When a medical crisis occurs during transit, who bears the legal liability? The Maryland Court of Appeals tackled this crucial question in a major medical malpractice decision. The court examined whether a private, for-profit ambulance firm could claim statutory immunity for alleged negligence during a medical transfer.

The court ruled that private commercial companies cannot shield themselves using statutes designed for volunteer responders and public agencies. This decision clarifies the reach of statutory protections in transport cases.

Factual Background

A young child suffered severe breathing difficulties and congestion in late 2007. A local hospital in Talbot County evaluated the minor and also inserted an endotracheal breathing tube. Because the facility lacked the specialized equipment to treat intubated pediatric patients, doctors arranged an emergency air transfer. Accordingly, they planned to transport the patient to the pediatric intensive care unit at a major medical center in Baltimore.

A specialized flight team managed the helicopter transport. The team included a pediatric intensive care nurse, a flight paramedic, and a flight nurse. A licensed paramedic employed by a commercial transport company also joined the flight for orientation purposes. The employer operated ground transport under a contract with the medical center.

Shortly after takeoff, the patient experienced a life-threatening emergency. The patient’s heart rate and blood oxygen levels then dropped rapidly. The legal complaint alleged that the breathing tube dislodged and then blocked the airway. The flight crew searched for a pediatric air mask to restore breathing, but they could not find one on board.

The helicopter made an emergency landing at a nearby airport. The flight paramedic retrieved a mask from a storage compartment and reintubated the patient. The child survived the flight, but the lack of oxygen caused severe, permanent hypoxic brain damage. The injury left the child blind, deaf, and disabled.

Parties’ Arguments

The plaintiff filed a medical malpractice lawsuit alleging negligence. The lawsuit targeted the private transport company, asserting vicarious liability for the actions of its paramedic.

The defendant requested summary judgment based on two statutory defenses:

• The Good Samaritan Act (CJ § 5-603): The company claimed status as an “ambulance squad.” It also argued that an employer cannot be held liable if its employee holds personal immunity.
• The Fire and Rescue Act (CJ § 5-604): The company argued that it functioned as a private “rescue company.” It claimed broad protection from liability for acts performed during official duties.

The plaintiff countered that these immunity statutes protect public and volunteer entities, not commercial enterprises. The plaintiff noted that the employer could not hide behind employee protections without an independent legal basis.

Court’s Ruling on Commercial Ambulance Immunity

The trial court originally granted summary judgment to the commercial entity. The intermediate appellate court reversed that ruling, and the state’s highest court affirmed the reversal.

Summary of Key Holdings:

• Good Samaritan Act Scope: The court held that CJ § 5-603(b)(3) applies only to volunteer squads, not for-profit ambulance entities.
• Vicarious Immunity: The court ruled that an employee’s personal immunity does not automatically shield the employer under common law agency principles. The employer must establish an independent shield.
• Fire & Rescue Act Scope: The court determined that CJ § 5-604 excludes commercial companies by default unless the firm proves it functioned as a public first responder in that specific context.

The court evaluated the plain language and legislative history of both statutes. It determined that the Good Samaritan Act protects individual care providers and volunteer squads. The word “volunteer” modifies ambulance squads in the statute. Therefore, for-profit ambulance businesses cannot claim this defense.

The court also rejected the vicarious immunity argument. Under agency law, an agent’s personal immunity does not automatically transfer to the principal. The employer must show an independent legal basis for protection.

Finally, the court reviewed the Fire and Rescue Act. The court noted that this statute mimics sovereign immunity for public first responders. Commercial ambulance services operate for profit and also must maintain liability insurance by law. They cannot claim broad municipal immunity unless they prove they acted as a public first responder.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Commercial Ambulance Immunity

This decision was a major victory for patient safety and accountability. The court correctly limited public immunity defenses to their intended recipients. Allowing commercial entities to exploit statutes meant for municipal responders would have injured patients.

The decision is sound for several reasons:

1. Preserving Legislative Intent

The legislature created the Good Samaritan Act to encourage bystander aid and support volunteer fire and rescue groups. It created the Fire and Rescue Act to grant sovereign-like protection to public responders. Lawmakers never intended these statutes to shield private businesses from ordinary negligence.

2. Profit and Public Duty

For-profit transport firms choose to enter the healthcare market to make a profit. They calculate business risks, charge fees, and carry liability insurance. The law requires these companies to maintain commercial coverage precisely because they face ordinary civil liability. Shielding them under volunteer statutes would grant an unfair financial windfall at the expense of injured patients.

3. Accountable Care Standards

Commercial responders must maintain a high standard of care. Patients in transport are vulnerable and rely completely on the technical skills of the crew. Holding private companies liable for negligence ensures proper training and complete equipment checks before takeoff.

Why Commercial Firms Cannot Claim Municipal Immunity

Private companies cannot claim municipal responder immunity because municipal immunity originates from public sovereignty. State and local governments perform essential public duties funded by taxpayers. Municipal responders act for the public good rather than financial gain.

In contrast, private ambulance companies operate under private contracts. They can accept or refuse business, set prices, and manage risks through commercial insurance. Allowing a commercial enterprise to hide behind municipal immunity would then create an unfair imbalance. The company would gain private profits while avoiding standard legal liability.

This decision ensures that commercial medical transport providers remain accountable to their patients. When a private transport company fails to meet professional standards, vulnerable patients retain the legal right to seek fair compensation.

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

• County Immunity: Coit v. Nappi 3
• Paramedic Immunity: Coit v. Nappi 1
• Suing Ambulance EMTs: Stracke v. Butler

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

After a jury awarded the family over five million dollars, the appellate court vacated the verdict and ordered a new trial. Before the new trial began, the law firm ended its relationship with the primary handling attorney. The clients then discharged the original law firm and hired the primary attorney and outside lawyer. When the underlying case later settled, the former law firm sued to collect a percentage of the contingency fee.

Factual Background

The litigation started when an injured patient suffered a severe heart attack following cardiac surgery. The patient and his spouse hired the original law firm under a standard contingency fee agreement. The contract called for a forty percent fee upon any financial recovery.

For several years, the associate attorney managed the case at the original law firm. He handled preliminary motions, took depositions, and met frequently with the clients. As trial approached, the initial law firm brought in a seasoned trial lawyer to assist with the medical malpractice claims. Together, the two attorneys tried the case for three weeks. Consequently, the jury awarded a judgment exceeding five million dollars in favor of the injured patient.

However, the trial court verdict did not stand. The appellate court vacated the judgment due to evidentiary errors and remanded the case for a new trial. Before the retrial took place, the original law firm ended its relationship with the associate attorney.

