Landon v. Zorn

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Re: Richard H . Landon , et ux. v. Pam ela Zorn, et a l. No. 146, September Term, 2004 GENERAL QUESTIONS General voir dire questions that are not designed to elicit responses about the biases of jurors, and that are no t directed to a specific reason fo r disqualification and exclusion of jurors as required by Maryland law, may be p roperly refused in the trial court s discretion. VOIR DIRE D ISMISSA L OF JU ROR The prime con cern when dism issing a juror for cause should be whether a person holds a particular belief or prejudice that would affect his ability or disposition to consider the eviden ce fairly and im partially and reac h a just conc lusion; eve n if prospective jurors had preconceived notions about plaintiffs in lawsuits, and in medical malpractice cases in particular, such beliefs would not automatically render them disqualified for cause. VOIR DIRE REFUSA L TO ASK Q UESTIONS A bsent any prejudice to the plaintiffs , a question may be excluded if it is not properly formed to determine a potential cause for disqualification. The cou rt may exercise its discretion by refusing to ask questions that it deems are specul ative or i nsuff iciently tailo red to th e particu lar case at issue. JURY INSTRUCTION BURDEN ON COMPLAINING PARTY The complaining party has the burden o f showin g both prejudice and error in the failure to give a jury instruction. If the complaining party can show no error and no prejudice as a result of the court s denial to give the requested instruction, the trial court s decision not to give the requested instruction will be affirmed. JURY INSTRUCTION INFORMED CONSENT Assuming that a doctor's failure to inform constituted an affirmative act, a patient was not entitled to an informed consent instruction, and the trial court did no t err in refusing to give the re quested ins truction, if the p atient fails to present any expert opinion testimony to establish that the professional standard of care required that the doctor inform the patient of the risks associated with not submitting to a CAT scan, and did not direct the court to any case holding that it is a breach of the standard of care for a doctor to fail to disclose those ris ks. In the Circu it Court for W orcester Co unty Civil No. 23-C-02-000108 IN THE COURT OF APPEALS OF MARYLAND No. 146 September Term, 2004 ______________________________________ RICHARD H. LANDON, ET UX. v. PAMELA ZORN, ET AL. ____________________________________ Raker Wilner Cathell Harrell Battaglia Greene Eldridge, John C. (Retired, Specially Assigned), JJ. ______________________________________ Opinion by Greene, J. ______________________________________ Filed: October 6, 2005 This matter arises from a medical malpractice action brought by Richard Landon and his wife, Joann Landon, against Pamela Zorn, M.D and Atlantic General Hospital ( AG H ). 1 The Landon s contend that Dr. Zo rn comm itted medica l malpractice when sh e failed to diagnose Mr. Landon as suffering from necrotizing faciitis, or flesh eating bacteria. They argue that, as a result of Dr. Zorn s failure to diagnose his condition, Mr. Landon s right leg was amputated at the hip. Following a two-week trial in the Circuit Court for Worcester Cou nty, a jury returned a verdict in favor of Dr. Zorn. The jury found that Dr. Zorn did not breach the standa rd of ca re in her treatme nt of M r. Land on. Th is appe al follow ed. We granted certiorari prior to consideration of the matter by the Court of Special Appeals. Landon v. Zorn, 385 Md. 511 , 869 A.2d 864 (2005). The Landons present two questions, which we have rephrased, for our review: 1. Did the Circuit Court err by failing to voir dire the prospective jurors on the issue of tort reform?2 2. Did the Circuit Court err by failing to give a requested jury instruction and the Maryland P attern Jury Instruc tion ( MP JI-Cv. ) on informed consent? For the following reasons we hold that the trial court was correct in refusing to give the Landons proposed voir dire question, and we find the court s denial of the Landons reques t for an i nstructio n on inf ormed consen t was p roper. 1 2 AGH is not a party to this a ppeal. The M aryland Trial L awyers As sociation an d the M aryland Def ense Co unsel, Inc. have filed amicus briefs re gardin g this qu estion. Facts The parties have stipula ted to the fo llowing fa cts for the pu rposes of th is appeal: In January of 2001, the Atlantic General Hospital ("AGH") was party to a contract with Emergency Services Associate s, P.A. ("ES A") pursu ant to which ESA wou ld provid e staffin g for the AG H's E mergency Department. Appellee Pamela Zorn, M.D. was an employee of ESA who was w orking in AG H's Emergency Department on January 8, 2001. At 7:38 a.m. on January 8, 2001, Appellant Richard Landon presented to the Emergency Department complaining of leg pain and flu-like symptoms over the preceding several days. A triage nurse initially assessed Mr. Landon, and he was thereafter evaluated by Dr. Zorn. Dr. Zorn then ordered medications and diagnostic tests. Dr. Zorn and the nurses observed Mr. Landon for several hours, and monitored his vital signs. Upon considering the results of the vario us tests, Dr. Zorn formed an initial impression that Mr. Landon had a flu-like syndrome and, that independent of the flu, pain from an old leg injury was flaring up. Based on the information available to her, Dr. Zorn was not satisfied that she had diagnosed the source of Mr. Landon's leg complaints. Consequently, she requested that Mr. Landon undergo an additional non-invasive radiological test, a CAT scan, to attempt to reach a diagnosis. The contemporaneous medical records reflect, and Dr. Zorn testified at trial, that she tried at length to talk Mr. Landon into undergoing the CAT scan because she believed it would yield more information about his condition. Mr. Landon testified that he was not interested in having more testing done, and informed