Factual Background

​After the patient in this case was diagnosed with prostate cancer, he consulted with the defendant radiation oncologist and proceeded with a treatment of hormone therapy and radiation. The treatment specifically included administering the drug Amifostine to protect the bladder and rectum from radiation-induced inflammation. The patient was later diagnosed with Stevens-Johnson syndrome, a disease involving skin irritation and blisters, which causes the top layer of skin to die and shed. Shortly after that, he died from pneumonia. (Op. at 4).

The patient’s estate and his family then filed wrongful death and survival actions against the doctor and his medical group in the Circuit Court for Prince George’s County. They brought an informed consent action, alleging that the doctor failed to disclose material risks of administering the radiation therapy, as well as the drug, before obtaining the patient’s consent. (Id. at 5).

The defense moved in limine to exclude a package insert from the drug in reference to the FDA not approving it for prostate cancer. Afterward, the court granted the motion. (Id. at 14).

The jury then found for the defense, finding that a reasonable person, having been informed of the material risks of Amifostine, would not have refused treatment. (Id. at 15).

However, the Court of Special Appeals reversed. (Id. at 16–17). Consequently, the defendants appealed. (Id. at 2-3).

Court of Appeals

​The elements of an informed consent cause of action generally include the duty to disclose to the patient material information that a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment or procedure; breach of that duty by failing to make an adequate disclosure; and that the violation was the proximate cause of the patient’s injuries. (Id. at 18).

The information specifically includes the nature of the ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment. (Id. at 19). The risks the doctor must disclose are material. (Id).

Negligence, however, is a different claim from informed consent. Evidence that a medical procedure or treatment is not for a patient is relevant in a negligence case but is not applicable in an informed consent action. (Id. at 21-22).

FDA Insert & Informed Consent

An issue in this case concerned the admissibility of evidence regarding the package insert for Amifostine and its off-label use. (Id. at 33). The plaintiff attempted to introduce the package insert itself and also testimony through its expert witness, a pharmacist, that the insert cautioned against use in older patients. (Id. at 33-34). The plaintiff also attempted to introduce that the defendant doctor did not inform him of the insert’s caution. (Id. at 34).

The CA held that whether a treatment is appropriate is relevant and admissible evidence in a negligence cause of action, but not in an informed consent case. (Id. at 36). The package insert’s warning against use in older patients may have supported a negligence claim. (Id.).

The plaintiff also attempted to introduce evidence at trial through the pharmacist’s testimony and the defendant that the FDA had approved Amifostine in ovarian cancer and head and neck cancer cases, but not for prostate cancer. (Id. at 37-38). The CA again concluded that this evidence was relevant to negligence but not informed consent. (Id. at 40).

Information about off-label use does not provide the patient with any information about the treatment itself or the likelihood or severity of any risks. Therefore, it cannot be considered material information for an informed consent claim. (Id. at 42).

The CA reversed the CSA and affirmed the trial court. (Id. at 43).

Commentary By Baltimore Medical Malpractice Lawyer Mark Kopec on FDA Insert & Informed Consent

​Similar to the court’s holding discussed in Part 1, the evidence in this part was not relevant to an informed consent claim. The lack of FDA approval did not go to one of the elements of information that a physician must disclose. In addition, cautioning against use in older patients did not include the specific details needed to fit into an informed consent disclosure.

Either of these pieces of evidence could be relevant in a given case. A plaintiff would have to relate them to specifics that demonstrate the probability of success of the treatment or the risk of unfortunate consequences.

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 was working as a nurse’s aide at a nursing home and fell on a wet floor. When EMTs arrived, she complained of right hip, right knee, and slight lower back pain.  The EMTs immobilized her on a backboard and took her to the Emergency Room. The triage nurse documented pain in the right knee, right hip, and lower back. (Op. at 3).

The defendant ER doctor took a history from the plaintiff and examined her. The ER records referenced hip and knee pain; x-rays of both were normal. The records did not reference back pain, and the space for back examination was blank. The ER discharged with a diagnosis of hip and knee contusions. (Id.). (The defendant doctor would later testify in evidence in a medical malpractice case to her habit of examining someone brought in on a backboard.)

Three days later, the plaintiff followed up with a doctor, complaining of soreness in her hip, knee, and back. The doctor diagnosed leg pain and increased her pain medication.  The doctor planned to do an MRI if there was no improvement. A week later, an MRI of the right hip was normal and showed degenerative disc disease in the lower lumbar spine. (Id. at 3-4).

Compression Fracture

During this time, the plaintiff had several falls at home. These falls are significant as they could have exacerbated her condition. A week after the MRI, the plaintiff’s condition was worsening, and she saw another doctor. X-rays of her back revealed an acute compression fracture of the L3 vertebrae with nerve root impairment.  A CT scan revealed a burst fracture of L3. After the condition did not improve with bracing, the plaintiff underwent a spine fusion surgery. (Id. at 4).

The plaintiff went to a rehabilitation facility. Her surgical wound became infected, and she obtained treatment. During this time, she had a ventricular fibrillation. It left her in a vegetative state before she passed over seven years later. (Id. at 4-5).

Medical Malpractice Lawsuit

While she was in a vegetative state, the plaintiff’s guardian, who was a court-appointed guardian to act on her behalf, brought a lawsuit for medical malpractice in the Circuit Court for Baltimore City, which the parties later agreed to transfer to the Circuit Court for Queen Anne’s County. The jury found for the defense. The plaintiff filed a motion for judgment notwithstanding the verdict, which the circuit court denied. The guardian then filed the notice of appeal. (Id. at 5).

