Dr. Weight Loss Ctr., Inc. v. Blackston

487 Md. 476

319 A.3d 1102

DOCTOR’S WEIGHT LOSS CENTERS, INC., et al.

v.Shelly BLACKSTON

No. 17, Sept. Term, 2023

Supreme Court of Maryland.

July 31, 2024

Circuit Court for Prince George’s County, Case No. CAL 18-32511, Herman C. Dawson, Judge.

Argued by David A. Roling, Wharton Levin, Annapolis, MD, and Michael K. Wiggins, and Trevor M. Shaw, The Wiggins Law Group, P.C., Columbia, MD, on brief, for Petitioners.

Argued by Alfred F. Belcuore, Law Offices of Alfred F. Belcuore, Washington, DC, and L. Palmer, Foret, Foret Law, PLLC, Washington, DC, on brief, for Respondent.

Amici Curiae The American Medical Association and Medchi, The Maryland State Medical: Philip S. Goldberg, Esquire, Christopher E. Appel, Esquire, Shook, Hardy & Bacon L.L.P., 1800 K Street, NW, Suite 1000, Washington, DC 20006.

Argued before: Fader, C.J., Watts, ^*Hotten, Booth, Biran, Gould, Eaves, JJ.

Eaves, J.

I INTRODUCTION

Pursuant to our choice of law rule, lex loci delicti, we apply the substantive law of the place of the wrong. For a tort, that is the place where the final element of the cause of action occurs. In the negligence context, that is generally where the first harm or injury occurs. This case comes before us to determine where the torts suffered by Respondent, Shelly Blackston, first arose—in the Commonwealth of Virginia or the State of Maryland. The answer will determine which jurisdiction’s cap on damages is applicable to the damages awarded to Ms. Blackston by a jury.

This case arises from a liposuction procedure (hereinafter the "procedure") that one of the Petitioners, Dr. Alva Roy Heron, Jr., performed on Ms. Blackston at his office in Alexandria, Virginia. During the procedure, she experienced excruciating pain, which Dr. Heron treated with additional injections of the local anesthesia he had administered prior to beginning the procedure. After the procedure, Ms. Blackston returned to her home in Maryland, where the pain continued. Within a few days, an infection manifested, and she required hospitalization and underwent several procedures to treat that infection. As a result of the procedure, Ms. Blackston suffers from permanent physical and emotional injuries.

In September 2018, Ms. Blackston filed a complaint alleging medical malpractice and failure to obtain informed consent in the Circuit Court for Prince George’s County against Petitioners—Dr. Heron, Doctor’s Weight Loss Centers, Inc., the A. Roy Heron Global Foundation for Community Wellness, and the Heron Smart Lipo Center. After a five-day trial, a jury found in her favor on both claims. The jury awarded Ms. Blackston damages of $2,300,900, which included non-economic damages of $2,000,000, economic damages of $60,000, and medical expenses of $240,900. The jury was not asked to determine where Ms. Blackston was first injured.

Thereafter, Petitioners filed several post-trial motions, including a motion for statutory remittitur,¹ which the court granted in part and denied in part. The circuit court reduced the non-economic damages to $755,000, consistent with Mary- land’s statutory cap on non-economic damages. The Appellate Court of Maryland reversed, however, holding that Virginia’s damages cap applies because Ms. Blackston was infected and, therefore, first injured (completing her claim) in Virginia.

[1] Petitioners filed a petition for writ of certiorari because whether Ms. Blackston was injured in Maryland (where her symptoms manifested) or Virginia (where the procedure took place) is critical in determining the amount of her monetary damages. We have rephrased the question presented as follows:² Did the circuit court err in applying Maryland law on the limitation of non-economic damages?

For the reasons set forth below, we hold that the circuit court erred, and we affirm the judgment of the Appellate Court.

II BACKGROUND

A. Factual Background

Dr. Heron is a cosmetic surgeon with an office in Alexandria, Virginia. He holds a Virginia medical license, and, in 2008, he completed the American Medical Society of Cosmetic Surgery’s two-day course in cosmetic surgery. Completion of the course certified Dr. Heron as a "cosmetic surgeon," qualifying him to perform "Smart Liposuction."³ Dr. Heron then spent the next two months performing Smart Liposuction at a plastic surgeon’s office before opening his own cosmetic surgery practice. Ms. Blackston is a resident of Upper Marlboro, Maryland, who underwent a Smart Liposuction procedure at Dr. Heron’s office in Virginia after being referred to him by another physician who had treated her for an unrelated condition.

