Whether the trial court erred in precluding evidence and argument concerning the common good? 7. Whethe r the trial court ab used its discre tion in failing to grant Dr. Goldberg's post-trial motions or at least to give them adequate consideration?

Goldberg v. Boone, 167 Md. A pp. 410, 416, 893 A .2d 625, 628 (200 6). -13-

the trial judge erred in subm itting the inform ed con sent qu estion to the jury. Goldberg , 167 Md. App. at 425, 89 3 A.2d a t 633. The appellate co urt held, how ever, that, in ligh t of the jury's finding that Dr. Goldberg had negligently performed the mastoidectomy, and the fact that there w as suff icient ev idence presen ted rega rding D r. Goldberg's relative lack of experience performing revisionary mastoidectomies to warrant that finding, the erroneous informed consent instruction did not constitute prejudicial error and did not warrant a new trial on the n egligen ce claim . Id. at 427, 893 A.2d at 634. The intermed iate appellate court also concluded that, although Mr. Boone's counsel had the ability to question Dr. Schretlen about being a paid "minimizer," he had no right to refer to the sniper shootings, and that question so unfairly prejudiced Dr. Goldberg as to warrant a new trial on the issue of damages because Dr. Schretlen only had testified for the purpose of establishing damages.11 Id. at 438, 893 A.2d at 641. Thus, the Court of Special Appeals held that the trial judge's failure to declare a mistrial in light of those questions constituted an abuse of his discretion. The Court of Spec ial Appeals vacated the circuit court's judgment and rema nded the c ase to the circuit court for entry of judgment in favor of Dr. Goldberg on the informed consent claim, and for a new trial on the issue of damages resulting from Dr. Goldberg's negligence. Id. at 444, 893 A.2d at 645. Before this Court, Dr. Goldberg contends that the Court of Special Appeals was

11

Because we shall h old that M r. Boone's counsel's questions regarding one of the snipers was not so prejudicial as to warrant the grant of a mistrial, we will not reach the issue of whether the Co urt of Special App eals correctly granted a partial retrial on the one issue of damages. -14-

correct in holding that the prejudice caused by Mr. Boone's sniper question during the crossexamination of Dr. Schretlen was so great as to warrant the granting of a new trial, but that the intermediate appellate court erred in holding that the question regarding being a paid "minim izer" was proper and in granting the new trial solely on the issue of damages. Dr. Goldberg maintains th at a partial retrial is an in appropriate remedy in this case because the issue of damages cannot be isolated from the issue of negligence, because the verdict rendered on all issues in this case w as clearly the result of the preju dice cause d by the unfa ir tactic of referring to Dr. Schretlen's work for one of the snipers, and because the level of prejudice caused by the sniper questions transcended any curative measures taken by the trial judge. Therefore, Dr. Goldberg maintains that the only fair and proper remedy is a full retrial on the issues of negligence and damages. With regard to the informed consent jury instruction, Dr. Goldberg argues that, although the Court of Special Appea ls was corre ct in holding that there is no duty in Maryland requiring a p hysician to info rm his or he r patients that there are more experienced surgeons in the locality regarding the proced ure in question, the court erred in determining that the submission of the instruction to the jury was nonprejudicial. The submission of the erroneous instructio n to the ju ry constitu ted preju dicial err or, Dr. Goldberg maintains, because Mr. Boone intermingled his arguments and evidence regarding informed consent with his arguments and evidence regarding negligence. Therefore, he submits, there exists a substantial danger that the jury confused the duty to properly inform Mr. Boone with the duty to provide a dequate care in r enderin g its verd ict. Moreo ver, Dr. G oldberg als o asserts -15-

that it is impossible to tell from the verdict sheet what damages were awarded for what claims, and therefore so me of the damage s awarde d to Mr. Boone may have been awarded under the erroneously submitted informed consent claim. Alte rnatively, Dr. Goldberg contends, that even if the Court of Special Appeals was incorrect in holding th at no such duty exists, the trial jud ge still erred in submittin g the instruction to the jury because what Mr. Boone is really asserting is a loss of chance of a better result claim, which required th at Mr. Boone demonstrate that, had an other, more experienced surgeon performed the revisionary mastoidectom y, Mr. Boone w ould have mo re likely than not, experienced b etter results. Dr. Go ldberg argu es that Mr . Boone f ailed to establish that causation. Conversely, Mr. Boone contends that the Court of Special A ppeals erred in holding that the cross-examination questioning of Dr. Schretlen warranted a new trial on damages because, without a motion in limine to prevent the line of questioning, an expert witness may be questioned regarding income derived from testifying as an expert witness and the professional opinions that the witness previously has rendered. Mr. Boone also claims that, based upon a weighing of the pervasiveness, severity, and centrality of the prejudice, as well as the steps taken to mitigate the prejudice and the closeness of the case, no new trial was warranted. Mr. Boone further alleges that, because the sniper co mments w ere not in anyway related to the defendant or the defendant's prior bad acts, the Court of Special Appeals's effectively granting of a new trial is inconsistent with this Court's jurisprudence regarding abuse of discretion in failing to declare a mistrial or, alternatively, failing to grant a new trial. -16-