The plaintiff filed a motion for judgment notwithstanding the verdict or for a new trial, arguing that the trial court erred in admitting the defendant doctor’s habit testimony regarding the examination of individuals who arrive at the emergency room on a backboard. The circuit court denied the motion. The plaintiff then died, and her guardian filed a notice of appeal. This legal argumentation forms the crux of the case, engaging the reader in the intellectual discourse of the legal process.

Court of Special Appeals on Habit Evidence in Medical Malpractice

The plaintiff argued that the circuit court erred by allowing the defendant doctor to testify regarding her habit of examining a patient on a backboard. This argument is rooted in Maryland Rule 5-406, which the plaintiff contended was not adhered to. Firstly, the doctor’s testimony regarding her routine of examination was not the type of “habitual response” allowed by the rule. The rule provided:

Evidence of the habit of a person or of the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.  (Id. at 16).

The plaintiff argued that the defendant failed to show that the examination of patients who had experienced a fall was the type of nonvolitional activity performed with invariable regularity, as well as to establish the semi-automatic nature of such examination. (Id. at 15). 

The doctor testified that she treated several patients per shift who arrived on a backboard, and conducted a spine examination on every one, the same way, before removal. (Id. at 21). Accordingly, the CSA found that this evidence was admissible under Rule 5-406. (Id. at 22).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Habit Evidence

In the midst of litigation, often several years after a procedure, many doctors do not recall the procedure at issue. Rule 5-406 allows doctors to testify to their habits of practice if their testimony is that they repeatedly do the same thing in the same way in every such circumstance.

That rule applied here as to the examination and removal of a patient from a backboard. The plaintiff could score a point in cross-examination by pointing out that the doctor did not check off the back examination on the medical records. However, the defendant doctor’s testimony, along with her expert witnesses, was likely persuasive that this was a standard procedure in this case.

The defendant emerged victorious in this case, with significant implications. There are aspects of this case that many medical malpractice lawyers would have passed on. The plaintiff’s repeated falls after the initial fall could complicate the determination of the actual cause of her fracture. Additionally, the plaintiff was in a vegetative state and then ultimately died from a reason unrelated to the alleged medical malpractice. Many medical malpractice lawyers will not pursue a case in such an instance. It can be tough to persuade a jury to give damages to someone in a vegetative state from another cause. Here, neither the jury verdict nor the appellate ruling was surprising.

You can read other Blog posts on issues involving Evidence.

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 on Parent Negligence & Birth Injury

The mother’s pregnancy was high-risk because it involved twins. Medical records indicated that the mother smoked cigarettes and marijuana during the prenatal period. (Op. at 2-3).

The mother went to the other hospital due to preterm labor. The baby was diagnosed with IUGR. The mother then left against medical advice at 32 weeks. (Id. at 3). However, the other hospital had wanted to continue monitoring.

Oxygen Deprivation

Three weeks later, the mother went to the defendant hospital and gave birth. (Id. at 5). The doctor noted an oxygen saturation level of 95-96%, but the baby was experiencing some difficulty breathing. At 5 a.m., the oxygen level then dropped to 88-90%. The nurse placed oxygen near the baby’s nose. After the removal, the level dipped again. The nurse then switched to nasal cannula oxygen, and the level rose to 100%. (Id. at 6).

At 5:30 a.m., nurses inserted an IV line. However, there was no mention of breathing problems. (Id. at 7). A nurse recorded that at 5:40 a.m., the baby experienced an apneic episode, with dusky coloring and oxygen saturation in the 40s. Nurses started bag and mask ventilation, and the level rose to the 90s. The doctor then intubated the baby and put him on a ventilator. (Id. at 7).

At 2 p.m., the baby also experienced seizures. Testing showed a brain injury (bilateral diffuse anoxic ischemic injury). (Id.). The child now has cerebral palsy. (Id. at 8). Consequently, the child’s mother brought a claim for medical malpractice and birth injury against the hospital in the Circuit Court for Baltimore City. (Id. at 1).

The plaintiff’s expert testified that the baby likely experienced a hypoxic insult of at least 4-5 minutes that likely led to his being bradycardic (slow heartbeat) and resulted in the injury. (Id. at 9-10).

The circuit court excluded evidence of the mother’s prenatal conduct of leaving AMA and smoking under CJP 10-910. (Id. at 14-18).

The jury issued a verdict in excess of $34 million in favor of the plaintiffs. The hospital then appealed. (Id. at 1).

Appellate Court of Maryland on Parent Negligence & Birth Injury

The defense contended that the circuit court erred in granting the plaintiffs’ motion to exclude evidence of the mother’s prenatal conduct under CJP 10-910. The hospital had experts ready to testify that the mother’s conduct, including leaving the first hospital against medical advice and smoking, could have ‘plausibly’ contributed to the child’s injury. The hospital argued that the court’s decision deprived it of a fair trial, specifically that it couldn’t present its complete causation defense. (Id. at 53).

The plaintiffs responded that the court properly excluded the conduct under CJP 10-910. In addition, the hospital experts’ opinions on “plausible” cause failed to meet the standard for establishing the cause of injury. (Id. at 53).

CJP 10-910 provides:

In an action on behalf of an infant to recover for death, personal injury, or property damage, the negligence of the parent or custodian of the infant may not be imputed to the infant. (Id. at 55).

Case law has created an exception to this rule. It is where the parent’s negligence was “extraordinary and rare” to constitute an independent and superseding cause of the injury. (Id. at 56-61).

Analysis

The circuit court concluded that the mother’s leaving AMA and smoking were not extraordinary and rare. The Appellate Court disagreed. (Id. at 61). The hospital could not use the evidence to impute the parent’s negligence to bar the child’s recovery based on contributory negligence. However, the parent’s negligence can bar the child’s recovery if it is an intervening and superseding cause of the child’s injury. (Id. at 62). 

