ER Causation: Estate of Newton v. Javid
The Baltimore Medical Malpractice Lawyer Blog features Maryland appellate opinions in medical malpractice cases. This post addresses the frequent appellate issue of expert witness sufficiency. The specific issue involves an ER doctor expert testifying to causation. The case is the May 22, 2025, Appellate Court of Maryland unreported opinion in Estate of Newton v. Javid, No. 2218.
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.