Blackston v. Doctors Weight Loss Ctrs.

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SHELLY BLACKSTON v. DOCTORS WEIGHT LOSS CENTERS INC., ET AL.

No. 553-2022

Court of Special Appeals of Maryland

June 29, 2023

UNREPORTED IN THE APPELLATE COURT OF MARYLAND^[*]

Circuit Court for Prince George's County Case No. CAL 18-32511

Graeff, Nazarian, Tang, JJ.

OPINION ^[*]

GRAEFF, J.

This case arises from a liposuction procedure that Dr. Alba Roy Heron, Jr. ("Dr. Heron"), one of the appellees performed on Shelly Blackston, appellant, at his office in Alexandria, Virginia. The procedure caused Ms. Blackston to suffer permanent physical and emotional injuries.

On September 21, 2018, Ms. Blackston filed a complaint in the Circuit Court for Prince George's County against appellees, Dr. Heron, Doctors Weight Loss Centers, Inc., A. Roy Heron Global Foundation for Community Wellness, and the Heron Smart Lipo Center.^[1] She alleged that Dr. Heron breached the standard of care in numerous respects, before, during, and after the procedure, and he failed to obtain proper informed consent.

Following a five-day trial, the jury returned a verdict in Ms. Blackston's favor, awarding her a total of $2,300,900 in damages, which included non-economic damages of $2,000,000, economic damages of $60,000, and medical expenses in the amount of $240,900. Appellees filed several post-trial motions, including a motion for statutory remittitur, which the court granted, in part, and denied, in part. As explained in more detail, infra, the court reduced the total award to $1,055,900, plus interest and costs, and the parties dispute which state's law governs the damages recoverable.

Ms. Blackston presents the following question for this Court's review, which we have rephrased slightly, as follows:

Did the circuit court err in applying Maryland's law on the limitation of noneconomic damages, when the failure to obtain informed consent and the medical malpractice causing harm occurred in Virginia?

Appellees filed a cross-appeal, presenting the following additional questions for this Court's review, which we have rephrased slightly, as follows:

1. Did Ms. Blackston provide appellees with adequate notice of the intention to rely on Virginia law pursuant to Md. Code Ann., Cts. &Jud. Proc. Art. ("CJ") § 10-504 (2020 Repl. Vol.)?

2. Did the circuit court err in failing to reduce the award of past medical expenses in accordance with CJ § 3-2A-09(d)(1)?

For the reasons set forth below, we shall reverse the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

Dr Heron is a cosmetic surgeon who has an office in Virginia and a Virginia medical license. On January 12, 2015, Ms. Blackston visited Dr. Heron at his office. She did not see Dr. Heron that day, but she completed general intake forms, and his staff showed her a short video that explained the liposuction procedure.

On January 15, 2015, Ms. Blackston returned to Dr. Heron's office for a preoperative evaluation. During the evaluation, Ms. Blackston discussed the risks of the procedure with Dr. Heron, and she signed a consent form based on those discussions. Dr. Heron then took Ms. Blackston to the exam room to take measurements and evaluate her condition. Dr. Heron explained the risks with a traditional liposuction procedure and persuaded Ms. Blackston to choose an alternative laser-assisted liposuction method, which he called "Smart Lipo." Ms. Blackston testified that Dr. Heron represented that the procedure was "minimally invasive" and "no big deal." The consent form indicated that "[a]n infection is quite unusual after this type of surgery."

On January 30, 2015, Dr. Heron performed the liposuction procedure. Prior to the surgery, Dr. Heron prescribed an oral antibiotic for Ms. Blackston to take before the procedure, but he did not administer any other antibiotics during the procedure. Dr. Heron also gave Ms. Blackston analgesic pills two hours prior to the surgery to help with any pain.

Using a local anesthetic, Dr. Heron made several incisions and suctioned fat tissue from six locations on Ms. Blackston's body. Ms. Blackston testified that, as soon as the procedure began, she immediately was in a lot of pain and was screaming. There was no report of pain in the medical records, and Dr. Heron testified that screaming was abnormal for a procedure like this.

The surgery lasted for approximately six and a half hours, which included three separate breaks. There was one break for a snack and two breaks to allow Ms. Blackston to go to the bathroom. The entire procedure, including preparation, surgery, and recovery period, lasted from approximately 11:00 a.m. until 11:15 p.m.