Even though the cases have limited the exceptions to intervening and superseding causes, the Appellate Court decided that the exceptions are broader in scope. (Id. at 62-67).

The Appellate Court then held that the hospital’s entitlement to introduce evidence of another cause was permissible under CJP 10-910, even though the reason was the parent’s conduct. (Id. at 67-68). 

The Appellate Court limited its ruling to CJP 10-910. It also noted that the plaintiff had argued that the hospital’s evidence failed to meet the evidentiary threshold for determining proximate cause. The Appellate Court stated that the circuit court continues to be the gatekeeper, and prenatal conduct is not necessarily admissible; the circuit court can address the other evidentiary argument on remand. (Id. at 74-75).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Parent Negligence & Birth Injury

CJP 10-910

The Appellate Court should have upheld the judgment under this statute. Cases have held that defendants cannot use evidence to impute the parent’s negligence to the child, but can introduce it to establish causation. To strike this balance, the courts should exclude the parent’s conduct and consider only the consequences of that conduct. (This assumes the party properly establishes the cause according to evidentiary standards, which the section below indicates the hospital could not do). This balance is precisely what the trial court struck.

Here, if the hospital met evidentiary requirements, it could introduce what effects leaving AMA and smoking had on the baby, without specifying the conduct. It could also discuss the time period in which there was no monitoring (without the reason for the lack of monitoring). It could discuss the IUGR and the location of the umbilical cord and placenta. 

The hospital’s causation theory was that a compressed umbilical cord caused the injury in a time period that involved both time before the AMA and after. (Id. at 26-27, 28).

The trial judge noted that the hospital could make its causation case without specifying the mother’s conduct: “I think you can do all of what you’re saying without mentioning the mother and what the mother did or did not do.” (Id. at 24).

Alternative Grounds Support Affirmance

Unfair Prejudice

The plaintiffs advanced two other arguments in support of exclusion of the parent’s prenatal conduct: 1) Even if it was relevant, the probative value of such evidence was outweighed by the risk of unfair prejudice to the plaintiff; and 2) no defense expert could testify that the prenatal conduct caused injury to a reasonable degree of medical certainty. (Id. at 14-15).

Both of these arguments were meritorious. There is a high risk that a jury would improperly impute the parent’s negligent conduct to the baby, and not limit the use of the information to the issue of causation. To protect against this, striking the balance discussed above would protect the baby from the misuse of evidence while allowing the hospital to present its causation theory fully.

Failure to Meet Evidentiary Standards

All of the defense experts who discussed the effects of the parent’s prenatal conduct said that the conduct “could have” contributed to the injury. (Id. at 16-17). Accordingly, this testimony fails to meet the evidentiary standard that an expert must give an opinion on causation to a reasonable degree of probability. You can read a Blog post on the case discussing this requirement at American v. Reiss 1.

The issue with these alternative grounds for affirmance is that the trial judge did not decide them. A trial judge has to sort through many matters at once. The importance of addressing alternative arguments on an issue may not be immediately apparent. Unfortunately, however, if the trial court had found these other bases for excluding the evidence, the judgment could have been affirmed without the need for remand.

As a result of the trial court’s failure to address the alternative arguments, the Appellate Court declined to address them. This conservative approach is generally good practice. It allows the reviewing court the benefit of the trial court’s decision and also full briefing by the parties.

You can also read Blog posts about other issues involving Evidence.

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, while skateboarding, encountered a loose brick on a promenade on city property in Baltimore’s inner harbor, leading to an injury that required surgery. He filed a suit against the city in the Circuit Court for Baltimore City for negligent maintenance of the promenade. (Op. at 1-2).

At trial, the defendant called a maintenance supervisor to testify. He testified that his crews were at the promenade once or twice weekly. When a maintenance crew sees something they can fix immediately, they fix it instantly. (Id. at 3). The plaintiff showed the witness a service summary report from 9 months before the incident that discussed missing bricks in the promenade in other locations. The witness said he was not familiar with the document and that it would not have gone to him. The defense objected to the lack of foundation, and the plaintiff stated it was to impeach the testimony that crews fix a missing brick immediately. (Id. at 3-4).

The circuit court judge sustained the objection because the witness testified that he had not seen the document before and it would not have come to him. (Id. at 6). The jury found for the defense, and the plaintiff then appealed. (Id. at 2).

Appellate Court of Maryland

Extrinsic evidence of contradiction for impeachment ordinarily only is admitted in non-collateral matters. However, the court had the discretion to admit extrinsic evidence on collateral matters. (Id. at 8, Rule 5-616(b)(2)). Evidence is extrinsic when it is proved through another witness or by an exhibit not acknowledged or authenticated by the witness the party is trying to contradict. (Id.). The test of collateralness is whether the contradicted fact is relevant independently of being a contradiction. (Id. at 9).

In this case, the court held that the document was extrinsic evidence on a collateral matter. The plaintiff could not establish a link between the failure to make prior repairs and the specific brick that injured the plaintiff. (Id. at 11). As a result, it was within the trial court’s discretion to exclude the document. The document did not impeach the witness’s testimony because it did not show that maintenance failed to fix the other bricks. The Appellate Court held that the trial judge did not abuse his discretion in excluding the document. (Id. at 16).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Impeachment by Extrinsic Evidence in a Collateral Matter

This trial was a difficult loss for the plaintiff. The plaintiff had been skateboarding on a portion of the inner harbor, which, as evidence indicates, was attended to by a maintenance crew once to twice a week. The plaintiff suffered a significant injury after hitting a loose brick.