Mr. Boone also maintains that the Court of Special Appeals erred in reaching the informed consent jury instruction because, where th ere are inde pendent g rounds to s ustain a jury verdict, the verdic t should no t be disturbed , and there w as sufficien t evidence to sustain the verdict on negligence. H e contends that, contrary to Dr. Goldberg's assertions, there is no danger that the jury confused the issue of negligence with that of informed consent because the jury verdict form clearly separated the two issues, and the form was thorough ly explain ed to the jury. Moreover, Mr. Boone alleges that, no matte r which c laim he succeeded on, the damages awarded would have b een the same. He also argues that the Court of Special Appea ls erred in reac hing the du ty issue becaus e Dr. Go ldberg ob jected to the informed consent instruction on the ground that Mr. Boone had failed to prove causation, not on the ground that the duty did not exist, and, as such, the issue of whether a duty existed was n ot prop erly prese rved. Mr. Boone further claim s that, in holdin g that a doc tor is not requ ired to inform his or her patient that t here are m ore e xperienced p hysicians in the loc ality, the Court of Special Appea ls erred by mak ing a determ ination that is req uired to be m ade by the jury. H e submits that the doctrine of informed consent requires th at the jury determ ine wheth er certain information would be material to a reasonable person deciding whether to undergo the procedure such that the doctor would be required to disclose that information. Fina lly, Mr. Boone contends that the trial judge correctly denied Dr. Goldberg's motion for judgment notwithstanding the verdict for failure to prove causation because M r. Boone was not required to testify that, had he been properly informed, he would not have -17-

chosen to have the procedu re perform ed by Dr. G oldberg. M r. Boone m aintains that h e only was required to demonstrate that a reasonable person would not have chosen to have Dr. Goldberg perform the operation and that through his expert witnesses he put on sufficient eviden ce for th e jury to dr aw tha t conclu sion. II. Discussion A. Motion for Mistrial The first issue that we must address in this case is whether the cross-examination questions propounded by Mr. Boone's counsel of one of Dr. Goldberg's experts regarding minimization when testifying for the defense in civil litigation, and one of the "snipers" when testifying on behalf of a defendant in a criminal c ase, were s o prejudicia l as to warrant the grant of a m istrial. Because the decision of whether to grant a mistrial lies within the sound discretion of the trial judge, we will only disturb its denial if we find that there was an abuse of that discretion. Lai v. Sagle , 373 Md. 306, 316-17, 818 A.2d 237, 244 (2003), quoting Med. M ut. Liab. Ins. Soc'y of Md. v. Evans , 330 Md. 1, 19, 622 A.2d 103, 112 (1993); Owens-Corning Fiberglas Corp. v. Garrett , 343 Md. 500 , 517, 682 A.2d 1 143, 1151 (199 6); ACandS, Inc. v. Godw in , 340 Md. 334, 407, 667 A.2d 116, 151 (1995); Buck v. Cam's Broadloom Ru gs, Inc., 328 M d. 51, 57 , 612 A .2d 129 4, 1297 (1992 ). To tha t extent, improper or prejudicial statements, remarks or arguments of counsel generally are cured by reproof b y the trial judge; to h is discretion customarily is left the choice of methods to protect the fair and unprejudiced workings of the judicial proceedings and his decision as to the effec t of that cho ice upon th e jury and only -18-

