Byrom vs. Johns Hopkins Bayview Medical Center, a lawsuit tried in Maryland in July 2019, is this infamous case. It concerns the failure to perform a cesarean section and brain damage in a 25-week-old infant. It resulted in the largest malpractice verdict ever recorded in the United States, $229 million.
After the trial, a spokesperson for Johns Hopkins revealed that the discussion of some facts during the trial was limited by “federal law.” This is the reason for the plaintiff’s verdict.
There are eleven words in medical records, “Ms. Byron had recently arrived in the United States from Liberia.” These 11 words play a pivotal role in medical decisions, yet they are never discussed during trial. The facts they underlay are: Ms. Byrom is from Liberia, conceives in Liberia, and lives there until 17 weeks of gestation. In Liberia, certain infectious diseases, known as the TORCH complex, are endemic and associated with fetal brain damage. Ms. Byrom is a teenager, has a sexually transmitted disease when first seen, and had no prenatal care until arriving in the U.S. These are known to Johns Hopkins and to lawyers and expert witnesses on both sides. These 11 words give credence to the probability that the alleged injury has another cause and that the outcome of brain damage is predetermined. These 11 words could have altered the verdict, but the jury never hears them.
Rule 403 of the Federal Rules of Evidence suppresses evidence that is prejudicial. Arguably, immigration status is prejudicial. In a fair trial, these 11 words are material evidence. Forbidding the use of 11 words under penalty of law suppresses evidence. Or does it?
On February 1, 2021, the Maryland Court of Special Appeals overturned the verdict. In its deliberations is an admonition of the plaintiff’s medical expert. His vision of informed consent is that under circumstances involving a premature birth, the standard of care for informed consent must favor the fetus, regardless of prognosis. If the mother refuses a cesarean section because she believes it places her at risk and it would not alter the outcome for the fetus, doctors have a duty to coerce the mother into agreeing with a cesarean section giving the fetus the benefit of the doubt. This plaintiff expert knows and should know about these 11 words and makes no mention of them.
Whatever happens during the trial happens because of the rulings of a presiding judge. The Court of Special Appeals overturns this verdict, not because of the plaintiff expert, but because of the judge. The judge is responsible for suppressing these 11 words from being heard by the jury and allowing the plaintiff expert’s interpretation of informed consent to be heard. The appellate court determined that doctors at Johns Hopkins Bayview Hospital do not depart from standards of care, and this expert’s testimony should have been excluded.
If not for the Court of Special Appeals, Maryland would still have the dubious distinction of the greatest miscarriage of justice in any malpractice case in history. The remedy still takes 19 months.
The medical profession has no authority over courtrooms, but there are professional ethics for medical experts that transcend courtrooms and hold experts accountable for unethical testimony. The theory that informed consent mandates that managing doctors must coerce a patient into agreeing with a cesarean section for the sake of the infant is the machination of this particular plaintiff’s medical expert. This absurdity should have consequences.
How so? Medical expert witnesses are the evidence. This expert, acting as a hired gun rather than as an impartial consultant, knows and should know that there are predisposing causes of brain damage, and informed consent is not about patient coercion but about patient autonomy. His actions are intentional and unethical. He is deserving of professional sanction.
Even the least punitive penalty from a medical society would discourage lawyers from ever again retaining him as an expert and send a message to others about professional oversight of their behavior as medical experts. I filed a grievance with the medical society in Maryland regarding this doctor. They do nothing. By this, I mean they summarily dismiss it.
Howard Smith is an obstetrics-gynecology physician.
