Background

The decedent was a 66-year-old who, a few months before, had been diagnosed with stage IV uterine cancer. She developed a perforated colon, which led to sepsis. A surgeon repaired the perforation, but she died after septic shock. The issue in the case is whether earlier surgery would have saved the patient. (Op. at 1).

The patient went to the emergency room on 10/19, complaining of abdominal pain. A CT scan ruled out a bowel obstruction, and the hospital discharged her. She returned to the hospital the next morning. After a series of tests, the hospital discharged her. Shortly after getting home, she passed out and returned to the hospital by ambulance. (Id. at 1-2).

An x-ray read at 7:45 am revealed gas-filled loops of the colon and small bowel and suggested an ileus or enterocolitis. At 10:07a, the radiologist read an x-ray following the placement of an NG tube as normal. 

Suspected Colon Perforation

At 11:33 am, the radiologist read another x-ray concerning replacing an NG tube. The radiologist noted lucency below the bilateral hemidiaphragm, which may represent free intraperitoneal air. The radiologist also made an addendum to the 10:07a report, stating there is lucency below the bilateral hemidiaphragm, which may represent free intraperitoneal air. This was the key time for the ER expert on causation.

The 11:33am reading led to a stat abdominal and pelvic CT scan, which at 12:13p revealed interval development of decompression of the colon and air, fluid, and debris in the abdomen, suggesting a colon perforation. (Id. at 3).

The medical team requested a surgical consult. Thirty minutes later, the patient went into septic shock. The surgery took place from 2:14p to 4:37p. It made the necessary repairs, but septic shock continued, and the patient died the next day. (Id.).

In the circuit court, there was no dispute about the breach of the standard of care. The issue was whether the plaintiff’s ER expert could testify on the causation between the radiologist’s discovery of free air on the x-ray, the initiation of surgery, the development of sepsis, and septic shock. (Id. at 4).

ER Expert Testimony on Causation

The plaintiff’s expert was an emergency medicine doctor who treated bowel perforations and understood the need to respond immediately. She acknowledged that she would have to defer to a surgeon on when surgery should have occurred. (Id.).

The ER expert opined on causation that the death was caused by undergoing surgery while in septic shock. She further stated that if the radiologist had read the x-ray at 10:07a to indicate a potential bowel perforation, the surgery would have happened before sepsis developed. The 90-minute delay was the cause of death. (Id.).

The patient had been stable, but during the 90 minutes, stool was pumping into her abdomen. An hour-and-a-half delay while this is happening is a big deal. The expert specified that the only treatment is surgery. The patient declined while waiting for surgery, and they rushed her to the operating room. (Id. at 6).

They should have operated before septic shock. The x-ray at 10:07a showed the problem, and septic shock set in at 12:42p (Id. at 7).

The expert also testified that her role is to get a surgeon involved as soon as possible and that she couldn’t say what the surgeon would have done if the radiologist had notified them 90 minutes earlier. (Id.). 

The defense argued that the ER expert was not qualified to give the causation opinion and that the opinion lacked sufficient factual basis or reliable methodology. The circuit court excluded the expert and entered summary judgment. The estate appealed. (Id. at 8, 11). 

Appellate Court of Maryland

The Appellate Court noted the factors in Rule 5-702 and the Daubert/Rochkind cases. The court found that the ER expert failed to testify to a reasonable degree of medical certainty from her expertise, experience, or data on causation that involving a surgeon 90 minutes earlier would have made any difference. The surgeon would have made decisions about doing surgery. The expert had a study showing that patients got better results from surgery before sepsis than after. Still, the court found no data that supported the development of sepsis between the 2d and 3d x-rays. The expert also could not rule out the cause of the ischemia that the uterus caused by pressing on the colon. (Id. at 16).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on ER Expert Causation Testimony

The outcome of this case is surprising. ER physicians are qualified to testify about causation in instances like these.

Sepsis and septic shock are things that emergency room physicians regularly deal with. They are familiar with the causes, the onset, progression, and death.

When a perforated colon is involved, everyone knows that it is a medical emergency that requires immediate surgery. Emergency room doctors regularly get stat surgical consults in this situation and understand that the surgeons respond urgently.

ER doctors also know that better outcomes occur when surgeons fix a colon perforation before sepsis sets in. In this case, the surgery was successful but too late.

There was nothing in this case that was medically obscure. Each link in the plaintiff’s case followed the next from basic emergency room experience.

Perhaps this ER expert did not understand that in causation she would have to connect each step, including how the surgeon would have successfully saved the patient if brought in 90 minutes earlier. However, this case opinion should not support the idea that an emergency room physician cannot testify to causation in this circumstance.

Terminal Cancer

There is another interesting factor in this case. A few months before these circumstances, the patient had been diagnosed with stage IV uterine cancer. The cancer, however, was not the cause of her death. However, that terminal cancer would have significantly limited the patient’s expected life span. And that would have severely limited the potential damages recoverable in this case. Many medical malpractice lawyers will not take a case when the patient is terminally ill from a disease that is not part of the medical malpractice.

You can read additional posts on expert testimony issues.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The plaintiffs were family members of a man who died from a fatal stroke. They brought suit in the Circuit Court for Anne Arundel County against a radiologist alleging misreading of radiological images that led to the stroke six days later. The plaintiffs also sued three subsequent treating doctors. The plaintiffs settled their claims with these three doctors and dismissed them. The circuit court denied the plaintiffs’ motions to exclude the former party status of the settling parties and also exclude evidence that their treatment was a superseding and intervening cause of the death. (Op. at 1). This ruling was the main issue on appeal. 