in the exception al case, the bla tant case, w ill his choice of cure and his de cision as to its ef fect be rev ersed on a ppeal. DeMay v. Carper, 247 Md. 535, 540, 233 A .2d 765 -768 (1 967). See also Brooks v. Daley, 242 Md. 185, 197-98, 218 A.2 d 184, 19 0-91 (196 6); Nelson v. Seiler, 154 Md. 63, 72-73, 139 A. 564, 567-68 (19 27). Whether a "blatant case" exists to warrant a finding of abuse of discretion requires us to make two determinations: first, whether the moving party was prejudiced by the opposing party's conduct, c ommen ts or evidence; and second, whether the trial judge took sufficient curative measures to overcome that prejudice, or, whether the prejudice was so great that, in spite of the curative measures, the moving party was denied a fair trial. See Tierco M d., Inc. v. Williams , 381 Md. 378, 413-14, 849 A.2d 504, 525-26 (2004); Owens-Corning Fiberglas Corp., 343 Md. at 518-19, 682 A.2d at 1151-52; Evans , 330 Md. at 19, 622 A.2d at 112, citing Rainville v. S tate , 328 Md. 398, 408, 614 A.2d 949, 953-54 (1992); ACandS, Inc., 340 Md. at 407, 667 A.2d at 151-52. In this case, the Co urt of Special Appeals correctly held that Mr. Boone's counsel's paid "minimizer" question during the cross-examination of Dr. Schretlen was not prejudicial but erred in holding that the question regarding one of the snipers was s o prejudicia l to the proce eding that it transcended any curative measures taken by the trial judge and, therefore, warranted a retrial on dam ages. Cross-examination of a witness is governed by Maryland Rules of Civil Procedure, Rule 5-61 1, which p rovides in p ertinent part: (a) Control by Cou rt. The cou rt shall exercise reasonab le control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and -19-

presentation effective f or the ascerta inment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from har assment o r undue e mbarrassm ent. (b) Scope of cross-examination. (1) Excep t as provide d in subsection (b)(2), cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. Except for the cross-examination of an accused w ho testifies on a preliminary matter, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. (2) An accused who testifies on a non-preliminary matter may be cross-examined on any matter relevant to any issue in the action. Maryland Rule 5-611 (a) & (b). Rule 5-616 (a)(4) also provides that the credibility of a witness may be attacked on cross-examination through questions directed at "[p]roving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely." Maryland Rule 5-616 (a)(4). It is well established in Maryland that an expert witness may be questioned on crossexamination about compensation received for testifying, as we ll as about the expert's history of employment as an expert witness, in order to reveal bias or interest in the outcome of the proceeding. As early as 1892, in Wise v. Ackerman, 76 Md . 375, 25 A . 424 (189 2), we held that the trial judge had abused his discretion in sustaining objections to questions regarding comme nts the plaintiff's expert w itness had m ade in an unrelated case regarding h is ability to get large verdicts for plaintiff s. Id. at 393-94, 25 A. at 427. We explicated that questions revealing an expert witness's interests, motives, inclinations and prejudices are appropriate lines of questioning on c ross-examination of a n expert witnes s. Id. at 394, 25 A. at 427 . In Mezzan otte Construction Co. v. Gibons , 219 Md. 178, 148 A.2d 399 (1959), we held that the

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trial judge had abused his discretion in sustaining an objection to questions regarding how much money the plaintiff's expert w itness was b eing paid f or testifying in that case and from prohibiting any further questioning into the expert witness's compensation; in so holding, we noted that "the compensation of an expert witness is a proper subjec t for cro ss-exam ination," because it reveals the expert witness's interest in the case, "which might be deemed to affect his credibility or bias." Id. at 181, 1 48 A.2 d at 401 -02. In Wrobleski v. Lara , 353 Md. 509, 727 A.2d 930 (1999), counsel for the defendant attacked the veracity of the plaintiff's expert witnesses through questioning that revealed that the expert had testified 50 to 60 times for medical malpractice plaintiffs, that about 25 of those times had been for the clients of the plaintiff's attorney, that 80% of his appearances were on behalf of plaintiffs, and that, in the preceding twelve months, he had earned between $30,000 and $50,000 through testifying, most of which was for the plaintiff's attorney. We upheld the judge's decision to permit testimony regarding the total amount of compensation the expert witness had received from testifying as a witness in the previous year because the question sought to expose the witness's potential bias; we iterated that questions regarding how much an expert witness is being paid for his or her services in a particular case, the frequency with which the witness testifies in similar kinds of cases, whether the witness customar ily testified on behalf of plaintiffs or defendants, whether the witness is frequently employed by a particular p arty or attorney and, if so, how much income the witness derives from that employment, and the amount or percentage of the witness's total income that is derived from lawyer referrals or testimony in lawsuits, also are appropriate queries to expose