Because of this split, the original law firm informed the clients that their primary lawyer was leaving. The clients received notice that they could stay with the firm or hire new counsel. Unhappy with losing their primary lawyer, the clients promptly discharged the original law firm. Instead, they chose to retain the associate attorney and the co-counsel under a new contingency fee agreement.

The new attorneys continued the legal work for eighteen months. During this period, outside events created leverage against the medical providers. Ultimately, the new attorneys secured a confidential financial settlement. The total contingent fee was placed in an escrow account. Soon after, the original law firm filed a lawsuit against the successor attorneys and the clients. The firm sought to recover legal fees based on quantum meruit for its years of work.

Parties’ Arguments

The original law firm argued that it was entitled to a major share of the legal fee. First, it pointed out that its staff handled almost five years of intense work. Its team conducted discovery, tried the case to a multi-million dollar verdict, and defended the appeal. Furthermore, expert witness testimony showed that ninety-five percent of the docket entries occurred while the initial firm held the file. Thus, the original firm argued that its efforts created the foundation for the ultimate settlement.

In contrast, the successor attorneys argued that the original firm deserved no fee at all. They claimed that the original firm effectively abandoned the clients by firing the primary lawyer. Therefore, they asserted that the firm breached its duty and forfeited any claim to compensation.

In addition, the successor attorneys argued that quantum meruit claims cannot be brought directly against successor counsel. They asserted that such claims can only be brought against former clients. Finally, they argued that if any fee was due, the court had to enforce internal fee-sharing agreements. They claimed these agreements entitled the individual attorneys to specific percentages of any fee generated by the case.

Court’s Ruling on Quantum Meruit in Medical Malpractice

The circuit court ruled in favor of the original law firm. First, the trial judge rejected the argument that the firm abandoned its clients. The judge noted that the firm offered to continue representation with qualified staff. Furthermore, the transition of the case file was smooth and caused no harm to the clients. Therefore, the original firm did not forfeit its right to reasonable fees.

Second, the trial judge held that the quantum meruit award must come directly out of the total contingency fee already collected. The court stated that the clients did not owe any extra money. After deducting out-of-pocket expenses, the trial court awarded sixty-five percent of the remaining fee to the original law firm.

On appeal, the appellate court affirmed the finding that the original firm was entitled to quantum meruit fees. The appellate court agreed that no abandonment occurred. Additionally, the court confirmed that a discharged law firm can recover directly from successor counsel who hold the recovered fee. The court explained that when a contingency is fulfilled, the original firm may seek a fair share based on its contribution.

However, the appellate court reversed the circuit court on the fee-sharing issue. The court held that when a client discharges a law firm, the original contingency contract ends. As a result, any internal fee-splitting agreement linked to that contract also ends. The trial judge had mistakenly factored the old fee-split percentages into the final math. Consequently, the appellate court vacated the award and remanded the case for the trial court to re-calculate the reasonable value of the legal services.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Quantum Meruit

This decision offers guidance for personal injury and medical malpractice lawyers in Maryland. First, it reinforces the rule that clients retain freedom to choose their legal counsel. When a client fires a law firm, the underlying contingency contract ceases to exist immediately.

Second, the ruling protects law firms from losing all compensation when an associate leaves with a major case. Even if a firm fires the primary lawyer, it does not automatically abandon the client. As long as the firm offers competent ongoing counsel and hands over the file smoothly, it preserves its right to fair pay.

Third, the case highlights the legal mechanics of quantum meruit recovery. Discharged attorneys do not have to double-tax the client. Instead, they can claim a fair portion of the fee earned by successor counsel once the case resolves successfully. Courts will evaluate factors like labor, skill, time spent, and overall contribution to the result.

Finally, departing lawyers must remember that internal fee-split arrangements usually die when the client contract terminates. Neither the old firm nor the departing lawyer can rely on pre-existing split percentages once a fresh retainer is signed. Moving forward, law firms and departing associates may want to establish written exit agreements. Doing so can prevent costly post-settlement court battles over legal fees.

You can read another Blog post on issues involving attorney’s fees: Fee-Sharing Agreement: Bennett v. Ashcraft and Quantum Meruit Arbitration: Slocumb v. Quick.

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.

This post provides an analysis of the Scott decision. It examines the factual background, the arguments raised by the parties, and the appellate court’s ruling. The post also gives a legal commentary. It explains why this case was decided correctly to safeguard plaintiffs’ statutory venue rights.

Factual Background on Plaintiff’s Choice of Venue in Medical Malpractice

The litigation arose from alleged medical negligence resulting in severe, irreversible brain damage. It happened to a minor child due to untreated hyperbilirubinemia and subsequent kernicterus. Kernicterus is a rare, preventable neurological condition. It is caused by extremely high levels of bilirubin accumulating in brain tissue. It then leads to permanent cognitive and physical impairment, profound developmental delays, and severe seizure disorders.

The minor plaintiff was born on June 3, 2001, at a county hospital in Calvert County, Maryland. The day after birth, an attending pediatrician practicing in Calvert County diagnosed the infant with jaundice . They then ordered bilirubin testing, which placed the child in the medium-to-high-risk category for kernicterus. The child was discharged home on June 5 with instructions for follow-up testing, which subsequently confirmed elevated high-risk bilirubin levels. On June 8, the child was readmitted to the county hospital. He received double phototherapy and was discharged the following day for home phototherapy. However, on June 9, the pediatrician advised discontinuing the home phototherapy and instructed the parents to return in three to four weeks. Despite multiple office visits in June and July during which the mother voiced significant clinical concerns, the child’s condition went improperly addressed.

Care Transferred to Baltimore

On July 11, 2001, the mother obtained a referral to specialists at a major medical center in Baltimore City. The pediatrician consulted by telephone with a specialist at the hospital, and the child was evaluated in Baltimore City on July 12 by a physician assistant and attending doctors. Following this evaluation, the hospital medical personnel advised the parents that the child was “normally developing and healthy” and discharged him without further evaluation, care, or diagnostic testing.

Regrettably, by August 21, 2001, the child’s condition had dramatically deteriorated, requiring emergency referral for seizure activity. Over subsequent months and years, the minor plaintiff readmitted to specialized pediatric facilities. This happened between 17 and 34 times per day for ongoing seizure management and severe developmental impairment. It also required round-the-clock lifelong care. On October 11, 2011, the mother, acted individually and as mother and next friend of her minor son. She filed a medical malpractice action in the Circuit Court for Baltimore City. It was against both the pediatrician and the hospital. She asserted that separate, independent acts of negligence by both healthcare providers substantially contributed to the minor child’s ultimate permanent brain damage.