In trying to use the service summary report, the plaintiff ran into trouble because his document would not have gone to the witness. As a result, the trial judge would not let the plaintiff question the witness about it.

Impeachment using extrinsic evidence on collateral matters is something that many lawyers and judges do not fully understand. It is not easy when examining a witness, and on the spot, you have to do an impeachment in this situation.

Example of Impeachment by Extrinsic Evidence in a Collateral Matter

However, one approach might have looked like the following. Without showing the witness the document, ask:

You are familiar with service summary reports?

You see them as a matter of course in your work?

They can list matters that need fixing?

(Holding up the document) In fact, there have been times when service summary reports list bricks that were not fixed immediately?

The important thing is that the lawyer has just stated what he wants the jury to hear without using the document – that bricks aren’t always fixed immediately. This statement is the key to impeachment by extrinsic evidence on collateral matters. The document usually does not enter evidence. It’s the question that is often the most important. You hope the witness agrees with you, but you are generally stuck with his answer. 

The plaintiff’s focus here was a failure to admit the document into evidence. Based on how the examination played out, there was little chance that the plaintiff would win this appeal.

You can read additional posts on evidence 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 case involves a plaintiff who sued for injury from a slip and fall at a restaurant’s parking lot.  The circumstances are as follows: The plaintiff, after dining at the restaurant, was leaving. She then stepped off the curb onto the parking lot, onto river rocks that had come out of decorative beds onto the walking path and hid under some leaves and other debris. The plaintiff subsequently fell and broke her ankle, requiring surgery with screws to repair it. (Op. at 2).

The plaintiff filed suit against the restaurant and the owner of the property in the Circuit Court for Howard County. Before trial, the plaintiff and owner entered a settlement agreement and a joint tortfeasor release. The plaintiff also moved in limine to exclude the admissibility of the settlement release, which the trial judge granted. The jury then awarded the plaintiff damages of over $600,000. The court reduced the judgment under the joint tortfeasors act due to the settlement with the owner. (Id. at 2-3, 6-7). 

Consequently, the restaurant raised four issues on appeal. This Blog post deals with the admissibility of the joint tortfeasor release. (Id. at 7-8).

Appellate Court of Maryland

The restaurant argued that the trial court abused its discretion in excluding the evidence of the settlement with the owner. (Id. at 18). 

The Appellate Court noted that a defendant generally denying liability may present evidence of a nonparty’s negligence and causation as an affirmative defense, citing Browne v. State Farm. (Id. at 19). However, the courts exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice, Rule 5-403. (Id. at 21).

Admissibility of the settlement agreement between the plaintiff and nonparty has minute probative value for establishing negligence and causation. Accordingly, it poses a significant risk of unfair prejudice. (Id. at 22). The agreement could confuse the jury, mislead them in their deliberations, or they could construe it as an admission of liability by the settling defendant. (Id. at 21). The trial court allowed the restaurant to put on evidence that established the owner’s exclusive control of the location of the fall and allowed a stipulation stating that the owner bore some responsibility for the plaintiff’s injuries. The Appellate Court then affirmed the judgment. (Id. at 22).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Admissibility of Settlement Agreement

The trial court and Appellate Court reached the correct decision in this case. The defense can present evidence of nonparty negligence and causation, as it did here.

However, a defendant can enter into a settlement for a multitude of reasons that can be in addition to the evidence of negligence and causation. A defendant may prefer a known settlement over the unknown of a jury verdict. It may also want to bring closure to avoid additional legal fees. It may want to avoid publicity. However, the settlement agreement generally does not discuss these factors. These factors can make it difficult to weigh the relevance of a settlement. The courts properly excluded it.

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 filed a complaint for medical malpractice in the Circuit Court for Montgomery County. The claim was against an OB/GYN and her practice group. It alleged the doctor negligently performed a laparoscopic hysterectomy and injured a ureter. (Op. at 1).

The plaintiff’s experts testified that the doctor breached the standard of care by failing to protect the ureter during the hysterectomy. The doctor used a harmonic scalpel to cut and cauterize the uterine artery and caused a ureter injury where the artery crosses over it. (Id. at 39-40).

The defense called an expert who opined that the injury was delayed onset, caused by disruption of blood supply to the ureter, which would have been undetectable at the time of the procedure. The defense then sought to call two additional experts who testified in deposition to the same blood disruption cause but now sought to blame the injury on a pyelogram that a urologist did after the surgery.  (Id. at 40).

The plaintiff then moved to exclude the testimony, arguing that the defense had not disclosed it. However, the court denied the motion. (Id. at 41).

Rebuttal Expert

The plaintiff then sought to call the urologist as a rebuttal expert. His testimony was crucial as it was to testify that the defense witnesses had misread the pyelogram. The defense objected, arguing it was not a proper rebuttal and the plaintiff had not designated the urologist as an expert. The circuit court, however, allowed the rebuttal. The urologist’s testimony that the pyelogram did not cause any injury was a pivotal moment in the case. (Id. at 42-43).

The jury favored the plaintiff and awarded $426,079 in damages. The group, however, appealed. (Id. at 7-8).

The first two issues dealt with the dismissal of the doctor and the effect that had on the case against the medical group. In a case of first impression, the CSA first held that dismissal with prejudice against an agent does not necessarily make the vicarious liability claim against the employer nonviable. When no consideration is given, and the merits against the agent have not been litigated, vicarious liability is not extinguished. (Id. at 32).

The CSA then found that the circuit court correctly used its revisory power under Rule 2-602(a)(3), and the parties waived the requirement in Rule 2-601 for a separate document.

