Factual Background: A Routine Procedure with Tragic Consequences

In October 2015, a 76 year old patient had a routine upper endoscopy. It was at an outpatient surgical facility in Baltimore County. A board-certified gastroenterologist performed the procedure. Because the procedure required sedation, a certified registered nurse anesthetist (CRNA) gave sedative medications under the gastroenterologist’s supervision.

Following the short procedure, they moved the patient to a recovery room. A licensed practical nurse (LPN) monitored him there for approximately 30 minutes. The patient’s medical history involved morbid obesity, diabetes, and hypertension. He also was coming out of anesthesia. Despite these facts, the gastroenterologist approved the patient for discharge at 7:28 a.m. The gastroenterologist will be part of the relate specialty issue.

While walking to his car in the parking lot after discharge, the patient fell on the sidewalk. He suffered a severe spine injury. Although initial X-rays showed no fractures, his pain got worse over the next ten days. This continued until he was unable to move. Subsequent imaging revealed unstable fractures in his vertebrae. Despite emergency surgery, the patient died approximately two weeks after the fall from complications related to the spinal fracture.

The patient’s family filed a medical malpractice and wrongful death action in the Circuit Court for Baltimore County. They alleged that the healthcare providers failed to identify the patient as a “severe fall risk” and breached the standard of care by discharging him without a wheelchair or proper assessment. To support their claims against the gastroenterologist, the plaintiffs relied on the expert testimony of a board-certified anesthesiologist, whom they believed was in a related specialty to the gastroenterologist.

The Court’s Holding: Defining an Expert’s “Related Specialty”

The central legal hurdle for the plaintiffs was the Health Care Malpractice Claims Act. It requires that an expert testifying against a board-certified defendant must be “board certified in the same or a related specialty”. The gastroenterologist moved for summary judgment, arguing that he did not share a “related specialty” with an anesthesiologist. The circuit court initially agreed, finding no “overlap” between the two fields of doctors in the context of post-operative discharge.

Factors In Determining If An Expert Is In A Related Specialty

However, on appeal, the Appellate Court of Maryland reversed this ruling. The Court clarified that two specialties are “related” if there is an overlap in the treatment or procedures at issue in the case. The Court’s holding noted several key principles for determining if an expert is qualified under the “related specialty” provision:

• Focus on the Specific Procedure at Issue: The Court noted that in an ambulatory surgery center, gastroenterologists and anesthesiologists (or anesthetists) collaborate closely. While their primary roles differ, they share common responsibility for post-procedure care.
• Identical Standards of Care: The expert anesthesiologist provided testimony stating that the standard of care for post-operative management and discharge assessment is “identical” for both gastroenterologists and anesthesiologists in this clinical setting.
• Experience in the Clinical Setting: The Court emphasized that the expert had extensive experience with the same type of procedure performed in the same clinical setting. This made him well-qualified to opine on the discharge process, regardless of his different board certification.
• Overlap of Expertise: The Court held that two specialties are related when the treatment rendered is performed by both specialists and is within the overlap of expertise of both board specialty areas. In this case, the assessment of fall risk after anesthesia is a cross-disciplinary task that both types of specialists are expected to perform.

Commentary By Baltimore Medical Malpractice Lawyer Mark Kopec

By reversing the summary judgment, the Appellate Court ensured that the claims against the gastroenterologist could proceed. This ruling prevents defendants from using narrow specialty definitions to disqualify qualified experts who possess the relevant clinical experience for the specific care at issue.

The Appellate Court’s analysis reveals that this was a straightforward decision under the related specialty factors. While the plaintiff was likely to ultimately prevail, the choice of an anesthesiologist to critique a gastroenterologist is often going to prompt the defense to take a stab at exclusion. This is true even if the law does not support them. Although it cannot always be accomplished, choosing experts in the same specialty can help avoid the defense’s delaying tactics.

Stay tuned for Part 2 of this series, where we will examine the Court’s analysis of the jury verdicts and the “likelihood of prejudice” resulting from the trial court’s errors. In addition, Part 3 will discuss the applicability of the doctrine of contributory negligence to this medical malpractice case.

You can read additional Blog posts on expert testimony issues, including posts on the related specialty issue:

• Related Specialty: Otto v. UPMC 1
• Related Specialty: Street v. UPMC 1

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 Identifying the Defendant in a CQE & Standard of Care

The plaintiff filed a medical malpractice case in the circuit court for Allegheny County, alleging that the hospital was negligent in its prevention, diagnosis, and treatment of his sacral decubitus ulcer. (Op at 1).

The plaintiff entered the emergency room with drowsiness and loss of consciousness. He stayed two weeks, and many doctors and nurses treated him. (Id. at 2).

Although the plaintiff was heavy, the medical providers did not order a bariatric bed for him until eight days into his admission. At that time, they diagnosed him with a sacral pressure ulcer. The patient underwent surgical debridement of the ulcer and was discharged from the hospital three days later. (Id. at 2-3).

Two weeks after discharge, after losing consciousness, the plaintiff went to another hospital, where he was diagnosed with a stage three sacral decubitus ulcer. He received further treatment, was transferred to another hospital, and then subsequently discharged. For six months, he would have severe discomfort from the ulcer, including the inability to sit for more than two hours at a time. (Id. at 3).

The plaintiff then filed his claim in the Healthcare Alternative Dispute Resolution Office (HCADRO). (Id. at 3). The plaintiff also filed a CQE and a report from his proposed expert witness addressing the allegations of breach. The defense moved to dismiss, arguing that the CQE and report were insufficient under CJP 3-2A –01. Afterward, the circuit court granted the motion to dismiss. (Id. at 1).

The plaintiff then appealed. (Id. at 1). In part 1, I discussed the Appellate Court of Maryland’s holding that the plaintiff’s CQE met the related specialty requirement. Examining for decubitus ulcers was a procedure shared by both general surgeons and internal medicine doctors.

Appellate Court of Maryland

​The following two issues that the appellate court addressed were whether the CQE and report sufficiently stated the standard of care and identified the defendant.

A valid CQE must identify with specificity the defendants against whom the plaintiff brought claims, include a statement that the defendants breached the applicable standard of care, and that such a departure from the standard of care was the proximate cause of the plaintiff’s injuries. CJP § 3-2A-04(b)(1)(i). (Id. at 14).

Identification of Defendant

The Appellate Court rejected the defense’s contention that the CQE and report failed to identify the medical providers specifically. The court noted that the CQE specifically listed the providers’ names. All of them were either defendant hospital employees or apparent agents because they treated the plaintiff at the defendant’s hospital. There was no allegation that the hospital gave notice that those employees were independent contractors. (Id. at 16).

Moreover, the plaintiff had alleged in his complaint that the prior providers were agents, servants, and employees of the defendant. His CQE identified the defendant and its agents, servants, and employees. Naming the providers was equivalent to naming the defendant and satisfied the identification requirement. (Id.).

Standard of Care

A CQE must include a statement that the defendants breached the applicable standard of care. CJP § 3-2A 04(b)(1)(i). The report or CQE must indicate what the applicable standard of care was or how the named provider departed from the standard of care. (Id. at 16).

CQE & Report

The plaintiff expert’s report addressed two scenarios due to conflicting evidence. The first was if the fact finder determined that the decubitus ulcer was not present on admission:

All treating healthcare providers who saw the plaintiff during his time at the hospital until November 14 failed to adhere to the standard of care in failing to monitor him for the development of an ulcer, failing to properly order nursing instructions for the preemptive treatment to avoid the development of the ulcer, in failing to take note of the objective findings that would indicate a need to prevent the development of the ulcer, and in ultimately allowing the ulcer to develop. (Id. at 17-18).

If the fact finder determined that the ulcer was present on admission:

All treating healthcare providers who saw the plaintiff from the time of admission until November 14 failed to adhere to the standard of care in documenting, monitoring, treating, and requesting consultations for the ulcer. (Id. at 18).

The expert added that after November 14, all health care providers treating the plaintiff failed to adequately control the ulcer’s development and then allowed it to progress to an ultimately unstageable ulcer. (Id.).

The Appellate Court found that the plaintiff’s expert identified how each provider treated the plaintiff, and that the actions were insufficient as to the applicable standard of care. The CQE makes clear that the alleged standard of care required the providers to monitor, document, and request consultations to treat the ulcer. (Id. at 18). As a result, the CQE was not deficient, and the circuit court erred in granting the motion to dismiss. (Id. at 19).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Identifying the Defendant in a CQE & the Standard of care

On the issues of sufficient identification of the defendant and stating the standard of care, the Appellate Court had no problems in efficiently concluding that the CQE was adequate.

The primary basis for the circuit court’s erroneous ruling was its conclusion that the CQE did not meet the related specialty requirement. However, the defendant’s pressing of the two arguments on identification of the defendant and stating the standard of care shows that defendants will go to lengths to take advantage of trial courts’ lack of understanding in this area of the law.

The CQE in this case easily defeated all three of the defendants’ arguments. Unfortunately, the trial court’s ruling in favor of the defense on one issue resulted in a lengthy delay in this litigation. Fortunately, the appellate court has corrected that error and also has returned the plaintiff’s case to him.

Until the trial courts get a firm grasp on CQE law, defendants will continue to make their unsupported arguments, and these arguments will continue to generate delay.

You can read other Blog posts on issues involving Expert Testimony, including:

• CQE Agents: Dunham v. UMD
• Nurse CQE: Robinson v. Canton
• CQE & Report: Powell v. Wurm

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 medical malpractice case in the circuit court for Allegany County. He alleged that the hospital was negligent in its prevention, diagnosis, and treatment of his sacral decubitus ulcer. (Op at 1).

The plaintiff went to the emergency room with drowsiness and loss of consciousness. He entered the hospital and stayed for two weeks. Many doctors and nurses treated him. (Id. at 2).