Dr. Zorn that he wanted to go home to sleep. Dr. Zorn testified that she told Mr. Landon that the CAT scan wo uld provid e more dia gnostic information and that, without the CAT scan, she might not be able to diagnose his condition. Dr. Zorn then offered to let Mr. Landon stay in the Emergency Department for further observation. Mr. Landon again declined to stay and was thereafter discharged at 12:15 p.m., with a prescription for a muscle relaxant, and with instructions to get rest and drink fluids, and to return if he had any other problems or if his condition got worse. Although Appellan ts testified at trial that Mr. Lan don 's condition got worse throughout the afternoon and even ing, h e did not return to A GH until nea rly twelve hours later. Dr. Zorn and Mrs. Landon spoke when Mrs. Landon called back to the Emergency Department with a medication question at approxim ately 4:45 -2- p.m. At that time, Dr. Zorn reiterated her desire to perform more testing and a CAT Scan, and Mrs. Landon testified that she would attempt to talk her husband into returning to have the test. Mrs. Landon advised her husband of the conversation with Dr. Zorn. Mr. Landon did not recall that conversation, but did not deny that it took place. Mr. Landon reappeared at AGH approximately seven hours after that call, only after Dr. Zorn, who was home after her ER shift and getting ready for bed, learned that Mr. Landon had never returned for additional testing and called Mrs. Lan don 's home to instruct her to bring Mr. Landon back to AGH, even if she had to call 911. Dr. Zorn testified that because Mr. Landon refused to undergo the CAT Scan she recommended and wanted performed, Mr. Landon was discharged against her medical advice. Dr. Zorn acknowledged that AGH had a "standard of practice" titled "Request for Leaving Against Medical Advice or Refusal of Treatm ent." . . . She further testified, however, that she may not necessarily have been aware of the specific contents of the standard of practice at the time she was treating Mr. Landon. The standard of practice stated that "All patients who wish to leave the hospital against the advice of their physician or refuse a prescribed treatment must sign a release form." Dr. Zorn testified that she elected not to use the release form when discharging Mr. Landon because she wanted to keep the lines of communication open because she wanted him to return for the CAT Scan, and she did not want to create an ad versarial relation ship with Mr. Landon as he left AGH. Medical expert witnesses testifying for the Appellants testified that Dr. Zorn's decision not to utilize the release form in dis charging M r. Landon was a bre ach in the standard of care. How ever, Appellees' medical expert witnesses testified that the decision w as not a breach in the standard of care and that the open lines of communication (the two phone c alls after discharge betwee n Dr. Zorn and Mrs. Landon) saved Mr. Landon's life. After Dr. Zorn 's call from he r home, M r. Landon returned to AGH just after midnigh t on J anuary 9. He was then transferred to Maryland's Shock Trauma Center, where he was diagnosed with a group A beta hemol ytic streptococcal infection, and where he underw ent multiple surgeries, including a surgery which disarticulated his leg at the hip. Appellants' claim of medical negligence against the Appellees ensued. The claim proceeded through trial and the jury determined pursuant to an inquiry on the special verdict sheet that Dr. Zorn did not breach the standard of care in treating Mr. Landon. The -3- Circuit Court for Worcester County thereafter entered judgment in favor of the Appellees. Discussion a. Scope of Voir Dire The Landon s contend that the Circu it Court abused its discretion in not asking a proposed voir dire question that they allege was intended to expose potential jurors beliefs regarding to rt reform. T he question read: Does any member of the jury panel have any preconceived opinion or bias or prejudice in favor of, or against plaintiffs in personal injury cases in general and medical malpractice cases in particular? If yes, please explain. Would this prevent you from fairly and impartially trying the facts and circumstances presented in this matter? 3 3 The La ndons raise the follow ing issue in th eir brief: Did the Circuit Court commit reversible error by failing to voir dire the perspec tive [sic] jury on th e issue of to rt reform in a complex medical malpractice action? The Landons proposed voir dire question inquired if any member of the jury had any preconceived opinion or bias or prejudice in favor of, or against, plaintiffs in personal injury cases in general and medical malpractice cases in particular. A s stated, infra, the issue presented by the Landons is not reflective of their proposed voir dire question in that there is no conn ection to the is sue of tort ref orm. M oreover, ev en if the Landons proposed voir dire question addressed whether a juror held a particular belief in the area of tort reform, an affirmative answer to such a question would not immediately disqualify that juror. [A] belief concerning a matter of debatable public policy raises no presumption that those persons could not p roperly apply the existing laws to the evidence. King v. Sta te, 287 Md. 530, 53 6, 414 A .2d 909 , 912 (1 980). In King v. Sta te, the defendants were convicted by jury of possession and possession with the inten t to distrib ute ma rijuana. King, 287 Md. at 531-32, 414 A.2d at 910. The voir (continued...) -4- (...continued) dire question at issue in King asked jurors whether they thought the laws concerning possession and use of marijuana were w rong an d shou ld be ch anged . Id. at 532, 414 A.2d at 910. Two jurors answered yes to the question and were then excused for cause over the objection of the def ense. Id. at 532-34, 414 A .2d at 910-11. We held that the trial court erred in excusing those two jurors without inquiring whether their beliefs that marijuana possession