Court of Special Appeals

On appeal, the defense then argued that the rebuttal was improper because it did not rebut any new matter that the defense raised in its case-in-chief. The defense’s testimony on the pyelogram involved the same issues of location and causation of injury as the plaintiff had addressed in her case. In addition, the plaintiff had not designated the urologist as an expert. (Id. at 44).

The CSA noted that it is within the trial court’s discretion to admit rebuttal expert testimony. Rebuttal evidence specifically is any competent evidence that explains, is a direct reply to, or contradicts material evidence introduced by an accused in a criminal case or by a party in a civil action. Although rebuttal evidence is a matter of right, it must respond to a new matter for evidence to be admissible as a valid rebuttal. (Id. at 45). 

The defense’s testimony at trial that the pyelogram caused the injury and that the injury was in a different location than previously identified were significant changes from the deposition testimony and constituted new matters. The rebuttal testimony explained how these new matters resulted from misreading the pyelogram. In addition, the testimony did not repeat anything from the plaintiff’s case. Accordingly, it was a proper rebuttal testimony. (Id. at 46).

In addition, it was within the circuit court’s discretion to allow the urologist to testify in rebuttal even though the plaintiff hadn’t designated him as an expert. His testimony was crucial as it appropriately responded to the defense’s failure to disclose the pyelogram testimony earlier. (Id. at 46-47).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Rebuttal Experts

The Court of Special Appeals’ reasoning was sound. The new matter requirement for rebuttal testimony includes new opinions. The defense injected new opinions in its case-in-chief that had not been disclosed before, including in discovery.

The rebuttal expert testimony was particularly illuminating. Two defense witnesses had given testimony interpreting a pyelogram. The plaintiff called the doctor who performed the test to explain how the defense witnesses misunderstood the test results in forming their conclusions. This testimony was critical for the jury to consider. Without it, the jury would have had an incomplete picture to evaluate the medical malpractice claim.

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 filed suit in the Circuit Court for Anne Arundel County arising from a car accident. The defense conceded liability, and then the court scheduled a trial for damages. (Op. at 1).

The plaintiff had designated two of his treating physicians as expert witnesses, an orthopedic surgeon and a pain specialist. The orthopedist would testify that the treatment was causally related and medically necessary. The pain specialist’s testimony would include the plaintiff’s cervical pain. The plaintiff noted and took the de bene esse depositions in the two weeks before the scheduled trial. (Id. at 2). De bene esse depositions are videotaped examinations of witnesses that a party plays at trial instead of calling the witness live.

During jury selection, defense counsel stated that they were objecting to the admission of the de bene esse depositions because the plaintiff’s counsel had failed to offer the doctors as experts during the depositions. (Id. at 3). The plaintiff conducted voir dire, but the defense did not have the opportunity for voir dire since the plaintiff did not offset the witnesses as experts. (Id. at 3-4).

The plaintiff acknowledged that they did not follow the proper procedure. (Id. at 4). The court then excluded the depositions and granted the defense’s motion for judgment. The plaintiff appealed. (Id. at 1).

Appellate Court

The circuit court made two rulings relevant to the circumstances of this appeal.  The court excluded the de bene esse depositions and also granted judgment for the defense. On appeal, the plaintiff only challenged the second ruling. (Id. at 5-6).

The parties disagreed on which rule the circuit court used to enter judgment. The plaintiff contended that it was 2-519(a), which provides for a motion at the close of evidence. The plaintiff argued that the motion was before the close of evidence and that the court prevented him from calling the experts as live witnesses. (Id. at 6). The defense argued that the court relied on Rule 2-501, the summary judgment rule. (Id. at 6-8). 

Specific Rules

The Appellate Court observed that the court did not state the rule it relied on to enter judgment after excluding the de bene esse depositions. However, the Appellate Court held that the circuit court erred under either rule.

The court erred if it was a motion for judgment because it was not the close of evidence. If it was a summary judgment motion, the court erred because the defense did not submit a motion in writing as required by the rule. (Id. at 9).

The Committee Note on the amendment that added the written motion requirement to the summary judgment rule gave an example of how a defendant can address the exclusion of essential evidence:

“If the court were to exclude as inadmissible the testimony of a witness or a document that is legally essential to a party’s case, or some discrete aspect of a party’s case, the other party may move in limine to preclude further evidence, as being irrelevant. If such a motion is granted, a motion for judgment under Rule 2-519 would then lie.”  (Id. at 11).

The Appellate Court also concluded that the circuit court’s ruling was not harmless. The parties were conducting jury selection when the defense made an oral motion for judgment. The plaintiff could not fully address the evidentiary issue and provide a considered response. (Id. at 13-14). The Appellate Court vacated the judgment and remanded the case for further proceedings. (Id. at 14).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on De Bene Esse Depositions

The Appellate Court’s analysis is solid. The Maryland Rules do not provide the circuit court the authority to do what it did when it did it. These Rules are for good reason. The defendant contended that certain evidence was not admissible. It was not the close of evidence. The plaintiff had yet to start their case.

Once the circuit court ruled on excluding the evidence, the plaintiff was entitled to consider the effect on their case and whether they could make adjustments to continue. These options include calling the experts as live witnesses, seeking a continuance, putting on the case without the experts, and possibly other options.

When the circuit court put the plaintiff on the spot to thoroughly analyze all of these potential scenarios and respond, the court did what the motion for summary judgment rule said was improper, and for a reason the rule stated it was inappropriate. The rule was amended to require written motions to avoid this surprise and deprivation of the ability to provide a considered response.

Waiver?