Although the plaintiff was heavy, the medical providers did not order a bariatric bed for him until eight days into his admission. At that time, they diagnosed him with a sacral pressure ulcer. The patient underwent surgical debridement of the ulcer and left after discharge three days later. (Id. at 2-3).

Two weeks after discharge, after losing consciousness, the plaintiff went to another hospital, where they diagnosed him with a stage three sacral decubitus ulcer. He received further treatment, transferred to another hospital, and subsequently discharged. For six months, he would have severe discomfort from the ulcer, including the inability to sit for more than two hours at a time. (Id. at 3).

The plaintiff filed his claim in the Healthcare Alternative Dispute Resolution Office (HCADRO). (Id. at 3). The plaintiff filed a CQE and a report from his proposed expert witness addressing the allegations of breach. The defense moved to dismiss, arguing that the CQE and report were insufficient under CJP 3-2A –01. The circuit court granted the motion to dismiss. (Id. at 1).

The basis for the circuit court’s dismissal was that the plaintiff’s expert in general surgery did not meet the related specialty requirement of overlap in treatment and procedures with providers named in the CQE in internal medicine, pulmonary medicine, and infectious disease. (Id. at 5). The plaintiff appealed. (Id. at 1)

Appellate Court of Maryland

​The first issue in this case was the peer-to-peer requirement between the attesting expert and the medical providers:

In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert concerning a defendant’s compliance with or departure from standards of care shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action. CJP § 3-2A-02(c)(2)(ii)(1). (Id. at 8).

Related Specialty

Specialties are related when there is an overlap in treatment or procedures within the specialties and therefore an overlap of knowledge of treatment or procedures among those experienced in the fields or practicing in the specialties, and the treatment or procedure in which the overlap exists is at issue in the case. (Id. at 9).

A CQE that satisfies the peer-to-peer requirement as to some named providers, but not others, satisfies the requirement overall because the plaintiff is not required to prove his case with the CQE. In reviewing the CQE, the trial court is to accept the assertions in the certificate, just as courts accept a plaintiff’s well-pleaded facts and allegations in a complaint. (Id. at 10).

Here, the expert was a board-certified general surgeon, and the named physicians were board-certified in internal medicine, infectious diseases, neurology, pulmonary disease, radiology, hospice and palliative medicine, and geriatric medicine, in addition to the nurses. The expert was also trained and certified in advanced wound care and post-surgical follow-up care. The procedure at issue was the failure to monitor the development of, document, and treat sacral decubitus ulcers. (Id. at 11).

Holding on Related Specialty in CQE

The Appellate Court held that the treatment at issue here was the physical examination of a patient who had been sitting for days in a hospital bed. It was one shared between specialties, whether performed by surgeons before or after surgery, or by an internal medicine doctor as a hospitalist. The internal medicine doctors and general surgeons here both had the same type of initial training and shared a basic knowledge and skills of the profession. (Id. at 11).

The Appellate Court held that the circuit court erred. The circuit court acknowledged that the medical specialties overlapped in performing physicals but incorrectly dismissed the case. The court failed to recognize that the procedure at issue involved the proper physical exam of a patient. (Id. at 12).

In this case, examining, documenting, and diagnosing medical problems, including ulcers, was a procedure shared by both general surgeons and internal medicine doctors. Additionally, because the CQE met the peer-to-peer requirement for the named physicians who are board-certified in internal medicine, the CQE is sufficient for that requirement, even though the CQE may not meet the exact requirement for the named nurses or other specialties. (Id.).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Related Specialty in CQE

​CQEs continue to be a stumbling block in litigation for parties, lawyers, and courts. In this case, the circuit court recognized that the specialties overlapped in the physical examination but failed to appreciate that this was the central issue.

With a decubitus ulcer, several medical providers attending to the patient will be involved in preventing, assessing, and treating the ulcer. Even though these specialties each have some training that the others do not, there is a common denominator regarding decubitus ulcers.

Application of the straightforward facts to clear precedent should have resulted in the denial of the motion to dismiss. The plaintiff had met the related specialty requirement in the CQE. The dismissal has real consequences. The plaintiff had to incur the legal costs and expenses of pursuing an appeal and waiting one year and four months to return to the beginning of litigation in the trial court. A party deserves better than this.

A Note on Damages

Due to the extensive time and considerable expense in medical malpractice cases, many medical malpractice lawyers will only pursue cases for permanent physical injuries of a certain level. In a decubitus ulcer case, this usually means the ulcer becomes infected and leads to fatal sepsis. When a decubitus ulcer heals, it can be difficult to obtain substantial damages.

In this case, there’s no indication that the decubitus ulcer led to a permanent physical injury. The complaint seemed to emphasize the six-month period needed for healing. An added factor is that the juries in Circuit Court for Allegany County are generally considered more conservative on medical malpractice cases than in several other Maryland counties.

Another complicating issue for liability is that the plaintiff was heavy. Even with the best equipment, it can be challenging to prevent decubitus ulcers entirely. In this case, however, there appears to be evidence of a significant delay in obtaining the appropriate bed for the plaintiff. It also seems that several medical providers were involved in that failure. This delay may be the evidence that the plaintiff believes is most compelling in pursuing his case. It will be interesting to see what happens on remand.

You can read other Blog posts on issues involving Expert Testimony, including:

• Related Specialty: Street v. UPMC 1
• Nurse CQE: Robinson v. Canton
• CQE & Report: Powell v. Wurm

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.

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Factual Background

​The patient in this case was diagnosed with prostate cancer. He then consulted with the defendant radiation oncologist and proceeded with a treatment of hormone therapy and radiation. The treatment included the doctor’s administration of the drug Amifostine. This drug was supposed to protect the bladder and rectum from radiation inflammation. The patient was later diagnosed with Stevens-Johnson syndrome. This syndrome is 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 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).

Expert Testimony

The plaintiffs designated a pharmacist as an expert witness in drug therapy as it applies to oncology. (Id. at 5-6).

In a de bene esse deposition, the pharmacist then testified that the doctor should not have used Amifostine in a patient getting radiation for prostate cancer. He also supported his opinion by testifying that the FDA had not approved it for prostate cancer, and warned against it in older patients. (Id. at 6-7).

The circuit court excluded the pharmacist’s de bene esse testimony. The court found that the pharmacist was not a medical doctor and did not address informed consent standards. (Id. at 9).

The plaintiffs then proffered:

The pharmacist would testify to, inter alia, the risk factors associated with Amifostine; that Amifostine has only benefited patients suffering from head & neck cancer, and kidney cancer; that the efficacy of Amifostine in treating prostate cancer was unknown; that the package insert cautions against use in older patients; that there are no other known alternatives to Amifostine, and that the Food and Drug Administration did not approve Amifostine for the treatment of prostate cancer. (Id. at 10-11).

The judge excluded the pharmacist from testifying at trial. (Id. at 11). The jury found for the defense. It specifically determined that a reasonable person, having been informed of the material risks of Amifostine, would not have refused treatment. (Id. at 15).

The Court of Special Appeals reversed. (Id. at 16–17). The defendants then appealed. (Id. at 2-3).

Court of Appeals on Informed Consent Expert Testimony

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 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 doctor must disclose material risks. (Id).

Negligence 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).

The CA held that expert testimony is necessary to assist the trier of fact in understanding the severity and likelihood of the risk, so that the trier of fact may assess the material risks of the proposed treatment. (Id. at 24).

The pharmacist may have qualified to testify about the material risks of administering Amifostine. Still, he did not render such an opinion in his de bene esse deposition or in the proffer of his trial testimony. (Id. at 26).

The pharmacist did not address the severity or likelihood of the risks of administering Amifostine; instead, he opined only on the existence of risk. (Id. at 31).

Therefore, the trial judge did not abuse his discretion in excluding the testimony. (Id. at 32-22).

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

Commentary By Baltimore Medical Malpractice Lawyer Mark Kopec on Informed Consent Expert Testimony

​Informed consent claims are not nearly as prevalent as negligence-based claims in medical malpractice cases. When a plaintiff pursues an informed consent claim, they must closely examine the elements they must meet.

In this case, the plaintiff submitted testimony that sounded in negligence. The deposition and proffer did not satisfy the elements of an informed consent claim.

This decision and others specifically provide the roadmap and checklist for a plaintiff seeking to put on an informed consent claim successfully.

Another point to emphasize in informed consent cases is that it is an objective standard. The jury does not have to accept the plaintiff’s testimony that they would not have pursued the treatment if the doctor had provided all of the information. The jury makes its own determination.

We get calls from plaintiffs who have experienced significant side effects from treatments and then claim the doctor did not disclose those effects. In many instances, however, the entire picture reveals that the treatment was so critical to the patient’s ability to regain health that it would be unlikely that a jury would find the risk of side effects was not worth 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.

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Factual Background on Expert Witness Inference in Medical Malpractice

After birth at 4:28 a.m., the baby then went to the hospital’s special care nursery. He was a “critical” baby who was supposed to receive constant monitoring. The monitor was to emit an alarm if oxygen saturation went below 90%. (Op. at 5).

At 4:35 a.m., 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 dropped to 88-90%. The nurse then placed oxygen near the baby’s nose. After the removal, when the level dipped again, the nurse switched to nasal cannula oxygen, and the level rose to 100%. (Id. at 6).

At 5:30 a.m., nurses inserted an IV line, drew blood, and also administered vitamin K and an antibiotic. There was no mention of breathing problems during those procedures. (Id. at 7). However, 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 experienced seizures. Testing showed a brain injury (bilateral diffuse anoxic ischemic injury). (Id.). The child now has cerebral palsy. (Id. at 8). 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).

Expert Witness Inference

The plaintiff’s expert witness 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).

Even though records did not indicate bradycardia, the expert stated that it could have happened without nurses documenting it. He did not know if the nurses had left the bedside during the ten minutes to get supplies or whether they had suspended the alarms. (Id. at 10).