The Parties’ Arguments on Plaintiff’s Choice of Venue in Medical Malpractice

Defendants’ Motions to Transfer (Seeking Calvert County Venue)

The pediatrician moved under Maryland Rule 2-327(c) to transfer the action to the Circuit Court for Calvert County on the grounds of forum non conveniens. The hospital subsequently joined in seeking the transfer. The defendants presented several core arguments in support of removal from Baltimore City:

• Foreign Plaintiffs Weight: The defendants argued that because the plaintiffs resided in Calvert County, their choice of Baltimore City as a forum was entitled to significantly less deference under established case law.
• Locus of Treatment & Volume of Care: The defendants emphasized that the primary pediatric care occurred in Calvert County over fifteen to sixteen visits, whereas the treatment provided by the hospital consisted of a single, brief visit in Baltimore City lasting only a few hours. They argued that thousands of medical records resided in Calvert County compared to a sparse medical record at the hospital.
• Convenience of Defendants and Witnesses: The pediatrician resided and practiced exclusively in Calvert County. To overcome the inconvenience to the Baltimore City entity, the hospital offered to waive its own inconvenience and guaranteed that it would produce its medical staff and treating physicians in Calvert County for trial.
• Public Interest & Jury Burden: The defendants argued that citizens of Baltimore City had no public interest in judging the quality of outpatient pediatric care rendered in Calvert County.

Plaintiffs’ Opposition (Maintaining Baltimore City Venue)

The plaintiffs vigorously opposed the transfer, establishing that:

• Proper Statutory Venue: Venue was unquestionably proper in Baltimore City under Maryland Code, Courts & Judicial Proceedings Article § 6-201(b). The hospital’s principal place of business was located in Baltimore City and a key negligent omission occurred there.
• Substantial Contact and Treatment History: The plaintiffs identified eighteen treating physicians and specialists in Baltimore City who had provided ongoing medical care to the child over eleven years, balancing out any witness convenience arguments.
• Equipoise of Factors: The plaintiffs asserted that when two independent tortfeasors commit distinct negligent acts in different jurisdictions contributing to a single indivisible injury, the factors supporting each venue cancel each other out. Consequently, the balance does not “weigh strongly” in favor of transfer.

The Court’s Ruling on Plaintiff’s Choice of Venue in Medical Malpractice

The Circuit Court for Baltimore City granted the defendants’ motions, transferring the case to Calvert County. The trial court reasoned that the plaintiffs did not reside in Baltimore City, that the majority of care leading to the injury occurred in Calvert County, and that the hospital was willing to accept the transfer to Calvert County.

The Court of Special Appeals of Maryland reversed the circuit court’s transfer order and remanded the case back to the Circuit Court for Baltimore City. The CSA emphasized the following key legal principles:

1. Plaintiff’s Choice of Forum and Deference: Under Maryland Rule 2-327(c), a motion to transfer for forum non conveniens should be granted only when the balance weighs strongly in favor of the moving party. While a foreign plaintiff’s choice receives somewhat less deference, that choice is still entitled to significant weight where the chosen forum has a substantial and meaningful connection to the litigation.
2. Meaningful Ties to Baltimore City: Unlike cases where a forum has zero connection to the dispute, Baltimore City was the principal place of business of the hospital defendant and the physical situs of one of the independent acts of alleged malpractice.

Additional Points

1. Irrelevance of Comparative Negligence or Care Volume: The trial court erred in focusing on the volume of visits in Calvert County versus Baltimore City. Under Maryland law, joint and several liability applies if both defendants’ negligence substantially caused the indivisible injury. It is immaterial which party saw the patient more often. If the hospital’s single failure to diagnose was a substantial factor in causing the harm, the hospital is fully liable.
2. Improper “Thumb on the Scale” by Co-Defendant: The appellate court held that the trial court committed an abuse of discretion. It allowed the hospital to “put its thumb on the scale” by volunteering to travel to Calvert County. A defendant cannot artificially manipulate the forum non conveniens balancing test by waiving its own local venue conveniences to force a transfer away from a plaintiff’s properly chosen forum.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Plaintiff’s Choice of Venue

There are three primary legal pillars that demonstrate why this case was decided correctly:

1. Preservation of Statutory Venue and Protection Against Strategic Defense Manipulation

Maryland law grants plaintiffs the initial privilege to choose among proper statutory venues. A plaintiff sues multiple independent corporate and individual defendants. He can pick a forum where one defendant maintains its principal place of business and where actionable negligence occurred. That choice is a statutory right. The trial court’s initial ruling allowed defense tactics to unfairly subvert this right. It allowed the institutional hospital defendant to “volunteer” its witnesses for travel to another county. Thus, the court effectively permitted two defendants to collude to strip away a venue that was completely lawful and convenient for the plaintiff. As the appellate court correctly observed, allowing a corporate defendant to waive its own locality advantages converts an objective convenience analysis into a subjective tactical maneuver.

2. Alignment with Joint and Several Liability Doctrines

The trial court relied on the “duration and number of visits” as a basis for transfer. This represented a flaw in tort doctrine analysis. Maryland is a traditional joint and several liability jurisdiction without comparative fault among joint tortfeasors. Whether a doctor saw a patient fifteen times or a hospital saw a patient once for two hours is legally irrelevant to liability. There is liability if both acts of negligence constituted a substantial proximate cause of the indivisible harm (kernicterus). The CSA clarified that trial judges should not conduct a pseudo-comparative fault or “quantified care” analysis at the preliminary motion stage. The CSA ensured that venue transfers remain tied to genuine witness convenience rather than judicial speculation about trial strategy.

3. Proper Application of the “Near Equipoise” Standard

The cornerstone of forum non conveniens jurisprudence is that the court will generally not overthrow a plaintiff’s selection of forum. The exception is when the balance of public and private convenience factors weighs strongly in favor of transfer. Where two independent torts occur in two different jurisdictions, witness locations, medical records, and local public interests are inherently divided between the two forums. Under such conditions, the convenience factors exist in near equipoise. When factors evenly balance, the legal tie breaks in favor of the plaintiff’s chosen forum. Reversing the transfer restored the proper legal burden back onto moving defendants.

Key Takeaways for Medical Malpractice Practitioners

• Multiple Defendants & Multiple Venues: If malpractice occurs in more than one county across independent healthcare providers, venue is proper in any county where a corporate defendant resides/conducts business or where an act of negligence took place.
• Defense Waivers Cannot Alter Balance: A co-defendant cannot manipulate the venue balancing test under Rule 2-327(c) by offering to waive its own local inconvenience.
• Focus on Substantial Causation: Do not let defense counsel minimize an institutional defendant’s liability during venue hearings based on the duration of care. A single negligent consultation can establish full joint and several liability.

Caveat: UM v. Kerrigan

Maryland courts continue to cite Scott v. Hawit. However, practitioners dealing with a motion to transfer based on forum non conveniens should consider the Court of Appeals (now Maryland Supreme Court) decision in UM v. Kerrigan. You can read the Blog post on it: Plaintiff’s Forum: UM v. Kerrigan. The court emphasized that Scott does not create a blanket rule keeping non-resident cases in Baltimore City simply because of subsequent medical care. It also reaffirmed that trial judges enjoy wide discretion in deciding transfer motions.