There is another aspect of this case that is interesting. I wonder if the plaintiff should have asserted that the defendant waived their objection to the admissibility of the de bene esse depositions. This strategic consideration adds an intriguing layer to the case. The Maryland rules, including Rule 2-416 (g), provide that the opposing party must assert objections at the de bene esse depositions to the same extent as if the examinations were at trial.

The circuit court’s opinion states that the plaintiff did not offer their witnesses as experts. The plaintiffs continued beyond the point at which that was supposed to happen and fully examined the experts. Apparently, the defense did not object to the plaintiff’s failure to offer the witnesses as experts.

If the plaintiff had raised at trial the defense’s failure to object, the court should have found a waiver of the objection. The defense should not be allowed to save that objection for a “gotcha” moment at trial. If the defense had objected at the depositions, the plaintiff obviously could have cured it in the depositions.

A successful waiver argument would have allowed the plaintiffs to proceed with introducing de bene esse depositions at trial, which the defense fully participated in and could have made any objection they believed was warranted.

Other Case

Scott v. Universal Protection Service, LLC, Appellate Court of Maryland unreported opinion (Oct. 20, 2023): Court upheld denial of motion to exclude expert’s additional opinions in de bene esse deposition to give update on plaintiff’s condition.

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.

Part 2 of this Blog post will discuss an issue involving expert testimony on causation.

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. These failures led to infection and fatal sepsis. (Op. at 1).

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 finally ordered an x-ray but that was delayed. 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 following are the facts that the defense would claim constituted cremation spoliation. The state medical examiner declined an autopsy. Afterward, the plaintiff’s lawyer arranged for a pathologist to do a private one. The autopsy preserved samples in the same fashion as one conducted by the state (Id. at 9). It appears the plaintiff did not tell the defendants that the autopsy was going to be done, and the autopsy 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 cremation of the body. The circuit court then 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. There was also causation testimony that the plaintiff would have lived if he had earlier surgery. (Id. at 10-13).

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 then appealed. (Id. at 13).

The Court of Special Appeals

The defendants argued on appeal that the circuit court erred by not granting their motions on cremation spoliation and not giving a jury instruction. (Id. at 14).

Spoliation is the principle that a party should not be allowed to support its claim or defense with physical evidence that it has destroyed to the detriment of its opponent. The court considers whether there has been an act of destruction, whether the destroyed evidence was discoverable, whether there was an intent to destroy the evidence, and whether the destruction occurred at a time after the suit has been filed or, if before, at a time when the filing was fairly perceived as imminent. (Id. at 15).

The defense argued that the private autopsy and cremation without notice to them was an act of destruction that constituted spoliation. The plaintiff denied an act of destruction, asserting that the autopsy sought the cause of death and that cremation was an appropriate final arrangement. (Id.).

Holding on Cremation Spoliation

There were no on-point Maryland cases. The appellate court recognized that a grieving family must determine the appropriate disposition of their loved one’s remains, which can be time-sensitive and fraught. The court found the defense’s argument “unconscionable” that the mother’s seeking of answers for her son’s death and her cremation arrangement constituted spoliation. The court then held that lawful cremation is not an act of destruction or an intent to destroy evidence for purposes of spoliation. Further, the court held that the mother had no duty to preserve evidence,  permit the defense to participate in the autopsy or notify the defense before cremation. (Id. at 19-20). As a result, the circuit court correctly denied the defense’s cremation spoliation motions. (Id. at 23).

The CSA also held that the circuit court properly denied the defense’s request for a jury instruction on cremation spoliation. Since the court ruled that the plaintiff did not engage in cremation spoliation, the facts did not generate such an instruction. (Id. at 24).

Commentary by the Baltimore Medical Malpractice Lawyer on Cremation Spoliation

This decision was an easy decision for the CSA, and rightly so. They were correct in finding the defense’s cremation spoliation argument unconscionable. The suggestion that the mother violated legal evidentiary principles in making final arrangements for her son was offensive.

This case is illuminating to those unfamiliar with the lengths that medical malpractice defendants will go to avoid responsibility for the harm they caused.  The plaintiff died a slow death over many hours in front of his mother and under the watch of the defendants. Instead of taking responsibility, the defendants tried to justify their negligence at trial and then claim cremation spoliation. They refused to accept the decision when that predictably failed before the jury. They pursued an appeal that had no chance of success. This case is another reminder of the necessity of the medical malpractice justice system.

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.

After an 8-day trial, the jury found that the defendant’s employees were liable and awarded damages exceeding $2.1 million. The defendant then appealed. (Op. at 1, 4). 

Issues not Preserved for Appeal

The defendant argued on appeal that the circuit court improperly allowed the plaintiff’s accident reconstruction expert to testify to matters he had not previously disclosed. Asplundh also argued that the plaintiff had failed to timely provide an updated damages report that its expert relied on. (Id. at 5).

The plaintiff argued that the defense had not preserved the issues for appeal. Maryland Rule 8-131 requires states that the appeals court will not review any issue not raised in the trial court. To raise the issue relating to the admission of evidence, the party must object when the evidence is offered or as soon as grounds become apparent. Maryland Rule 2-517(a).

The defense had filed motions in limine to exclude the damages report and the testimony of the accident reconstructionist. The circuit court denied the motions. However, the defense did not object when the plaintiff introduced the evidence. As a result, the Appellate Court held that the defense had failed to preserve the issues for review. (Id. at 7-8, 10). The defense’s motion to strike the evidence was not sufficient to preserve the issues for appeal because it should have been apparent to the defense at the time of the questions that objections were required. (Id. at 12).