The patient’s complaints included vertigo for a week, right-side numbness, shortness of breath, headaches, double vision, and trouble walking. On June 4, he had a CT Scan and MRI; the radiologist read them as normal. (Id. at 3). A neurologist also reviewed the films as normal the next day. The neurologist diagnosed him with migraines.  (Id. at 3-4).

On June 7, the patient saw his primary care physician, who noted no neurological symptoms. His symptoms returned later that day, and on June 9, the patient went back to the neurologist. The symptoms now included hiccups and trouble swallowing. A stat MRI revealed abnormalities, including death of brain cells from an infarction. Still, radiologist 2 did not call the neurologist as requested. (Id. at 4-5).

On June 10, the patient had a fatal stroke. (Id. at 6).

Lawsuit

The plaintiffs brought suit against radiologists 1 and 2, the neurologist, and an on-call neurologist who got the abnormal results and didn’t do anything with them. (Id.). The plaintiffs reached pre-trial settlements with the neurologists. One day after the trial began, the plaintiffs dismissed radiologist 2. The case proceeded against the first radiologist, who was the initial defendant in the case. (Id. at 7).

Motions in limine

The plaintiffs moved in limine to exclude the neurologists’ prior status as defendants and the settlements. They also moved to preclude the defense from raising as a defense the negligence of subsequent treating physicians as an intervening and superseding cause of the stroke. The trial judge denied the motions.

At trial, the plaintiffs put on an expert witness who testified that the June 4 MRI showed abnormalities. (Id. at 8). Defense experts did anonymous reviews and found no abnormalities. Experts on both sides testified that subsequent treaters were negligent and that treatment on June 9 would have saved the patient. (Id. at 9). The jury found for the first radiologist, finding that he did not violate the standard of care. (Id. at 10). 

The plaintiffs appealed, the Court of Special Appeals affirmed, and the Court of Appeals accepted the appeal. (Id. at 10-11).

Court of Appeals of Maryland

The Court of Appeals’ decision in this case was significant. It noted the precedent set by the case of Martinez v. Johns Hopkins Hosp., 212 Md. App. 634 (2013), a medical malpractice case that allowed a defendant who had denied liability to introduce evidence of negligence and causation of a non-party. The Court of Appeals held that the first radiologist in this case could do the same, setting a crucial legal precedent. The court also addressed the plaintiffs’ concerns about jury speculation, emphasizing the importance of cautionary instructions from the trial judge.

The Court of Appeals conducted a thorough analysis of the issue of intervening and superseding cause. It explained that a superseding cause arises primarily when unusual and extraordinary independent intervening negligent acts occur that the original tortfeasor could not have anticipated, providing a clear understanding of the legal concept. 

Factors on Intervening and Superseding Negligence

The court also stated:

The following considerations are of importance in determining whether an intervening force is a superseding negligence that causes of harm to another: 

(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence; 

(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than usual given the circumstances existing at the time of its operation; 

(c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation; 

(d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act; 

(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him; 

(f) The degree of culpability of a wrongful act by a third person sets the intervening force in motion. (Id. at 22).

Analysis on Intervening and Superseding Negligence

The court concluded in this case that the evidence of non-party negligence and causation was relevant to the jury’s determination of the superseding cause.  (Id.). The jury was entitled to determine whether it was extraordinary and unforeseeable that three other doctors with no reliance on the first radiologist would fail to meet the standard of care when met with grave conditions. (Id. at 23).

Negligence by a subsequent actor breaks the chain of causation when the action by the subsequent actor is extraordinary and not reasonably foreseeable. Liability continues if a defendant could have anticipated that the intervening act of negligence might follow the original act of negligence in a natural and ordinary sequence. (Id. at 24). Here, it was inferable that the treatment of the intervening doctors broke the chain of causation created by the first radiologist’s negligence so that the negligence of the intervenors was an independent and superseding cause of the patient’s death. (Id. at 25). The court affirmed the judgment below. (Id. at 31).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Intervening & Superseding Negligence

Critical to the analysis in this case was that the subsequent doctors did not rely on the first radiologist’s actions. This break allowed a jury to determine whether the subsequent actions were independent and superseding.

When a medical malpractice plaintiff considers settling pre-trial with some, but not all, defendants, it presents a complex situation. Here, as in many cases, arguably the most culpable defendants were the ones who settled. That left the plaintiffs to put on a case against a lesser culpable defendant. That defendant was allowed to put on evidence of the settling defendants’ negligence.

The risk is a defense verdict for the unsettling defendant, which happened here.

This result does not mean the case was a bad outcome for the plaintiff. That depends on how much the plaintiffs received from the settling defendants and how much it cost to pursue the possibility of an additional recovery against the first radiologist.

Risk

In making these settlement decisions, medical malpractice plaintiffs can count on the courts to allow defendants to introduce evidence of non-party negligence. Suppose the defendant can show a break such that its negligence was not part of the subsequent medical providers’ negligence. In that case, plaintiffs should be careful about pursuing a case against the non-settling defendant. Juries might find persuasive that the non-parties negligence was closer in time to the harm incurred. Often, the prospects for a plaintiff’s verdict will not be good.