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 and Procedural History on Writ of Mandamus & Medical Malpractice

In large civil cases, the boundary between administrative efficiency and a trial judge’s judicial power can become sharply contested. This case presents an examination of judicial administration. Specifically, the limits of an administrative judge’s authority, and the extraordinary remedy of a writ of mandamus or prohibition. The controversy arose out of nearly 300 related medical malpractice lawsuits. The plaintiffs filed in the Circuit Court for Baltimore County against a hospital, doctor and practice group. There were several representative test cases. The assigned trial judge issued orders bifurcating the medical negligence claims. They separated from fraud and intentional tort claims to prevent severe jury prejudice. However, the administrative judge issued administrative orders striking the trial judge’s bifurcation orders. He denied bifurcation, and reassigned the cases to another judge. His order also referred to all future bifurcation motions in the circuit court. He would decide them exclusively as administrative judge.

Claims

The cases underlying this administrative conflict involved a massive cluster of complex tort actions. Nearly 300 individual lawsuits were against a treating doctor, operating at a regional medical center with the support of a cardiovascular medical practice. They claimed the defendants performed medically unnecessary cardiac catheterization procedures and put unnecessary cardiac stents into patients. The patient plaintiffs brought multi-count complaints. The causes of action included medical negligence, lack of informed consent, fraud by intentional misrepresentation, fraud by concealment, civil conspiracy, negligent hiring and supervision, and loss of consortium.

There were multiple allegations for both standard-of-care medical malpractice and intentional fraud. The petitioning defendants were the hospital, the doctor, and the medical group. They filed pretrial motions to bifurcate the proceedings under state procedural rules. Specifically, the petitioning defendants requested that the court separate Count I (medical negligence) for an initial, independent trial, while pushing the remaining fraud, conspiracy, and punitive liability counts back to a subsequent trial if necessary.

Bifurcation Ruling

The specially assigned trial judge held full hearings in open court on the bifurcation requests. In oral rulings and subsequent written opinions, the trial judge granted the motions to bifurcate in the test cases. The trial judge found that presenting evidence of intentional fraud, corporate conspiracy, and bad acts alongside evidence of standard medical practice would create a risk of unfair jury prejudice against the doctor and the hospital. Furthermore, the trial judge stated that a unified trial with all eleven counts would be unwieldy, running four to six weeks and suffering evidentiary interruptions. Conversely, a bifurcated trial focused solely on medical negligence would last approximately one week. If the jury determined that the doctor was not medically negligent, the necessity of trying the complex fraud and conspiracy claims would be completely eliminated, thereby saving time, money, and judicial resources.

Administrative Judge’s Reversal

Shortly after the trial judge issued these bifurcation rulings, the administrative judge of the circuit court got involved. Citing internal case flow management and judicial economy, the administrative judge issued an order vacating the trial judge’s bifurcation orders and denying the petitioning defendants’ requests for separate trials. In his administrative order, the administrative judge stated that bifurcation would cause additional trials to be held, adversely impacting the court’s overall calendar. He further determined that the clerk’s office had erred by routing bifurcation motions to the assigned trial judge rather than to the administrative judge. Consequently, the administrative judge said that all motions affecting case flow—including all bifurcation motions—must henceforth be decided solely by the administrative judge. Finally, the administrative judge struck the trial judge’s orders and reassigned the cases to another circuit court judge for trial.

In response to these administrative actions, the petitioning defendants filed a petition for a writ of mandamus and/or writ of prohibition in the state’s highest court, seeking immediate relief to overturn the administrative judge’s orders and reinstate the trial judge’s bifurcation rulings.

Parties’ Arguments on Writ of Mandamus & Medical Malpractice

Arguments of the Petitioning Defendants

The petitioning defendants argued that the administrative judge had committed an usurpation of judicial power. They maintained that the decision to bifurcate trial issues under state civil procedure is a core judicial function committed to the sound discretion of the trial judge presiding over the case. According to the petitioning defendants, an administrative judge possesses purely managerial authority over internal court workflow and docketing, but possesses no constitutional, statutory, or procedural authority to sit as an appellate court reviewing or reversing the substantive legal rulings of a coordinate trial judge.

Furthermore, the petitioning defendants claimed that waiting for a final judgment after a consolidated trial to appeal the ruling would provide a completely inadequate remedy. With nearly 300 pending stent cases subject to the administrative judge’s blanket directive, forcing the parties through weeks of unified, prejudicial trials would result in an irrevocable waste of public and private resources. The petitioning defendants emphasized that immediate extraordinary relief was required to protect the integrity of the judicial system, preserve the constitutional authority of circuit court trial judges, and guarantee due process to the parties.

Arguments of the Respondent Administrative Judge and Amici Plaintiffs

The respondent administrative judge, supported by amicus curiae briefs filed on behalf of the patient plaintiffs, claimed that extraordinary writ relief was inappropriate. The respondent argued that the state high court rarely grants writs of mandamus or prohibition and should not entertain what was effectively an immediate interlocutory appeal of a discretionary trial management decision.

Substantively, the administrative judge said that his actions fell within his broad authority under state court rules as circuit and county administrative judge. He argued that the question of bifurcation directly impacts case flow management, overall scheduling, and court resource allocation. Under state rules on differentiated case management and administrative supervision, the administrative judge said that he had full authority to control the court calendar, assign and reassign judges, and decide preliminary motions that materially affect the court’s overall trial docket. He maintained that denying bifurcation promoted judicial economy by preventing multiple piecemeal trials for the same parties.

Court’s Ruling and Opinions on Writ of Mandamus in Medical Malpractice

The state high court granted the petition for a writ of mandamus/prohibition, vacating the administrative judge’s orders, reinstating the trial judge’s bifurcation orders, and returning the underlying cases to their original procedural posture.

The Majority Opinion

The majority opinion delivered a critique of the administrative judge’s overreach, establishing clear boundaries between judicial decision-making and court administration.

Standard for Extraordinary Writs

The majority acknowledged that a writ of mandamus or prohibition is an extraordinary remedy granted only with great caution. However, citing precedents such as Philip Morris v. Angeletti, the court repeated that a prerogative writ is fully justified when judicial power has been usurped, when an official grossly exceeds their authority, or when immediate intervention is necessary to preserve the integrity of the judicial system. Here, it affected nearly 300 related cases. Waiting for post-trial appeals across hundreds of multi-week consolidated trials would cause irreparable waste of time and financial resources.

