Doctor's Weight Loss Ctrs. v. Blackston

Doctor’s Weight Loss Centers, Inc., et al. v. Shelly Blackston, No. 17, September Term, 2023. Opinion by Eaves, J. CHOICE OF LAW — LEX LOCI DELICTI — MEDICAL NEGLIGENCE The Supreme Court of Maryland held that the Appellate Court of Maryland properly applied Virginia substantive law in accordance with the doctrine of lex loci delicti. Pursuant to that doctrine, which requires the application of the substantive law of the state where the last element required to complete a tort occurs, the Supreme Court held that there was sufficient evidence that Respondent, Shelly Blackston, suffered a cognizable injury during a surgery that a jury determined had been negligently performed by Dr. Alva Roy Heron, Jr. Accordingly, Virginia law applied with respect to the damages recoverable. Circuit Court for Prince George’s County Case No. CAL 18-32511 Argued: January 8, 2024 IN THE SUPREME COURT OF MARYLAND No. 17 September Term, 2023 DOCTOR’S WEIGHT LOSS CENTERS, INC., ET AL. v. SHELLY BLACKSTON Fader, C.J. Watts, *Hotten, Booth, Biran, Gould, Eaves, JJ.

Opinion by Eaves, J. Filed: July 31, 2024 *Hotten, J., now a Senior Justice, participated in the hearing and conference of this case while an Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State active member of this Court. After being Government Article) this document is authentic. recalled pursuant to the Maryland Constitution, 2024.07.31 Article IV, § 3A, she also participated in the 14:27:23 '00'04- decision and adoption of this opinion. Gregory Hilton, Clerk 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 Maryland’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. 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 1 Maryland and Virginia each impose limits on recovery applicable to medical malpractice claims that would reduce the amount of the jury’s verdict. At the time of this lawsuit, Maryland limited the amount of non-economic damages a party can recover to $755,000, Md. Code Ann., Cts. & Jud. Proc.

(“CJP”) § 3-2A-09(b) (1957, 2020 Repl. Vol.), for a total award in this case of $1,055,900. Virginia limited the total amount of recovery a victim may receive, Va. Code Ann. § 8.01-581.15 ; in this case, to $2,150,000. 2 This Court has the authority to rephrase any question presented to it in a petition for a writ of certiorari.

United Parcel Serv. v. Strothers, 482 Md. 198, 205 (2022). 2 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 3 “Liposuction” is a type of surgery that “uses suction to remove fat from specific areas of the body,” contouring those areas.

Liposuction, Mayo Clinic https://www.mayoclinic.org/tests-procedures/liposuction/about/pac- 20384586#:~:text=Liposuction%20is%20a%20type%20of,include%20lipoplasty%20and %20body%20contouring [https://perma.cc/5G2P-T9MP] (last visited March 11, 2024). “Smart Liposuction” is a laser-assisted form of liposuction. Jason C. McBean & Bruce E. Katz, Laser Lipolysis: An Update, The Journal of Clinical and Aesthetic Dermatology, July 2011, at 25, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3140909/ [https://perma.cc/6PT7-8C9T]. 3 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. 4 A “cannula” is “a small tube for insertion into a body cavity or into a duct or vessel.” Cannula, Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/cannula [https://perma.cc/X9RS-V29M] (last visited March 11, 2024). 4 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 photographs. The parties dispute how Dr. Heron responded when he was alerted to her worsening symptoms. Ms. Blackston recalls that she asked for an Altogether, from check-in to discharge, Ms. Blackston was in Dr. Heron’s office 5 for about 12 hours, although the actual procedure lasted for six and a half hours. Testimony established that the pre-operative period lasted two hours and that Ms. Blackston was in the recovery room for an additional two hours.

The remaining eight hours were apportioned between the physical procedure and breaks. Throughout the procedure, the door to Dr. Heron’s operating room was left open so that Ms. Blackston’s mother, a trained physician, could observe its progress. 5 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. 6 In addition to performing liposuction procedures, Dr. Heron also provided his patients the option to participate in a post-procedure weight-loss program. 6 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 maximum amount recoverable was $2,150,000. The case was tried in the Circuit Court for Prince George’s County over the course of a week in March 2020. While various witnesses, including Ms. Blackston and Dr. Heron, testified, because we must determine where the tort arose, we focus most of our discussion on Ms. Blackston’s expert medical witnesses, as their testimony is most germane to the issue of when and where her infection occurred. i. Ms. Blackston’s expert witnesses Ms. Blackston called Dr. Praful Ramineni, who was the Chief of Plastic Surgery at WHC and one of Ms. Blackston’s treating physicians, to address the standard of care.7 Dr. 7 Dr. Ramineni has since returned to private practice. 7 Ian Frank, an infectious disease specialist at the University of Pennsylvania, also testified via video deposition as Ms. Blackston’s causation expert.