laws shou ld be changed would prejudice them, or render them unable to apply the law to the fa cts befo re them . Id. at 539, 414 A.2d at 913. This Court noted that the prime concern when dismissing a juror for cause should be whether a person holds a particular belief or prejudice that would affect his ability or disposition to consider th e evidenc e fairly and impartially and reach a just conclusion." King, 287 Md. at 535, 414 A.2d at 912. We further stated: Many people may personally believe that a particular law is undesirab le or should be changed, yet the existence of such a belief does not necessarily mean that the holder would refuse or be unable to apply the existing law to the fa cts of th e case . . . . * * * * It is common knowledge that a significant segment of our society believes, as a matter of public policy, that the criminal laws relating to marijuana should b e modified in one w ay or another. Such a belief concerning a matter of debatable public policy raises no presumption that those persons could not properly apply the existing laws to the evidence. Moreover, if all such ind ividuals were automatically excluded from juries hearing criminal cases like the instant one, a large part of the community would be excluded from jury serv ice in man y criminal prosecutions under the laws relating to controlled dangerous substances. This wo uld not be consistent with the po licy that petit jurors shall be selected at random from a fa ir cross section of the citizen s of the State . Code (1974, 1980 Repl.Vol.), ยง 8-102(a) of the Courts and Judicial Proceedings Article. King, 287 Md. at 536-37, 414 A.2d at 912. Tort reform is certainly a matter of debata ble public policy to which jurors are entitled to their o wn belief s. Thus, exc luding juror s with such beliefs for cause in medical malpractice cases cou ld conflict with the public policy that (continued...) -5- We begin by noting that, in Maryland, the scope of voir dire is limited. The purpose of voir dire is to expose the existence of cause for disqualification . . . it does not encompass asking questions d esigned to e licit informatio n in aid of deciding on perem ptory cha llenges ." Crouser v. State, 282 M d. 125, 138-39, 383 A.2d 389, 396-97 (1978) (quoting Mason v. State, 242 Md. 707, 709-710, 218 A.2d 682, 684 (1966)). Questions not directed to a specific ground for disqualification but which are speculative, inquisitorial, catechising or fishing , asked in the aid of deciding on peremptory challenges, are not permitted. Davis v. State, 333 Md. 27, 34, 633 A.2d 867, 871 (1993) (internal citation omitted). Moreover, it is well settled that the scope of the ques tions propounded to jurors on their voir dire is largely in the discretion of the trial court. Casey v. Roman Catholic Arch., 217 Md. 595, 605, 143 A.2d 627, 631 (1958); Lang ley v. Sta te, 281 Md. 337, 341, 378 A.2d 1338, 1340 (1977); Poole v. Sta te, 295 Md. 167, 187, 453 A.2d 12 18, 1229 (1983); Davis, 333 Md. at 34, 633 A .2d at 871 ; Williams v. Mayor and City Council of Baltimore, 98 Md. App. 209, 212, 632 A.2d 50 5, 506 (1993); see also Thoma s v. State, 139 Md. App. 188, 197, 775 A.2d 406, 412 (2001) (noting that absent a c lear abuse o f discretion, a n appellate c ourt will not disturb a trial judge s decision to ask or not ask a specific voir dire question. Our review of the voir dire process must be conducted on a case-by-case basis, accounting for the particular (...continued) a jury pool represent a fair cross section of the community. If the Landons had presented a tort reform question to which jurors admitted to a particular position on the issue, jurors could not have been automatically excused for cause as long as their beliefs did not affect their ability to consider the evidence fairly and impartially and to reach a just conclusion. -6- circumstances of each case. Rarely has an appellate court found abuses of discretion w ithin the voir dire proces s. ). Failure to ask all of a litigant's proposed questions on voir dire is not an abuse of discretion, if the questions proposed were more than adequately covered by the court's voir dire exam ination. Miles v. Sta te, 88 Md. A pp. 360 , 381, 59 4 A.2d 1208, 1 218 (1 991), cert. denied, 325 Md. 94 (1991). The court may exercise its discretion by refusing to ask questions that it deems are speculative or insu fficiently tailored to the particular case at issue. Henry v . State 324 Md. 20 4, 221, 596 A.2d 1024, 1033 (19 91). There are, however, limited areas of inquiry which we have held are mandatory when applicable. They are: [R]acial, ethnic and cultural bias, religious bias, predisposition as to the use of circumstantial evidence in capital cases, and placement of undu e weight o n police of ficer credib ility . . . . [T]hese mandatory areas of inquiry involve potential biases or predispositions that prospective ju rors may hold which, if present, would hinder their ability to objectively resolve the matter b efore th em. Dingle v. State, 361 Md. 1, 11 n.8, 759 A.2d 81 9, 824 n.8 (2000) (interna l citations omitted). The failure of a trial judge to give one of these questions, when applicable, constitutes an abuse o f discre tion. The Landons contend that the proposed voir dire question was designed to uncover potential prejudice against them and in favor of doctors in medical malpractice cases.4 The 4 We will briefly address the form of the Landons proposed question, an issue that was raised only during o ral argume nt. In Dingle v. S tate, supra, we held that two-part questions requiring an answer only if the prospe ctive juror tho ught that he or she cou ld not be fa ir (continued...) -7- Landons characterize this inquiry as a tort reform question. At the outset of our analysis, it is important to note that we find it difficult to glean the subject of tort reform from the question proposed. Even so , we ackn owledg e that this Court has already addressed the issue of voir dire questions and tort reform in Kujawa