For other Blog posts discussing intervening and superseding negligence, see Handy v. Box Hill and also Browne v. State Farm. You can also read more generally about issues involving causation.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The plaintiff brought a medical malpractice case based on a delay in diagnosing necrotizing fasciitis. This soft tissue infection is a medical emergency.  The plaintiffs also alleged a delay in performing the necessary surgery. (Op. at 1-2). As a result, the plaintiff had minimal use of her left hand and arm. She had chronic pain and could no longer work or drive a car. She also needed assistance with basic activities. (Id. at 13). 

The court meticulously reviewed the plaintiffs’ allegations of negligence. The allegations were against nine individual medical providers and a hospital, and the circumstances occurred over a period of five days, April 7 to 11. (Id. at 3-12).

Certain defendants filed a motion for summary judgment, contending that the plaintiffs’ expert failed to establish that causation injury to the plaintiffs. (Id. at 2, 17). The defendants characterized the breach allegations as failing to get a stat CT scan and surgery consult. They also note that they did these things before the 10th, which they characterize as the plaintiff’s expert identified as the last possible date for surgery to avoid permanent injury. (Id. at 18-19).

US District Court on Expert Causation Testimony

The court unequivocally rejected the defense’s contentions. The plaintiffs’ causation expert testified that the earlier the surgery, the less harm it would result. The expert added that surgery should have occurred on the first day.  (Id. at 19-20). This opinion provided a basis for a jury to conclude that the defendants could have acted to prevent degrees of permanent injury on the earlier dates, not that the 10th was the date by which the plaintiffs would have avoided any permanent injury. Under this possible conclusion, the 10th was not a line in the sand to prevent permanent injury but rather part of a sliding scale of severity of permanent injury. (Id. at 20-21).

Additional Arguments

The defendants also argued that an earlier CT scan and surgical consultation would not have changed anything because the surgical consult concluded that no surgery was necessary. (Id. at 21). However, the court found that a reasonable jury could conclude that earlier action could have prompted the consult to consider the necrotizing fasciitis diagnosis. (Id. at 23).

The court also relied on a similar case, Adventist Healthcare v. Mattingly, 223 A.2d 1025 (Md. App. 2020), which you can read about in a Blog post. This case, which involved a similar issue of expert testimony on causation, provided a precedent for the court’s decision in the Kaylor v. Arrisueno case.

The defense also characterized the plaintiffs’ expert testimony as meaningless because he did not apportion how much the necrotizing fasciitis advanced. In other words, the defense argued that the expert’s testimony was not specific enough to determine the extent to which the disease progressed, which they claimed was necessary to establish causation. However, the defense did not cite any cases demonstrating such specificity is required.

The court found sufficient evidence of causation to go to the jury, denying the motion for summary judgment. (Id. at 31-32).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Expert Causation Testimony

The court did not struggle in denying the defendants’ motion for summary judgment. Plaintiffs’ expert causation testimony was sufficient. Unfortunately, this is a typical case where the defendants take isolated parts of testimony and leave out other testimony that provides the full context. In doing so, they make easily defeated arguments when the court considers the whole evidence.

The result is that the plaintiff’s medical malpractice lawyers are put to a lot of work to set the record straight and provide the whole picture. In addition, the court has to expend a lot of time and effort to review all of these materials and, one by one, show how the defendants’ arguments fail.

It would be nice if all of this wasted effort was not necessary. But this is the defense playbook; unfortunately, we see it very often.

You can also read Blog posts on other medical malpractice case on the topics of causation and expert testimony.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

In part 1, I discussed the defendants’ assertion that a mother’s cremation of her son constituted spoliation of evidence.

Factual Background

The plaintiff died five days after a procedure to reverse his colostomy. Afterward, his mother filed a medical malpractice case in the Circuit Court for Prince George’s County. The plaintiff claimed the defendants failed to diagnose and treat a bowel leak promptly following the surgery. Consequently, these failures led to infection and fatal sepsis. (Op. at 1). This post deals with the issue of nurse causation.

The colostomy reversal procedure is known as an anastomosis. This procedure sews back together the two disconnected sections of the colon. There specifically is a risk of a leak at the point of sewing. (Id. at 4).

During the days following the reversal, the plaintiff appeared to be recovering well. Four nights later, his condition deteriorated, and he was in pain. (Id.). He vomited bile, and his stomach was distended and tender. The doctor ordered an x-ray. By 2 ½ hours, the plaintiff had abnormal vital signs. Almost two more hours later, the plaintiff coded and could not be revived. (Id. at 5). The plaintiff would have to establish that had the nurse responded sooner, causation would have been met.

The state medical examiner declined an autopsy, and the plaintiff’s lawyer arranged for a private one. The autopsy preserved samples in the same fashion as one conducted by the state. (Id. at 9). The plaintiff did not tell the defendants that the autopsy was going to be done, and it was not videotaped. The plaintiff was then cremated. (Id. at 10).

The defense moved for summary judgment, arguing that the plaintiff engaged in spoliation of evidence by conducting the private autopsy and then cremating the body. The circuit court denied the motion. (Id. at 10).

Trial

At trial, the plaintiff called a pathologist who testified that, based on a review of all the materials, the plaintiff died from a failed anastomosis. The failure allowed bowel contents into the peritoneal cavity, causing a fatal infection. The plaintiff also put on expert testimony that the defendants breached the standard of care by not responding to the symptoms earlier. 

