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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2556 September Term, 2009

H. JEFFREY SCHWARTZ, ET AL. v. ARVIA JOHNSON

Woodward, Hotten, Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ.

Opinion by Woodward, J.

Filed: June 27, 2012

This appeal arises from a medical malpractice case in which appellee, Arvia Johnson, claimed negligence against appellant, H. Jeffrey Schwartz, M.D., and vicarious liability against appellant, H. Jeffrey Schwartz, M.D., P.A. Prior to trial, Johnson filed a motion in limine to bar the introduction of informed consent evidence, which the Circuit Court for Baltimore City granted, thus excluding any evidence or mention of informed consent. The case proceeded to a five-day jury trial. During the trial, appellants objected to the testimony of Johnson's expert witness, arguing that the expert presented new opinions not previously disclosed in discovery. The trial court overruled the objection and then allowed the testimony as rebuttal evidence in response to appellants' defense theory. Appellants also made a motion to strike a juror for bias and then another motion to strike the same juror for juror misconduct; the trial court denied both motions. At the end of the trial, the jury found that Dr. Schwartz's negligence caused Johnson's injuries and awarded Johnson past medical expenses in the amount of $23,791.19 and non-economic damages in the amount of $650,000.00. On appeal, appellants present three questions for review by this Court, which we have rephrased:1

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Appellants, in their brief, presented the following questions for review by this Court: 1. Should [appellants] have been prevented from offering evidence that they advised [Johnson] of the risks and complications of a medical procedure, when [Johnson] admitted being advised and that complication occurred? Should a juror who stated early in the case that he had decided (continued...)

2.

1.

Did the trial court err or abuse its discretion by excluding evidence that appellants advised Johnson of the risks and complications of a colonoscopy, which evidence was offered by appellants in support of its defense of assumption of the risk and of compliance with the standard of care? Did the trial court abuse its discretion by refusing to strike a juror for alleged bias and misconduct? Did the trial court abuse its discretion in allowing Johnson's expert witness to present an expert medical opinion as rebuttal evidence that had not been disclosed in discovery?

2.

3.

For the reasons set forth herein, we shall answer questions 1, 2, and 3 in the negative and thus shall affirm the judgment of the trial court. BACKGROUND On September 12, 2008, Johnson filed a complaint against appellants, claiming that Dr. Schwartz was negligent by "failing to properly perform the elective outpatient colonoscopy to ensure that [] Johnson's colon was not perforated [and] failing to employ an appropriate and careful technique." Johnson alleged that, as a result of Dr. Schwartz's negligence, he "suffered and continues to suffer severe conscious pain and suffering, has required multiple medical treatments and surgeries to correct this condition, has ongoing

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(...continued) in favor of [Johnson], and who was repeatedly late and often inattentive, have been replaced by an alternate juror? 3. Should [Johnson]'s sole expert witness have been allowed to offer expert medical opinions that had never been disclosed in discovery? 2

symptoms of Short Bowel Syndrome which are permanent, and has otherwise been injured and damaged." Johnson also claimed that H. Jeffrey Schwartz, P.A., was vicariously liable for Dr. Schwartz' negligence. On October 16, 2009, Johnson filed a "Motion in Limine to Bar Introduction of Informed Consent Form or Mention of Doctrine of Informed Consent by Defendant." Johnson argued that, because he had not pled a claim of lack of informed consent, "any testimony or documentary evidence pertaining to that issue would be legally irrelevant, and could only serve to confuse the jury on the relevant issue of [appellants'] medical and surgical negligence." Appellants responded that evidence of informed consent was relevant to their affirmative defense of assumption of the risk, and thus "[a]t a minimum the jury should not be prevented of considering evidence supporting such a defense." On November 2, 2009, the trial court granted Johnson's motion in limine. A five-day jury trial was held from November 2, 2009 through November 6, 2009. Evidence was presented through the testimony of Dr. Schwartz, Dr. Richard Dwoskin, Johnson's expert in internal medicine and gastroenterology, Johnson, Dr. Kenneth Maxwell Brown, appellants' internal medicine expert, and Dr. David Kafonek, appellants' gastroenterology expert. On the first day of trial, appellants' counsel explained during his opening statement that "part of the dispute is, did [the injury] happen when the tip was going in and cut a hole on the way in or cut a hole on the way out with the tip or did it happen a different way; a way

