Advocacy Update

May 17, 2018: Judicial Advocacy Update


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

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

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

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

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

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

Read more at AMA Wire.

The Pennsylvania Supreme Court will decide whether Philadelphia can continue to collect a sugary-drink distribution tax—a levy that the AMA and others are urging justices to keep in place because it is a positive tool to help curb the obesity epidemic that is a major contributor to heart disease and type 2 diabetes.

Two lower Pennsylvania courts previously ruled that Philadelphia officials can levy a 1.5-cent per fluid ounce tax on sugar-sweetened beverages from distributors. The law, enacted in 2016, includes any drink with a sugar-based sweetener or artificial sugar substitute. The measure excludes products that contain more than 50 percent milk, fresh fruit or vegetables and some unsweetened drinks to which sugar is added later.

A coalition of retailers and retail groups that brought the lawsuit is appealing the Pennsylvania Commonwealth Court's decision in Williams et al. v. City of Philadelphia to the Pennsylvania Supreme Court, asking those justices to rule that the levy is duplicative of the general retail sales tax and, therefore, not allowed.

The Litigation Center of the American Medical Association and State Medical Societies, as it did in the lower court cases, recently filed an amicus brief supporting the sugary-drink tax.

More than a dozen organizations—including the American Heart Association and Pennsylvania Medical Society—joined the Litigation Center in the brief that attempts to rebut the legal argument that the tax is duplicative and explains to the court why the tax is important to the public's health.

Read more at AMA Wire®.