The jury further heard expert testimony from a nurse who testified as to whether the defendant nurse breached the standard of care by failing to properly escalate the situation with the plaintiff by timely calling the Code Blue Team or Rapid Response Team under the hospital Chain of Command policy. The expert testified that it was her expert opinion that the defendant should have invoked the Rapid Response Team by 8:30 am due to the plaintiff’s shortness of breath, abdominal pain, sweating, and “extremely concerning” vital signs. There was also causation testimony that the plaintiff would have lived if he had earlier surgery. (Id. at 10-13). The plaintiff would contend that this satisfied nurse causation.

The jury returned a verdict of $1,350,000 in favor of the plaintiff, which the court reduced to $740,000 under Maryland’s statutory cap on noneconomic damages. The defendants appealed. (Id. at 13).

Court of Special Appeals

The Court of Special Appeals first held that lawful cremation is not an act of destruction or an intent to destroy evidence for purposes of spoliation. (Id. at 19-20). The CSA also held that the circuit court correctly denied the defense’s request for a jury instruction on spoliation. (Id. at 24).

The CSA then turned to the defendant’s argument that the circuit court erred in denying the defense motion for judgment because the plaintiff failed to present expert testimony on the issue of nurse causation. (Id. at 24).

The nurse expert had testified that the defendant nurse should have invoked the Rapid Response team by 8:30 am. The general surgeon expert testified that the plaintiff would have survived if the defendants had done surgery by 10 am. (Id. at 26). The CSA found that this testimony was more than sufficient to establish causation. (Id. at 27). The jury could reasonably infer that activation of the rapid response team by 8:30 am would have resulted in the plaintiff receiving surgery by 10 am. Accordingly, the circuit court did not err in submitting the claim to the jury. (Id.).

Commentary by the Baltimore Medical Malpractice Lawyer on Nurse Causation

The Court of Special Appeals decided this issue correctly. By its name, the rapid response team would get the plaintiff into surgery in less than 90 minutes. Therefore, the nurse’s breach of standard of care testimony combined with the general surgeon’s causation testimony to satisfy the claim.

However, this case highlights the minutiae that medical malpractice lawyers must be concerned with. The lawyer has to ask questions that meet the legal standards and satisfy the legal burdens. This arises in qualifying experts to testify and the “more likely than not” threshold to provide an opinion. It also comes up in satisfying each element of medical malpractice.

The best practice is to map out every standard the lawyer must meet. Prepare detailed questions to meet every burden. In this case, the plaintiff could have avoided this issue. The lawyer could have asked how long the rapid response team would have taken to get the plaintiff into surgery. In doing so, there would have been an express connection between the nurse’s standard of care testimony and the surgeon’s causation testimony. The jury would not have to infer anything.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The 21-year-old patient died of a cardiac arrest following an asthma attack. Afterward, his parents and estate filed a wrongful death claim in the Circuit Court for Baltimore County. The defendants were a paramedic and an EMT. They responded to the 911 call for the patient, and their employer, Baltimore County, was also a defendant. The circuit subsequently granted the defense motion for summary judgment, and the plaintiffs filed an appeal. (Op. at 1). 

The paramedic & EMT argued that they were entitled to receive paramedic immunity under CJP 5-603 (the Good Samaritan Act) and CJP 5-604 (Fire & Rescue Companies Act). In addition, Baltimore County argued it was to receive governmental immunity under CJP 5-301. (Id. at 4).

The plaintiffs then responded that there was sufficient evidence of gross negligence and that the defendants’ policies and customs, which they argued were not in line with standard emergency medical procedures, kept them from receiving immunity. (Id.).

The Court of Special Appeals adopted the opinion of the circuit court. (Id. at 2). The CSA rejected the plaintiffs’ assertion that the defendants were willful and grossly negligent in their pre-arrival and post-arrival and were not entitled to paramedic immunity. Paramedic immunity, as provided under the Good Samaritan Act and the Fire & Rescue Companies Act, protects emergency responders from liability when they are providing care in good faith. The courts found the evidence did not establish willful or grossly negligent conduct. (Id. at 9-10, 11). As a result, the responders were to receive paramedic immunity based on the Good Samaritan Act and the Fire & Rescue Companies Act and to judgment as a matter of law (Id.).

Appellate Court on Causation

The courts then turned to paramedic causation. They noted that the plaintiffs were required to establish causation even if there was evidence of willful conduct or gross negligence. To satisfy proximate cause, the conduct must be the cause in fact of injury. Cause in fact means that but for the wrongful conduct, the injury would not have occurred. (Id. at 11).

This case is analogous to a medical malpractice case, and expert testimony is crucial to establish causation. In this instance, the causation question was whether the patient would have been alive if the defendants’ conduct had differed. (Id.)

The plaintiffs did not submit any medical expert testimony to establish willful conduct, gross negligence, or causation. They sought to introduce causation testimony from the patient’s friend, who was present at the scene. However, he was not qualified to provide an expert medical opinion. As a result, the courts concluded that even if the plaintiffs had established willful conduct or gross negligence, their claims would fail for lack of causation evidence (Id. at 12).