v. Baltimore Transit Company, 224 Md. 195, 167 A.2d 96 (1961). The plaintiffs in Kujawa suffered personal injuries as a result of an automobile collision. Although the jury awarded the plaintiffs dam ages, the trial court entered a judgment notwithstanding the verdict due to the plaintiffs failure to produce suffici ent evid ence o f neglig ence. Kujawa, 224 Md. at 199-200, 167 A.2d at 97. The Kujawas alleged that the trial court erred in refusing to propound a question to (...continued) usurped the cou rt's respo nsibility to im panel a fair and impartia l jury. See Ding le, 361 Md. at 13, 759 A.2d at 825-26. The proposed voir dire question in the instant case may raise a Dingle issue because the question, as framed, could require potential jurors to respond only if they answered yes to both parts of the question w hich is framed in the conjunctive: Does any member of the jury panel have any preconceived opinion or bias or prejudice in favor of, or against, plaintiffs in perso nal injury cases in general and medical malpractice cases in particular? If yes, please exp lain. (Emp hasis adde d.) For exa mple, it is poss ible that a juror could interpret the question to re quire an answer only if he or she has a bias or prejudice against both plaintiffs in personal injury cases and in medical malpractice cases in particular. Th erefore, if a ju ror has a bia s against on e, but not bo th, that bias w ould not be revealed because of the manner in which the que stion is f ormula ted. We, however, need not reach th at issue. We granted certiorari in this matter, inter alia, to focus on the Land ons ques tion in the context of tort reform. This focus does not require us to reach a decision as to whether the Landons question violates our holding in Dingle. The issue of the format of the Landons question and its implications was not raised at the trial level, nor was it brought up in the parties briefs; therefore, the issue is not properly before us. See Stewart v. S tate, 334 Md. 213, 221-22, 638 A.2d 754, 758 (1994)(citing Md. Rule 8-131 (a)) (statin g, inter alia, that ordinarily an appellate court will not decide an issue, unless it clearly appears to have been ra ised in o r decide d by the tria l court). -8- jurors during voir dire that was intended to de termine bias with respect to the size of jury verdicts.5 Kujawa, 224 M d. at 200, 16 7 A.2d a t 98. The q uestion w as propos ed in order to counter the steady stream of indoctrination flow ing from th e insurance compan ies to the public gen erally in an am ount that w ould nega tively influence the jury verdicts in negligence cases. Kujawa, 224 Md. at 201, 167 A.2d at 98. In response to the plaintiffs contention that refusal to submit this question led to a jury that included persons o bviously predisposed against bringing in an adequate jury verdict, we held that, absent any prejudice to the p laint iffs, a qu estio n ma y be ex clud ed if it is not properly formed to determine a potential cause f or disqu alificatio n. Id. (citing Grossfeld v. Braverman, 203 Md. 498, 500-501, 101 A.2 d 824, 82 5 (1954) (c itation omitted )). In affirmin g the trial cour t we further stated: Even if a juror had formed or expressed an opinio n as to the adequacies or inadequ acies of jury ve rdicts in negligence cases, that fact would not have disqualified him. A juror to be competent need not be devoid of all beliefs and conviction s. All that may be required of him is that he shall be without bias or prejudice for or against the parties to the cause and possess an open mind to the end that he may hear and consider the evidence 5 The specific voir dire question requested was: Have you read any article or literature or have you heard any discussion recently on amounts of verdicts in negligence cases, and, if so, have you formed any ideas with reference to amoun ts of jury verdicts? Kujawa, 224 Md. at 200, 167 A.2d at 98. -9- produ ced an d rende r a fair an d impa rtial verd ict thereo n. Kujawa, 224 Md. at 201, 167 A.2d at 98 (citing Garlitz v. Sta te, 71 Md. 293, 300, 18 A. 39 (1889 ) (citation omitted )). Sub sequ ently, the issue of voir dire questions addressing tort reform was revisited by the Court of Special Appeals in Williams v. Mayor and City Counsel of Baltimore, 98 Md. App. 209, 63 2 A.2d 505 (1 993), cert. denied, 334 M d. 19, 63 7 A.2d 1192 ( 1994) . The only issue tried in Williams was the amount of damages, as the defendant admitted that he negligently caused the auto mobile collision in ques tion wi th the pla intiffs. Williams, 98 Md. App. at 210, 632 A.2d at 505. After the jury s failure to award any non-economic damages, the plaintiffs alleged error because of the trial court s failure to ask several questions during voir dire that resulted in alleged prejudice to their case for damages.6 Williams, 98 Md. App. 6 Questions proposed by plaintiffs included: 1. Did any of the members of this panel hear the acceptance speech of Preside nt Bush a t the Repu blican Co nvention in which he contended that trial lawyers and all the suits they file have contributed to the economic problems faced by our Cou ntry? If so, would what you heard keep you from fairly and justly deciding the issues in this case, especially as to compensation to be awarded? 