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called bowing." Counsel set forth appellants' theory of the case, namely that Dr. Schwartz performed the colonoscopy "correctly" and that the "tear or perforation resulted from a complication or risk called bowing." On the second day of trial, Dr. Dwoskin testified that, to a reasonable medical probability, he believed that Dr. Schwartz "departed from standards of care in the manner in which he performed th[e] colonoscopy on [] Johnson." Specifically, Dr. Dwoskin stated that the injury to the colon was caused by "mechanical damage with the instrument itself" namely, "the tip of the colonoscope against the wall of the colon." Later, Johnson's counsel asked Dr. Dwoskin: "[A]ssume it was a bowing injury [and not a tip injury]. If it were a bowing injury would that mean there was no negligence on the part of Dr. Schwartz?" Appellants' counsel objected, arguing (1) that, when "the doctor was deposed in this case[,] [he] offered no opinions about whether a bowing injury would or would not be a breach of the standard of care," and (2) that Johnson's counsel had the responsibility to supplement Dr. Dwoskin's expert opinion with his opinion regarding bowing injuries, so that appellants would have had the opportunity to question him about such opinion prior to trial. Johnson's counsel responded that Johnson was not obligated to supplement Dr. Dwoskin's expert opinion, because appellants had not asked for Dr. Dwoskin's opinion on a bowing injury in an interrogatory or at deposition, and instead, had questioned Dr. Dwoskin about his opinion, which related solely to a tip injury. Johnson's counsel further argued that, regardless, "this [wa]s not a new opinion" of Dr. Dwoskin, because he "still doesn't believe this [wa]s a

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bowing injury," and that "this [wa]s really rebuttal testimony," because Dr. Dwoskin would not be available for rebuttal "after [appellants'] experts testify to say this bowing nonsense is just that." The trial court agreed with Johnson's counsel, overruled appellants' objection, and allowed Johnson's counsel to "ask it essentially as rebuttal testimony." That same day, during Dr. Dwoskin's cross-examination and before the presentation of appellants' case, Alternate Juror Number 2 ("Alternate Juror 2") passed a note to the court, which stated that Alternate Juror 2 heard Juror Number 4 ("Juror 4") say: "I know we shouldn't discuss it, but I'm ready to finish this." When the court questioned Alternate Juror 2 about the note, Alternate Juror 2 stated that he also heard Juror 4 also say: "He cut him, he should get paid." Juror 4 denied having come to any conclusive opinions about the case and denied having told anyone any of his opinions about the case. Appellants' counsel moved to strike Juror 4. The court then questioned the remaining jurors; two jurors heard a juror either comment that the trial was going to take three or four days or asked why the trial was taking three or four days, but each juror stated that they were not influenced by the comment or question; the remaining jurors stated that they had not heard any such comment or question and that they had not formed any opinions about the case. Subsequently, the court denied appellants' motion to strike Juror 4. On the fourth day of trial, during the direct examination of Dr. Kafonek, Juror 4 requested a break. At this point, appellants' counsel requested to approach the bench and expressed his concern that Juror 4 was "observed on multiple occasions" to be "nodding and

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his eyes looking like he's getting sleepy and ready to fall asleep." Appellants' counsel asked that everyone "watch that as well," but did not ask for any further relief. During the cross examination of Dr. Kafonek, appellants' counsel again asked to approach the bench. Appellant's counsel asserted that Juror 4 had fallen asleep for the fifth time that day, had to ask for a recess, and had been "late almost everyday." Appellants' counsel stated that he did not want a mistrial, but that he thought Juror 4 needed to be "replaced" and requested that Juror 4 be "excused." The court denied the request, explaining that the court had observed that Juror 4 had been "particularly attenti[ve]," "very keen as to what's going on," and "d[id]n't look anymore drowsy than anyone else looks and anymore alert than anyone else looks." As previously stated, at the conclusion of trial, the jury found that Dr. Schwartz was negligent and that his negligence was the cause of Johnson's injuries. The jury awarded damages to Johnson in the amount of $23,791.19 for past medical expenses and in the amount of $650,000.00 for non-economic damages. On November 13, 2009, appellants filed a motion for new trial, which the court denied in an order entered on January 13, 2010. On January 14, 2010, appellants filed a notice of appeal to this Court. Additional facts will be set forth below as necessary to resolve the questions presented.

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DISCUSSION I. MOTION IN LIMINE REGARDING INFORMED CONSENT EVIDENCE On October 16, 2009, Johnson filed a "Motion in Limine to Bar Introduction of Informed Consent Form or Mention of Doctrine of Informed Consent by Defendant." Johnson argued that, because he had not "asserted a cause of action claiming violation of informed consent," the informed consent form was "irrelevant." He further contended that "any mention by [appellants] of this doctrine should be prohibited." Johnson asserted that appellants "may seek to introduce the standard preoperative consent form signed by [] Johnson [] and may also attempt to introduce evidence that [Johnson] was otherwise warned of the possibility of colonoscopy complications," in "hope [of] escap[ing] the consequences of [Dr. Schwartz's] surgical negligence by persuading the jury that [] Johnson somehow assumed the risk that the operation would result in a perforation of his colon." Johnson concluded that "any testimony or documentary evidence pertaining to that issue would be legally irrelevant, and could only serve to confuse the jury on the relevant issue of [appellants'] medical and surgical negligence." On October 27, 2009, appellants filed an opposition to Johnson's motion. Appellants responded that the failure to allege a cause of action for violation of informed consent was "irrelevant to the introduction of evidence regarding the consent by [Johnson] to the surgery at issue." Appellants contended that their "entire defense is premised on the contention that