The expert noted that the record showed that the birth was normal and that the brain injury occurred approximately one hour later while in the nurses’ care. (Id. at 10). The expert testifies that the entire team breached the standard of care by failing to monitor and respond to the hypoxic episode promptly and adequately. (Id. at 11).

The circuit court denied the hospital’s motion to exclude the expert’s opinions regarding the standard of care and causation. (Id. at 11-13). The jury issued a verdict in excess of $34 million in favor of the plaintiffs. The hospital appealed. (Id. at 1).

Appellate Court of Maryland on Expert Witness Inference in Medical Malpractice

The hospital based its argument on the plaintiff’s expert opinion that the nurses breached the standard of care and causation. The hospital argued that the expert impermissibly based his opinion on the mere fact of injury and its timing. It amounted to guesswork with no factual basis or competent methodology. (Id. at 35). On appeal, the hospital stated that it did not challenge the opinion that the brain injury occurred between 5:30 and 5:40. (Id. at 48).

However, the hospital failed to preserve its argument about methodology. (Id. at 36). The hospital filed a motion to exclude the expert, citing inadequate data and an unreliable method of analysis. In the trial, however, defense counsel only objected to the expert’s qualifications. (Id. at 37-38).

Permissible Expert Witness Inference

The Appellate Court observed that medical records did not document any events between 5:30 a.m. and 5:40 a.m., any interaction between medical staff and the child, or any monitoring that occurred during this period. (Id. at 48). The plaintiff’s expert inferred that the nurses failed to promptly and properly monitor and respond to hypoxia. The court held it was inference, not speculation. (Id. at 48-49). 

The hospital contended that the expert improperly ignored evidence that the nurses and doctor were present during that time period; however, the court recognized that this was a disputed fact, and the trial court could not resolve that dispute in its ruling. (Id. at 49).

The hospital further contended that the opinions did not comply with the law on expert inferences, as established in Meda v. Brown and the subsequent cases. It argues that inference from injury is only permissible if the expert testifies that the injury would not have happened in the absence of negligence. It notes the expert did not testify to that here. However, the court observed that case law does not require such a requirement to make an inference. (Id. at 49-51).

As a result, the trial court did not abuse its discretion in denying the hospital’s motion to exclude the expert opinion. (Id. at 51-52).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Expert Witness Inference

In defending the case, the hospital argued that the injury happened over the course of six weeks toward the end of the pregnancy or throughout the pregnancy. It claimed the cause was repeated umbilical cord compression that limited oxygen to the baby. (Id. at 26-27).

However, there was no contemporaneous indication of deprivation of oxygen during that time that would cause a permanent brain injury of this type. The irony here, as is often the case, is that the defense sought to exclude the plaintiff’s expert’s opinion. Yet the plaintiff’s expert opinion had more support in the medical records than the defense experts’ opinions.

The event that the plaintiff’s expert based his opinion on was the obvious one. The baby’s oxygen saturation dropped into the 40s for an undetermined period. Consequently, that provides the most likely cause of injury. The baby had turned dusky. Seizures started just hours later. There was no other event during the entire pregnancy that revealed such deprivation of oxygen.

The Appellate Court correctly applied Meda and the following cases in finding that the plaintiff’s expert based his opinion on proper inference. In its challenge, even the hospital acknowledged that the plaintiff’s expert was allowed to testify to the timing of the injury. The hospital’s contention that he could not describe the mechanism was puzzling. The fact that oxygen saturation levels in the 40s during this period can cause the exact injury that occurred is well established in medicine.

The hospital’s failure to make notations in the medical record cannot defeat opinions that were based on probability and also complete the picture that the staff noted in the records. There was nothing speculative or conjectural in the expert’s opinion. 

Failure to Preserve Expert Inference Issue for Appeal

The hospital’s approach to opposing the plaintiff’s expert opinions was inconsistent. Before trial, it sought to exclude the opinion based on impermissible inference. At trial, however, the hospital did not renew that objection as required. Instead, it claimed the expert could not testify to the standard of care of the nurses. Apparently, the hospital came to recognize the futility of that argument and did not press it on appeal.

The decision to allow the plaintiff’s expert opinion was in accordance with well-established Maryland law. It is not likely to draw interest from the Maryland Supreme Court. However, in part 2 of the Blog post on this case, I will discuss the other issue on which the Appellate Court reversed this judgment.

You can read Blog posts about other issues involving 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.

Factual Background on CQE & Report – Medical Malpractice

The patient suffered from chronic pulmonary emboli. She underwent placement of a filter in the inferior vena cava by the defendant radiologist. During the procedure, the filter perforated the wall of the inferior vena cava. It did not end up in the correct location. The patient needed an additional surgery to remove the filter and repair the damage. The patient died a year later. There was no wrongful death claim that the procedure caused the death. (Op. at 1-2).

The decedent’s husband filed a medical malpractice claim in the Circuit Court for Prince George’s County. He included a certificate of qualified expert (CQE) and report from a radiologist expert witness.  CJP § 3-2A-04(b)(1)(i), (3)(i). The defendant moved to dismiss the case, contending that the expert’s report was insufficient. The defense argued that the report merely repeated the CQE and failed to explain how the defendant breached the standard of care, with some details supporting the CQE. (Id. at 3).

The plaintiff responded that discovery was necessary to determine what exactly caused the perforation. The circuit court granted the motion to dismiss. The plaintiff appealed. (Id. at 4-5).

Court of Special Appeals

On appeal, the plaintiff noted that the statute does not mandate the contents of the report, but only requires that it be attached to the CQE. (Id. at 5).

The CSA observed that the statute requires the CQE to state that there was a departure from standards of care that proximately caused injury. It does not state what the report should contain. (Id. at 6).

The CSA found that the plaintiff’s CQE satisfied the CQE requirements. The CSA then reviewed Maryland opinions on reports, concluding that the report must state the standard of care and provide some information on how or why the defendant failed to meet it. (Id. at 8).

The CSA found that the report satisfied the case law standard. The report specified that the applicable standards of care the defendant allegedly violated were the standards of care in the placement of an inferior vena cava filter, and then asserted that the defendant violated this standard of care by the doctor’s failure to exercise appropriate care and technique. It stated that, as a consequence of his failure to exercise proper care and technique, the doctor perforated the wall of the patient’s inferior vena cava and deposited the filter in an extravascular location, thus necessitating subsequent surgery to remove the filter and repair the caval laceration. (Id. at 8).

Further, this additional information was not in the CQE, so the report did not merely duplicate the CQE. (Id.).

Further Analysis

The CSA’s approach is straightforward: even if a report is deemed insufficient, the court will consider the CQE and report together to determine if they collectively meet the statutory requirements. This combined approach means that a report that duplicates the CQE is not necessarily invalid, as long as all the necessary information is present in the CQE.

In fact, the CSA stated that a single document can suffice as long as it provides the required information. In sum, the expert’s submission must identify the defendant physician; state that the defendant breached the applicable standard of care; opine that such a departure from the standard of care was the proximate cause of the plaintiff’s injuries; and provide some details as to what the standard of care was and how the defendant physician failed to meet it. (Id. at 11). 

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on CQE & Report

This reported opinion is a significant case on the interplay between CQE and reports. Defendants have repeatedly tried to assert form over substance in challenging plaintiffs’ expert submissions.

This case sets a clear precedent for Maryland courts, emphasizing the need to consider the CQE and report together when evaluating their collective compliance with the information requirements.

Despite the clarity provided by this case, plaintiff medical malpractice lawyers should remain vigilant in this area. This opinion, issued by the intermediate Maryland appellate court, may not be the final word. Defendants will likely continue to exploit any potential technicality involving CQE and report to defeat claims. 

Many medical malpractice lawyers, anticipating potential challenges, submit a CQE that states the defendant breached the standard of care, which was the proximate cause of the injury. They then attach a report that provides additional information about each of these components. This meticulous combination not only satisfies the statute but also preempts any argument that the report adds nothing to the CQE.

Note on Damages

Another interesting aspect of this case was the injury alleged. The patient was required to undergo a second procedure to fix the damage and remove the filter. Due to the extensive time and high expense of pursuing these cases, many medical malpractice lawyers will not pursue a claim unless the malpractice causes a permanent physical injury. It does not appear that that was the situation here.

In addition, many medical malpractice lawyers will not pursue a case where the patient died from a cause unrelated to the medical malpractice.

After remand, the parties dismissed the case without prejudice. This dismissal often indicates that the parties settled; however, we cannot be certain.

For additional Blog posts on expert witness issues, including CQEs and reports, see the Expert Testimony category.

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 saw the defendant, a general surgeon, to remove breast cancer from her left breast surgically. Afterward, the surgical site became swollen and red. The defendant then prescribed antibiotics for the plaintiff. (Op. at 9).

However, the condition did not improve, and the defendant did not provide any additional treatment. The plaintiff then went to a different medical provider. A test subsequently revealed MRSA, and the plaintiff had surgery to remove infected tissue from her breast. (Id. at 9-10).

The plaintiff filed suit in the Health Claims Alternative Dispute Resolution Office (HCADRO). HCADRO granted her an automatic 90-day extension to file her certificate of qualified expert and report from her expert witness.  CJP §3-2A-04(b)(1), (3). The plaintiff requested and received an additional extension. The plaintiff filed a CQE, but not a report. (Id. at 10-11).

The plaintiff waived arbitration and filed a complaint in the Circuit Court for Howard County. The defense moved to dismiss for no expert report with the CQE. Before the court considered the motion, the plaintiff voluntarily dismissed the complaint by stipulation, signed by both parties, as the defendant had already filed an answer. (Id. at 11).

About a week later, the plaintiff filed a second claim in HCADRO, including a CQE and report. The plaintiff waived arbitration and then filed a complaint in the Circuit Court for Prince George’s County. (Id. at 11-12). The defendant moved to dismiss based on the statute of limitations, and the circuit court granted the motion. The plaintiff appealed. The Court of Special Appeals affirmed, and the plaintiff appealed to the Court of Appeals. (Id. at 13).