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an exp ert witn ess's bia s. Id. at 517- 18, 727 A.2d a t 933-3 4. In the case sub judice, the paid "minimizer" question asked by Mr. Boone's counsel was asked for the purpose of suggesting that Dr. Schretlen might testify in accorda nce with the position of the person by whom he was being paid. The question, therefore, comes within the penumb ra of allow able questio ns that this Court heretofore has deemed appropriate. See id. at 518, 727 A.2d at 934 ("That an e xpert in a particular field may be in effect a `professional witness' in lawsuits, rather than being more or less exclusively a practitioner whose employment in a lawsuit as a witness is merely incidental to his or her profession, is a matter which is likely to bear on the credibility of that expert, since a significant portion of the expert's liv elihood m ay thus depen d on his or h er desireablility as a favorable and convincing witness, thus possibly leading to a temptation for the witness to color findings and testimony to suit the needs of the proponent party, rather than to evaluate and present the subject matter of the testimony with complete imp artiality."), quoting Russell G. Donaldson, Annotation, Propriety of Cross-Examining Expert Witness Regarding His Status as "Professional Witness," 39 A.L.R. 4th 74 2, 746 (1985). Dr. Goldberg also asserts, nevertheless, that the sniper line of questioning generated a prejudice as pervasive as those explored in Medica l Mutual L iability Insurance Society of Maryland v. Evans, supra , Lai v. Sagle , supra , and Tierco Maryland, Inc. v. Williams, supra .12 In those cases, however, the objectionable questions or comments referred either

Dr. Goldberg cites Buck , supra , in support of his argument that the question asked by Mr. Boone's counsel regarding being a paid "minimizer" was so prejudicial to the proceeding as to warrant a new trial. He, how ever, misinte rprets our ho lding in Buck , which stands for -22-

12

to inadmissa ble evidence or were repeatedly interjected into the proceedings, obscuring the issues on trial. In Evans , supra , an action for bad-faith failure to settle a medical malpractice action, counsel for the plaintiff qu estioned the defend ant's witness on cross-examination regarding a previous la wsuit aga inst the defe ndant for a bad-faith f ailure to settle in which the jury had awarded the plaintiff $1,400 ,000. We explicated that the questioning into the defendant's prior bad acts was improper and irrelevant, serving only to "obscure the real issue," and emphasized that "[e]ven the most intense and dedicated advocate would recognize the likely inadmissibility of, and the potential for a mistrial caused by a reference to, an allegedly bad faith failure to settle in a collateral matter." Evans , 330 Md. at 22, 24, 622 A.2d at 113-14. We also observed that the plaintiff's counsel had played upon and emphasized other improper and collateral matters throughout the trial. Id. at 22, 622 A.2d at 113. We therefore h eld that, "[u ]nder a ll of the c ircums tances . . . the prejudice resulting from the improper cross-examination of [the defendant's witness] transcended the curative instruction, and that the trial court ab used its discre tion in denying the mo tion for a mistria l." Id. at 24, 622 A.2d at 114. In Lai, supra , another medical malpractice lawsuit, the plaintiff's counsel mentioned in his opening statement that the defendant doctor had been sued five times for malpractice. Iterating that relevancy is the gravamen of whether a comment or question was prejudicial

the proposition that the Court of Special Appeals erred in substituting its judgment for that of the trial judge. W e held in Buck that the trial judge did not abuse his discretion in granting a new trial because the v erdict was "unm easurably low" in part, because of a "pattern . . . of [mis]con duct, rather than an isolated instance of misconduct," contributed to a lower damages award. 328 Md. at 62, 612 A.2d at 1300. -23-

to the opposing party, we noted that the reference to the doctor's other five malpractice lawsuits had no probative value a nd ther efore w as preju dicial. Lai, 373 Md. at 322, 818 A.2d at 247. Analogizing the admission of similar acts in civil cases to the admission of evidence of prior arrests in criminal trials, we h eld that such evidence was "un duly and high ly prejudicial and ordin arily shall result, upon proper objection and motion, in a mistrial," and that "[n]o curative instruction or instructions of which we can conceive, and certainly not as given in this case, is sufficient to undo the taint inflicted upon the proceedings by such conduct or occurrence." Id. at 324-25, 818 A.2d at 248-49. In Tierco Maryland, Inc., supra, the plaintiff's counsel referred to race or discrimination at least sixty-three times during a three day trial even though the plaintiffs had not alleged racial discrimination in their cause of action. We emphasized that the test for determining whether improper comments were prejudicial to the fairness of proceedings is whether they were "`irre levant and unjustified a nd calculate d or tending to arouse ra cial, national, or religio us preju dice or f eeling'." Tierco Md., Inc., 381 Md. at 409-10, 849 A.2d at 523. We concluded that "[the plaintiffs] employed race overtly to overwhelm the material issues of provocation and of the reasonableness vel non of the actions of the [defendants's] emplo yees," and therefore it was an abuse of discretion for the trial judge not to have granted the def endan ts's requ est for a new tri al. Id. at 411, 4 14, 849 A.2d a t 524, 52 6. In the case at bar, although the reference to on e the "snipers" in M r. Boone's counsel's question clearly could have created an a tmosphere of disg ust on the part of the jury for Dr. Schretlen's willingness to testify thusly in the sniper case, it was asked only once of