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bowel perforation is an accepted risk or complication of colonoscopy." Appellants further argued that the evidence of informed consent is relevant to their affirmative defense that Johnson assumed the risk, and thus "[a]t a minimum the jury should not be prevented of considering evidence supporting such a defense." Because, according to appellants, "[a]ll of the experts in this case . . . agree that perforation is a known risk of even the most carefully performed colonoscopy," and because "these risks were clearly explained to [Johnson], a reasonable jury could conclude that he accepted the risk of the perforation for the benefit of knowing whether he had bowel cancer." On November 2, 2009, prior to the beginning of trial, the court held a hearing on Johnson's motion in limine. Johnson argued that "[i]nformed consent is not a defense to negligence." Johnson asserted that, although Maryland "has not spoken to this issue," his research indicated that of all the "other states that have addressed this have held that informed consent information cannot be presented in a negligence case." He further

contended that he was "unable to find any appellate opinion where the assumption of the risk defense was upheld in a medical malpractice case." According to Johnson, if the court were to allow an assumption of the risk defense to be asserted in the instant case, it would be "contrary to the medical malpractice law of [] Maryland" and "relieve[ appellants] of any responsibility for the consequences of [Dr. Schwartz's] conduct[;] [i]n other words, if Johnson has assumed the risk, whether [Dr. Schwartz wa]s negligent makes no difference." Appellants responded that Johnson was essentially arguing that "in Maryland,

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assumption of the risk is no longer a defense available in a negligence case involving a physician professional malpractice." Appellants pointed to Newell v. Richards , 323 Md. 717 (1991), in support of the proposition that, although it may be rare, "there may be cases where assumption of the risk in a medical malpractice case is, in fact, an issue." According to appellants, a screening colonoscopy case is "exactly the kind of case where assumption of the risk" should be permitted as a defense in a medical malpractice case, because a screening colonoscopy is a test that "you can decline" and decide not to accept after hearing the potential risks. Appellants explained that they were not contending that "Johnson consented to negligence" and suggested that the court could instruct the jury that Johnson "did not accept the risk of negligence being performed on him. He accepted the risk of a perforation occurring in a certain number of these cases absent negligence as every expert has testified to." In response, Johnson proposed that, to avoid confusing the jury and "run[ning] the risk of the jury using information improperly," the court let [appellants'] counsel make exactly the argument he said he intends to make which is that these [perforations] happen in so many cases and this was one of these unavoidable cases. Let [Johnson] argue that this was due to negligent technique, not one of those unavoidable cases and lea[ve] the informed consent issue out entirely, which all of these courts that have considered it have found to be the appropriate avenue. (Emphasis added). The trial court determined that assumption of risk would not be an available defense:

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[I]t appears that the assumption of risk functions as a complete bar to recovery because, it is a previous abandonment of the right to complain if something occurs. And that's the problem that I've had, [appellants' counsel], with regard to the consideration of the issue in this case. The court finds that in this case even with the deposition testimony that these perforations occur absent medical negligence, to allow [appellants] to put forth the defense of assumption of risk as an abandonment of the right to complain about whatever occurred to [Johnson], I'll have to side with [Johnson] in that regard. [Appellants] will be able to argue that which was just argued before the court with regard to the motion in limine in this case. But the motion in limine is granted in this case. (Quotations omitted). Appellants then asked the trial court to reconsider its decision, because, even if the defense of assumption of risk was not permitted, appellants should be permitted to "put in valid evidence of discussions that happened in advance that corroborate the center of what [Dr. Schwartz] says why he didn't do something wrong." Appellants argued that such evidence was relevant to the case "when it's in the records, it's part of the process that went on and it is really the heart of the [d]efense that Dr. Schwartz and his experts are going to offer . . . it's offered to corroborate the essence of the [d]efense." After a brief recess, the court ruled, in pertinent part: Knowledge by the jury of informed consent does not help [Johnson] prove negligence nor does it help [Dr. Schwartz] show he was not negligent. The admission of evidence concerning a Plaintiff's consent could only serve to confuse a jury because the jury could conclude contrary to the law and evidence that consent to the surgery was ta[nt]amount to consent to the injury which resulted from the surgery.

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The jury could conclude waiver in this case and that would be plainly wrong. The issue of informed consent has become irrelevant. Again, the motion is granted. (Quotations omitted). The Parties' Contentions Appellants argue on appeal that they were "unjustifiably prevented from presenting their primary defense," because they were unable to present evidence of informed consent. Specifically, appellants contend, as they did before the trial court, that "[i]n defense of a negligence action, a defendant may assert that the plaintiff assumed the risk of injury, thereby barring recovery completely." Appellants claim that under Maryland law, "assumption of the risk is a permissible defense in medical negligence actions." Appellants state that, had they been able to introduce such evidence, they would have shown that Dr. Schwartz provided Johnson with "a comprehensive explanation of the alternatives, risks and benefits of undergoing the proposed procedure," including "informing [] Johnson of the risk of bowel perforation." Thus, according to appellants, "[a]fter having been duly informed, [] Johnson knowingly accepted the risk of perforation despite the proper performance of the procedure." Moreover, appellants contend that, although assumption of the risk may not be appropriate for a case involving life-saving treatment, a colonoscopy is a screening procedure, which Johnson "absolutely could have simply declined." Appellants also argue, as they did before, that evidence of Dr. Schwartz's disclosure of the risk of bowel perforation to Johnson was part of the proper medical and surgical