Constitutional Authority vs. Administrative Management

The majority said that under Article IV of the state constitution, judicial power is vested in the circuit courts. Every resident circuit court judge acting in a judicial capacity exercises the full jurisdiction of the court. When a trial judge is assigned to preside over a case, that judge possesses the inherent authority and discretion to make judicial rulings affecting the rights of litigants—including rulings on evidence, severance, and bifurcation under Rule 2-503(b).

Title 16 of the court rules grants an administrative judge broad authority over internal management, docket control, and judge assignments. However, it does not confer appellate jurisdiction over coordinate judges. The majority ruled that authority over internal court management is not equivalent to authority over substantive judicial decisions that happen to affect case flow. The administrative judge’s act of reviewing and vacating the trial judge’s orders constituted an unauthorized de facto appellate review. It usurped both trial court discretion and appellate court jurisdiction.

Protection of Litigant Rights

The majority said that Rule 2-503(b) explicitly bases bifurcation on two primary factors: convenience and the avoidance of unfair prejudice. The trial judge evaluated both factors, finding that a unified trial would cause severe prejudice to the doctor and hospital. In contrast, the administrative judge focused solely on calendar flow, completely ignoring the crucial factor of litigant prejudice. The court noted that administrative convenience can never override a trial judge’s duty to ensure a fair, impartial trial free from prejudicial evidence.

The Concurring Opinion

A concurring opinion agreed with the majority’s core holding. That is, that the administrative judge lacked authority to vacate the trial judge’s bifurcation orders. However, the concurring judge dissented from a narrow portion of the remedy. That was the reinstatement of the specific trial judge to the cases.

The concurring judge pointed out that state court rules explicitly empower an administrative judge to assign and reassign cases among trial judges in the ordinary course of court administration. Even though the administrative judge acted improperly regarding bifurcation, his baseline managerial authority to reassign cases to another judge remained valid. The concurring judge argued that the court should not restrict the administrative judge’s conceded reassignment power, noting that any newly assigned trial judge would have the inherent authority to review or maintain prior interlocutory rulings in their own discretion.

The Dissenting Opinion

A dissenting opinion argued against issuing the extraordinary writ, saying that the administrative judge had neither grossly abused his discretion nor usurped judicial power.

The dissenting judge said that state court rules mandate that administrative judges implement comprehensive case management plans. They also establish procedures for the prompt disposition of preliminary motions. The dissent added that the local circuit court’s written administrative procedures specifically designated the administrative judge to hear bifurcation motions. This was a practice also used in other judicial circuits. The administrative judge acted in good-faith reliance on administrative guidelines and procedural rules on case flow. Thus, the dissent said that his actions did not rise to the level of an egregious legal error justifying mandamus.

Furthermore, the dissent suggested that rather than issuing an extraordinary writ, the high court should use its rulemaking authority. They can clarify the precise division of responsibility between administrative judges and specially assigned trial judges regarding trial management motions.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Writ of Mandamus in Medical Malpractice

Evaluation of the different opinions in this case is a close call. The majority, concurring and dissent all made good points. The dissent pointed out that a writ of mandamus is an extraordinary remedy. It also added that the court has ability to give guidance to future such situations through rule making. That was certainly a wise suggestion. I tend to doubt to doubt that this was a prime example of the proper use of writs of mandamus.

The concurring opinion recognized that the administrative judge’s removal of the trial judge was within his discretion. That was separate from the bifurcation orders issue.

Whether a writ of mandamus was appropriate is debatable. However, the reversal of the administrative judge’s action on the bifurcation orders seems to be a wise one. Parties should be able to rely upon a trial judge’s ruling. It should not be reversed in a way that is not provided for in the rules.

Revision to Rules

It appears that the high court did clarify the rules on this issue in 2016 with the following changes:

1. Reorganization of Title 16 (2016):  In 2016, the Court of Appeals undertook a massive overhaul. It reorganized Title 16 of the Maryland Rules. This governs Court Administration. This was its 178th Rules Report. The Standing Committee on Rules of Practice and Procedure explicitly cited this case in the Committee Notes. The official note added to the updated Title 16 says a county administrative judge has broad authority to assign and reassign cases. However, they do not have the authority to countermand judicial decisions made by a judge to whom a case has been assigned.
2. Establishment of “Special Case Management Magistrates” for Complex Cases: The court refused to give individual administrative judges appellate-like authority over trial judges’ legal rulings. However, it did address the underlying administrative challenge. That is, managing massive, multi-case tort litigation through procedural rules. Under updated administrative provisions (such as Rule 16-302(d)), the Chief Judge can appoint a Case Management Special Magistrate. They can  oversee consolidated case management plans across multiple circuit courts for large-scale litigation. These plans allow for standardized discovery, coordinated scheduling, and streamlined motions practice before cases go to trial. They do not empower an administrative judge to unilaterally overrule an assigned trial judge’s discretionary rulings once a case is before them.

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 an opinion that protects a patient’s right to a jury trial, the court held that the existence of a medical provider-patient relationship triggers a duty of care that is not dictated solely by statutory detention powers.

Factual Background

On December 31, 2008, a 25-year-old patient arrived at the emergency room of the hospital. He was accompanied by his mother and sister. The patient had an extensive, documented history of severe mental illness, including diagnoses of bipolar disorder, schizoaffective disorder, and schizophrenia. The hospital was familiar with his psychiatric history. It had admitted him to their specialized psychiatric unit at least four times previously. The most recent was just six months prior.

Upon arrival, the patient complained of chest pains and heart palpitations. However, his mother alerted the nursing staff that he was undergoing a severe psychiatric crisis. She informed them that the patient had been non-compliant with his psychiatric medications for five days. He had not eaten, drank, or slept during that time. Also, he was actively excited, delusional, and hearing voices. Furthermore, a patient care technician overheard the mother begging staff to watch her son closely. She knew he would attempt to flee the emergency room if left unmonitored. This would be a key fact in the issue of the ER’s psychiatric duty of care.

The emergency room doctor evaluated the patient. They ruled out acute cardiac distress. Then they formally ordered an evaluation by a crisis counselor to initiate a psychiatric admission. While awaiting this evaluation, the patient grew increasingly restless, pacing his room and stepping out into the hallways. The staff administered a sedative, Ativan, to calm him down. Shortly thereafter, the patient went to the bathroom, ripped out his IV line, and emerged bleeding.

No Sitter

Despite these warning signs of escalating agitation and a clear flight risk, the hospital did not assign a “sitter.” That is, a hospital employee dedicated to monitoring a high-risk patient one-on-one. They claimed they were short-staffed. Instead, the charge nurse attempted to monitor him visually from the nurses’ station. At approximately 6:15 p.m., the patient slipped out of his room unnoticed. He exited through an alarmed rear door clad only in a hospital gown. Then he walked into the freezing winter night toward his home.