2. Would any of the members of this panel be unable to fa irly and justly decide the iss ues in this cas e especially as to compensation to be awarded because of all that you have heard and/or read abou t the effect o f large jury aw ards on your lia bility insurance premiums? (contin ued...) -10- at 212, 632 A.2d at 506. In its af firmance of the trial cou rt, the Court o f Special A ppeals addressed the position of our sister states on similar types of voir dire questions, including Montana s stance as voiced in Borkoski v. Yost, 594 P.2d 688 (Mont. 1979). The Landons ask us to apply the basic principles of Borkoski to voir dire questions involving medical malpra ctice an d tort ref orm. Jerome Borkoski filed a medical malpractice and wrongful death action following the death of his wife, suing both the hospital where his wife received her care and two doctors.7 Borkoski, 594 P.2d at 689. It was established during discovery that the insurance company that provided malpractice insurance to the defendant doctors had been actively involved in a camp aign to in fluenc e jurors. Id. The campaign specifically targeted jurors and the focus of the advertisements was that large jury awards would result in everyone paying higher 6 (...continued) 3. Would any of the membe rs of this pan el be unab le to fairly and justly decide the issues in this case espec ially as to compensation to be awarded because of all that you have heard and/or read about the effect of fraudulent or frivolous law suits for inju ries, etc.? 4. Would any of the members of this panel be unable to fairly and justly decide the issues in this case especially as to compensation to be awarded because of all that you have heard and/or read about the high costs of medical care and gauging [sic] or even fraud by doctors in their billing for treatment done or even not done? Williams, 98 M d. App . at 211, 6 32 A.2 d at 506 . 7 Borkosk i settled with th e hospital an d they were n ot a party to the ap peal. -11- insurance premiums, and appeared in several national magazines at the time the jury was impaneled. Borkoski, 594 P.2d at 689-90. As a result, Borkoski made a motion requesting permission to examine prospective jurors to determine whether they had bee n expose d to this campaign in any ma nner. Borkoski, 594 P.2d at 690. Borkoski s motion was denied and after the jury found for the defendants, Borkoski requested a new trial, alleging he had been denied a fair and impartial jury by the denial of his voir dire motion . Id. The Borkoski court affirmed the trial court, bu t acknow ledged tha t the trial court should have allowed the inquiries to de termine juro r bias or preju dice. The c ourt stated: [W]e hold that in appropriate cases an a ttorney upon voir dire may inquire of prospective jurors whether they have any business relationship with insurance companies and whether they are policyholders of an insurance company named as a defendant or of a mu tual insuranc e compa ny involved in the case. We further hold that, upon a proper sh owing o f possible prejudice, an attorney may inquire whether a prospective juror has heard or read anything to indicate that jury verdicts for plaintiffs in personal injury cases result in higher insurance premiums for everyone; if so, whether the prospective juror believes such materials; an d if so, wh ether that belie f will interfere with the juror's ability to render a fair and impartial verdict. Borkoski, 594 P.2d at 694. The Court of Special Appeals considered Borkoski, but declined to adopt its holdings. The intermediate appellate court noted that it was necessary to view Borkosk i within the context of Maryland s voir dire jurisprudence, which supports voir dire as a tool for discovering information that would disqualify jurors and support challenges for cause, and -12- not for assisting in the exercise of peremptory challenges. Williams, 98 Md. App. at 217, 632 A.2d at 509. The Williams court noted that both our strong stance opposing the introduction of the issue of probable insurance coverage and the precedential effect of Kujawa, supra, would factor into the application of the Borkosk i approach in M aryland. Williams, 98 Md. App. at 217, 632 A.2d at 509 (citing Morris v. Weddington, 320 Md. 674, 681, 579 A.2d 762, 765 (1990)) (other citations omitted). Ultimately, the Court of Special Appea ls concluded that it was not necessary to decide if the Borkoski approach was authorized under M aryland law because the proposed voir dire questions were neither required under the Borkoski analysis n or requ ired un der M aryland la w. The Landons request that this Court reconsider [its] previous holdings in light of the political, social and ju dicial chang e in climate which has occurred since the time Williams was decided. In its amicus brief, the Maryland Trial Lawyers Association argues that the Court of Special Appeals left open the issue of Borkoski s application in the proposal of voir dire question s add ressing tort re form . The Maryland Defense Cou nsel conten ds that, although the trial court in this case made the correct decision, we should tak e this oppo rtunity to expand voir dire when an app ropriate factua l basis is p roffer ed. We decline the Land ons reque st to adopt the basic principles of Borkoski and to app ly them to the facts of the case sub judice. The facts of this case do not warrant our expansion of the scope of voir dire in Maryland. Unlike the law of Montana, the scope of voir dire in Maryland is limited. The Landons question can be distinguished from the question proposed -13- in Borko ski, not only in its failur e to address the issue of tort refo rm, b ut in its ge nera lity. See Williams, 98 Md. App. at 218, 632 A.2d at 509. The proposed question asks jurors about general bias against plaintiffs in lawsuits, and in malpractice cases in particular, and does not inquire about anything that can be construed as a tort reform issue.8 In their brief f iled in this case, the Landons offered several unsubstantiated assertions9 regarding information that 8 The question at issue here, moreover, was adequately covered by the questions that were asked of the jury during voir dire. The following questions were propounded to the jury to ferret out any bias: Have you, or any members of your immediate family, or any close personal f riends of you rs, ever filed a claim or law suit alleging medical malpractice that wo uld affec t your ability to judge this case or h as any mem ber of your im mediate fa mily been the subject of a malpractice claim? **** Have any of you heard any publicity through any of the mass media concerning this case w hich wo uld affec t your ability to judge the case . . . other than those who