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performance of a colonoscopy and thus was relevant to the standard of care. Appellants point to the deposition testimony of Johnson's expert "that physicians are required by applicable medical standards to warn their patient[s] prior to colonoscopy of known risks, such as perforation." Appellants conclude that "the jury should have been allowed to hear evidence of how [Johnson's] own expert admitted, at least in one report, that Dr. Schwartz provided competent care." Johnson responds that "assumption of the risk is almost never available as an affirmative defense" in a medical malpractice negligence action. He explains that "[a] patient who consents to a procedure with knowledge of an unavoidable risk of complication does not waive the right to complain of physician negligence that causes that complication." Johnson also argues that, because the concepts of medical negligence and lack of informed consent are "separate and distinct" and his claims are based on appellants' "active negligence," the doctrine of informed consent is not at issue in the instant case Thus, according to Johnson, evidence of informed consent is "both irrelevant and unduly prejudicial in medical malpractice cases without claims of lack of informed consent." (Internal quotations omitted). Finally, Johnson argues that appellants were "fully permitted" to and did introduce expert testimony that he "suffered a known complication resulting from appropriate, nonnegligent care." Johnson concludes that "[t]he grant of the Motion in Limine in no way limited Appellants' ability to present evidence that [] Johnson's perforation was a non-

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negligent complication." A. Assumption of the Risk "[T]o establish the defense of assumption of risk, the defendant must show that the plaintiff: (1) had knowledge of the risk of the danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger." ADM P'ship v. Martin , 348 Md. 84, 90-91 (1997). The doctrine of assumption of risk arises from "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 [him] and to take [his] chances from harm from a particular risk." Id. at 91 (quotations and citation omitted). In other words, assumption of risk means voluntarily "incurring that of an accident which may not occur, and which the person assuming the risk may be careful to avoid after starting." Id. (quotations and citation omitted). Whether the plaintiff "voluntarily exposed" himself to a known risk, "there must be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct." Id. at 92 (quotations and citation omitted). Maryland recognizes assumption of risk as an affirmative defense. See Md. Rule 2323(g). If the defendant establishes assumption of risk by the plaintiff, it "functions as a complete bar to recovery because it is a previous abandonment of the right to complain if an accident occurs." ADM P'ship , 348 Md. at 91 (quotations and citation omitted). In Maryland, assumption of risk may be a defense in a medical malpractice case, but

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as the Court of Appeals recognized in Newell , it is a "rare situation" where assumption of risk is an issue. 323 Md. at 730 (quotations and citation omitted). We have not found any Maryland authority, and the parties have not cited to any such authority, that applies an assumption of risk defense in a medical malpractice case such as the instant one. Therefore, we shall resolve this issue by reference to relevant cases from our sister jurisdictions. 1. When Assumption of Risk Defense is Permitted A review of cases from our sister jurisdictions indicates that assumption of risk has been recognized as a defense in medical malpractice cases in certain discrete factual circumstances:2 (1) where the patient refused treatment suggested by a physician; and (2) where the patient elects to follow unconventional medical treatment. Two cases, King v. Clark , 709 N.E.2d 1043 (Ind. Ct. App. 1999) and Boyle v. Revici, 961 F.2d 1060 (2d Cir. 1992), which appellants cite to support their position, specifically address these two

We note that in Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 9 P.3d 314 (Ariz. 2000), the Supreme Court of Arizona held that a trial judge could not instruct a jury that the patient "did not voluntarily assume the risk of negligence by the Defendants, but [the patient] did voluntarily assume the risks relating to the refusal to take or receive transfusions of blood or blood products" because, under the Arizona Constitution, the jury is the "sole arbiter of all things relating to assumption of the risk." Id. at 319-20 (emphasis omitted). Article XVIII, Section 5 of the Arizona Constitution provides: "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury." Consequently, the Court concluded that the trial judge's instruction was reversible error. Reinen , 9 P.3d at 320. Because of a specific constitutional provision regarding the defense of assumption of risk, Arizona sits in a unique position with how assumption of risk may be applied in a medical malpractice case. No such provision exists in Maryland law. 14