Issues Preserved for Appeal: Jury Instructions

The defense claimed that the trial court erred in instructing the jury on vicarious liability for its employees and caused prejudice and confusion because the verdict sheet did not list the employer. (Id. at 13). The Appellate Court rejected that argument. It noted that the parties had mentioned the corporate defendant throughout the trial. Still, it would not be on the verdict sheet. As a result, instructing the jury on vicarious liability clarified the roles and relations between the parties. (Id. at 18).

Cross-Examination of Plaintiff’s Accident Reconstructionist

In another issue that was preserved for appeal, the defense argued that the trial court erred in limiting its cross-examination of the plaintiff’s accident reconstructionist on points from his previous report. The plaintiff did not discuss that report on direct examination. (Id. at 18-19). The Appellate Court ruled that the circuit court was within its discretion to limit the cross-examination to the direct examination topics. Also, the fact that the expert made changes in his report to reflect additional received information is standard and did not go to the expert’s credibility. (Id. at 20).

Reference to Dismissal of Other Lawsuit

The defense also contended that the trial court erred in granting the plaintiff’s motion in limine to exclude reference to another lawsuit. In that lawsuit, the plaintiff had claimed that different defense employees had caused the accident. The plaintiff dismissed that suit. The defense argued that it constituted admissible prior inconsistent statements. (Id. at 21).

The trial court noted that the plaintiff’s counsel had filed the other suit after the defense had disclosed the existence of another vehicle close to the statute of limitations. The plaintiff’s counsel dismissed the case without any discovery occurring. There was no evidence that the plaintiff believed the allegations to be true. Under these circumstances, the Appellate Court found that the trial court did not abuse its discretion in excluding the evidence. (Id. at 25).

Commentary By the Baltimore Medical Malpractice Lawyer

Preserving Issues for Appeal

Failing to preserve an issue for appellate review regularly comes up in appeals. At the trial, the rules often require counsel to object when the other lawyer asks the question. This requirement can put the lawyer in a position of having to object immediately after the question and before the witness starts to answer. Failure to object in that instant can waive the issue for appeal.

As a result, a waiver can happen even when lawyers are attentive and prepared. There are some things the lawyer can do to minimize the instances of waiver. Firstly, the lawyer can plan by making notes about the specific subjects that may require objections and have them in front while listening to the direct examinations by the other lawyer.

Having Help

Secondly, there is great value in having another lawyer at the trial table with you. When a lawyer is not examining the witness, they should have the list of objectionable areas in front of them and be listening for objectionable questions, ready to prompt the other lawyer to object if needed to preserve the issue for appeal..

Having another lawyer at the trial table may not always be possible. In that instance, try to have a paralegal there to do the same thing.

In deciding whether to object, err on the side of objecting to esure the issue is preserved for appeal. An overruled objection is no big deal. 

None of the issues on appeal presented the court with a close call. Sometimes, the verdict amount – here, over $2 million- explains an appeal. The defense came up with what it could to try to overturn the verdict. The plaintiff gets 10% post-judgment interest for having to wait on payment. CJP 11-107.

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 Circuit Court

The Appellate Court of Maryland issued an unreported opinion in Ceron v. Kamara (Feb. 8, 2024). The case involved a car accident, and the defense agreed to liability. As a result, the only issue for trial was the plaintiff’s damages. The jury awarded the plaintiff $243,000, and the defendant appealed. (Op. at 1).

Much of the damage case centered specifically on the plaintiff’s claim that she got a herniated disk from the accident and that she had to get surgery to fix it. The plaintiff requested that the jury award her over $717,000 in economic damages and between $480,000 and $2.2 million in non-economic damages. (Id.).

The defense argued that the plaintiff’s herniated disk and treatment were the result of a pre-existing, degenerative condition. The defense called two expert witnesses. Dr. Khan is a radiologist who reviewed the plaintiff’s MRIs. Dr. Moatz is an orthopedic spine surgeon who examined the plaintiff. The defense suggested the jury award approximately $75,000 to the plaintiff. (Id. at 1-2).

Dr. Khan testified that the MRIs revealed that the plaintiff had congenital stenosis before the accident. That condition caused her to have an abnormally narrow spinal canal that made her more susceptible to a herniated disk. He did not express an opinion as to the cause of the plaintiff’s herniated disk. However, Dr. Moatz testified that the plaintiff’s surgery was unrelated to the accident. (Id. at 2-3).

Closing Arguments

During the closing argument, the plaintiff argued that the defendants’ experts were inconsistent. Khan admitted the accident could have exacerbated the plaintiff’s spinal issues. At the same time, Moatz testified that the herniated disk was due to the plaintiff’s pre-existing conditions and was unrelated to the accident. Further, the plaintiff encouraged the jury to speculate why the defense did not ask Khan to testify about the cause of the herniated disk. (Id. at 3).

The plaintiff attacked Moatz as financially motivated and a hired gun. The plaintiff also speculated about the relationship between the defense counsel and Moatz; the defense counsel had told Moatz to wait to write a report until they had talked and that there would be no report if his opinions were unfavorable to the defense. (Id).

In response, defense counsel said they asked Khan to review the MRIs because they had not used Moatz before. The plaintiff objected because that fact was not in evidence. The circuit court overruled the objection. (Id. at 4).

Appellate Court of Maryland Review of Closing Arguments

The standard of review is whether the trial court abused its discretion in overruling the objection and likely injured the plaintiff. Carroll v. State, 240 Md. App. 629, 663 (2019).

The plaintiff argued on appeal that the circuit court had improperly allowed the defense to make statements in closing arguments that were not in evidence. Specifically, the defense said the reason why they hired Dr. Khan. (Id. at 5). The defense argued their statement was a fair response to the plaintiff’s arguments about the defense expert witnesses. The Appellate Court found that it was a close call. However, assuming the comment was improper, the Court held that the plaintiff had failed to demonstrate prejudice sufficient to constitute reversible error. (Id. at 7).