Commentary by the Baltimore Medical Malpractice Lawyer on Paramedic Causation

Causation is among the most frequent appellate issues in medical malpractice and other personal injury cases. It is an element of negligence, and the plaintiffs’ claims here were based on negligence. The plaintiffs had to prove that the patient’s death was caused by the defendants’ willful or grossly negligent conduct. 

Proof of the cause of death necessitates expert medical testimony. The cause of death is beyond the knowledge and expertise of a juror. For instance, the medical expert would have to link the death to the defendants’ conduct specifically. This would involve identifying the defendants’ conduct and how it resulted in death. It often also involves identifying what different conduct would have avoided death.

In the Coit case, the plaintiffs did not have a medical expert to testify on causation. This omission virtually guaranteed that they would lose the case on motion.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Wrongful Death Proximate Cause in the Circuit Court

This case was a wrongful death case in the Circuit Court for Baltimore County based on a doctor’s failure to diagnose the deceased with stage 1 breast cancer. This misdiagnosis allowed the cancer to ultimately spread and afterward caused her death. After the patient found a lump in her breast, she then went to the defendants for a mammogram and ultrasound. The defendants read the tests as normal and benign. (Op. at 3).

One year and three months later, the patient returned for a follow-up, and tests revealed abnormalities. A biopsy the next month then revealed stage 3, triple-negative breast cancer. (Id.). She died from cancer at age 56. (Id. at 3-4).

During the trial, the plaintiff presented expert testimony. An expert radiologist opined that the defendants had breached the standard of care by not biopsying the lump they had initially found. The plaintiff also called an oncologist and hematologist, who testified that the patient’s cancer was likely at stage 1 during the initial tests. When the patient returned, her cancer had progressed to stage 3, a particularly aggressive form that is resistant to treatment.

The defense was that the cancer was so small in the original tests that it was undetectable at that time. (Id. at 8).

Defense Motions

At the close of evidence, the defense then moved for judgment based on causation. The defense cited the plaintiff expert’s testimony that the patient’s survival rate went from 80% when the cancer should have been diagnosed to 66% when it was. The defense argued this showed that the defense’s actions were not the probable cause of death. (Id.). The court reserved a decision on the motion. Afterward, the jury found for the plaintiff and awarded over $2.5 million. (Id. at 9).

The defense filed a motion for judgment notwithstanding the verdict on causation, and the court granted it.  The plaintiffs appealed. (Id. at 10).

Wrongful Death Proximate Cause in the CSA

The plaintiffs argued that the circuit court improperly applied the loss of chance doctrine in granting the jnov motion. (Id. at 11). The loss of chance doctrine is a legal principle that allows a plaintiff to recover damages if the defendant’s negligence reduces the plaintiff’s chance of survival or recovery. The Court of Special Appeals (CSA) disagreed, finding that the circuit court applied proximate causation. However, the circuit court erred by focusing on the likelihood that the patient would die from cancer versus the negligence that proximately caused her death. The judge should have focused on whether the evidence was sufficient to find that negligence was a proximate cause of the death. (Id. at 20-21).

In examining the evidence, the Court of Special Appeals noted that the plaintiff expert’s reference to a 66% survival rate applied to all Stage III-A breast cancers and was not limited to the triple-negative type. (Id. at 24).

The court noted that the plaintiff’s expert also testified that triple negative meant that she would not respond well to treatment and had the lowest survival rate. In addition, when early-stage cancer spreads, the patient will die. Had the plaintiff not had metastatic breast cancer, she likely would have lived into her 70’s. (Id. at 24-25).

The CSA found that the totality of expert testimony was sufficient for the jury to conclude that had the defendants found the cancer initially, the plaintiff may have survived. This underscores the significant role of the jury in medical malpractice cases. As a result, the CSA reversed the circuit court’s decision and reinstated the jury award. (Id. at 26-27).

Commentary by the Baltimore Medical Malpractice Lawyer

The Barton opinion is a significant one for wrongful death cases, particularly those involving a delay in diagnosing cancer that leads to its spread and the plaintiff’s death. This case sets a precedent for such scenarios.

This opinion means that in wrongful death cases, plaintiffs are not necessarily required to present expert testimony that the delay in diagnosis reduced the chance of survival from above 50% to below 50%. Instead, the focus is on whether the evidence as a whole is sufficient for the jury to conclude that the delay was the proximate cause of the plaintiff’s death.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The loss of chance doctrine allows a plaintiff to recover for the defendant’s negligence that caused the loss of chance of a better outcome. Maryland has rejected this doctrine, and the Court of Appeals revisited it in Wadsworth. (Op. at 1). 

The plaintiff was a breast cancer survivor who was being monitored and tested following her recovery. (Id. at 2-3). The plaintiff had an abnormal scan showing a potentially cancerous lesion on her clavicle. Still, the defendant doctor didn’t tell her or schedule further testing. Three years later, the plaintiff fell, and a scan and biopsy showed a malignant lesion on her clavicle, which had metastasized from her breast cancer. It was the cause of the plaintiff’s passing. (Id. at 3).

The family brought a wrongful death case in the Circuit Court for Baltimore County. (Id. at 3-4). The defense moved for summary judgment because Maryland does not recognize loss of chance. (Id. at 4). The circuit court granted the motion, and the Court of Special Appeals affirmed. (Id. at 5).