answered before? **** Have you or any members of your immediate families ever been the plaintiff o r defenda nt in any lawsu it? The question proposed by the Land ons mere ly inquired abo ut potential bia s among litigants in lawsuits and medical malpractice cases in particular, and has no clear connection with the issue of tort refo rm. 9 The Landons allege that AGH circulated through the community reports of how the medical malpractice crisis has affected them and has suggested that one big verdict will shut the hospital down. Appellant s Brief at 9. A review of the record does not reveal any suggestion, let alone sufficient evidence, presented by the Landons of this rumor during the (continued...) -14- would have prejudiced jurors; however, the questions proposed did not reflect any of the Landons concerns . Even if p rospective ju rors had pre conceive d notions a bout plaintiff s in lawsuits, and in medical malpractice cases in par ticular, such b eliefs wou ld not autom atically render them d isqualif ied for c ause. See supra note 4. The Lan dons proposed q uestion is essentia lly a general question. It is not designed to elicit responses about the biases of the jurors with regard to tort reform. As a general question, it inquired into whether jurors had any preconceived opinion or bias or prejudice involving plaintiffs in p ersonal injury cases in ge neral and m edical malp ractice cases in particul ar. The proposed question was not directed to a specific reason for disqualification and exclusion of jurors as required by Maryland law; thus, it was properly refused, in the court s discre tion, on that g round. W e have ac knowle dged that where the parties identify an area of potential bias and prop erly request voir dire questions designed to ascertain jurors whose bias could interfere with their ability to fairly and imp artially decide the issues, then the trial judge has an obligation to ask those questio ns of th e venire panel. Merely asking general questions, such as, is there any reason why you could not render a fair and im partial verdict, is not an ade quate sub stitute (...continued) voir dire proceedin g in conne ction with th eir propose d question s. In suppo rt of their argument that this ru mor w as influ ential, the Landons contend that the backdrop of no hospital care for an aging jury pool potentially biased the jurors. Further, the Landons argue that they were prevented from exploring this bias by the trial court s refusal to pose the alleged tort reform q uestion. W e again note that none of the voir dire questions presented by the Landons addressed these concerns. No questions were proposed that addressed any information circulated by AGH, the specific contention that it could not financially withstand another plaintiff s jury verdict, or the potential influence that either of these alleged biases had on an aging jury pool. -15- for properly fram ed question s designed to highlight sp ecific areas where potential jurors may have biases that could hinder their ability to fairly and impartially decide the case. Those voir dire questions, however, should be framed so as to identify potential jurors with biases which are cause for disqualification, rather than merely identifying potential jurors with attitudes or associations which might fa cilitate the exercise of peremptory challenges. Davis, 333 M d. at 47, 6 33 A.2 d at 877 . It was the Landons responsibility to propound voir dire questions designed to elicit potential bias from jurors, and n ot to bootstrap a tort reform argument on appeal to a general question inquiring into any potential bias or prejudice against plaintiffs in personal injury or medical malpractice cases. The trial court was well within its discretion in declining to propound the Landons proposed question. b. Jury Instructions The Landons next challenge the court s refusal to give two jury instructions, one proposed by them addressing the issue of contributory negligence, and the other the MPJICv. 27:4, Informed Consent. The Landons contend that the two ins tructions tog ether shou ld have been read to the jury to allow an appropriate understanding of [Mr. Landon s] refusal to submit to a C AT sca n in this case. Further, they contend that by denying to give the two instructions, the court depriv ed [M r. Landon ] of the full a dvantage of presen ting his theory to the jur y. In Wegad v. Howard Street Jewelers, 326 Md. 409, 605 A.2d 123 (1992 ), we discussed the proper standard of review for a denial of a requested jury instruction. We said: -16- [T]o rule upon the propriety of denying a requested jury instruction, a reviewing court must determine whether the requested instruction was a correct exposition of the law, whether that law was applicable in light of the evidence be fore the jury, and finally whether the substance of the requested instruction was fairly covered by the instruction actually given. Wegad, 326 M d. at 414 , 605 A .2d at 12 6. See also Farley v. Allstate Ins. Co., 355 Md. 34, 47, 733 A.2d 1014, 1020 (1999) (quoting Wegad); Fearnow v. Chesapeake & Potomac Telephone Co., 342 Md. 363, 385, 676 A.2d 65, 76 (1996). The standard is based on the theory that a litigant is entitled to have his theory of the case presented to the jury provided the instruction is a correct state ment of th e law, and that the statem ent of law is applicable given the facts presented at trial. Wegad, 326 Md. at 414, 605 A.2d at 126 (internal citations omitted ). See also The Sergeant C o. v. Pickett, 285 Md. 186, 194, 401 A.2d 651, 655 (1979). The third inquiry is derived from Md. Rule 2-520(c) which provides that a court need not grant a requested instruction if the matter is fairly covered by instructions actually g iven. 10 Id. The burden of showing reversible erro r and prejud ice rests with the comp laining party. Farley, 355 Md. at 47, 733 A.2d at 1020 (internal citations 10 The full text of Md. Rule 2-520 (c) is as follows: (c) How given. The