Court of Appeals

The plaintiff’s re-filing took place after the statute of limitations had expired. The plaintiff sought to invoke CJP 5-119. That section allows a plaintiff to re-file a claim that the court dismissed once for filing no expert report. The time allowed for re-filing is the later of the time remaining in the statute of limitations, or 60 days. The plaintiff re-filed within the 60-day time frame. (Id. at 8, 11).

However, CJP 5-119(a)(1) states that the savings provision “does not apply to a voluntary dismissal of a civil action or claim by the party who commenced the action or claim.” The issue before the Court of Appeals is whether a stipulation of dismissal signed by both parties falls within this definition. (Id. at 14). The CA concluded that it did. (Id. at 15).

The CA noted a long history of considering treating stipulations of dismissal as voluntary dismissals by the party that filed the complaint. (Id. at 16).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Providing No Expert Report with the CQE

The interplay between general rules and medical malpractice-specific roles can be complex and a minefield. When the court dismisses a case for no expert report with the CQE, the plaintiff can re-file the case. However, if the plaintiff voluntarily dismisses for the same reason, they are precluded from re-filing. This complexity underscores the need for professional analysis in such cases.

These differing results under different circumstances are not something that comes intuitively; rather, the lawyer must glean them by applying the rules. The consequence of failing to do so was great, as the court precluded the plaintiff from pursuing the case for providing no expert report. This case highlights the crucial importance of carefully considering and applying legal rules at every stage of a legal process.

It is noteworthy, however, that this was a claim that many medical malpractice lawyers would not have pursued. Firstly, without minimizing the damages incurred, the damages here are not the type of permanent damages typically associated with a medical malpractice case. Secondly, MRSA cases can be challenging to pursue, particularly with causation, because they are such complicated infections. These considerations underscore the importance of strategic planning and thoughtful consideration of potential challenges in medical malpractice cases.

As a result, even though the court barred the plaintiff from pursuing her case for no expert report, it likely would’ve been a very challenging case to prevail on.

For additional posts on CQEs and other expert issues, see the expert testimony category.

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

This case involved an independent contractor who provided transportation services in an MTA program for individuals with disabilities. The plaintiff was legally blind. He fell stepping from the curb into the street to board a van and broke his wrist. He then sued the contractor in the Circuit Court for Baltimore City. (Op. at 1-2).

During discovery, the parties had disputes. Specifically, the defendant contended that the plaintiff did not identify all of his prior medical providers. The defendant did its own investigation and subpoenaed records from providers the plaintiff had not identified, including pain management records relating to an ankle injury from a prior car accident. (Id. at 3-4).

Initially, the defendant had designated an orthopedic surgeon as an expert witness. He would testify regarding the plaintiff’s injuries, their relationship to pre-existing conditions, the permanence of the injuries, and also his treatment. However, his report did not offer an opinion on the cause of the fall. (Id. at 5-6).

Late Designation

Two months after the close of discovery, two weeks before trial, and hours before the de bene esse deposition of the defendant’s expert, the defense served a late supplemental expert designation that included an opinion that the plaintiff’s “significant right foot injury, and triple arthrodesis with ongoing pain management, resulted in gait and ambulation problems, and may have contributed to the . . . fall.” The defense provided this supplement based on the medical records it had subpoenaed. Afterward, the plaintiff did not postpone the de bene esse deposition or seek a discovery deposition of the expert. (Id. at 6-7).

The expert testified that the plaintiff had knee instability, abnormal foot and ankle function, and a lack of feeling in his feet and ankles due to neuropathy, opining that all contributed to gait and ambulation problems and a heightened risk of falling. He opined that the plaintiff’s prior ankle injury and his gait and ambulation problems were contributing factors to his slip and fall. (Id. at 7).

Motion to Strike

The plaintiff moved to strike the defendant’s supplemental expert designation and exclude the expert’s opinion about the cause of his fall. At first, the court granted the plaintiff’s motion. But after hearing more about the history of the parties’ discovery dispute, the defendant’s discovery and subpoenas to medical providers that the plaintiff hadn’t disclosed previously, and its assertion that the expert had relied on records from the undisclosed providers to form new opinions, including records of ongoing pain management treatment for the ankle injury, the court struck its prior ruling and denied the motion. (Id. at 7-8).

The jury found that the defendant had been negligent. Still, it concluded that its negligence had not been the proximate cause of the plaintiff’s injuries. (Id. at 8).

Appellate Court of Maryland

On appeal, the defendant argued that if the plaintiff had disclosed all of his prior medical providers in his initial response to the interrogatories, the defendant would not have had to make a late supplemental expert designation. (Id. at 12). The Appellate Court found the defendant had a legitimate documented reason for the late supplemental disclosure. (Id. at 14). 

The plaintiff also argued that the defense expert already had an operative report from the prior ankle injury and did not need the pain management records to arrive at the late opinion. The Appellate Court rejected that contention, stating the circuit court was allowed to accept the expert’s statement that he relied on the pain management records for the new opinions, without scrutinizing whether that was true. (Id. at 15).

The plaintiff complained of being surprised, which prejudiced him. The Appellate Court noted that the defense had offered to postpone the trial to allow for a discovery deposition and a redo of the de bene esse deposition of its expert. However, the plaintiff declined. (Id. at 16). The Appellate Court upheld the judgment. (Id. at 18).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Late Expert Designation

This appeal was going to be hard for the plaintiff to win. It was an uphill battle due to the deferential standard of review that the appellate court uses – specifically, whether the trial court abused its discretion.

This case is a reminder that the courts are unlikely to have much sympathy for a party complaining about another party’s delay when the complaining party’s actions contributed to the delay. This decision sets a precedent for future cases, emphasizing the importance of timely and complete disclosure of information. It also serves as a cautionary tale for parties who may be tempted to delay or withhold information, as the court is unlikely to tolerate such behavior.

You can read other 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 on Diagnosis in Nurse CQE

Unless the sole claim is lack of informed consent, a plaintiff in a Maryland medical malpractice case must submit a Certificate of Qualified Expert (CQE) attesting to a departure from the standard of care that proximately caused injury. Md. Code Ann. CJP 3-2A-04-(b)(1)(i)1. The issue in this case was whether a registered nurse may sign the CQE in a claim against a skilled nursing facility for allowing a patient to develop pressure ulcers. (Op. at 1).

Following a stroke, the patient went to the defendant skilled nursing facility. While there, the patient developed pressure ulcers, also called decubitus ulcers or bedsores. The patient went to other facilities where his pressure ulcers worsened, and he became septic and subsequently died. (Id. at 1, 8).

The plaintiffs were the decedent’s wife and children. They filed a complaint in the Circuit Court for Baltimore City. They contended that the defendant’s negligence caused the pressure ulcers to develop, spread, and then become infected, ultimately causing the wrongful death. (Id.). 

The plaintiffs also submitted a CQE signed by a registered nurse. The circuit court granted the defendant’s motion to dismiss, holding that the registered nurse could not sign the CQE. The Appellate Court of Maryland reversed. You can read a Blog post on its opinion: Robinson v. Canton 1. The defendant then appealed. (Id. at 2).

Supreme Court of Maryland on Diagnosis in Nurse CQE

The medical provider signing the CQE shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the negligent act. CJP § 3-2A-02(c)(2)(ii)1.

The registered nurse’s CQE stated that she was familiar with the standards of care for treatment of patients in circumstances like the deceased ‘s. She also attached a 19-page report. The patient was unable to move or communicate, relying on the nursing staff to turn and reposition him. (Id. at 9). 

The nurse documented failure to prevent friction or shearing; inadequate use of Barrier Cream (Id. at 11); and failure to provide supplements for wound healing. The nurse opined that the defendant breached the standard of care, its policies and procedures, and also state and federal regulations. (Id. at 12).

In opposing the motion to dismiss, the nurse submitted an affidavit stating she had been a nurse for 16 years, and she routinely performed skin evaluations, identified and classified pressure ulcers, and proposed treatments. She specifically had done this for over 500 patients and had routinely diagnosed the cause of pressure ulcers. (Id. at 16).

At the circuit court, the plaintiffs abandoned the wrongful death claim, and afterward, the wife continued as plaintiff for the survival claim. (Id.). 

Analysis

The Supreme Court’s conclusion in this case has significant implications, affirming that a nurse may sign a CQE that a breach of standards of nursing care caused the pressure ulcer, provided that the opinion consists of a nursing diagnosis and not medical causation. In its analysis, the Supreme Court emphasized that the nurse was accepting a medical diagnosis made by another health care provider. (Id. at 23).

The court discussed state and federal regulations and concluded that the identification, prevention, and treatment of pressure ulcers “fall comfortably” within the scope of nursing care. The court further stated that it is an open question whether identifying the proximate cause of a pressure ulcer is within a nursing diagnosis or a medical diagnosis and quoted the Appellate Court of Maryland’s opinion in this case, concluding that it is a nursing diagnosis. (Id. at 27).

The Supreme Court also discussed the peer-to-peer requirement of the CQE statute, which requires certain experience in the defendant’s specialty or related field. CJP § 3-2A-02(c)(2)(ii)1A. The defendant argued that the nurse had improperly attested to a physician’s failure to meet the standards of care. The Supreme Court confirmed that the nurse could not do that. (Id. at 29-30).

Challenge to Trial Testimony

Before concluding, the Supreme Court stated that it reviewed the medical literature. It concluded that it is possible that some pressure ulcers can be diagnosed by a nursing diagnosis, and a medical diagnosis would not be necessary. The nurse’s CQE in this case avers that a medical diagnosis is not necessary in this case. The defense can raise a Daubert-Rochkind challenge to the nurse’s qualifications or opinions, including the dissent’s argument that the opinions were ipse dixit, or “because I say so.” However, these arguments go to the nurse’s testimony at trial do not invalidate the CQE. (Id. at 35 n. 25).