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the expert and was n ever mentioned ag ain. Further, when counsel for Dr. Goldberg objected to the line of questioning involving Dr. Schretlen's testimony on beh alf one of the " snipers ," the trial ju dge su stained the obje ction, an d the qu estionin g ende d. In so holding, however, we do not condone counsel's conduct in asking questions about a "sniper" in a county where many of the killings occurred, questions which could be construed as nothing more than an appeal to the jurors' passions and prejudices. Because the line of questioning about the sniper case, although improper, was appropriately truncated by the trial court's susta ining of the objection, an d becaus e it played so m inor a role in the trial, its prejudicial effects did not transcend the trial judge's curative measures so as to warrant a new trial. B. Informed Consent The next issue we mu st address is th e propriety of the trial court's jury instruction on informed consent. instruction: Now there's also th e issue, ladies and gentleman, of informed consent in this ca se. And in connection with that I tell you before providing a specific type or course of medical treatment to a mentally competent adult patient under non-emergency circumstances, a physician has a duty to obtain the consent of the patient af ter disclosing to the patient: (1) the nature of the condition to be treated; (2) the nature of the treatment being proposed ; (3) the prob ability of success of that treatment; (4) the alterna tives, if any, to the proposed treatment; and (5) every mate rial risk of negative consequences of the treatment being proposed. A material risk is a risk that a physician knows , or ought to know, would be significant to a reasonab le person w ho is being -25In this case, the trial court gave the following informed consent

asked to decide whether to consent to a particular medical treatment or procedure. The purpose of the required explanation is to enable the patient to make an intelligent and informed choice about w hether to undergo the treatment being proposed. A physician is liable f or an injury caused by the physician's failure to disclose to the pa tient, a m aterial risk . Dr. Goldberg contends that the instruction was unjustified because, as the Court of Special Appea ls held, there is no recognized duty in Maryland to inform a surgical patient that there are more exp erienced su rgeons in th at particular procedure and, even if there were such a duty, Mr. Boone failed to put on evidence demons trating causa tion. This co ntention is without merit because it was not an abuse of discretion for the trial judge to give an informed consent instruction when its content was a correct exposition of the law and there was testimony in the case to generate a triable issue. The procedu re for subm ission of jury instru ctions is governed by Maryland Rules of Civil Proce dure, Rule 2-520, w hich prov ides in pertine nt part: (a) When given. The court shall give instructions to the jury at the conclusion of all the eviden ce and be fore closing argumen ts and may supplement them at a later time when app ropriate. In its discretio n, the court may also give open ing and inte rim instructions. (b) Written requests. The parties may file written requests for instructions at or before the close of the evidence and shall do so at any time f ixed by the co urt. (c) How given. The cou rt may instruct the ju ry, orally or in writing or both, by granting requested instructions, by giving instructions of its own, or by combining any of these methods. The court need not grant a requested in struction if the matter is fairly covered by instructions actually given. Maryland Rule 2-520. We have recognized that a litigant is entitled to have his instruction submitted to the -26-