When the police—alerted by the hospital—spotted the patient on a bridge, the suspicious and delusional patient attempted to evade them. Believing in his psychotic state that “it wouldn’t be such a big deal,” he jumped over the side of the bridge. He plummeted 30 to 40 feet onto concrete, fracturing his pelvis, wrist, and both legs.

The plaintiff subsequently filed a medical malpractice lawsuit against the hospital in the Circuit Court for Baltimore City, alleging that the facility breached the standard of care by failing to properly monitor and secure a known, vulnerable psychiatric patient.

The Parties’ Arguments on ER Psychiatric Duty of Care

The Hospital’s Defense

The hospital moved for summary judgment, raising a multi-pronged defense. First, they argued a lack of proximate causation. They claimed that even if they had assigned a sitter, that employee would have lacked the physical authority to stop the patient from walking out. They asserted that the arrival of the police broke the chain of causation, and that the patient chose to leave because he felt “nothing was happening”. Additionally, the hospital argued that the plaintiff’s claims were barred under the doctrines of contributory negligence and assumption of risk, asserting that a reasonably prudent person would not jump off a bridge.

The Plaintiff’s Response

The plaintiff counter-argued that a standard medical malpractice duty of care arose directly from the established provider-patient relationship. Supported by emergency medicine and psychiatric expert witnesses, the plaintiff argued that the applicable standard of care required the hospital to place him in a safe and secure environment—via a one-on-one sitter, appropriate chemical sedation, or a locked room—until the crisis evaluation took place. The plaintiff noted that he had been easily redirected by verbal commands earlier in the day, meaning a sitter could have easily intervened without force. Furthermore, the plaintiff contended that under Maryland Health-General § 10-625, the hospital did have the emergency authority to involuntarily detain an individual who posed a clear danger to themselves.

The Court’s Ruling

The procedural path to the appellate court was unusual. On the second morning of the trial, after a jury had already been selected, the trial judge took action on his own initiative. Invoking Maryland Rule 2-502—a rule meant to allow judges to decide discrete legal questions that fall solely within the court’s province—the trial judge dismissed the case. The trial court ruled as a matter of law that because the patient was voluntarily present, the hospital lacked the legal authority to detain him against his will, and therefore owed him no duty to prevent him from leaving.

On appeal, the Court of Special Appeals reversed this ruling, remanding the case for a trial. The court clarified that the trial court committed two errors:

1. Misapplication of Duty vs. Scope: The appellate court held that because a provider-patient relationship indisputably existed, the hospital did owe the patient a legal duty of care. The true dispute centered on the nature and scope of that duty (i.e., the standard of care). That is a fact-dependent question driven by expert testimony and reserved entirely for the jury.
2. Procedural Violations of Rule 2-502: Rule 2-502 is reserved for purely legal, preliminary issues. For example, statutes of limitations or res judicata. By resolving disputed facts regarding the patient’s mental competency and standard of care requirements without giving the parties advance notice or an opportunity to argue, the trial court stripped the plaintiff of his right to a trial by jury.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on ER Psychiatric Duty of Care

The Court of Special Appeals’ ruling prevents medical facilities from using a patient’s “voluntary” admission status as a shield against operational negligence.

The trial court’s logic was flawed. It conflated a state-sanctioned involuntary hold with a medical provider’s foundational standard of care. A hospital’s duty to keep a patient safe does not suddenly vanish simply because formal, involuntary commitment paperwork has not been stamped. When an emergency department accepts a patient who is actively psychotic, delusional, and unmedicated, it assumes the responsibility to manage that vulnerability competently.

As the appellate court rightly highlighted, the hospital’s defense that a sitter could not “legally restrain” the patient is a red herring. The standard of care asserted by the plaintiff’s experts did not call for immediate physical combat. It called for basic, vigilant monitoring. A dedicated sitter would have noticed the patient moving toward a back exit. They could have used verbal redirection, called for immediate medical re-evaluation, or requested an adjustment in sedation.

Furthermore, the trial judge’s dismissal ignored the reality of medical emergency laws. Maryland law explicitly provides mechanisms to temporarily detain individuals experiencing severe psychiatric crises to prevent self-harm. By ruling that the hospital was powerless to act, the trial court created a dangerous incentive for emergency rooms to simply look the other way when high-risk psychiatric patients wander out into dangerous conditions.

ER Psychiatric Duty of Care Reaffirmed

By restoring this case to a jury, the appellate court reaffirmed a principle of Maryland medical malpractice law. When a hospital undertakes the treatment of a mentally incapacitated patient, it must exercise the degree of care and skill that a reasonably competent hospital would provide under similar circumstances. Fact-finding belongs to the jury, and this ruling ensures that vulnerable patients receive their day in court. This does not mean that the plaintiff wins. merely, that he got to go to the jury.

The trial court docket reveals that this case was dismissed on remand. This likely means that the parties reached a settlement.

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 underpinnings of this litigation began in August 2020.  A nine-year-old child had a historical diagnosis of chronic constipation. He suffered an episode of acute abdominal pain and advanced bowel symptoms. On August 28, 2020, the child went to an urgent care pediatric facility. The attending doctor performed a physical evaluation and administered an enema. The child was discharged that same evening despite having not passed a bowel movement. Tragically, the next morning, the child collapsed at home, became unresponsive, and suffered a severe cardiac arrest alongside gastrointestinal bleeding. The child passed away on August 30, 2020, from complications relating to a severe bowel obstruction.

Nearly three years later, on August 16, 2023, the plaintiff mother initiated a medical malpractice claim. She filed it with the Maryland Healthcare Alternative Dispute Resolution Office (HCADRO). It targeted the attending doctor and the operating corporate medical entities. On that very same day, the plaintiff mother formally waived arbitration to clear the path for circuit court litigation. Following statutory waiver timelines, the plaintiff mother filed her formal complaint. It was in the Circuit Court for Prince George’s County on September 22, 2023. The complaint enumerated causes of action for negligence, wrongful death, and a survival action. It explicitly named the child’s father as a “use plaintiff” within the pleadings. The issue became the statute of limitations for the use plaintiff’s claim.

Use Plaintiff

The filing plaintiff served the use plaintiff father with the complaint and the mandatory statutory notice on September 26, 2023. This was less than a month after the true three-year anniversary of the child’s tragic passing. The use plaintiff father attempted to file a formal motion to intervene. He filed it at the circuit court clerk’s office on October 19, 2023. 

However, the court clerk refused the submission, providing a case summary that mistakenly indicated he was already an active plaintiff in the action under the same legal representation as the mother. Following direct communications with the mother’s counsel, who explicitly clarified that he did not represent the father and that formal intervention remained mandatory, the use plaintiff father retained separate counsel and formally filed a Motion to Intervene on June 7, 2024. Both the plaintiff mother and the defendant doctor filed timely oppositions, arguing that the law had already extinguished the father’s right to participate. On February 11, 2025, the circuit court denied the father’s motion as untimely, paving the way for appellate review.