The Supreme Court’s decision was a plurality opinion that three justices joined in. A fourth justice wrote a concurring opinion.

Concurrence

The concurrence noted that the CQE requirement does not determine the admissibility of expert testimony at trial. (Conc. at 3). The statute is not limited to doctors and does not state that the signer must be qualified to make a specific type of diagnosis. The basic criteria relate to experience and amount of time involved in personal injury litigation (set forth above), and also similarity of training, experience, and community (“locality” requirement). (Id. at 3-4).

The concurrence noted that the statute requires attestation to proximate causation, not medical diagnosis. The CQE statute also does not provide for a test of admissibility of expert evidence under Rule 5-702 or Daubert-Rochkind, including whether a specific health care provider can make a particular type of diagnosis. (Id. at 10-12).

The concurrence concluded that the nurse’s credentials satisfied the CQE requirements for the standard of care and proximate cause for the defendant’s nursing staff. There is nothing in the CQE statute that permits inquiry into other testimony standards. (Id. at 12). The HCADRO director or trial judge is supposed to assess compliance with the CQE requirements, not determine testimony admissibility under Rule 5-702. (Id. at 19-20).

There was also a concurring and dissenting opinion by three justices.

Dissent

The dissent concluded that there was insufficient evidence that the matter involved a nursing diagnosis, and not a medical diagnosis. (Dissent at 1, 30). The dissent concluded that a registered nurse cannot provide expert testimony concerning a medical diagnosis and cannot provide medical causation. When medical causation is required, they cannot give a CQE on proximate cause. (Id. at 12).

The dissent also addressed issues that the defendant did not raise at the trial court. The dissent concluded that the nurse’s opinion was ipse dixit because she opined that the only cause of the pressure ulcers was the breach of the standard of care, and did not explain how she ruled out the effect of the patient’s medical conditions and medications on the formation of the pressure ulcers. (Id. at 8-9, 38). The dissent also concluded that the CQE was insufficient because it did not name individual agents of the defendant. (Id. at 23-24).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Diagnosis in Nurse CQE

The concurring opinion is the one that reflects the statutory language and purpose, the cases interpreting it, and the practice in medical malpractice cases. There are significant problems with conflating the CQE requirements and the admissibility of testimony standards for trial.

The following are things that have not been done yet at the time that the CQE is filed with and reviewed by the court. The parties have not yet:

• Exchanged medical records
• Deposed the plaintiffs and medical providers
• Identify or depose expert witnesses.

One thing that can happen, and did in the dissent, is that the legal process goes straight to medical literature without the benefit of a fully developed record. The result is that lawyers and judges, lacking medical training, often evaluate medical literature without the necessary background. I have seen cases where medical experts correct a lawyer’s or judge’s misunderstanding of medical literature due to a failure to grasp a specific medical nuance. The result is much more reliable when medical experts use medical literature with a fully developed record.

Dissent

After examining medical literature, the dissent concluded that the registered nurse could not opine on the proximate cause of the pressure ulcers because it involved a medical diagnosis that she could not make. The dissent, however, did not stop there. It proceeded to reach conclusions on two issues that the parties had not briefed. It reached conclusions that were unsupported by the statutes, case law, and legal practice. The defendant did not even raise such arguments. The dissent is an example of the detriments of not following judicial restraint. Fortunately, it was a dissent.

Where Does this Decision Leave Us

Given the differing opinions in this case, it leaves uncertainty regarding the use of registered nurses for the proximate cause in a CQE. There is a trend of increased treatment by non-doctors in the medical field, particularly by physician assistants. The law should be able to accommodate this change. Legislative change may be needed to provide clarity in this area. Non-doctor medical providers should be able to issue CQEs when the subject matter is within their expertise and experience.

Strategic considerations

As I mentioned in the post on the Appellate Court’s decision, this case is in an unusual procedural position. Many medical malpractice lawyers don’t pursue cases when the plaintiff died unless the treatment at issue was the cause. Here, the plaintiffs abandoned a wrongful death claim, presumably because they did not have expert support for one. There specifically is a reference in the court’s opinion to treatment at subsequent facilities where the pressure wounds worsened. With that potentially complicating factor and the absence of wrongful death damages, this case may be a challenging one for the plaintiff.

For other posts on CQE requirements and proximate cause issues, see the posts in the expert testimony Blog category, including:

• CQE Agents: Dunham v. UMD
• CQE Employees: Retina Group v. Crosetto
• CQE Extension: A.C. v. Kennedy
• CQE Extension Right: Dunham v. UMD 2
• CQE Teaching Experience: Jordan v. Elyassi’s
• 20 Percent Rule: Streaker v. Boushehri
• Wrongful Death Proximate Cause: Barton v. Advanced
• ER Causation: Estate of Newton v. Javid
• Expert Causation: Kaylor v. Arrisueno
• Causation Expert: Dackman v. Fisher
• Nurse Causation: Adventist v. Mattingly 2
• Paramedic Causation: Coit v. Nappi 2

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.

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 plaintiff filed a complaint for negligence and breach of contract against a certified nurse midwife in the Circuit Court for Prince George’s County. The court then transferred the case to the Circuit Court for Howard County. The complaint specifically sought damages for surgery and kidney disease allegedly caused by malpractice. (Op. at 1).

The plaintiffs enlisted the expertise of an OB/GYN expert to opine on a breach of the standard of care and causation of the damages. In his certificate of qualified expert (CQE), the doctor stated that he did not devote more than 20% of his professional time to an activity that directly involved testimony in personal injury claims, as required by statute. Accordingly, this is the 20 Percent Rule in action. (Id. at 1-2, 7). This is one of a number of expert requirements that a lawyer must know in hiring experts.

At his de bene esse deposition, the expert testified that he spent 15% of his professional time on work that directly involves testimony in personal injury actions. The defense filed a motion in limine to exclude the expert based on a violation of the 20 Percent Rule. (Id. at 3).

The trial court noted that in a recent year, the expert had earned $324,600 from his expert work, billing at $400 per hour. This equates to 811 hours or 16 hours per week. The court concluded that this represented 33.12% and granted the motion to exclude. As the plaintiff did not have another expert, the court granted the defense’s motion for summary judgment. Subsequently, the plaintiff appealed. (Id. at 4-5).

Court of Special Appeals of Maryland on the 20 Percent Rule

The CQE requirement is in CJP 3-2A-04(b)(1)(i). The 20% Rule is in subsection (b)(4). (Id. at 6-7).

The court must make a calculation. It divides the time spent on testimony in personal injury claims by the time of professional activities in general. The activities that directly involve testimony in personal injury claims are:

(1) the time the doctor spends in, or traveling to or from, court or deposition to testify, waiting to testify, or observing events in preparation for testifying, (2) the time spent assisting an attorney or other member of a litigation team in developing or responding to interrogatories and other forms of discovery, (3) the time spent in reviewing notes and other materials, preparing reports, and conferring with attorneys, insurance adjusters, other members of a litigation team, the patient, or others after being informed that the doctor will likely sign an affidavit or otherwise testify, and (4) the time spent on any similar activity that has a clear and direct relationship to testimony to be given by the doctor or the doctor’s preparation to give testimony. (Id. at 7).

Professional activities contribute to or advance the profession to which the individual belongs or involve the individual’s active participation. (Id.). 

Burden of Proof

The CSA first held that the plaintiff has the burden of proof to establish that their expert complies with the 20 Percent Rule. (Id. at 8-10). The court noted that the record before the trial court was disputed and incomplete. There were discovery disputes and lingering questions over what information may be missing. The plaintiff’s expert also had moved in his home state to quash a subpoena for his office calendar and list of prior depositions. (Id. at 11).

The plaintiff argued that the trial court erred by including income from initial case reviews in the analysis because it involved matters in which the expert did not testify. The plaintiff added that the testimony time would have been less than 20% if removed. (Id. at 13). The CSA did not address the initial case review claim directly. Instead, it noted that the plaintiff’s expert did not provide time records. In addition, the appearance that he did not give all of his 1099s called into question the plaintiff’s calculations. (Id. at 13-14).

The CSA concluded that the trial court was well within its discretion in concluding that the defense’s calculation was more accurate based on the available evidence than the plaintiff’s calculation. (Id. at 14). The CSA affirmed the judgment. (Id. at 15).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on the 20 Percent Rule

The CSA’s ruling on the burden of proof was key to the result in this case. Once the CSA placed the burden on the plaintiff, the CSA was not sympathetic to the plaintiff’s complaints, because the difficulty in making the calculations was directly attributable to the plaintiff’s expert’s failure to provide relevant information.

The CSA stated that an expert who leaves uncertainty about the nature and extent of his activities directly involving testimony in personal injury claims risks a finding that he’s not qualified. (Id. at 14).

A plaintiff lawyer must ensure that their experts maintain and provide the information needed to satisfy the 20 Percent Rule. This task is not always easy. Many doctors who testify are very busy and are not always the most organized and compliant in providing this information. 

The High Stakes of Non-Compliance with the 20 Percent Rule 

The consequences for failing to provide clear evidence to satisfy the rule are catastrophic for the injured plaintiff when the court dismisses their case. It also can mark the end of the testifying career of the expert doctor. 

In the case here, the expert doctor moved to quash the subpoena for evidence related to the 20% Rule. This court opinion does not mean experts generally must roll over and allow overly broad subpoenas into any of their professional information. A plaintiff expert will be in the best position to oppose any overly intrusive subpoena if the expert can show that they have already provided sufficient information to demonstrate compliance with the 20 Percent Rule.

Note: At the time of this post, the statutory percentage is 25, not 20, and the relevant period is the 12 months before the claim was filed. Md. Code Ann., CJP 3-2A-04(b)(4)(ii).