court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instructions of its own, or by combining any of these methods. The court need not grant a requested in struction if the matter is fairly covered by instructions actually given. Md. Rule 2-5 20(c). -17- omitted). If any one part of the test is not met, we will affirm the trial court s denial of the request for instruction. Fearnow, 342 M d. at 385 , 676 A .2d at 76 . c. Contributory Negligence The Landons requested that the trial court give the following special instruction regarding contributory negligence: The Plaintiff cannot recover if the Plaintiff s negligence is a cause of the injur y. The defendant has the burden of proving by a preponderance of the evidence that the Plaintiff s negligence w as a cause of the Plaintiff s injury. Patients are entitled how ever to rely on their physician s advice. That reliance must b e reaso nable a nd justif ied. A patient is not in a position to diagnose his own ailm ents. As a c onseque nce, it is not contributory negligence for a patient to follow a doctor s instruction or rely on the doctor s advice. In addition before the plaintiff can be guilty he must be made aware by the physician of the consequences of his action or actions. If the plaintiff is not told eithe r because th e physician fa ils to inform the plaintiff or the physician does not know of the potential adverse consequences the plaintiff has not been given enough information to make an in form ed decision a nd cannot theref ore b e guilty of contributory negligence. The court declined to give the instruction, and instead gave an instruction based on MPJI-Cv. 19:1111 and 19:1.12 The cou rt instructed the jury that, 11 MPJI-Cv 19:11 Contributory Negligence G enerally, provides: A plaintiff cannot recover if the plaintiff s negligen ce is a cause (contin ued...) -18- the patient cannot recover if the patient s negligence is a cause of the injury. Neg ligence, as I v e indicated, is doing something a patie nt us ing o rdinary ca re w ould do. O rdinary care, again, means that caution, attention or skill that a reasonable person would use under similar circumstances. The defendant has the burden of proving by a pr eponder ance of th e evidenc e that a patie nt s n eglig ence was the c ause of th e pat ient s inju ry. The instruction, as given, f airly cove red the s ubstan ce of th e Land ons req uest. The court s instruction co vered the la w of co ntributory neglig ence and repeats alm ost verbatim the first two paragraphs of the Lan dons r equest ed instru ction. Accordingly, it appears that the Landons are objecting to the failure to give the information contained in paragraphs three and four of the proposed instructio n. In support of the propositions contained in paragraphs three and four, the Landons cite the cases of Hill v. Wilson, 134 Md. App. 472, 495, 760 A.2d 294, 306 (2000) (noting that a patient is not in a position to diagnose his own ailments, but a patient's unrea sonable delay in obtaining medical testing, examination, or treatment as directed by a treating physician is evidence of contributory negligence) and DiLeo v. Nugent, 11 (...continued) of th e inju ry. The defendant has the burden of proving by a preponderance of the evidence that the plaintiff s negligence was a cause of the plain tiff s inju ry. 12 MPJI-Cv 19:1 Definition, provides: Negligence is doing something that a person using reaso nable care would not do, or not doing something that a person using reasonab le care w ould do . Reasonable care means that caution, attention or skill a reasonable person would use under similar circumstances. -19- 88 Md. A pp. 59, 7 3, 592 A .2d 112 6, 1133 , cert. granted, 325 Md. 18, 599 A .2d 90 (1991), appeal dismissed, 327 M d. 627, 6 12 A.2 d 257 ( 1992) . In DiLeo, the Court of Special Appeals held: We have reco gnized in the past that a patient is not in a position to diagnose her own ailments, appreciate the risks of medication or evaluate whether the prescribed course of treatment is in her best interest. As a consequence, it is not con tributory negligence for a patient to follow a doctor s instructions or rely on the doctor s advice, to fail to consult another doctor when the patient has no reason to believe that the doc tor s negligence has caused her injury, or to fail to diagnose her own illness. DiLeo , 88 Md. App. at 73, 592 A .2d at 11 33. DiLeo and Hill, which cited DiLeo, support the third paragraph of the Landons requested instruction. They do not, however, support the fourth requested paragraph and the Landons direct us to no other case law to support the proposition. Nevertheless, assuming arguendo, that the specia l instruction was a correct statement of the law, we would still affirm the trial court s decision because the Landons can show no prejudice by the failure of the court to give the requested instruction. The Lan dons, as the co mplainin g party, have the burden of showing both prejudice and error. Farley, 355 M d. at 47, 7 33 A.2 d at 102 0. In the present case, the jury was presented with a special verdict sheet. The first question on the sheet stated: 1. Do you find that P laintiffs hav e proven by the preponderance of evidence that Dr. Zorn breached the standard of the care of a reasonab ly competent emergency medicine physician? The jury answered No to the question. The verdict sheet instructed the jury that if the answer to the first que stion was No, they w ere to go no further. Co nsequen tly, the jury did -20- not reach any of the remaining questions, including the one regarding contributory negligence. The Landons, therefore, can show no prejudice as a result of the court s denial to give the requested instruction. The trial court s decision not to give the requested instructio n is affi rmed. d. Informed Consent The Landons also challenge the trial court s refusal to give MPJI-Cv 27:4 pertaining to informed consent. 