Expert Inference: Harbor Hosp. v. J.B. 1
The Baltimore Medical Malpractice Lawyer Blog discusses opinions in Maryland medical malpractice cases. In this post, I discuss a ruling in the defense’s attempt to exclude the plaintiff’s expert testimony in a medical malpractice case based on impermissible inference. The case is the October 2, 2025, unreported opinion by the Appellate Court of Maryland in Harbor Hospital v. J.B., No. 1461
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.