You can also read other Blog 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 on Daubert Challenge to Betamethasone Testimony

The plaintiffs are parents, and also their child who was injured at birth. They then brought suit in the Circuit Court for Montgomery County. (Op. at 1). The mother was a high-risk pregnancy. She sought care from the defendants at 24 weeks for persistent abdominal and back pain. The defendants conducted certain assessments of the mother. However, they discharged her with a pain reliever. (Id. at 2-3).

The next morning, the mother went to another hospital, complaining of continued pain and vomiting. Her blood pressure was high, and she warranted medicine. She was then diagnosed with preeclampsia and acute hepatitis. (Id. at 3). The medical providers gave Betamethasone, a drug that can improve health outcomes for preterm babies, and transferred the mother to another hospital. When her liver continued to decline, the doctors decided to deliver the baby the next morning. The baby’s Apgar scores were poor, he was diagnosed with multiple medical conditions and spent five months in hospitals. The plaintiffs contend that he has cognitive impairments and delays attributed to prematurity and will require lifelong care. (Id. at 4-5).

The plaintiffs’ case hinges on the testimony of their expert witnesses, which asserts that the defendants failed to diagnose the mother with preeclampsia, treat the preeclampsia, and administer a full course of Betamethasone, which would have mitigated the injuries suffered.

The defendants filed motions in limine to preclude the testimony of the plaintiffs’ experts on causation, and specifically challenged the Betamethasone testimony under Daubert. The circuit court then granted the motions, finding that the experts did not explain how their education and experience supported their opinions and that the facts and literature did not support their opinions. The circuit court also entered summary judgment for the defendants, and the plaintiffs appealed. (Id. at 6).

Appellate Court of Maryland on Daubert Challenge to Betamethasone Expert Testimony

The plaintiffs argued that the circuit court erred by focusing on the failure of the plaintiffs to produce ACOG guidelines discussed in depositions and ignoring the 20 articles they did provide. (Id. at 10-11). The Appellate Court examined two aspects of the causation testimony: 1) Firstly, that medical care could have extended the pregnancy for an entire course of Betamethasone, and 2) secondly, that course would have mitigated the injuries. (Id. at 14).

The plaintiffs argued that had the defendants admitted the mother, she would have stabilized, and it then would have extended the pregnancy from two days to a week. The plaintiffs had three expert witnesses testify in support of these matters based on their experience and literature. However, the pregnancy only had to be extended by 12-14 hours for the mother to receive both needed doses of Betamethasone. The Appellate Court found that the plaintiffs’ experts had a sufficient factual basis for their opinions on extending the pregnancy. (Id. at 15-17).

Second Aspect

The second aspect of the challenged testimony under Daubert was whether the full Betamethasone would have mitigated the baby’s injuries. The plaintiffs’ experts testified that with the Betamethasone, the child would not have received the brain bleed and respiratory distress syndrome that relate to his disabilities. (Id. at 17). The plaintiffs’ experts specifically referenced medical literature to support their opinions. One expert provided a list of 17 studies and two textbooks. The Appellate Court reviewed the medical literature and found that it substantially supported the plaintiff’s expert opinions. (Id. at 18-21).

The Appellate Court noted that the circuit court did not hold an evidentiary hearing. It heard arguments from counsel only, based on deposition testimony. (Id. at 22).

The circuit court based its ruling on guidelines that the plaintiffs did not produce. Still, it was required to address the literature the plaintiffs did produce and “clearly” did not. Moreover, a review of the plaintiffs’ expert testimony shows that the circuit court’s conclusion that the literature and facts did not support the expert testimony was “demonstrably incorrect.” Viewing the evidence in the light most favorable to the plaintiffs, the Appellate Court concluded that the circuit court abused its discretion in ruling against the plaintiffs’ Betamethasone testimony under Daubert. (Id. at 23-24). 

Guidance

The Appellate Court favorably cited the following from the 9th Circuit, and noted other Circuits agree:

We have some guidance in the cases for applying Daubert to physicians’ testimony. A trial court should admit medical expert testimony if physicians would accept it as useful and reliable. But it need not be conclusive because medical knowledge is often uncertain. The human body is complex, etiology is often uncertain, and ethical concerns often prevent double-blind studies calculated to establish statistical proof. Where the foundation is sufficient, the litigant is entitled to have the jury decide upon the experts’ credibility rather than the judge.  (Id. at 25).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Daubert Challenge to Betamethasone Expert Testimony

The most disturbing aspect of the circuit court’s actions is that it “clearly” did not review the plaintiff’s literature on Betamethasone in deciding under Daubert to dismiss for all time the minor plaintiff’s claim for compensation needed for a lifetime of care. It is very telling that the Appellate Court did not simply say to the circuit court that it got the analysis wrong and to redo it. Instead, the Appellate Court analyzed the situation to fix the circuit court’s “demonstrably incorrect” conclusion.

This opinion and other recent ones reflect a more extensive problem. In the five years since the Maryland Supreme Court adopted the Daubert standard, the circuit courts still struggle significantly in applying it.

Uncertainty

There is a repeated pattern of uncertainty about what a Daubert hearing should involve. Circuit courts are holding Daubert hearings without taking evidence. Instead, the lawyers make their arguments based on depositions. However, in nearly all cases, the questioning in depositions is almost entirely conducted by the opposing party. The use of depositions does not allow a party to elicit testimony to address the specific arguments raised at the hearing. In addition, at these hearings, lawyers often make arguments based on their interpretations of medical literature, which they are not qualified to interpret. In many cases, a Daubert hearing should be an evidentiary hearing. There, the parties can put on expert medical testimony and discuss applicable medical literature through that testimony.

It is understandable why plaintiffs are not excited about this. Presenting expert testimony at a Daubert hearing is a costly proposition for plaintiffs. Most of the plaintiff’s experts are out of state. The cost of having experts travel to and participate in a Daubert hearing may be as much as having them attend the trial. However, as this case demonstrates, the alternative is also expensive and time-consuming – an appeal to correct matters that takes longer than a year.

More and more defendants are gravitating toward these Daubert challenges, like this one involving Betamethasone. The hearings will continue to increase the cost of bringing medical malpractice cases for plaintiffs. However, putting on the proper evidentiary case in the circuit court will be key to advancing the case and surviving any appeal.

Related Posts

For other Blog discussions on Maryland Daubert cases, see the posts in the Expert Testimony category, including R.B. v. Hinting, Kiebler v. Johns Hopkins 1, Monroe v. UMMC 3, and Asokere v. Waldrop.

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

A 30-year-old woman was attempting to conceive a child, and her gynecologist incorrectly told her that her blood tests were normal. She had Diminished Ovarian Reserve (DOR), which causes the egg cells to diminish more rapidly. Her AMH level, a measure of ovarian reserve, was .212, well under the threshold for DOR. Accordingly, the gynecologist should have referred her for fertility treatment. (Op. at 1, 3).

The patient learned of the DOR 18 months later. By then, her AMH had decreased to .07. She immediately started fertility treatment but could not conceive. By August 2020, her AMH was then down to .03. At that point, further fertility efforts were not likely to succeed. (Id. at 1, 5).

She brought suit against the gynecologist and employer in the Circuit Court for Baltimore City. (Id. at 1, 4). She alleged that had the doctor told her of the blood tests, she then would have started fertility treatment that would have given her a likelihood of a successful pregnancy. The plaintiff had an expert witness whose qualifications included REI. (Id. at 6). The expert’s opinion on the likelihood of a successful pregnancy became the central issue in this case.

Daubert Motion

The defense filed a motion to preclude the plaintiff’s REI expert under Daubert, but the plaintiff opposed it. (Id. at 12, 16). The defense raised many arguments in their papers. The plaintiff’s expert testified at deposition that he had relied in part on nine medical articles he had provided to the parties before his deposition. (Id. at 10).

When the circuit court held its hearing on the Daubert motion, the focus was on a study published after the plaintiff’s expert’s deposition. This study, referred to as the Romanski study, found that women under the age of 35 with an AMH level of .3 or lower who underwent all types of fertility treatments had a live birth rate of 48.9 percent, which was comparable to the national rate for one IVF treatment (55%). The Romanski Study’s findings were a significant part of the case.

The plaintiff’s expert did not testify at the hearing. The defense noted that the Romanski study failed to get the plaintiff above the 50% required threshold. The defense also argued that the study was distinguishable because the plaintiff had experienced multiple miscarriages that allegedly were not experienced by the study participants. (Id. at 19-20).

The circuit court granted the defense motion, finding that the plaintiff’s expert had not accounted for the plaintiff’s miscarriage history, which the Romanski study participants did not experience. (Id. at 22).

Motion for Reconsideration

The plaintiff filed a motion for reconsideration, including an affidavit from her expert. The affidavit specified that the Romaski study did account for miscarriages by its participants. (Id. at 23). At the motion for reconsideration hearing, the plaintiff relied on the Jaswa study, which was part of the Romanski study, and found a 56.8% success rate for women with DOR and a single IVF cycle producing a quality embryo. (Id. at 25). The circuit court denied the motion for reconsideration and entered summary judgment against the plaintiff. The plaintiff appealed. (Id. at 25).

Appellate Court of Maryland on REI Expert & Daubert Challange

On appeal, the parties focused on the Romanski and Jaswa studies. The plaintiff argued that she exceeded the 50% threshold because the study participants had 3 IVF cycles. Her expert testified that she could have undergone more than the study participants, specifically 6-7, during the relevant period. (Id. at 26-27).

The Appellate Court noted that, as the parties’ arguments and focus have changed throughout the proceedings, the main issue has become the circuit court’s conclusion that the Romanski study did not account for the plaintiff’s history of miscarriages. No medical expert had testified on that issue. (Id. at 30-31). The plaintiff’s expert had submitted an affidavit that the study had accounted for that factor. The Appellate Court concluded that the circuit court had abused its discretion in reaching the opposite conclusion. (Id. at 31). 

The Appellate Court noted that the defense did not raise its argument about miscarriages distinguishing the Romanski study until the hearing. The plaintiff submitted the affidavit as soon as it became an issue. (Id. at 32).