13 The Landons argue that [Mr. Landon] was never advised of any 13 MPJI-Cv. 27:4 provides: Before providing a specific type or cou rse of me dical treatme nt to menta lly competent adult pa tient und er non- emerg ency circu mstanc es, a physician has a duty to obtain the consen t of the patien t after disclosin g to the patien t: 1. the nature of the condition to be treated; 2. the nature of the treatment being proposed; 3. the proba bility of success o f that treatme nt; 4. the alternatives, if any, to the proposed treatment; and every material risk of negative consequences of the treatment being proposed; 5. every material risk of negative consequences of the treatment being proposed. A material risk is a risk that a physician knows or ought to know would be significant to a reason able person who is be ing asked to decide w hether to consent to a particular medical treatment or procedure. The purpose of the required explanation is to enable the patient to make an (contin ued...) -21- potential risks of his refusing the C AT scan. M ore specifically, [Mr. Landon] was never advised that failure to su bmit to the CAT scan could have life-threatening consequences for him. His argument continues, Dr. Zorn was unable to inform Mr. Landon as to wh at, if any, risks Mr. Landon would face by not having the CAT scan done. He was therefore unable to make an informed choice as to whether or not he should have the CAT scan do ne. Dr. Zorn responds that the issue of informed consent was not pled. She cites the case of Zeller v. Greater Baltimore Medical Center, 67 Md. App. 75, 506 A.2d 646 (1986), for the proposition that whe re there is no p roperly [pled] c laim for lack of inform ed conse nt, and no attemp t to amend the pleadin gs during trial, a tria l cou rt ma y prop erly deny a requested jury instruction on that topic. Dr. Zorn also argues that, even if the lack of informed consent arg ument ha d been pr operly pled, the tria l court was correct in de nying to give the instruction because th e evidenc e adduce d at trial did no t support a claim for informed consent. 13 (...continued) intelligent and informed choice about w hether to undergo the treatment being proposed. A physician is liable for any injury caused by the physician s failure to disclose the patent material risk. In order to impose liability upon the physician, the plaintiff must prove that a reasonab le person would not have consented if properly informed. The question is not whether this particular plaintiff would have consented if given proper information, but whether a reasonable person in the same circumstances would h ave cons ented or no t. MPJI-Cv. 27:4. -22- In Maryland, a cause of action for lack of informed co nsent must be based on a failure of a physician in a non-emergency situation to get consent from a patient prior to performing an affirmative act on the patient. The seminal case in Maryland regarding the doctrine of informed consent is Sard v. Hardy, 281 Md. 432, 37 9 A.2d 1014 ( 1977) . In Sard we stated that, the doctrine of informed consent imposes on a physician, before he subjects his patient to me dical treatme nt, the duty to exp lain the procedure to the patient and to warn him of any material risks or dangers inherent in or collateral to the therapy, so as to enable the patient to m ake an inte lligent and informed choice about w hether or no t to undergo such treatm ent. Sard, 281 Md. at 439, 379 A.2d at 1020. The doctrine, w e noted, fo llows logica lly from the universally recognize d rule that a physician, treating a mentally competent adult under nonemergency circumstan ces, canno t properly und ertake to perform surgery or administer other therapy without the prior consent of his patient. Sard, 281 Md. at 438-39, 379 A.2d at 1019. Subsequently, in Reed v. C ampag nolo, 332 Md. 226, 630 A.2d 1145 (1993), we noted that one s informed consent must be to some treatment. Reed, 332 Md. at 241, 630 A.2d at 1152. We cited with approval a number of New York cases that stand for the proposition that a cause of action based upon [the doctrine of informed consent] exists only where the injury suffered arises from a n affirmative violation of the patient s physical integrity. Reed, 332 M d. at 242, 63 0 A.2d a t 1153 (intern al citation om itted). See also Arrabal v. Crew-Taylor, 159 Md. A pp. 668, 862 A .2d 431 (2004) (ho lding that the physician s decision to take no affirmative action may have amounted to a violation of the professional -23- standard of care, but [the physician] was not obligated to o btain his patient s consent to h is non-ac tion ). The Landons contend that Dr. Zorn was negligent in failing to inform Mr. Landon of the risk associate d with no t having a C AT sca n. We fin d this argum ent unpers uasive. First, as sta ted p reviousl y, a cause of action b ased upo n the doctrin e of inform ed conse nt exists only where the injury suffered arises from an affirmative violation of the patient s physical integrity. There was no evidence presented , to support a conclusion that D r. Zorn committed any affirmative action in violation of M r. Landon s physical integrity. Dr. Zorn recommended a diagnostic test, and Mr. Landon refused to submit to that test. The Landons theory of liability, however, are premised upon what Dr. Zorn allegedly failed to do in her treatment of Mr. Landon. Assuming for the sake of argument that Dr. Zorn s failure to inform constituted an affirmative act, the Landons, ho wever, failed to present an y expert opinion testimony to establish that the professional standard of care required that Dr. Zo rn inform Mr. Landon of the risks associated with not submitting to a CAT scan. Moreover, the Landons have not directed this court to any case holding that it is a breach of the standard of care for a docto r to fail to disclose those risks. Accordingly, the Landons were not entitled to an informed consent instruction and the trial court did not err in refusing to give the reques ted instru ction. JUDGMENT OF TH E CIRCU IT COURT FOR WORCE STER COUNTY AFFIRMED. COSTS TO BE PAID BY THE PETITIONER. -24-