The Parties’ Arguments on Use Plaintiff Statute of Limitations

On appeal, the use plaintiff father admitted that his formal intervention fell outside the strict temporal constraints of Maryland Rule 15-1001. However, he argued that a plain language reading of the rule caused a fundamentally absurd and unfair result. He noted that because the HCADRO statute allows a primary claimant 60 days post-arbitration waiver to file a complaint in circuit court, a primary plaintiff can routinely and legally serve a use plaintiff well after the three-year statute of limitations has run. He asserted that this dynamic effectively “iced out” secondary beneficiaries before they were ever given a realistic opportunity to act after receiving formal notice. To remedy this tension, the use plaintiff father urged the court to apply the relation back doctrine, which would theoretically tie the date of his intervention back to the mother’s timely initial filing before the HCADRO.

Conversely, the plaintiff mother and the defendant doctor countered that the plain language of Maryland Rule 15-1001 is unambiguous and absolute. They emphasized that the rule clearly states that any individual who fails to file a complaint or a motion to intervene before the statutory deadline is barred from participating in the action or claiming a recovery. They argued that the three-year window acts as a substantive condition precedent to maintaining a lawsuit, meaning that a failure to meet it permanently extinguishes the underlying right to sue rather than merely blocking a procedural remedy. Furthermore, the defendants contended that applying the relation back doctrine would impermissibly expand their liability by “pyramiding” separate emotional and mental anguish damages after the statutory limitations period had closed.

The Court’s Ruling

The Appellate Court of Maryland affirmed the circuit court’s decision to deny the intervention. The court conducted a plain text analysis of Maryland Rule 15-1001(e)(2). It concluded that the rule’s mandate is absolute. An individual who fails to file a complaint or motion to intervene by the statutory deadline may not participate in the action or recover damages. The court made clear that even though the statutory notice framework requires a use plaintiff to respond within 30 days of service, that window is bounded by the phrase “no later than the earlier of” the statutory deadline or the served notice deadline. Thus, if the statutory deadline passes before service occurs, the right to intervene is lost under a plain reading.

The court rejected the father’s invocation of the relation back doctrine. The court highlighted Maryland precedent establishing that the three-year limitation period in wrongful death actions is not a mere statute of limitations. It is a substantive condition precedent. 

Because a condition precedent is an essential element attached to the right to sue, its expiration extinguishes the liability. Therefore, the court held that the relation back doctrine is incapable of reviving a right that has ceased to exist. Additionally, the court noted that even if the deadline were a standard statute of limitations, the relation back doctrine is restricted to situations where an additional party merely shares in an existing pool of damages. Because wrongful death claims allow individual beneficiaries to claim distinct damages for mental anguish and emotional suffering, introducing a new plaintiff would “pyramid” the doctor’s potential liability, creating unfair prejudice after the limitations period expired.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Use Plaintiff Statute of Limitations

There are not many reported opinions involving use plaintiffs. Many use plaintiffs are estranged family members whose claims have questionable value because of their distance from the deceased. In those instances, after the filing plaintiff gives notice, at some point after the use plaintiff fails to participate, the active parties seek summary judgment on the use plaintiff’s claim. This is the course many use plaintiff’s claims follow.

This case was different. While the outcome of this case feels undeniably harsh to a grieving father who faced confusing administrative pushback from a court clerk, the Appellate Court’s ruling is legally sound. As the court stated, the use plaintiff father was never legally dependent on the actions or timing of the primary plaintiff mother. Under Maryland law, any eligible beneficiary possesses an independent, equal right to file their own statement of claim or lawsuit within three years of a tragedy. If multiple beneficiaries file separate claims, the court simply consolidates them to satisfy the “one action rule”. 

The clear language of the rule allows the exact situation that happened in this case. By waiting for another family member to take the lead, a use plaintiff assumes an operational risk. Their filing might occur at the tail-end of the limitations window. This can make the resulting notice beyond the statute of limitations deadline for the use plaintiff to join.

Amend the Rule?

The court’s job was to apply the rule, and it did. Should the General Assembly amend the rule? Perhaps. There may be a solution that provides for the filing plaintiff to give prompt notice. Then the use plaintiff promptly files, such that there is not inordinate delay for the lawsuit. For now, the law continues to be clear. Use plainitffs must be aware that the outcome in this case is a possible one.

You can read other Blog posts on cases involving Statute of Limitations 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 Medical Malpractice Offered Care: Negligence Versus Informed Consent

This case arose from a medical malpractice birth injury action filed in the Circuit Court for Baltimore City. The plaintiff was a minor acting through his parents. He alleged that the defendant hospital’s labor and delivery team negligently failed to perform a timely Caesarian section. This delay, the plaintiff contended, caused severe oxygen deprivation, resulting in cerebral palsy (CP), brain damage, and other developmental disorders.

The mother initially attempted a natural home birth with a registered nurse-midwife. After a prolonged labor and obstructed labor, the midwife administered intramuscular injections of Pitocin. She also applied fundal pressure. Realizing the labor was failing, the midwife called an ambulance.

Upon arrival, the hospital’s treating doctors evaluated the mother. They determined to do an “urgent”—but not immediate “emergency”—C-section. The fetal heart monitor indicated the baby was still adequately receiving oxygen. For an urgent C-section, the standard practice is to perform blood testing before administering spinal or epidural anesthesia, which is the safest approach. The hospital staff alleged that the mother was highly uncooperative, combative, and resisted care. This delayed the collection of sufficient blood samples.

Ultimately, after blood results returned and the providers gave anesthesia, they performed the C-section, and the child delivered in poor condition. The plaintiff’s lawsuit rested on a theory of general negligence, asserting that the medical team should have recognized signs of fetal distress and converted the procedure into an emergency C-section, which utilizes rapid general anesthesia rather than waiting for blood work.

Trial

During the two-week trial, a central point of contention was whether the plaintiff was ever “offered” general anesthesia. The plaintiff’s expert witnesses testified that the medical records showed the option was never given to the mother. Moreover, the mother explicitly testified that she was never granted a choice. The hospital repeatedly objected to this line of questioning, arguing that the plaintiff had never filed an informed consent claim. The trial court overruled the objections, and following a $55 million jury verdict, the hospital appealed the admission of this evidence.

The Parties’ Arguments on Appeal – Medical Malpractice Offered Care: Negligence Versus Informed Consent

The Defendant Hospital’s Position

The hospital contended that the trial court committed an abuse of discretion by allowing the plaintiff to introduce evidence that the mother was never offered general anesthesia. They argued that under Maryland law, any allegation that a physician failed to explain a procedure, discuss alternatives, or offer choices belongs within a separate count for a lack of informed consent.