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situations. Patient's Refusal of Treatment Suggested by Physician In King , the patient, appellant, filed a complaint against her physician, appellee, asserting that he "failed to timely diagnose and treat [her] breast cancer." 709 N.E. 2d at 1045. At the conclusion of all of the evidence at a jury trial, the appellant moved for judgment with respect to the issues of contributory negligence and incurred risk.3 Id. at 1046. The trial court denied her motion, gave instructions with regard to contributory negligence and incurred risk, and entered judgment upon the jury's verdict in favor of the appellee. Id. In her appeal, the appellant challenged the trial court's instruction to the jury regarding contributory negligence and incurred risk. Id. The Indiana Court of Appeals upheld the trial court's jury instructions regarding contributory negligence and incurred risk. Id. at 1047-48. With regards to incurred risk, the Court stated that "a patient's . . . incurred risk operates as a complete defense to medical negligence." Id. at 1046. The Court specifically determined that the evidence most favorable to the verdict supported a finding of contributory negligence or incurred risk, because the appellant

Under Indiana law, assumption of the risk and incurred risk are essentially the same doctrines. See Hardin v. Christy , 462 N.E.2d 256, 263 n.3 (Ind. Ct. App. 1984) ("While some courts have limited the term `assumption of the risk' to cases in which the parties stand in some sort of contractual relation, and have created other terms, such as `incurred risk' for other cases, this is generally considered a distinction without a difference. Hence the terms are essentially interchangeable."); Gyuriak v. Millice , 775 N.E.2d 391, 394 n.1 (Ind. Ct. App. 2002) ("We use the terms `incurred risk' and `assumed risk' interchangeably because they basically describe the same concept."). 15

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waited three to four weeks before seeking a medical evaluation of the symptomatic left breast in October of 1993. Moreover, she did not report her symptoms when she contacted [the appellee]'s office on October 16, 1993. [The appellant] also delayed an additional five weeks before obtaining the diagnostic testing that [the appellee] had ordered. Id. at 1047. Furthermore, the Court noted that the appellant sought treatment from another doctor who diagnosed her with cancer, advised her that this was an "aggressive cancer requiring immediate treatment," and referred her to an oncologist. Id. The oncologist recommended that the appellant "immediately begin six courses of chemotherapy, followed by a mastectomy, radiation therapy, and more chemotherapy." Id. The appellant "elected to disregard" the oncologist's recommendations and sought consultations from other physicians. Id. The appellant ignored the recommendation of another doctor with whom she consulted one month later, and eventually took the recommendation of a subsequent doctor and began treatment on January 31, 1994. Id. The appellant, however, completed only four of the six chemotherapy sessions. Id. From these facts, the Court of Appeals in King determined that "the jury could have concluded that [the appellant]'s conduct may have demonstrated a disregard for the risk, and that she may have voluntarily incurred the risk of disregarding the recommendations of four physicians to undergo a mastectomy and treatment." Id. at 1048. Several other states have held assumption of the risk to be an available defense in similar factual situations. For instance, in Connelly v. Warner, 670 N.Y.S.2d 293 (N.Y. App. Div. 1998), the Supreme Court of New York, Appellate Division, held that, in a case based 16

"solely on medical malpractice" with no separate cause of action for lack of informed consent, the trial court did not err in failing to strike the affirmative defense of assumption of risk where the patient refused to have a naso-gastric tube inserted prior to surgery. Id. at 295. In Baxley v. Rosenblum , 400 S.E.2d 502 (S.C. Ct. App. 1991), the Court of Appeals of South Carolina held that, based on the particular facts of the case, the trial judge had a duty to submit the defense of assumption of risk to the jury in a medical malpractice action. Id. at 507. The appellant was the appellee's patient and was a doctor himself. Id. at 504. The Court determined that, [i]n this case, the evidence permitted a reasonable inference that [the patient] voluntarily chose to incur known medical risks. In 1984, [the physician] made a preoperative diagnosis of cancer of the bladder. From that time forward, if not before, [the patient] knew a person with his symptoms is at risk for cancer. He also knew a patient takes a serious health risk when he withholds information about his symptoms and their progression, and when he ignores his doctor's recommendations for treatment. We have already detailed evidence showing that [the patient] did both of these things. He knew there was a risk of complications from the May 1987 surgery that would require further treatment. In each instance, he made a voluntary decision to take the risk. . . . On the basis of this evidence, the trial judge had a duty to submit the defense of assumption of the risk to the jury. Id. at 507. In Lyons v. Walker Reg'l Med. Ctr., 868 So. 2d 1071 (Ala. 2003), the Supreme Court of Alabama held that, in a claim for medical malpractice, the trial court did not err in "charging the jury on . . . assumption of the risk over [the appellant]'s objection" where the 17