The Appellate Court found that the statement was isolated and not severe. Dr. Khan was not even testifying on the central issue at trial: causation. Over two days, the statement was a small part of extensive evidence and argument concerning the experts. As a result, the Appellate Court upheld the verdict. (Id. at 9-10)

Commentary By the Baltimore Medical Malpractice Lawyer

Closing Arguments

The jury’s verdict was much smaller than the plaintiff had requested. On appeal, the plaintiff was looking for a do-over to get a better verdict from another jury. As a result, the plaintiff had to establish grounds for a reversal of the trial court’s judgment.

Obtaining a reversal based on an improper closing argument is challenging. Firstly, the Maryland courts “afford great leeway” to lawyers in closing arguments. State v. Newton, 230 Md. App. 241, 254 (2016). However, the defense statement was not in evidence here. The circuit court should have sustained the objection, stricken the statement, and instructed the jury not to consider it.

Prejudice

Secondly, the plaintiff had to establish prejudice by showing that the lawyer’s statement “actually misled the jury or were likely to have misled or influenced the jury.” Spain v. State, 386 Md., 145, 158 (2005). The defense lawyer’s comment that they had not used Moatz before was after the plaintiff had argued that Moatz was a hired gun doing it for the money. By stating that they had never hired Moatz before this case, the defense was trying to show that he was not their go-to guy who would say anything.

Although the comment was improper, the Appellate Court got it right by ruling that it did not satisfy the prejudice requirement. Whether the defense had worked with Moatz before was unlikely to mislead the jury to an incorrect verdict.

It can be challenging to determine why a jury does not return a verdict you believe is appropriate. It was probably not due to the defense comment at issue. 

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 Trial Court

The plaintiff fell exiting an elevator in a parking garage and brought a negligence claim based on failure to maintain the elevator safely. After she fell, she saw that there was a problem with the elevator leveling, leaving a ½ to 1-inch gap. The defendants had notice of the condition because the evidence indicated that someone else had fallen earlier that day because of the same elevator problem. (Op. at 2, 5). The jury awarded the plaintiff over $1.2 million, and the defendants appealed. (Id. at 5-6).

The Appellate Court: Exclusion of Evidence

The Appellate Court dealt with several issues that are in addition to the one I will focus on. First, the defendants complained that the circuit court did not give jury instructions on the condition being open and obvious and on contributory negligence and failed to put contributory negligence on the verdict sheet. (Id. at 9). The trial judge ruled that the evidence did not generate the issues. (Id. at 6). However, the defendants did not object to the instructions after the trial judge had given them. As a result, the Appellate Court ruled that the defendants had not preserved the claims for appeal. (Id. at 10-11). The Appellate Court ruled that, in any event, the trial court was correct in not giving the instructions. 

Second, the Appellate Court held that the trial court did not err in denying the defense motions in limine and for judgment. (Id. at 11-13).

Exclusion of Evidence of Email

The issue I want to focus on involved exclusion of evidence. The defense produced an email two days before the trial, but it had been in their possession for years. The email said that the plaintiff had been the first to fall that day, and one of the defendants’ employees had sent it to three people. (Id. at 3). The Appellate Court noted that the email went to the most essential issue in the case, that the defense was on notice of the dangerous condition. The delay in production was due to a lack of diligence. The defendants’ delay prejudiced the plaintiff because she could not do discovery to investigate the email at that point. However, the defense could have their witness testify to the same issue with less prejudicial means.

The Appellate Court noted that the standard of review was abuse of discretion. Perry v. Asphalt Concrete Services, Inc., 447 Md. 31 (2016) (Id. at 8-9). The Appellate Court held that the circuit court did not abuse its discretion in excluding the email. (Id. at 15).

Commentary By the Baltimore Medical Malpractice Lawyer

I believe that the circuit court and the Appellate Court reached the correct decision on the exclusion of evidence. The plaintiff would have been significantly prejudiced if the trial court had allowed the email into evidence. The defense’s delay deprived the plaintiff of the opportunity to engage in discovery concerning the email. 

If the defendants had produced the email during discovery, the plaintiffs could have used discovery to explore the circumstances around the email to test its truthfulness. For example, the plaintiff could have taken the depositions of the email recipients. In doing so, the plaintiff could have explored other communications relating to the email that may have contradicted its statement.

Exclusion of Evidence: Email Contradicted Other Evidence

This contradiction is a significant possibility, given that some evidence in the case already suggested that the email was false. That evidence included the plaintiff’s testimony that when she reported her fall, the parking lot cashier stated that the manager was responding to another fall and had been there for at least 10 minutes. (Id. at 4). In addition, the other woman who fell testified that while the defendants’ supervisors were helping her, they got a call that someone else had fallen. (Id.).

The verdict may have been identical even if the trial court had admitted the email. Multiple things at trial may have caused the jury to view the defense negatively. First, the defendants’ employee, who received the report from the plaintiff of her fall, denied being at work that day. That was until the plaintiff’s played a recording of him calling the elevator company that day to report the plaintiff’s fall. (Id. at 5), Second, one of the defendants’ supervisors, who was directly involved in the circumstances of that day, never testified. (Id. at 5). 

However, the plaintiff should not have to risk the effects of the unproduced email, and the Maryland courts adequately protected her by the exclusion from evidence.

Other Cases

• Scott v. Universal Protection Service, LLC, Appellate Court of Maryland unreported opinion (Oct. 20, 2023): Court upheld denial of motion to exclude expert’s additional opinions in de bene esse deposition to give update on plaintiff’s condition.

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.