In its direction for remand, the Appellate Court specifically stated that the plaintiff’s expert should testify at the Daubert hearing. (Id. at 33).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on REI Expert & Daubert Challenge

The plaintiff should be grateful to be alive legally. In the circuit court, the parties presented arguments that kept changing during the proceedings on a complex medical issue. Much of the arguments involved lawyers expressing their interpretations of medical studies instead of presenting doctor testimony from a qualified specialist. The trial court held a Daubert hearing and then another hearing on the plaintiff’s motion for reconsideration. 

Faced with this history, the Appellate Court could have easily found a way to affirm the summary judgment below without wading into the mess. Instead, the Appellate Court took a deep dive into the parties’ presentations. It observed that the only medical testimony was one affidavit during the hearing process. Moreover, in the ruling, the circuit court disregarded what was in that affidavit.

Remand

In directing that the plaintiff expert testifies in the Daubert hearing on remand, the Appellate court initiated a process where all arguments can be supported and tested by medical testimony. The court also flagged a key issue for remand: whether the plaintiff expert has sufficient support for his argument that the plaintiff, by undergoing more IVF treatments than the participants in the Romanski study, would have increased her chances of a live birth beyond the number accomplished in the study.

The Appellate Court has meticulously untangled the complexities created below and has given the plaintiff another chance. It was the legally correct and fair thing to do. As a result, the opportunity is there on remand for a complete and thorough presentation of the medical evidence relating to this claim.

The topic of expert testimony is one of the most frequent appellate issues in Maryland medical malpractice cases. For additional blog posts in this category, go to expert witnesses.

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 pyleogram 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 went to the defendant medical group for problems with vision in his left eye. The first doctor the plaintiff saw in the group was Dr. Desai, who diagnosed a retinal tear and recommended prompt surgery. The plaintiff had elevated intraocular pressure (IOP), but Desai did not prescribe pressure-lowering medication. He believed that dilation drops caused the increase that then occurred. (Op. at 2).

Dr. Sanders performed the surgery two days later. He did not measure IOP before or after the surgery. In multiple post-op visits over the course of the next six weeks, the plaintiff had elevated IOP, and he also could not see out of the eye. The group then referred the plaintiff to a neuro-ophthalmologist who diagnosed the plaintiff with an atrophic optic nerve. (Id. at 4). He believed the cause specifically was likely a lack of blood flow to the optic nerve. Afterward, the plaintiff never regained vision in the affected eye. (Id. at 4).

CQE

The plaintiff filed suit in the Circuit Court for Montgomery County and included a medical malpractice CQE from an ophthalmologist expert witness who opined that employee or agent Dr. Sanders breached the standard of care in the gas bubble that he chose to use because it increases IOP and by failing to monitor IOP before and after the procedure. (Id. at 5).

After the close of discovery, the plaintiffs filed a supplemental CQE, which continued to identify Dr. Sanders as the group’s only employee or agent. (Id. at 7).

Before the trial, the group objected to a verdict sheet allowing the jury to return separate verdicts for the group and the doctor. It argued that the plaintiff’s CQE identified Dr. Sanders as the only employee or agent. The plaintiffs contended that the group could be held liable for any of its employees and agents, and the judge agreed. (Id. at 1, 7-8).

At trial, the plaintiffs’ expert opined that Dr. Desai failed to prescribe IOP-reducing drops before the surgery. (Id. at 8). However, the expert did not give this opinion to a reasonable degree of medical certainty and did not testify that it caused the optic nerve to atrophy. (Id. at 8-9). The plaintiffs’ expert also criticized the gas bubble that Dr. Sanders used and his failure to monitor IOP after the surgery. (Id. at 9).

On the special verdict sheet, the jury answered that Dr. Sanders did not violate the standard of care. Still, the group did so through other employees or agents. It awarded $1 million in damages to the plaintiffs, which later was reduced to $740,000 under the cap on non-economic damages. (Id. at 13). The group appealed. (Id. at 14).

Court of Special Appeals on CQE Employees in Medical Malpractice

The Court of Special Appeals noted that Maryland courts have interpreted the medical malpractice CQE rule to identify the specific employees and agents who breached the standard of care. (Id. at 17-20). The CSA also noted that if discovery revealed information that caused the plaintiffs’ expert to alter his opinions from the original CQE, he could have done so as long as the plaintiffs followed proper procedures. (Id. at 21).

From the beginning of the case, the plaintiffs were aware of Dr. Desai’s participation in their care but did not include him in their CQEs. The trial court was legally wrong to state that other employees and agents’ conduct was “out there,” and the defense could have explored it in discovery. (Id. at 22-23). The plaintiffs had to identify in the CQE which doctors breached the standard of care. It was not the defense’s burden to uncover breaches in discovery. (Id. at 23). The CSA also concluded that the circuit court erred in allowing the separate verdict sheet questions. (Id. at 24). In sum, the circuit court erred in allowing the plaintiffs to pursue claims based on other group employees and agents. (Id. at 25).

In addition, the plaintiffs’ evidence was insufficient against any other group employee or agent. The plaintiffs’ expert failed to state that his criticism of Desai was to a reasonable degree of medical probability. That standard is the standard required for an expert opinion. This failure left the jury to speculate about other employees and agents and their conduct. (Id. at 28). The CSA reversed the verdict. (Id. at 29).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on CQE Employees

Maryland law places a number of requirements on CQEs. Some of these rules are not always clear. As a result, there has been much litigation involving CQEs.

That litigation includes identifying medical corporations’ employees and agents in the CQE. However, this has been a clear requirement, and the amount of litigation on this issue is mystifying. Many years ago, Maryland appellate courts stated that CQE must identify individual medical care providers. However, lawyers have continued to file CQEs without doing that.

The court’s holding in Retina Group is straightforward and in accordance with prior medical malpractice cases in Maryland. When suing a corporate entity for medical malpractice, it’s crucial that plaintiffs identify the individual employees or agents by name and describe how they breached the standard of care and caused injury. This is not just a formality, but a key requirement that can make or break a case.

This requirement has become a bright-line rule. Plaintiffs can specifically argue many things. They can contend that they put the defense on notice regarding the employees or agents, identified them in discovery, etc. However, if plaintiffs do not include the employees and agents in the CQE, they will face dismissal. This is a serious consequence that cannot be overlooked. They can appeal and seek review from the highest court but will not get relief.

Strategy

Suppose discovery reveals the identity and actions of other employees or agents after the plaintiff files their initial CQE. In that case, they can amend their initial CQE and/or file a supplemental CQE under the rules at the end of discovery. This process allows plaintiffs to update their CQE with new information, ensuring they do not run afoul of the CQE rule’s requirement to identify employees and agents.

You can read more Blog posts on the topic of expert testimony, including one on Dunham v. UMD involving the same issue of identifying employees and agents in the CQE.

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.

Factual Background

The plaintiffs filed suit against two related hospitals, alleging the failure to prevent and then treat pressure ulcers. (Op. at 1). The defendants filed a motion to strike the plaintiffs’ CQE for failing to identify individual medical providers. (Id. at 6). The plaintiffs opposed the motion and also, in the alternative, asked for their right to an extension to file an amended CQE. (Id. at 6-7). The circuit court then granted the motion to strike, declined to give an extension, and dismissed the case. The statute of limitations had expired by this time. (Id. at 8-9 & n.5)

Before filing an appeal, the plaintiffs filed a motion in HCADRO to extend the time to file a CQE using the same claim number. (Id. at 9-10). HCADRO granted a 60-day extension. (Id. at 11).

The plaintiffs filed a second CQE with HCADRO and then filed a complaint in the circuit court. The defendants moved to strike, arguing that the case was on appeal and the circuit court no longer had jurisdiction. (Id. at 12). The circuit court refused to stay the case and dismissed it. (Id. at 13).  The plaintiffs appealed both cases, and the Court of Special Appeals consolidated them. (Id. at 14).

Court of Special Appeals on Right to CQE Extension

CJP § 3-2A-04(b)(1)(ii) states, in pertinent part: 

(ii) In lieu of dismissing the claim or action, the panel chairman or the court shall grant an extension of no more than 90 days for filing the certificate required by this paragraph, if: 

1. The limitations period applicable to the claim or action has expired; and 

2. The failure to file the certificate was neither willful nor the result of gross negligence.

The CSA held that the right to CQE extension is mandatory where:

1. The limitations period has expired.
2. There is no finding of gross negligence and willful failure by the plaintiff.
3. At most, 180 days have passed since the filing of the claim.

The CSA found that all were present in this case. (Id. at 29). As a result, the circuit court erred in failing to grant a 90-day extension and dismissing the case. Accordingly, the CSA vacated the order and instructed the circuit court to grant an extension. (Id. at 30-31).

The CSA then turned to the question of how long the extension should be. Starting from the date the plaintiffs filed their claim in HCADRO, the 180 period had not expired when the circuit court dismissed the first filing. The dismissal prevented the plaintiffs from filing an amended CQE. Accordingly, the CSA directed that the plaintiffs now have 35 days to file an amended CQE. That is the number of days that remained in the 180 days on the date the circuit court dismissed the first filing. (Id. at 31-32).

Second Filing

The CSA also stated that the plaintiffs’ second filing using the same claim number was ineffective. Once the court dismissed the matter, the plaintiffs’ remedy was to re-file in HCADRO. Even if the court had not dismissed the case, the plaintiffs’ filing of the second CQE was untimely because it was on day 192, past 180 days. This decision underscores the importance of timely and effective filings in medical malpractice cases.

Because the CSA gave the plaintiffs relief in the appeal from the first filing, the plaintiffs’ appeal from the second filing was moot. This decision highlights the procedural complexities that can arise in medical malpractice cases, and the importance of understanding and adhering to the relevant timing requirements.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on the Right to an Extension for a CQE

Dunham is another example of the intricate nature of the CQE requirements, a challenge that both lawyers and courts have grappled with. In this instance, the complexity revolved around the timing of filing the CQE and the availability of an extension. Other cases have delved into the content requirements of the CQE and the qualifications of who can sign one. For more in-depth discussions on these issues, refer to the Blog posts under expert testimony.

