Informed consent jury awards $550K

A plastic surgeon at Johns Hopkins Hospital operated on a Midwest artist without his fully informed consent, a Baltimore jury decided, awarding plaintiff Mark S. Mahler $550,000 in damages against the hospital.

The verdict came late Wednesday after seven days of evidence that Dr. Anthony P. Tufaro performed the sliding genioplasty operation without sufficiently advising Mahler, 36, of Chicago, of the material risks of the operation -- including the condition which Mahler claims necessitated his wearing a shoelace lip support and a chin bra, self- improvised prosthetic devices.

Alan J. Belsky, Mahler's lawyer, said he and his client were very pleased with the outcome.

"Mark is very happy that [the jury] recognized that something wrong had happened and something needed to be done about it," Belsky said. Mahler hopes the win will convey to people the importance of understanding "what you're getting involved in before you do it," he added.

The jury "clearly felt that the man was injured" and had not been given the opportunity to ask the right questions because he was not adequately informed in writing of the risks of the surgery, Belsky said jurors told him after the trial.

"Some wanted to award him more than $1 million," he said.

The case also taught Belsky an important lesson about believing what a client tells him, even when the case involves a client's word against a doctor's records, he said.

"We learned a lot about what medical records say and what a client says ...," Belsky said. "You have to believe in your case, you have to believe in your client and you have to believe in your cause."

Ronald U. Shaw, Hopkins' lawyer, said the words "shocked" and "stunned" were not strong enough to express his reaction to the verdict.

"I'm disgusted," said Shaw, "because I don't think the jury relied on the law or the evidence before them."

As an example, Shaw noted that, while polling the jury after the verdict, the foreman told him they had been concerned because the word "wound dehiscence" appeared on some consent forms they were shown but not on the one at issue.

Although wound dehiscence -- a sealed wound opening or coming apart after surgery -- was never established at trial as having occurred to Mahler, Shaw said, the juror replied that the jury felt the word should have been on the consent form.

"We're certainly going to take an appeal," Shaw said.

He believes that Mahler's appearance in court, wearing his self- devised chin bra -- not prescribed by doctors and duly objected to in several pretrial motions -- unduly prejudiced the jury against Hopkins.

The court in effect "established new law" in allowing Mahler to wear the device in court, Shaw said. Given this precedent, he asked, "what's to prevent somebody from going into the court room in a wheelchair?"

Richard P. Kidwell, Hopkins' general counsel, also expressed disbelief at the outcome.

"I can't believe we lost the case and, having lost it, I can't understand the figure they came up with," Kidwell said, pointing out as an example that the jury awarded Mahler $50,000 in economic damages despite the fact that only $8,000 had been established at trial.

"We're going to file the post-trial motions and if we don't get adequate relief, we'll go to Annapolis with it," he said.

When asked whether the verdict would have any effect on informed consent policy at Hopkins, Kidwell repeated what Shaw told jurors during the trial. "We thought that his consent was informed and adequate," Kidwell said.

"I'm not sure there's any lesson to be learned from this case," he added, "other than that we need tort reform."

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