jury if the instruction "is a correct exposition of the law and there is testimony in the case which supports it." See Landon v. Zorn , 389 Md. 206, 225, 884 A.2 d 142, 15 3 (2005); Benik v. Hatcher, 358 Md. 507, 519, 750 A.2d 10, 17 (2000); Kennelly v. Burgess , 337 Md. 562, 574, 654 A.2 d 1335, 1 341 (199 5); Sergean t Co. v. Pick ett, 285 Md. 186, 194, 401 A.2d 651, 655 (1979); Levine v. Rendler, 272 Md. 1, 13 , 320 A.2d 258, 265 (1974). Th us, inquiry into whether a jury instruction was appropriately given requires that we determine whether the instruction correctly stated the law, and if so, whether the law was applicable in light of the evidence before the jury. Landon , 389 M d. at 224 , 884 A.2d at 153, quoting Wegad v. Howard St. Jewelers, Inc., 326 Md. 408, 414, 605 A.2d 123, 126 (1992); Holma n v. Kelly Catering, Inc., 334 Md. 480, 495-96, 639 A.2d 701, 709 (1992). When the jury instruction given "clearly set[s] fo rth the applica ble law, ther e is no reversible error." Benik , 358 Md. at 519, 750 A.2d at 17, quoting CSX T ransp., Inc. v. Cont'l Ins. Co., 343 Md. 216, 240, 680 A.2d 1082, 10 94 (1996). The seminal case on the doctrine of informed consent in Maryland is Sard v. Hardy , 281 Md. 432, 379 A.2d 1014 (197 7), the first case in which we acknowledged an action could lie for failure of a physician to obtain a patient's informed consent before rendering medical services. We explained in Sard that "[t]he fountainhead of the doctrine of informed consent is the patient's right to exercise control over his own body." Id. at 439, 379 A.2d 1019. T he doc trine, "sim ply stated," imposes on a physician , before he subjects his patient to medical treatment, the duty to explain the procedu re to the patien t and to warn him of any material risks or dangers inherent in or collateral to the therapy, so as to enable the patient to make an -27-

intelligent and informed choice about whether or not to undergo such tre atmen t. Id. at 439, 379 A.2d at 1020. We noted, however, that there is no bright-line test for determining the sco pe of d isclosur e requir ed. Id. at 444, 379 A.2d at 1022. Instead, the measure of disclosure is dependent upon each patient's need, "`and that need is whateve r is material to the decision'" of whether to undergo the treatme nt. Id. at 443, 379 A.2d at 1022, quoting Cobbs v. Grant, 502 P .2d 1, 11 (Cal. 1972). Thus, we stated, "the test for

determining whether a potential peril must be divulged is its materiality to the pat ient's decision." Id. at 443-44, 379 A.2d at 1022, quoting Cobbs , 502 P.2d at 11. By focusing on the patient's nee d to obtain information pertinent to the proposed surgery or therapy, the materiality test promotes the paramou nt purpose of the info rmed con sent doctrine - to vindicate the patient's righ t to determin e what sh all be done with his own body and when. Id. at 444, 379 A.2d at 1022. We defined a material risk as one which a ph ysician 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. Id. We further elucidated that the plaintiff must demons trate a causal connection between the lack of informed consen t and the plaintiff 's dam ages. Id. at 448, 379 A.2d at 1024. We adopted an objective standard for determining whether causality had been demonstrated, requiring the jury to determine whether a reasonable person in the patient's position would have withheld consent to the surge ry or therapy had a ll material risks been disclosed. If disclosure of all material risks would not have changed the decision of a reason able person in the position -28-

of the patient, there is no causal connection between nondisclosure and his damage. If, howev er, disclosure o f all material risks would have caused a reasonable person in the position of the patient to refuse the surgery or therapy, a causal connection is shown. Id. at 450, 379 A.2d at 1025. Under this standard, "the patient's hindsight testimo ny as to what he wo uld hav e hypoth etically do ne, thou gh relev ant, is no t determ inative o f the issu e." Id. In this case, Dr. Goldberg states that in Maryland a physician's duty to inform the patient that there are other, more experienced surgeons in the locality is not recognized, citing to cases f rom ou r sister sta tes, Whiteside v. Lukson , 947 P.2d 1263, 1265 (Wash. Ct. App. 1997) (holding tha t a surgeon 's lack of exp erience in performing a particular surgical procedure is not a mate rial fact for pu rposes of f inding liability pred icated on f ailure to secure an informed consent); Ditto v. McCurdy, 947 P.2d 952, 958 (Haw. 1997) (holding that a physician doe s not have an affirm ative duty to disclose his or her qualifications to a patient prior to providing treatment); Foard v. Jarman , 387 S.E.2d 162, 167 (N.C. 1990) (refusing to recognize an affirmative duty on the health care provider to discuss his or her experience where the statute go verning the standard o f care for in formed c onsent do es not); Abram by Abram v. Children's Hospital of Buffalo , 542 N.Y.S.2d 418, 419 (N.Y. App. Div. 1989) (holding that under the statute governing informed consent there w as no brea ch of duty to disclose the experie nce of the personne l administerin g the med ical care); and Duttry v. Patterson, 771 A.2d 1255, 1259 (Pa. 2001) (holding that the surgeon's level of experience was irrelevant to the informed consent claim), each of which affirmatively have held that no