At the outset, Dr. Ramineni opined that Dr. Heron breached the standard of care in several ways, and that those breaches increased the risk that Ms. Blackston would develop an infection. Specifically, he testified that Dr. Heron breached the standard of care by: (1) failing to give an intravenous antibiotic “within 30 minutes to one hour of the procedure”; (2) failing to adequately prepare the skin and take other precautions during the procedure to prevent contamination and bacteria growth; (3) failing to perform the surgery in stages, and instead, continuing the procedure past the recommended six-hour mark; (4) taking numerous breaks during the procedure; and (5) failing to give sufficient post-operative care by (a) continuing the same antibiotic when Ms. Blackston showed signs of infection, and (b) failing to examine her in a timely fashion. Dr. Ramineni also opined as to when and where Ms. Blackston’s infection “started” or “occurred.” He explained that “these are deep soft tissue infections . . . not superficial . . . [a]nd [that] the depth of the infections tend to [show] that some have been introduced into the wound itself because it’s starting on the inside out, not the outside in.” He stated that the type of bacteria present was not the type “you would worry about so much in a postoperative period,” and it was introduced sometime during the actual procedure. Dr. Ramineni also specifically opined that the “incident drainage . . . to wash out the multiple different areas that had [an] infection[,]” combined with the “foul smelling” discharge one week after the procedure, were factors that lead him to conclude that the infection “started during Dr. Heron’s liposuction procedure[.]” 8 Dr. Ramineni also showed the jury a diagram that described how the liposuction cannulas used during the procedure were the logical source for the introduction of the bacteria into Ms. Blackston’s deep tissue.

The hollow interior of a cannula, Dr. Ramineni noted, could contain bacteria that would be pushed deep into the tissue throughout the various incision sites. Finally, in Dr. Ramineni’s view, as Ms. Blackston’s treating physician, the number of required surgeries to remedy Ms. Blackston’s entire infection was indicative of the number of individual infections—which supported the conclusion that the cannulas probing the various incision points were the source of the infection. Ms. Blackston’s other expert witness, Dr. Frank, testified that “the longer the surgery, the more likely infection is going to occur.” He opined that Ms. Blackston’s infection was “introduced” during the procedure. He testified that “[i]n this particular case, the infection [was] introduced by the [cannulas] that [were] placed” in Ms. Blackston.

Dr. Frank noted that there were “multiple infections in the various locations” where the cannulas had been placed. He opined that it was “clear that” the cannulas “introduced the infections in the various locations.” Additionally, Dr. Frank testified that “infections don’t manifest themselves immediately after a surgical procedure . . . . [I]t takes some time before you see the signs and symptoms of an infection after a surgery.” Notably, he further explained: [W]e know, in general, that infections of this type happen at the time of surgery. And, then, specifically, the infection happening in multiple anatomical locations . . . makes it impossible that the infection could have occurred postoperatively. This happened—the infection introduced at the time of surgery.

It’s the only way all of these different anatomical sites can be infected. 9 Dr. Frank opined that, had Ms. Blackston received an appropriate antibiotic in a timely fashion, she could have avoided hospitalization and the numerous surgeries it took to treat the infection. Dr. Frank testified that, upon seeing that the antibiotic was not working, Dr. Heron should have prescribed Ms. Blackston a different type of antibiotic— one which would have been effective against MRSA. In addition, Dr. Frank testified that there was some evidence of the presence of an infection during Ms. Blackston’s post-operative evaluation on February 3, 2015—less than one week after the surgery. On cross-examination, however, he stated that, based on Dr. Heron’s notes from that visit, he could not determine, as a matter of fact, that there were clinical signs of an infection on that date.

Although, in his view, Dr. Heron had “poor documentation practice[s],” and from the evidence he reviewed, he could conclusively state that Ms. Blackston’s infection was clinically evident by February 7. ii. Petitioners’ expert witnesses Petitioners also called two expert medical witnesses during trial, Dr. Eric Neurmberger, an infectious disease doctor from Johns Hopkins, who testified as to causation, and Dr. Jared Mallalieu, a cosmetic surgeon with the Laser Center of Maryland, who testified as to the standard of care. Their testimony, however, offered nothing of import as to when and where Ms. Blackston’s injury occurred. We briefly summarize their testimony to illustrate this.

