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No informed consent for operation leads to $1.5M verdict in Baltimore Co.

Laura G. Zois (File)

Laura G. Zois (File)

A Baltimore County jury has awarded $1.5 million to a Harford County woman who developed necrotizing pancreatitis — a serious condition in which pancreatic tissue begins to die — following an endoscopic procedure that she alleged was performed without her informed consent.

Wanda Saffer, who was 72 years old at the time of the endoscopic retrograde cholangiopancreatography, or ERCP, was hospitalized four more times after the procedure, said Laura G. Zois of Zois & Miller LLC in Baltimore, one of her attorneys. Saffer now needs supplemental enzymes to digest her food, as well as insulin injections to manage the Type 2 diabetes she developed.

When Saffer’s blood tests showed irregularities that suggested an inflamed pancreas and the possibility of cancer, her primary care doctor sent her to Dr. Mark Noar, a Towson gastroenterologist, for evaluation, Zois said. Noar performed more tests, including an endoscopic ultrasound. According to Saffer, he handed her an image from the ultrasound with the word “mass” on it, as well as another that included the word “tumor,” Zois said.

“He then told her and her daughter who was waiting for her to ‘clear their calendar,’ because they needed to go in and do a biopsy,” Zois said.

Noar claimed at trial that he had given Saffer a report that indicated that there was no mass or tumor on her pancreas, according to Zois. The doctor also testified he told Saffer the ERCP procedure would allow him to clear out blockage or scar tissue in her pancreatic duct, as well as brush for cancer cells, Zois said.

But a jury of five men and one woman, after almost six hours of deliberation Friday after a five-day trial, found Noar failed to gain Saffer’s informed consent for the ERCP, which was performed at St. Joseph Medical Center in Towson.

Because of the ultrasound images, Saffer was under the impression that she likely had pancreatic cancer and that the goal of the ERCP was to confirm this diagnosis — but the actual purpose of the procedure, Zois said, was primarily therapeutic.

Noar also never informed Saffer of the low probability of successfully obtaining a tissue sample through the procedure that would reveal whether she had cancer, which Zois said was “near zero.”

“The bottom line is she would have never agreed to undergo such a risky procedure with such a high risk of complications if he had properly informed her as to the real nature of her ailment and said, ‘You don’t have a mass; you don’t have a tumor,’” Zois said. “She felt like he was deceptive and she was misled.”

Standard of care

The jury ruled for Noar on the first count of the lawsuit, however, finding that Noar did not violate the standard of care by performing a medically unnecessary procedure. Neal Brown, an attorney for Noar, said a decision on whether to appeal the informed consent finding has not yet been made.

“Dr. Noar is pleased the jury found unanimously that he did not violate the standard of care and the recommended ERCP was necessary,” said Brown, of Waranch & Brown LLC in Lutherville.

Because pancreatitis is a “known complication” associated with ERCP, Saffer’s lawsuit did not allege that she wasn’t properly advised about the risks of the procedure, Zois said.

Saffer immediately developed symptoms of pancreatitis after the ERCP and was admitted into the intensive care unit within 24 hours, Zois said. She has since spent a total of 84 days hospitalized or in rehabilitation for the condition.

The verdict against Noar and his business, Endoscopic Microsurgery Associates P.A., Mark D. Noar, M.D. & Associates, included $1 million in noneconomic damages, which will be capped at $725,000; $349,000 in future medical expenses; $186,000 in past medical expenses.

The defense made no offer to settle the case before trial, Zois said.

Wanda Saffer v. Mark Noar, et al.

Court: Baltimore County Circuit

Case No.: 03C15000350

Judge: Mickey J. Norman

Outcome: $1.5 million for plaintiff; $1 million in noneconomic damages, which will be capped at $725,000; $349,000 in future medical expenses; $186,000 in past medical expenses.

Dates:

Incident: April 26, 2013

Suit filed: Jan. 12, 2015

Verdict: April 29, 2016

Plaintiff’s Attorneys: Laura G. Zois and Rodney M. Gaston of Miller & Zois LLC in Baltimore

Defendants’ Attorneys: Neal Brown and Saamia Dasti of Waranch & Brown LLC in Lutherville

Count: Negligence – breach of informed consent