1. Pre-operative appointments

Ms. Blackston first visited Dr. Heron’s office on January 12, 2015. There, she completed routine intake forms and learned about Smart Liposuction from Dr. Heron’s office assistant and Dr. Heron’s wife, Barbara Heron. Three days later, Ms. Blackston returned for a pre-operation evaluation. At this appointment, Dr. Heron met with her to discuss the details of Smart Liposuction. He told Ms. Blackston about some of the procedure’s risks, including that traditional liposuction, in contrast to Smart Liposuction, has a three percent mortality rate. In touting Smart Liposuction’s benefits over other forms of liposuction, including the traditional method, Dr. Heron informed Ms. Blackston that Smart Liposuction was "minimally invasive" and "no big deal[.]" The consent forms further stated that "[a]n infection [wa]s quite unusual[.]" After considering the mortality rate that purportedly accompanied traditional liposuction, as well as the other information she learned during her pre-op evaluation with Dr. Heron, Ms. Blackston opted to pursue the Smart Liposuction option and signed the consent forms to undergo that procedure.

2. The procedure

Dr. Heron scheduled Ms. Blackston’s Smart Liposuction procedure for January 30. In advance, Dr. Heron prescribed the antibiotic Ciprofloxacin ("Cipro") so that she could start taking it the day before the procedure. After administering local anesthesia, Dr. Heron made 15 to 18 different incisions through which cannulas⁴ were inserted to extract body fat.

Ms. Blackston testified that as soon as the procedure began, she was in a lot of pain and was screaming. There was no record of pain in the medical records, and Dr. Heron testified that screaming was abnormal for a procedure like this and that, if needed, he would have injected additional anesthesia to quell the pain.

Approximately two hours after the procedure, while still in Dr. Heron’s office, Ms. Blackston complained of "dizziness and excruciating pain." Dr. Heron "injected some Lidocaine to numb her and make her feel better." Ms. Blackston left Dr. Heron’s office around midnight and returned home to Maryland; the pain, however, persisted for several days.⁵

3. Post-operative treatment

On February 3, in accordance with Dr. Heron’s routine treatment protocols, Ms. Blackston returned to Dr. Heron’s office for a post-operative evaluation. She claims that she never saw Dr. Heron at this appointment, so she reported to his staff (including Barbara Heron) that she was experiencing significant pain, fever, and nausea. Dr. Heron testified that he examined Ms. Blackston, and he noted some drainage, but that there were no signs of infection. He instructed her to continue taking Cipro.

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 condition to Dr. Heron and sent him photo- graphs. The parties dispute how Dr. Heron responded when he was alerted to her worsening symptoms. Ms. Blackston recalls that she asked for an appointment but was told to come to Dr. Heron’s group weight loss clinic on February 14. Dr. Heron denies this. And, when Ms. Blackston’s mother called on February 7 requesting a refill of the Cipro prescription because the incision sites were still open and to prevent an infection, Dr. Heron again noted that he did not believe that Ms. Blackston had an infection. He testified that if Ms. Blackston had an infection, he would not have given her the same antibiotic and would have made an appointment to see her.

Despite her worsening condition, Ms. Blackston attended one of Dr. Heron’s group weight loss sessions on February 14.⁶ At this point, symptoms of her infection were observable to the naked eye. She had to excuse herself twice to use the bathroom because the incision sites were open and draining. Dr. Heron claims that he advised her to make an appointment to see him on February 17.

Before Ms. Blackston returned to see Dr. Heron for the appointment, however, she collapsed at her home and was taken to MedStar Southern Maryland Hospital Center, where she was diagnosed with methicillin-resistant staphylococcus aureus ("MRSA"), a highly dangerous, contagious bacterial infection. A few days later, Ms. Blackston was transferred to MedStar Washington Hospital Center ("WHC") to receive more advanced care. In total, Ms. Blackston underwent five separate surgeries and several rounds of antibiotics to treat her MRSA infection.

B. Procedural Background

1. Circuit court proceedings

Ms. Blackston sued Petitioners. In the complaint, she alleged that Dr. Heron negligently performed the procedure, and that 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 Ms. Blackston that, because of her weight, she had an increased risk for complications. In other words, the complaint alleged that Dr. Heron failed to obtain her informed consent for the procedure.

On January 24, 2020, Ms. Blackston filed a pretrial 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 that the...