Dr. Nuermberger agreed that “MRSA could have gotten deep beneath [Ms. Blackston’s] skin . . . if it was pushed there by surgical instruments at the time of the procedure.” He could not say to a reasonable degree of medical probability, however, 10 whether Ms. Blackston’s infection was seeded during the procedure, or sometime thereafter. He testified that, in his opinion, it was equally possible that the infections in multiple wound sites were developed either during the procedure or sometime thereafter. According to Dr. Nuermberger, a “clear mechanism by which the infection occurred” could not be established. Based on photographs and testimony regarding red swollen skin, by February 7, however, he would assume that the infection had been present for a week.

On cross-examination, Dr. Nuermberger conceded that if Dr. Heron did not decontaminate Ms. Blackston’s skin after she took bathroom breaks during the procedure, as Ms. Blackston testified, this would be considered a breach in the standard of care. Dr. Nuermberger disagreed, however, that prescribing a different antibiotic would have prevented Ms. Blackston from undergoing additional surgeries, but he agreed that the antibiotic that Dr. Heron prescribed would not be effective against MRSA. Petitioners’ other expert, Dr. Mallalieu, opined that Dr. Heron complied with the standard of care while treating Ms. Blackston. Specifically, he testified that Dr. Heron adequately obtained Ms. Blackston’s informed consent, that his surgical protocols were appropriate, and that he provided appropriate post-operative medical care.

Dr. Mallalieu testified that Ms. Blackston was not showing clinical signs of infection on February 3 but agreed that she could have been infected with MRSA as of that date. iii. The verdict At the conclusion of the trial, the jury returned a verdict in favor of Ms. Blackston. On the verdict sheet, the jury was asked to answer whether Dr. Heron breached the standard of care and/or that he failed to obtain informed consent, and, if so, whether either or both 11 of those failures were the cause of Ms. Blackston’s injuries. If the jury answered those questions in the affirmative, it was then to assess what damages to award Ms. Blackston, apportioned among medical expenses, economic damages, and non-economic damages.

The jury found that Dr. Heron breached the standard of care in treating Ms. Blackston, that he failed to obtain Ms. Blackston’s informed consent, and that these breaches were a cause of Ms. Blackston’s injuries. The jury awarded Ms. Blackston $2,300,900 in damages: $240,900 in medical expenses, $60,000 in economic damages, and $2,000,000 in non- economic damages. iv. Post-trial motions Petitioners filed an omnibus motion for judgment notwithstanding the verdict (“JNOV”), a conditional new trial, and/or statutory remittitur. Ms. Blackston filed an opposition to the motion.8 Ms. Blackston argued that “Virginia substantive law applied” to this case, and, therefore, that Petitioners’ motion for statutory remittitur should be denied.

She contended that the case had been filed in Maryland because Dr. Heron resides in Prince George’s County. She also asserted that the damages cap is a matter of substantive law and that, pursuant to the principle of lex loci delicti, the proper law to apply is the law of the place of the wrong—Virginia. Ms. Blackston argued that she was not estopped from relying on Virginia law because the issue of the damages cap was never presented to the jury, and “there is no conflict between Maryland and Virginia law on the liability issues in this 8 We shall focus on only those aspects of the motion and response that are pertinent to the question before us. 12 case[.]” As it concerns the subject of this appeal, the parties agreed that pursuant to the principle of lex loci delicti, the substantive law that would govern any reduction in the jury’s damages award was the law of the state in which the wrong occurred. Ms. Blackston asserted that Virginia substantive law governed this case because the place of the wrong was Virginia.

At the relevant time, Virginia law placed a cap of $2,150,000 on the total award for medical malpractice claims. See Va. Code Ann. § 801-581.15 . Petitioners responded that Maryland substantive law governed because Ms. Blackston did not suffer harm until she returned to Maryland, where her symptoms of the infection began manifesting.

Petitioners argued that the court should apply Maryland’s cap on non- economic damages, which at the relevant time was $755,000. See Md. Code Ann., Cts. & Jud. Proc. (“CJP”) § 3-2A-09(b) (1957, 2020 Repl.

Vol.). The circuit court ultimately denied the motions for JNOV and a conditional new trial, finding that Ms. Blackston’s “expert was sufficiently qualified and capable of rendering an opinion[,]” and that there was sufficient evidence presented “for the jury to reach its conclusion[.]”