Approximately two hours after the procedure, Ms. Blackston complained of "dizziness and excruciating pain." Dr. Heron "injected some Lidocaine to numb her and make her feel better." Ms. Blackston testified that the pain continued for the next several days. Following the procedure, Ms. Blackston returned to her home in Upper Marlboro, Maryland.

On February 3, 2015, Ms. Blackston visited Dr. Heron again for a post-operative evaluation. She reported that she was miserable and in a lot of pain, and she had a fever and nausea. Dr. Heron testified that Ms. Blackston had some drainage, but there were no signs of infection. He instructed her to continue to take the oral antibiotic he prescribed before the procedure.

Over the next several days, Ms. Blackston's condition worsened. She was bleeding, developed a high fever, and was "throwing up constantly." The incisions were swollen and oozing puss. Ms. Blackston testified that she reported her deteriorating conditions to Dr. Heron and sent him photographs, but when she asked for an appointment, she was told to come to the group weight loss clinic on February 14, 2015. Dr. Heron denied any such communication.

On February 7, 2015, Ms. Blackston's mother called Dr. Heron requesting to refill the prescription for the antibiotic. She stated that Ms. Blackston was okay but "wanted more antibiotics since the [incision] sites were still open and to prevent an infection." Dr. Heron denied that Ms. Blackston had an infection at this time. He testified that, if she had indicated that she had an infection, he would not have renewed the same antibiotic and would have made an appointment to see her.

On February 14, 2015, Ms. Blackston went to the group weight loss session. She testified that Dr. Heron was "annoyed" with her because she disrupted the group, who "left because they saw how bad [she] looked," with blood and drainage oozing from her incisions. Dr. Heron refused to examine her, even after she showed him her wounds and described her symptoms. Instead, he turned his back and refused to speak to her.

Dr. Heron testified that Ms. Blackston showed him her incisions, which were still open and draining fluid, and he advised her to make an appointment to see him on February 17, 2015. He testified that, if Ms. Blackston had been bleeding or had a concerning discharge on this date, he "would have stopped and immediately seen her."

Later on February 14, after leaving Dr. Heron's office, Ms. Blackston collapsed and was taken to MedStar Southern Maryland Hospital Center. She was diagnosed with methicillin-resistant Staphylococcus aureus ("MRSA"), a highly dangerous, contagious bacterial infection. She received several surgeries and rounds of antibiotics to treat the infection. Doctors attempted to contact Dr. Heron, but he did not call back. Dr. Heron testified that he did not receive this message, but he did attempt to call on his own after receiving the medical records.

On September 21, 2018, Ms. Blackston filed a complaint in the Circuit Court for Prince George's County, alleging one count of medical malpractice. The complaint alleged that Dr. Heron negligently performed the procedure, and he breached the standard of care during and immediately after the procedure and in his post-operative care. The complaint also alleged that Dr. Heron failed to advise that, because of her weight, she had an increased risk for complications.

On January 24, 2020, Ms. Blackston filed a pre-trial statement asserting, among other things, that certain provisions of Virginia law applied to the case. Specifically, she claimed that Virginia Code § 8.01-581.15 governed the limitation on damages and the maximum amount recoverable was $2,150,000.^[2] On March 6, 2020, Ms. Blackston submitted proposed jury instructions, which all cited Maryland law. Ms. Blackston requested instructions on damages, including damages generally, compensatory damages, susceptibility to injury, an instruction explaining that damages are not subject to state or federal income tax, and an instruction on life expectancy. There was no proposed instruction on the issue of a damages cap.

On March 9, 2020, trial began. Ms. Blackston offered testimony from numerous people, including two medical experts on the issue of causation: Dr. Praful Ramineni, a plastic surgeon who treated Ms. Blackston when she was admitted to MedStar, and Dr. Ian Frank, an expert in infectious diseases. During the voir dire examination of Dr. Ramineni, counsel for appellees objected to his qualification as an expert, stating that, pursuant to CJ § 3-2A-02(c), Dr. Ramineni could not testify as to the standard of care required in this case because he is a plastic surgeon and Dr. Heron is a cosmetic surgeon. Counsel argued that Ms. Blackston needed to call a cosmetic surgeon, "somebody who does Smart Lipo, who doesn't have just plastic surgery training."

Counsel for Ms. Blackston argued, however, that Virginia law would apply because "all of the events in this case took place in Virginia." Under Virginia law, Dr. Ramineni could testify because he was familiar with liposuction generally. Counsel stated that Maryland law...