patient had refused all treatment for his condition, even though he was warned of the serious consequences that could arise. Id. at 1085. The Court held: The jury, in applying the court's charge on contributory negligence and assumption of risk to all of the testimony, could have concluded that [the patient], with knowledge of the seriousness of his sickness and with the appreciation that it posed significant danger, including death, failed to exercise care for his own safety, by putting himself in the way of the danger about which he was warned, including death. Id. at 1088. Patient's Election to Follow Unconventional Medical Treatment In Boyle , a cancer patient was advised by conventional cancer specialists to undergo surgery to resect her tumor. 961 F.2d at 1062. The patient, however, decided to explore noninvasive alternatives, and consulted with the appellant about what cancer treatments he could offer her. Id. The appellant's treatments consisted of "urine monitoring, urinalyses and the ingestion of various mineral compounds that [the appellant] claim[ed] retard and reduce the size of cancerous tumors." Id. The appellant testified that he had alerted the patient that "his medications were not FDA approved and that he could offer no guarantees." Id. Despite this admonition, the patient decided to go forward with the appellant's cancer treatment, and within a year, passed away. Id. On appeal, the appellant claimed that the trial court "erred by failing to instruct the jury to decide whether the decedent expressly assumed the risks that caused her injuries." Id. at 1061-62. The Second Circuit defined "express assumption of risk" under New York

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law as "result[ing] from agreement in advance that defendant need not use reasonable care for the benefit of plaintiff and would not be liable for the consequence of conduct that would otherwise be negligent." Id. (quotation and citation omitted). The Court recognized that it had previously held in Schneider v. Revici, 817 F.2d 987 (2d Cir. 1987) that "a jury charge on express assumption of risk is proper in medical malpractice cases where a patient knowingly forwent conventional medical treatment and instead accepted the risks that caused the injuries." Boyle , 961 F.2d at 1062. In other words, "a patient may expressly assume the risk of malpractice and dissolve the physician's duty to treat a patient according to the medical community's accepted standards." Id. at 1063. The Court determined that the appellant had presented evidence that the patient had "expressly assumed a risk in opting for the unconventional cancer treatment," and reversed the judgment of the trial court. Id. 2. When Assumption of Risk Defense is Inapplicable in Medical Malpractice Case As explained above, our review of out-of-state case law indicates that the viability of assumption of risk as a defense in medical malpractice cases, premised on negligence as opposed to informed consent, is limited to certain factual situations. The rationale for the limited viability of the assumption of risk defense in a medical malpractice action may be explained by the elements of the defense itself; for a person to "assume the risk," he or she must have had knowledge of the risk of the danger, appreciated that risk, and voluntarily accepted that the risk could occur. See ADM P'ship , 348 Md. at 90-91. Therefore, in the

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healthcare context, for a patient to have "assumed the risk" of a negligent medical procedure, he or she must have voluntarily accepted the risk that the doctor would negligently complete the procedure. Such a factual scenario, however, will almost never occur. In our view, for a court to hold that a patient assumed the risk of a physician acting negligently in a medical procedure is "tantamount to a finding that the [physician] owed no duty" to the patient. Storm v. NSL Rockland Place, LLC , 898 A.2d 874, 880 (Del. Super. Ct. 2005). We agree with the Superior Court of Delaware's rationale for this conclusion in Storm : [T]here is virtually no scenario in which a patient can consent to allow a healthcare provider to exercise less than "ordinary care" in the provision of services.[4] Even if given, a patient's consent to allow a healthcare provider to exercise less than ordinary care would be specious when considered against the strict legal, ethical and professional standards that regulate the healthcare profession. Regardless of whether the patient elects to have healthcare or requires it, the patient appropriately expects that the treatment will be rendered in accordance with the applicable standard of care. This is so regardless of how risky or dangerous the procedure or treatment modality might be. Id. at 884 (footnote omitted) (emphasis added). Furthermore, the very nature of actions involving medical malpractice limits the applicability of the assumption of risk defense. As courts in other jurisdictions have

The Superior Court of Delaware recognized that "[t]he only such scenario that the Court can envision is where the patient gives informed consent to undergo an experimental medical procedure where the standards of care have not yet been fully developed or consents to treatment modalities known to be outside of the medical mainstream." Storm v. NSL Rockland Place, LLC , 898 A.2d 874, 884 n.41(Del. Super. Ct. 2005). 20

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recognized, "[t]he disparity in knowledge between [doctors] and their [patients] generally precludes recipients of [medical] services from knowing whether a [doctor]'s conduct is in fact negligent." Morrison v. MacNamara , 407 A.2d 555, 567 (D.C. 1979). See also Dennis v. Jones, 928 A.2d 672, 677 (D.C. 2007); King v. Solomon , 81 N.E.2d 838, 840 (Mass. 1948); Los Alamos Med. Ctr. v. Coe , 275 P.2d 175, 179 (N.M. 1954); Kelly v. Carroll, 219 P.2d 79, 90 (Wash. 1950). As the District of Columbia Court of Appeals explained, [i]n the context of medical malpractice, the superior knowledge of the doctor and his expertise in medical matters and the generally limited ability of the patient to ascertain the existence of certain risks and dangers that inhere in certain medical treatments, negates the critical elements of the defense, i.e., knowledge and appreciation of the risk. Thus, save for exceptional circumstances, a patient cannot assume the risk of negligent treatment. Morrison , 407 A.2d at 567-68. See also Knight v. Jewett, 834 P.2d 696, 705-06 (Cal. 1992) (stating that a patient "by voluntarily encountering" a risk of injury does not "`impliedly consent' to negligently inflicted injury or `impliedly agree' to excuse the surgeon from a normal duty of care"). Accordingly, we hold that, except in cases involving a refusal or delay in undergoing recommended treatment or the pursuit of unconventional medical treatment, a healthcare provider cannot invoke the affirmative defense of assumption of risk in a medical malpractice claim brought by his or her patient where a breach of informed consent has not been alleged.

