ANNAPOLIS, Md. (Legal Newsline) - A woman injured during liposuction will get an extra million dollars because she traveled to Virginia for the procedure, thanks to Maryland Supreme Court justices tasked with finding out where her lawsuit began.
The court found July 31 Virginia law applied to the case of Shelly Blackston, rejecting arguments by defendants like Dr. Alva Roy Heron, Jr. that the symptoms of an infection started when she returned home to Maryland.
The issue was key because each state has a cap on non-economic damages in medical malpractice cases, and Virginia's is higher. The choice-of-law test applied Virginia's because it was where the last element required to complete a tort occurred.
"Here, two different expert witnesses testified that the infection Ms. Blackston sustained started or was introduced during the procedure in Virginia," Justice Angela Eaves wrote.
"The jury was entitled to believe that testimony. Therefore... Ms. Blackston sustained a legally cognizable injury during the surgery in Virginia."
Dr. Heron was among defendants that also included Doctor's Weight Loss Centers. Blackston sued after suffering "excruciating" pain during a liposuction procedure in Alexandria, Va.
Heron treated the pain with more anesthesia, but Blackston's pain persisted when she got back home to Upper Marlboro, Md. During a post-op appointment, she reported pain, fever and nausea, but Heron said there were no signs of infection.
Things worsened for Blackston. In addition to the fever, she was vomiting and her incisions became swollen and started oozing puss. She sent photographs to Heron who continued to deny an infection.
At a Feb. 14, 2015, weight loss group session at Heron's, she had to excuse herself twice because her incision sites were open and draining. Heron scheduled an appointment for three days later.
Before that happened, she collapsed at home. At MedStar Southern Maryland Hospital Center, doctors diagnosed her with a MRSA infection. She ultimately went through five separate surgeries and several rounds of antibiotics but says she was left with physical and mental injuries.
A Prince George's County jury agreed and awarded her more $2,300,900 in damages, with $2 million of that classified as non-economic. Maryland law imposes a $755,000 cap on those damages in cases like hers, leaving her with $1,055,900.
She appealed to the state's Appellate Court, which found Virginia law should have applied. Its cap is higher and preserved most of her jury award - $2,150,000. Defendants appealed this time, but the Supreme Court found for Blackston.
It rejected the argument Blackston was "seeded" with the bacteria in Virginia but it did not grow until she was back in Maryland.
A 2006 ruling in Maryland stipulated "a cause of action for medical malpractice arises when the plaintiff first experiences any injury from the allegedly negligent acts of a defendant."