Court of Appeals Analysis of the Loss of Chance Doctrine

The plaintiff argued that if the defendant had started treatment after the abnormal scan, the plaintiff would have lived another 2 ½ years (Id. at 7).

The court examined CJ 3-902(a), which applies when a wrongful act causes the death of another. Maryland courts have consistently required proximate causation, which ensures that a defendant is not liable when there are two or more equally likely causes of injury, but the defendant is only responsible for one. (Id. at 12). Maryland courts have declined to adopt the loss of chance doctrine on multiple occasions since 1987, and the General Assembly has yet to act on adopting the doctrine. (Id. at 13-14). The court concluded that the legislature is the better place to address significant policy decisions such as this one. (Id. at 13).

The court also held that stare decisis (stand by things decided) favored refraining from recognizing the loss of chance doctrine. (Id. at 21-23).

The cause of the plaintiff’s death was metastatic breast cancer. She did not have an expert to opine that absent the malpractice, she would have had a greater than 50% chance of survival. Without that evidence, the plaintiff could not prove the defendant’s negligence was the cause of death. (Id. at 23-24). The court affirmed summary judgment for the defense. (Id. at 25).

Dissent

The dissenting opinion in the Wadsworth case argued that the loss of chance doctrine did apply. They pointed to the expert testimony that suggested the patient would have lived an additional 2 ½ years If not for the doctor’s negligence, a chance of survival greater than 50%. (Dissent at 1-2).

The dissent distinguished past cases where the court did not allow the plaintiffs to sue for a loss of the chance of survival that was less than 50%. On the contrary, in Wadsworth, the patient survived the malpractice but was deprived of a better than 50% chance of living an additional 2 ½ years. (Id. at 6-7).

Commentary by the Baltimore Medical Malpractice Lawyer on the Loss of Chance Doctrine

The majority and dissenters in the Wadsworth case had differing views on whether it was a loss of chance case. However, the majority’s conclusion that it was indeed a loss of chance case, aligns with the traditional understanding of Maryland medical malpractice law.

I have always understood that in Maryland medical malpractice, a plaintiff bringing a wrongful death case for delayed diagnosis of cancer had to prove that in the absence of the malpractice, the plaintiff would have had a greater than 50% chance of surviving the cancer. The malpractice had to have caused the chance of survival to go below 50%. This requirement was necessary to satisfy the requirement that malpractice be the proximate cause of death. These matters were provable by medical statistics on cancer survival rates by cancer stage.

In Wadsworth, at the time of the malpractice, the plaintiff’s cancer had already metastasized. As a result, her chance of surviving the cancer was less than 50% before the malpractice. Therefore, she could not prove that the malpractice was the proximate cause of her death. She could not establish a wrongful death claim.

The Dissent

The dissent claims that the plaintiff could establish a wrongful death claim because she had expert testimony that if there had not been medical malpractice, she had a greater than 50% chance of living past the date she died. She would have likely lived another 2 ½ years. The dissent distinguished two prior Maryland loss of chance cases because, in those cases, the plaintiff’s loss of chance of survival would not have extended their lives.

The dissent may have been correct in that distinction, but I believe that it merely established two types of loss-of-chance cases. I do not believe the distinction meant that Wadsworth satisfied the wrongful death causation requirement.

In Wadsworth, the plaintiff’s expert’s testimony did not establish that the malpractice was the cause of the plaintiff’s death. It merely established that it was the cause of her dying of cancer earlier than if the malpractice had not happened. That seems to be a loss of chance.

I agree with the dissent that these claims should be recognized. Medical malpractice should be compensable for the loss of 2 1/2 years of life. As medical technology continues to improve, cases may involve longer periods.

The Legislature

However, the majority’s stance that any change should be legislated is a reasonable one. The General Assembly, as the creator of the wrongful death cause of action, is in a prime position to revisit Maryland’s policy. With the majority of states allowing compensation for loss of chance claims, there is hope for a more comprehensive approach to medical malpractice in Maryland.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The patient’s family brought a wrongful death claim in the Circuit Court for Harford County. (Op. at 1). The patient went to the defendant doctor for chronic neck and arm pain. The doctor gave her an epidural steroid shot, which had fungi in it. Afterward, the patient became sick. Her illness got worse rapidly, and then she died from fungal meningitis. (Id. at 2-3).

The plaintiffs argued that the doctor did not meet the standard of care by using drugs from a compounding pharmacy because they are riskier. The doctor’s defense was that the pharmacy’s conduct was an intervening and superseding cause of the death. In legal terms, an intervening cause is an event that occurs after the defendant’s actions and contributes to the harm, while a superseding cause is an unforeseeable event that breaks the chain of causation. (Id. at 3).

The jury asked in a note if the superseding cause had to occur after the defendant’s act. The court then referred the jury to the instruction for the answer. Subsequently, the jury found that the doctor did not meet the standard of care and caused the patient’s death. However, the jury also found that the pharmacy’s error was an intervening and superseding cause of the death. As a result, the doctor was not liable. The plaintiffs then filed an appeal, challenging the jury’s decision and its implications for the doctor’s liability. (Id. at 6).

Appellate Court Analysis of Intervening and Superseding Cause

The standard of review was an abuse of discretion. (Id.). The issue was whether the intervening and superseding instruction was applicable in light of the evidence presented. (Id. at 9).