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such d uty exists. He further asse rts that, even if s uch a duty ex isted, Mr. B oone faile d to demo nstrate that, had he been properly informed, he w ould have not elected to undergo the proc edure with Dr. Goldberg and relies upon Fischer v. Wisconsin Patients Compensation Fund , 650 N.W.2d 75, 78 (W is. Ct. App. 2 002) (hold ing that the p roper standard for determining causation in such an informed consent action was "`whether the alternate forms of care and treatment would have made a differenc e, i.e., whether th e same or s imilar injuries w ould have resulted even if the injured party availed himself or herself of the alternate treatment'"), and Canterbury v. Spence , 464 F.2d 772 , 791 (D.C. Cir. 1972 ) (rejecting the plaintiff's testimony that he would not have undergone the treatment had he been properly informed and adopting the objective standard of "what a prudent person in the patient's position would have decided if suitably informed of all perils bearing significance"), to support this proposition. These arguments contradict the standard set forth by this Court in Sard , supra , where we explained that there is no bright-line test, or all-inclusive list of items that must be disclosed by a physician in order to procure an informed consent from a patient. 281 Md. at 444, 379 A.2d at 1022. Although we have acknowledged that "[r]isks, benefits, collateral effects, and alternatives normally must be disclosed routinely," we also have made clear that "other considerations . . . may also need to be discussed and resolved." Dingle v. B elin , 358 Md. 354, 370, 749 A.2d 15 7, 165 (20 00). Wha t those "othe r considera tions" may be is determined by what info rmation w ould be material to a reasonable person in the position of

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the patient having to decide whether to submit to the medical treatment in issue; causality is demonstrated if a reasonable person in the patient's position would have withheld consent to the surgery or therapy had that material data been disclosed. Sard , 281 Md. at 444, 379 A.2d at 10 22; Dingle , 358 Md. at 369, 749 A.2d at 165. In Faya v. Almaraz, 329 M d. 435, 620 A.2d 32 7 (1993), w e recogniz ed that a physician could b e requir ed to dis close th at he is H IV-po sitive, if he were. We held that because "it was foreseeable that [the surgeon] m ight transmit th e AIDS virus to his patients during invasive surgery," we were " unable to say, as a matter of law, that [the surgeon] owed no duty to the appellants, either to refrain from pe rforming the surgery or to warn them of his condition." Id. at 448, 620 A.2d at 333. In Dingle , supra , we recognized that the level of a physician's ex perience m ay form the b asis for an informed consent action. In that case a patient sued when sh e learned th at a resident, an d not the su rgeon, had perform ed certain aspects of a procedure to remove her gallbladder. We iterated that "a claim for lack of informed consent focuses . . . on the adequacy of the explanation given by the physician in obtaining the patient's consent." Dingle , 358 Md. at 369, 749 A.2d 157. Therefore, the level of disclosure th at is required to be given by the physician is "measu red by the patient's need, and that need is whateve r is material to the decision." Id. at 370, 7 49 A.2 d at 165 . See also Landon , 389 Md. at 229, 884 A.2d at 155-56 (stating that the doctrine of informed consent requires a physician to warn his or her patient of all material risks inherent or collateral to the procedure in order to enable the patient to make an informed decision of whether to undergo the procedu re); Reed v. C ampag nolo , 332 Md. 226, 241, 630 A.2d 1145, 1152 (1993) (citing

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to Sard for support of the proposition th at a physician m ust disclose to the patient all informatio n that a reaso nable person would need to make h is or her dec ision of w hether to undergo the procedure); Wachter v. United States, 877 F.2d 257, 260 (4th Cir. 1989) (stating that the standard for determining w hat inform ation must b e disclosed by a physician in Maryland is "whether a reasonab le person in the patient's position would consider the data significant to the decision whether to submit to a particular treatment or procedure" ); Lipscomb v. Mem'l Hosp., 733 F.2d 332, 336 (4th Cir. 1984) (holding that, under Maryland law, "the proper test for measuring the physician's duty to disclose risk information is whether such d ata will be material to the patient's decision" ). In this case, the factual context controls. Mr. Boone alleged that it was the