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3. The Instant Case In the case sub judice , Dr. Schwartz performed a routine diagnostic screening colonoscopy on Johnson. The record reflects that Johnson neither refused any treatment recommended to him by Dr. Schwartz, nor did he pursue an unconventional form of treatment. Therefore, the facts in the instant case are distinguishable from the situations in which a defense of assumption of risk have been applied in medical malpractice actions. Furthermore, based on our holding and the supporting rationale above, we conclude that the defense of assumption of risk is not applicable in the case sub judice . Dr. Schwartz's argument that Johnson voluntarily assumed the risk of a bowel perforation confuses the defense of assumption of risk with a defense to a claim of a breach of informed consent. A bowel perforation, according to Dr. Schwartz, is a normal and usual complication associated with the performance of a colonoscopy, and thus can occur without any negligence on the part of the physician. The defense of assumption of risk, however, assumes that the defendant, i.e., a doctor in a malpractice case, was negligent. See ADM P'ship , 348 Md. at 92 (stating that "there must be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct") (quotations and citation omitted) (emphasis added). Dr. Schwartz did not concede in the trial court, nor does he in this appeal, that he was negligent in the performance of the colonoscopy on Johnson. What Dr. Schwartz is arguing, in essence, is that Johnson voluntarily assumed the risk of a non-negligent complication of a

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colonoscopy. That can be raised only as a defense to a claim of a breach of informed consent, which claim was not brought by Johnson in the instant case. In other words, a patient's voluntary assumption of a risk normally associated with a particular medical treatment or procedure, after having been properly informed of the same, occurs in virtually every case and does not relieve the physician of compliance with the applicable standard of care. To hold otherwise would mean that Johnson consented to allow Dr. Schwartz to exercise less than ordinary care when Dr. Schwartz conducted the colonoscopy. Accordingly, we hold that the trial court did not err in ruling that the defense of assumption of risk was not available to Dr. Schwartz. B. Informed Consent Appellants next contend that Johnson's "decision to not assert a lack of informed consent claim . . . should not have prevented [appellants] from showing that the discussion occurred," because such discussion "was part of the proper medical and surgical performance of a colonoscopy." They claim that "[t]he Court's ruling on [Johnson]'s Motion denied the jury essential relevant information." They assert that, at a minimum, they were "entitled to have evidence of the informed consent submitted to the jury" with "appropriate instruction[s]" on the role of informed consent "as evidence of Dr. Schwartz's compliance with the standard of care." We disagree. "Breach of informed consent and medical malpractice claims both sound in

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negligence, but are separate, disparate theories of liability." McQuitty v. Spangler, 410 Md. 1, 18 (2009) (emphasis added). A patient alleging an informed consent claim complains that "a healthcare provider breached a duty to obtain effective consent to a treatment or procedure." Id. at 18-19. The doctrine of informed consent thus imposes on a physician, before he subjects his patient to medical treatment, the duty to explain the procedure to the patient 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 intelligent and informed choice about whether or not to undergo such treatment. Sard v. Hardy , 281 Md. 432, 439 (1977). The physician's "duty to disclose" requires that the physician explain to the patient "the nature of the ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment." Id. at 440. Breach of informed consent must be pled as a separate count of negligence. Zeller v. Greater Balt. Med. Ctr., 67 Md. App. 75, 83 (1986). In comparison, a patient alleging medical malpractice argues that a "healthcare provider breached a duty to exercise ordinary medical care and skill based upon the standard of care in the profession." McQuitty , 410 Md. at 18. In other words, medical malpractice is "predicated upon the failure to exercise requisite medical skill and, being tortious in nature, general rules of negligence usually apply in determining liability." Dehn v. Edgecombe , 384 Md. 606, 618 (2005) (quotations and citation omitted). Because claims of informed consent and medical malpractice are "separate, disparate theories of liability," we agree with Johnson