The appellate court’s analysis focused on the timing of the failures to meet the standard of care. An intervening cause must occur after the defendant’s actions. (Id. at 10). The appellate court emphasized that the plaintiffs’ expert identified multiple violations, some of which occurred before the pharmacy’s action. The breaches included the doctor’s ordering of the steroid before a specific patient’s need. (Id. at 11). The court concluded that the operative breach was the doctor’s decision to purchase from the pharmacy, not to inject the steroids. (Id. at 14). The court found that the plaintiffs’ allegation of purchasing the steroid as a breach easily met the evidentiary threshold for the instruction. This conduct occurred before the pharmacy’s conduct. (Id. at 14).

A superseding cause instruction is only appropriate if the intervening conduct was unforeseeable. (Id. at 16). The Appellate Court noted that the pharmacy’s actions involved criminal conduct, including knowingly distributing impure drugs. (Id. at 18-19). The Appellate Court held that there was sufficient evidence to raise the question of intervening and superseding cause, and therefore, the instruction was appropriate. (Id. at 19-20).

Commentary by the Baltimore Medical Malpractice Lawyer on Intervening and Superseding Cause

The implications of the Appellate Court’s decision in the Handy case are significant. This ruling could potentially influence future applications of the intervening and superseding cause instruction in medical malpractice cases.

The Other Cause Was Foreseeable

I believe the Appellate Court got this one wrong. First, the plaintiff’s theory of the case was that the doctor should not have used the pharmacy for the steroid at issue because of the risk of contamination. Contamination is what happened. The plaintiffs based their theory on foreseeability. As a result, a jury instruction on un-foreseeability had no application.

The Other Cause Came Before the Defendant’s Act

Moreover, the instruction does not fit given the timing of the events. An intervening and superseding cause must come after the defendant’s conduct. Here, the pharmacy made and shipped the impure steroid to the defendant doctor before the doctor gave it to the patient. The Appellate Court, however, changed the order by noting that the plaintiffs’ expert identified the doctor’s history of getting drugs from the pharmacy as a breach.

Firstly, that does not work because that breach did not cause harm. It wasn’t until the doctor gave it to the patient that there was harm. Secondly, that analysis lets a party manipulate the application of the instruction based on how they present the allegations. Under the Appellate Court’s analysis, the instruction would not have applied if the plaintiffs had identified only giving the drug as the breach. The courts should not inject that uncertainty into application of the instruction.

Hopefully, the Handy case will not be influential in future applications of intervening and superseding cause instruction.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

The Appellate Court of Maryland issued a published opinion in the case of Browne v. State Farm Mut. Auto. Ins. Co. on July 27, 2023. The Court dealt with the procedures for a lack of good faith claim by an insured against the insurance company. (Op. at 1). This post focuses on the Court’s guidance on subsequent negligent treatment. The case involved an automobile accident. Afterward, the at-fault driver fled the scene. (Id. at 2). 

The plaintiff’s complaints included lower back pain. An MRI specifically revealed a Tarlov Cyst along the sacral nerve roots and a protruding disc at L4-L5. (Id. at 4). She subsequently had surgery to remove the cyst. (Id. at 5). The plaintiff submitted doctor testimony that the accident aggravated the cyst and necessitated the surgery. The insurer’s doctor opined that the cyst was unrelated to the accident. The doctor also concluded that the surgery made her injuries worse (Id. at 6).

The Court noted that its analysis involved two doctrines. One is the subsequent negligence doctrine. The other is the law requiring medical bills to be fair, reasonable, and necessary to be recoverable. The Browne case is the first reported case in Maryland discussing the interplay between these two. (Id. at 22). 

Subsequent Negligence Doctrine

The subsequent negligence doctrine extends a tortfeasor’s liability for negligence that occurs after the tort. If the negligent actor is liable for another’s bodily injury, then he may be responsible for any additional physical harm. That liability occurs from normal efforts of third persons rendering aid, which the other’s injury reasonably requires. The liability is irrespective of whether such acts are proper or negligent. (Id.)

Principles of proximate causation constrain the extent of the liability. An actor’s negligent conduct is a legal cause of harm to another if:

(a) his conduct is a substantial factor in bringing about the harm and

(2) no rule of law relieves the actor from liability.

The question is whether the original tortfeasor should have foreseen the general harm. The issue is not the specific manifestation of that harm. (Id. at 23-24).

The original tortfeasor is released from liability only if the intervening negligent act or omission is considered a superseding cause. (Id. at 24). An original tortfeasor will remain liable. The exception is if it is unforeseeable that medical professionals would perform this type of medical negligent treatment. Another exception is if the kind of medical mistake is outside the realm of ordinary human fallibility. (Id. at 30). Specifically, examples of injuries beyond the scope of liability include:

(1) extraordinary misconduct by medical professionals;

(2) intentional torts committed by medical professionals against the victim;

(3) a victim’s elected treatment of an ailment known to be unrelated to the injuries caused by the negligent actor;

(4) treatment by a medical professional the victim was negligent in selecting

and (5) aggravation of the injury due to the victim’s negligence in treating her injuries. (Id. at 35).

The “Necessary” Requirement

The Court then turned to the rule that medical bills be fair, reasonable, and necessary. It examined the allocation of liability to an original tortfeasor when a doctor negligently provides subsequent medical treatment. (Id. at 40). In this context, “necessary” means “causally related” or “proximately resulted from” the original tort. A defendant may not avoid liability by arguing that the doctor only performed the treatment because of a negligent misdiagnosis. (Id. at 49).