In Dunham, the circuit court’s ruling was significant. The judge recognized that the appellate courts have held that an insufficient CQE is the same as not filing one. However, the judge’s rationale did not distinguish those cases. Instead, it appears the judge made a contrary ruling because of a disagreement with those cases. This ruling underscores the profound impact of judicial decisions on the outcome of cases.

One interesting aspect of the CSA opinion is the time left on the extension. The CSA chose the date the court dismissed the first filing, which allowed the plaintiffs 35 more days. The plaintiffs already have their second CQE. However, in other cases, the plaintiffs may not.

For any plaintiff who has a rejected CQE, the message is clear: prompt action is crucial. It’s important to pursue an acceptable CQE without delay, especially during the pendency of a motion for the right to a CQE extension. This urgency is a key factor in navigating the legal process effectively.

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 Identifying Agents in CQE

The CQE is a crucial document in a medical malpractice case. It is a report prepared by a qualified expert that identifies the breach of standard of care and also the resulting injury. In this case, the plaintiffs submitted a CQE and report that identified the corporate defendants, through their agents, as breaching the standard of care and causing injury. However, the CQE did not identify specific agents. (Op. at 3-4).

The Defendants filed a motion to strike the CQE and report and also a motion to dismiss. The defense argued that the CQE and report failed to identify individual healthcare providers. The plaintiffs responded that there is no requirement to identify agents only when the case is against corporate defendants. Plaintiffs also argued that their allegations allowed the defendants to determine which agents were involved. In addition, many doctors and nurses were involved, and many of the records had illegible entries as to their identities. The circuit court found that the CQE and report were deficient.

Court of Special Appeals

Initially, the plaintiffs argued on appeal that they did not have to identify individuals because they were pursuing direct corporate liability against the corporate defendants, not vicarious liability through their agents. However, the Court of Special Appeals noted that the plaintiffs did not raise that argument below, and accordingly, they waived it. The court also noted that the plaintiffs grounded their claims on agents’ actions. (Id. at 19-22).

Statute

The plaintiffs then argued that no statute section requires a CQE and report to name individual agents. CJP 3-2A-04(b) provided, in relevant part:

Unless the sole issue in the claim is lack of informed consent: 

(1) (i) 1. Except as provided in item (ii) of this paragraph, a claim or action filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a qualified expert with the Director attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury, within 90 days from the date of the complaint; * * * 

(ii) In lieu of dismissing the claim or action, the panel chairman or the court shall grant an extension of no more than 90 days for filing the certificate required by this paragraph, if: 

1.   The limitations period applicable to the claim or action has expired; and 

2. The failure to file the certificate was neither willful nor the result of gross negligence.

(Id. at 18).

However, the CSA observed that Maryland appellate cases have made clear that the CQE must explicitly mention the name of the licensed professional who breached the standard of care. (Id. at 22) (citing Carroll v. Konits, 400 Md. 167, 196 (2007). The court concluded that the circuit court had properly determined that the CQE was deficient. (Id. at 23).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Identifying Agents in CQE

The plaintiffs believed they did not have to identify the agents because they were only suing the corporate defendants. The CSA found that the instruction from Carroll and other cases clearly required such identification. At the very least, the language of those cases should have given pause to a medical malpractice lawyer considering filing a CQE without naming individuals.

Interestingly, the plaintiffs then attempted to cure the problem by filing a CQE listing 29 medical providers. This number raises an interesting strategy question and invites the audience to consider the implications of such a decision.

Since the plaintiffs alleged that the defendants failed to prevent and properly treat bedsores, the actions at issue covered all three months that the plaintiff was in the defendants’ hospitals. The plaintiffs’ identification of 29 medical providers probably covered nearly all defendants’ agents who cared for the plaintiff and arguably should have prevented or treated the bedsores better.

Strategy Pointers

However, there is a real risk that this plays right into the defendants’ hands. The more people that the plaintiff alleged committed malpractice, the more unlikely it is to have happened. The defense would argue, did 29 medical providers really commit medical malpractice in this case?

A better strategy would have been to identify the medical providers primarily involved in setting and supervising the care, which would have involved bedsore prevention and treatment.

In Part 2 of this Blog series, I will discuss the court’s ruling on the timing of the filing of the CQE and report and its implications for future medical malpractice cases in Maryland.

You can read more Blog posts on the subject of 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.

Part 2 of this blog post will then discuss an issue involving the verdict sheet.

Factual Background

The issue before the court was whether the law required a defendant who sought to blame nonparty malpractice as the cause of the plaintiff’s injuries to put on expert testimony to establish that defense. (Op. at 1).

The plaintiff had a cancerous tumor in his kidney and lymph node. The urologist removed the kidney but not the lymph node because of its proximity to a large blood vessel, the inferior vena cava. (Id. at 2). Afterward, the oncologist administered chemotherapy over four years. Ultimately, the cancerous node grew until it was inoperable. (Id. at 3).

The plaintiff filed a medical malpractice case in the Circuit Court for Baltimore City against the radiologists who did not alert the oncologist of the growth of the cancerous lymph node at a time when they could have safely removed it. (Id. at 4). 

In discovery responses, the defendants alleged that the nonparty oncologists committed malpractice and had caused the plaintiff’s injuries. However, the defense expert witnesses did not opine on these matters. The defense also stated it reserved the right to rely on the plaintiff’s experts. (Id. at 5). 

Trial

At trial, the defense did not call expert witnesses to give the standard of care or causation testimony concerning nonparty doctors‘ malpractice. The trial court then sustained an objection to the defense questions of the plaintiff’s expert about the standard of care for the initial urologist. (Id. at 9).

During closing arguments, the defense arguments included assertions that nonparty doctors caused the plaintiff’s injuries. (Id. at 10).

The verdict sheet included a question to which the plaintiff objected. It asked the jurors if the actions of non-defendant doctors were a substantial factor in causing the plaintiff’s injury. (Id. at 11). 

The jurors did not follow the directions on the verdict sheet. They found the defendants had not breached the standard of care—they were supposed to stop there. Instead, they found the plaintiff was not contributorily negligent. The jury further found that the nonparty doctor’s negligent acts had been a substantial factor in causing the plaintiff’s injuries. The jury then awarded $4.8 million in economic damages. (Id. at 12).

The court advised the jurors that they had returned an inconsistent verdict sheet, saying that since the jury found the defendants did not breach the standard of care, it was unnecessary to answer the remaining questions. The court gave the jury a blank verdict sheet and sent them back to deliberate. The jury returned the sheet stating that the defendants had not breached the standard of care and did not answer other questions. The plaintiff moved for a new trial, and the court denied it. The plaintiff appealed. (Id. at 12-13).

The Court of Special Appeals then reversed. The defense appealed. (Id. at 13-14).

Court of Appeals on Nonparty Malpractice

The Court of Appeals held that expert testimony is required to establish nonparty medical malpractice without regard to whether a defendant is raising the nonparty medical negligence as an affirmative defense or in connection with a general denial of liability. The reason is that medical negligence and causation are beyond the understanding of ordinary lay jurors. The jury’s role is to make factual findings based on the evidence presented, and in cases involving medical issues, expert testimony is crucial to provide the necessary understanding. (Id. at 25).

Since the defendants sought to assert a defense that nonparty physician negligence caused the plaintiff’s injury, the defendants were required to produce and generate sufficient admissible evidence to enable the jury to make a factual finding of nonparty physician negligence. The defense had to produce admissible expert testimony as their burden of production. The subject matter does not become more comprehensible to lay jurors because it is a defense, a position taken by the defendant to counter the plaintiff’s claim, instead of a claim for medical malpractice, a legal action brought by a patient against a healthcare provider who has harmed them. (Id. at 26).

The exception is if the nonparty’s medical negligence is so obvious that ordinary laypersons can determine it breached the standard of care. Also, the court held that a defendant does not have to call its own expert to generate the issue. The defense can elicit standard of care testimony by cross-examining the plaintiff’s expert if discovery rules, which govern the exchange of information between parties in a lawsuit, are satisfied. This means that the defense must adhere to the rules regarding the timing and manner of the exchange of information. (Id. at 27).

Defense Failed to Meet Its Burden

In this case, the defendants did not identify or call expert witnesses to testify that nonparty physicians breached the standard of care or that a breach proximately caused the plaintiff’s injury. (Id.). The defendants’ cross-examination of the plaintiff’s expert witnesses was insufficient to establish a breach of the standard of care or causation. (Id. at 27-28). Nevertheless, the defense argued that the nonparty physicians’ actions fell below the standard of care. The jury did not have a factual basis to find negligence. (Id. at 28). As a result, the circuit court erred in submitting the question of nonparty medical malpractice to the jury. (Id. at 31).

Commentary by the Baltimore Medical Malpractice Lawyer on Nonparty Malpractice

This decision is the correct one. It would make no sense to say that a jury needs expert testimony to determine if the defendant committed medical malpractice, but it would not need expert testimony to determine if a nonparty doctor committed medical malpractice.

The court’s statement that the defense can rely on the plaintiff’s experts is a point that demands caution. In the case of American Radiology, the defense argued that it effectively used the plaintiff’s experts to meet its burden of production. However, the court meticulously examined this claim and demonstrated its shortcomings, underscoring the need for caution in such reliance.

It is anticipated that defendants may attempt to leverage the court’s statement to assert that they have successfully used the plaintiff’s experts to meet their burden of producing evidence of nonparty medical malpractice. However, it is crucial that the courts maintain the same level of scrutiny that the American Radiology Court did to expose any shortcomings. In most cases, defendants seeking to establish nonparty doctor negligence will need to rely on their own experts for this.

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.