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that evidence of appellants providing informed consent to Johnson is irrelevant to Johnson's medical malpractice claim. See McQuitty , 410 at 18. Accordingly, the trial court did not err by precluding the admission of evidence of informed consent. Even if evidence of informed consent was relevant, cases from our sister jurisdictions indicate that the admission of such evidence in a medical malpractice case would be prejudicial to the patient. The opinion of the Supreme Court of Connecticut in Hayes v. Camel, 927 A.2d 880 (Conn. 2007) is instructive. In Hayes, the Court determined that other state courts that "have considered this issue uniformly have concluded that evidence of informed consent, such as consent forms, is both irrelevant and unduly prejudicial in medical malpractice cases without claims of lack of informed consent." 927 A.2d at 888-89. As part of its rationale, the Court explained: Knowledge by the trier of fact of informed consent to risk, where lack of informed consent is not an issue, does not help the plaintiff prove negligence. Nor does it help the defendant show he was not negligent. In such a case, the admission of evidence concerning a plaintiff's consent could only serve to confuse the jury because the jury could conclude, contrary to the law and the evidence, that consent to the [procedure] was tantamount to consent to the injury which resulted from that surgery. In effect, the jury could conclude that consent amounted to a waiver, which is plainly wrong. Id. at 889 (quoting Wright v. Kaye , 593 S.E.2d 307, 317 (Va. 2004)). Stated differently, "whether the plaintiff patient had given informed consent to [a] procedure generally is irrelevant and `carrie[s] great potential for the confusion of the jury' in an action wherein only medical malpractice is pleaded, and the information given to the plaintiff is not at

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issue."

Id. (first alteration added) (second alteration in original) (quoting Waller v.

Aggarwal, 688 N.E.2d 274, 275 (Ohio Ct. App. 1996)). In the instant case, during its deliberations, the jury asked questions about what types of warnings Johnson received from Dr. Schwartz regarding the colonoscopy. One juror sent a note asking: "Is pt's [sic] warned of what could happen during this procedure such as Bowing?" Another juror sent a note asking: "Is the risk explain [sic] to a person before the colonoscopy?" We agree with Johnson that these notes "demonstrate[d] the risk that the jury would have confused the[] issues [] had the informed consent evidence been allowed." In other words, if the court had admitted the evidence that Dr. Schwartz had obtained informed consent from Johnson, there would have been a risk of misuse of the informed consent evidence by the jury, and, as the trial court stated, the jury "could conclude waiver in this case and that would be plainly wrong." Accordingly, we hold that, even if relevant, the trial court did not abuse its discretion in excluding the evidence of informed consent. II. JUROR BIAS AND MISCONDUCT When a party alleges that a juror is guilty of bias or misconduct, the party must prove that the bias or misconduct "actually occurred" and that he or she was "prejudiced" by the bias or misconduct. Wright v. State , 24 Md. App. 309, 313, cert. denied , 274 Md. 733 (1975). When reviewing a trial judge's decision about whether to exclude a juror, "we will

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give deference to the trial judge's determination and will not substitute our judgment for that of the trial judge unless the decision is arbitrary and abusive or results in prejudice to the defendant." State v. Cook , 338 Md. 598, 615 (1995).5 The rationale for such deference is "based on the fact that in evaluating the excluded juror, the trial judge has the opportunity to question the juror and observe his or her demeanor." Id. Furthermore, the trial judge is "physically on the scene, able to observe matters not usually reflected in a cold record[, and] has his finger on the pulse of the trial." Id. (quotations and citation omitted). Appellants argue that the court should have replaced Juror 4. They contend that

"[j]uror misconduct is an absolute ground for dismissal" and that juror misconduct includes sleeping, inattentiveness, and "[a] juror's indication of a fixed opinion on the merits prior to submission of the case for deliberations." They assert that Juror 4's "denial of some of the accusations was unconvincing at best and varied during the course of the Court's questioning of him." They further claim that "[t]he fact that other jurors confirmed that he was indeed talking about the case before [appellants] had opened their case in chief, which was a violation of the Court's instructions not to do so, combined with the evidence of him not paying attention and/or falling asleep during [appellants]' case, was ample evidence of juror

Maryland Rule 2-512(f)(3) governs the discharge of a jury member in a civil case. The language in Rule 2-512(f)(3) is identical to the language in Maryland Rule 4-312(f)(3), which governs the discharge of a jury member in a criminal case. "Because the words of the civil and criminal rules are identical, and because there is a Maryland constitutional right to a jury trial in civil as well as criminal cases," the opinions stemming from Rule 4-312(f)(3) are "direct authority in civil as well as in criminal cases." Grimstead v. Brockington , 417 Md. 332, 354 (2010). 27

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misconduct warranting his dismissal." Johnson responds that "[t]here is no evidence of juror bias or misconduct that merits setting aside the jury verdict." He contends that appellants failed to demonstrate "with specificity that [J]uror [4] was sleeping or inattentive" and did not make any "affirmative showing of prejudice." Johnson further relies on the court's observations that Juror 4 had been "particularly attenti[ve] . . . . He's very keen as to what's going on. . . . [H]e doesn't look anymore drowsy than anyone else looks and anymore alert than anyone else looks." 6 As to bias, Johnson points to the other jurors' statements that they had "not formed any opinions about the case as a result of [Juror 4's] comment." Because appellants allege separate incidents of bias and misconduct by Juror 4, we will address each incident separately. A. Juror Bias On the second day of trial, during the cross-examination of Dr. Dwoskin, Alternate Juror 2 passed a note to the trial court, which read: "Madam [sic] Court

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