The defense has the burden of showing that the subsequent medical provider’s negligence was a superseding cause. The defendant must show that the negligence was so extraordinary or unusual that it constituted a superseding cause. (Id. at 51)

The five factors discussed above apply to this analysis. The defendant must produce admissible evidence supporting these five assertions, tending to negate the causation element. In contrast, the ultimate burden of persuasion on that element remains with the plaintiff. The plaintiff must use expert testimony for any issue beyond layperson jurors’ general knowledge and comprehension. (Id. at 53-54).

Commentary By the Baltimore Medical Malpractice Lawyer

Practice Tips

When two different actors injure a client, it can become a tricky legal situation. First, there is the lawyer that the client may consult for the car accident case. The car accident lawyer should assess whether the car accident defendant may be responsible for the subsequent medical malpractice. If so, the car accident lawyer will consider the expert testimony needed to support that claim. Suppose the car accident lawyer settles the case. The lawyer then must be careful about the language in the release given to the person who caused the car accident. He must ensure that the persons responsible for the medical malpractice are not released. Using language that does not impair the medical malpractice claim is good practice. Specifically, add language preserving the claims against all potential medical malpractice defendants.

The Maryland medical malpractice lawyer also must exercise care. The lawyer must inquire whether there is any claim against the person who caused the car accident. The medical malpractice lawyer will certainly want to know whether such a case remains open. Also, the lawyer should question whether it includes a claim for medical malpractice injuries. Suppose the plaintiff has already settled the car accident claim. Then, the Maryland medical malpractice lawyer must examine the release to assess whether the plaintiff has preserved claims against the medical malpractice defendants.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

On October 30, 2023, the Appellate Court of Maryland discussed medical expert causation testimony. It is an unreported opinion in Dackman v. Fisher. Although it involved a lead paint poisoning case, the holding applies to causation testimony in medical malpractice cases. I will discuss the case and then provide commentary for Maryland medical malpractice lawyers.

Dackman Facts

The plaintiff alleged exposure to flaking lead paint as an infant in his family’s rental house. (Op. at 1). As a result, he claimed he suffered brain damage and other injuries. (Id. at 4).

The plaintiff obtained a medical doctor as a causation expert witness. He had experience treating children who suffered from lead poisoning and was familiar with medical publications on the topic. (Id.)

The defendants were the landlords and owners of the house. They specifically argued that the Court should have excluded the plaintiff doctor’s causation expert opinion under the Daubert standard. Specifically, the defendants argued that the doctor had failed to make a differential diagnosis. Furthermore, he did not determine if the plaintiff’s condition was caused by lead paint or by ADHD and mental illness. (Id. at 12). The defendants also argued that the ADHD and mental illness presence made it impossible to connect the problems to lead paint. (Id. at 12-13).

The Court examined “whether a sufficient factual basis exists to support the expert testimony” under Maryland Rule 5-702. The defense then objected to the methodology that the plaintiff’s expert used. It opposed the conclusion that the plaintiff had suffered a brain injury as a result of exposure to lead. (Id. at 20-21).

Assessing the Causation Expert

The Court concluded the plaintiff’s expert properly conducted a differential diagnosis. The plaintiff had a deficit in auditory attention, poor visual-motor integration, and poor working memory. The expert found that these made it likely that lead was the cause. (Id. at 22-23). The doctor then ruled out various other exogenous and endogenous factors. (Id. at 23).

The defendant contended that the plaintiff expert’s differential diagnosis was unreliable. Specifically, it disregarded the specific alternative causes of ADHD and mental illness. (Id. at 23). The Court noted, however, that ADHD and mental illness are not causes of injuries. They are diagnostic labels assigned to behavior that satisfies specific criteria. (Id.) Accordingly, the Court found that the plaintiff’s expert had met the standard. He showed that lead was, more likely than not, a “substantial factor” in causing the harm. (Id. at 27).

Commentary By the Baltimore Medical Malpractice Lawyer

Application to Medical Malpractice Cases – Causation Expert

Maryland medical malpractice lawyers need expert doctor testimony. This testimony usually includes an opinion that the defendant’s conduct caused the plaintiff’s injury. The Dackman case is an excellent reminder to the lawyer to be proactive. The lawyer should support the cause of the damage. The lawyer should also anticipate what the defendant will likely argue as an alternative cause of the plaintiff’s injury. Your causation expert may be able to explain why the defendant’s alternative explanations do not defeat the plaintiff’s claim. Alternatively, it can be good to retain an expert in another medical area. 

Other Cases

• Freeland v. Clark Construction Group, LLC: On March 6, 2024, the Appellate Court of Maryland issued an unreported opinion. Plaintiff in slip and fall case did not challenge circuit court’s finding that he needed an expert and did not explain his failure to comply with the circuit court’s order compelling discovery. Circuit Court did not abuse its discretion if declining to exercise its revisory power.
• Chase v. Kennedy Krieger Children’s Hospital, Inc.: On April 5, 2023, the Appellate Court of Maryland issued an unreported opinion. Plaintiff claimed injury from hitting head on a mounted cabinet but had suffered similar injuries in three recent unrelated accidents. Plaintiff then failed to timely designate a medical expert on causation. Court upheld summary judgment for defense.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.