combination of his having a pre-existing hole in his dura, which elevated the complexity of his revisionary mastoidectomy, with the fact that Dr. Goldberg had performed only one revisionary mastoidec tomy over the past three years, th at gave rise to Dr. Gold berg's duty to inform him that there w ere other m ore experie nced surg eons in the r egion that c ould perform the procedure. It was a factual issue for the jury to determin e whethe r a reasona ble person, in Mr. Boone's position, would have deemed this information material to the decision whether to risk having the revisionary mastoidectomy undertaken by Dr. Goldberg. Dr. Goldbe rg also argu es that wh at Mr. Bo one is really pursuing in this lawsuit is a "loss of chance" action and that, in order to succeed under such a claim, Mr. Boone was required to demonstrate that, had he undergone the procedure by a more experienced physician, he would have experienced better results and cites to Fennell v. Southern

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Maryland Hospital Center, 320 Md. 776, 580 A.2d 206 (1990), as stating the proper standard of cau sation. The doctrine of loss of chance addresses two distinct categories of complaints, the first of which has been referred to as a "definitive loss": [A] definitive los s . . . involves the loss of a chance either of complete ly avoiding a specific harm or of achiev ing a fairly definitive favorable result. These types of claims include both materialized losses and a nticipated future consequences (including loss of future benefits). A plaintiff might assert, for example, that h ad th e dec eden t rece ived time ly treatment, he would not have died from the disease. Joseph H. Kin g, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences , 90 Yale L.J. 1353, 1364 (1981). The second category involves "partial or less definitive losses," id. at 1364, and typically involves claims that the tort "aggravated a preexisting condition, de layed its cure, failed to slow its progress, accelerated the onset of harm, or will have such effects in the future." Id. at 1373. Therefore, even thou gh the patie nt cannot recover for the preexisting condition, he can recover for negligent acts further exacerbating the condition. Id. The purpose behind the doctrine is to enable a patient to recover for injuries that otherwise would b e unrecog nized und er traditional pr oximate c ause analysis: Courts confronting a person al injury or wro ngful dea th claim invariably focus on the ove rt harm suffered by the plaintiff. Then, they a ttempt to determine whether that harm was "pro bably" caused by the defenda nt's negligenc e. If a case ca lls for an investigation into the victim's chances of avoiding harm, courts generally require a medical expert to testify, with a reasonab le degree of medic al certainty, that the v ictim probably would have avoided the harm or achieve d a better resu lt but for -33-

the defe ndant's neglige nce. If the testimony indicates that there was only a fifty percent or lesser chance of avoidance or improvem ent, this prob ability is no t establish ed, and the defendant prevails. Stephen F. Bren nwald , Community Pro ving Causation In "Loss O f A Chance" Cases: A Proportional Approach 34 Cath. U. L. Rev. 747, 753-54 (1985). Brennwald gives the follo win g examp le of the th eory: John Doe, who is ex periencing severe bo uts of cou ghing, visits his private physician to determine the cause of his symptoms. His physician refe rs him to a rad iologist, who x-rays Doe's chest and discovers Stage One cancer. Suppose further that the average State One patient possesses a statistical forty percent chance of long-term survival. Through carelessness, an individual on the radio logist's staff n otifies Doe 's private physician that the x-rays were normal, and, as a consequence, the untreated cancer continues to spread. Several months later, Doe's condition d rastically worsen s, and he ag ain visits his physician. The canc er is f inall y rediscov ered , but u nfortunately, it can no lon ger be treated . Doe's sta tistical chances of longterm survival are practically nill. Several months later, he dies. His widow brings a wrongful death action, alleging that the delay in a d iagnos is cause d her hu sband 's death . At trial, expert testim ony reveals tha t the radiolog ist was negligent in failing to communicate the correct findings to the patient's physician. Although the evidence shows that the negligence decreased Do e's chances to live by nearly forty percent, howev er, this is not eno ugh to m eet the "mo re-likelythan-not" standard of pro of . . . Because the eviden ce in Doe's case shows only a forty percent initial chance of survival, the court will direct a verdict for the negligent defendant. The c ourt will find that the probable cause of death is the preexisting condition because, prior to the defendant's negligence, the cancer had already decreased Doe's chances of survival from one-hun dred perce nt to forty perce nt. Brennw ald , supra, at 749-51. In Fennell , supra , we explored a claim for the loss of chance of survival in which the -34-

decedent had only a 40% c hance of recovery from her illness. W e explained that, by loss of chance to survive, we meant "decreasing the chance of survival as a result of negligent treatment where the likelihood of recovery from the pre-existing disease or injury, prior to any alleged neglig

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