Because the plaintiff only pled general medical negligence, the hospital argued that injecting an “option” or “choice” framework into the trial was irrelevant and prejudicial. It allowed the plaintiff’s counsel to argue during closing statements that a “reasonable mother” would have chosen general anesthesia to save her baby, thereby distracting the jury from the actual technical standard of care governing the doctors’ actions.

The Plaintiff’s Position

The plaintiff argued that the trial court’s evidentiary ruling was proper. They asserted that the failure to offer a treatment required by the standard of care constitutes ordinary medical malpractice, not an informed consent issue.

Furthermore, the plaintiff maintained that the evidence was relevant to rebut the hospital’s defense strategy. The hospital had spent considerable energy painting the mother as combative and blaming her resistance for the timeline delays. The plaintiff argued that showing the hospital never even offered the faster option of general anesthesia was necessary to prove that the delay was caused by systemic hospital inefficiency, rather than any refusal or lack of cooperation on the part of the mother.

The Court’s Ruling on Offered Care & Negligence Versus Informed Consent

The Court of Special Appeals agreed with the hospital. It held that the trial court abused its discretion in admitting the evidence that the hospital did not offer the mother general anesthesia. To provide clear guidance for the trial court on remand, the appellate court outlined the boundaries separating medical negligence from informed consent under Maryland law.

The court emphasized the foundational principle established in Sard v. Hardy: informed consent requires a physician to explain a proposed treatment, disclose material risks, and explain available alternatives so a patient can make an intelligent choice. However, the law is settled that a breach of informed consent must be pled as a separate count. Without an informed consent claim in the complaint, evidence regarding what a patient was or was not offered is irrelevant and carries a potential to confuse the jury.

The court highlighted that the plaintiff’s core theory was that the medical team should have executed an emergency C-section. Under Maryland law:

• The Emergency Exception: Medical emergencies suspend the duty to obtain informed consent, where gravity and urgency make it impractical.
• The Malpractice Metric: If an emergency C-section was required by the standard of care, the doctors had an absolute duty to immediately administer general anesthesia and deliver the child. The patient’s input or “choice” does not factor into that urgent clinical directive.

Irrelevance

Therefore, the question of whether the doctors explicitly offered the mother general anesthesia had no legal relevance to whether they breached the standard of medical care. By allowing the plaintiff’s counsel to hammer home the lack of an “offered option” during closing arguments—asking the jury what a “reasonable mother” would do—the trial court improperly permitted the plaintiff to blend an unpled informed consent theory into a general malpractice case.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Medical Malpractice Offered Care: Negligence Versus Informed Consent

The appellate court’s discussion of pleading rules with respect to negligence and informed consent is legally sound. However, the specific facts of this case show how messy these concepts can become in the heat of a trial.

First, there is a compelling argument that the plaintiff’s line of questioning was logically relevant to the defense’s narrative. The hospital’s defense regarding the delay focused on the mother being uncooperative and resisting care. Specifically, the hospital claimed that the patient did not want a C-section. In a trial dynamic, if a hospital asserts that a patient refused a procedure, the court should permit the plaintiff to show that the medical staff never offered the procedure.

Second, when evaluating an emergency medical scenario, distinguishing between “offering a treatment” and “performing a treatment” quickly devolves semantics. In an emergency C-section context, a doctor does not sit down with a clipboard to offer choices. They inform the patient of what must happen immediately to save a life. Asking a witness if general anesthesia was “offered” is structurally identical to asking whether the doctors “recognized the need for and prepared to execute” an emergency intervention.

Be Careful With Language Choice

These are unique, overlapping factual layers. Thus, this case is ultimately not the cleanest or best opinion for a definitive discussion on the separation of negligence and informed consent. In a standard elective procedure case, the line can be bright. The doctor messed up the surgery (negligence). Alternatively, they failed to warn the patient of the risks beforehand (informed consent). In a chaotic labor and delivery room, seconds dictate lifelong neurological outcomes. The failure to perform a rapid procedure and the failure to tell the patient you are doing it happen simultaneously.

The court used this case to reinforce strict pleading boundaries. However, practitioners should use it to carefully review the language they choose to prove claims.

You can read other Blog posts on issues of informed consent and other causes of action:

• Informed Consent: Street v. UCMC 3
• Informed Consent Expert: Shannon v. Fusco 1

If you believe your child suffered a preventable birth injury due to medical mismanagement or a failure to properly execute emergency procedures in a hospital, contact us today for a comprehensive evaluation of your legal rights.

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.

This post is Part 1 of a series looking at this decision. In this first post, I focus on the admissibility of non-party medical negligence in a complete denial of liability defense.

Factual Background on Nonparty Cause of Medical Malpractice

The medical malpractice action started from a home birth attempt. It was difficult before the mother transferred to a major medical institution. The mother was ten days overdue with her first child. She initially elected to undergo a natural birth at home. It was under the supervision of a private registered nurse-midwife and a labor coach. There was prolonged labor. It lasted 14.5 hours in the first stage and and also an additional five hours in the second stage. Complicating the delivery, the baby was in an occiput posterior position. The baby was facing forward rather than toward the mother’s spine. This frequently impedes progress through the birth canal.

In an effort to expedite the delivery at home, the midwife then performed several highly controversial medical interventions:

• Fundal Pressure: The midwife applied forceful manual pressure to the mother’s abdomen two or three times to push the child through the birth canal.
• Pitocin Injections: The midwife administered multiple intramuscular injections of Pitocin. It is a hormone to increase the strength and frequency of contractions. This also was in a home setting where there was no fetal heart rate monitoring.
• Premature Episiotomy: The midwife performed an episiotomy to enlarge the vaginal opening. This was while the baby was only at a +1 station. This was long before the baby’s head was crowning.
• Alternative Bacterial Treatment: Rather than administering standard IV antibiotics for the mother’s positive Group B Streptococcus status, the midwife instructed her to use a probiotic treatment.

Hospital

Realizing the delivery was failing, the midwife sutured the episiotomy and called an ambulance. The mother arrived at the hospital as an unknown patient at 3:30 a.m. Hospital doctors determined that a vaginal delivery was impossible due to cephalopelvic disproportion. This means the baby’s head could not pass through the pelvic area. They ordered an urgent Caesarean section. To perform the surgery safely via spinal or epidural anesthesia, the hospital ordered mandatory “stat” blood test. This was to check the mother’s platelet count and blood type.

The hospital encountered severe delays in obtaining these blood samples. It alleged that the mother was highly uncooperative, combative, and actively resisted care by removing medical devices and shouting at medical providers. After blood tests were successfully re-ordered and evaluated, the mother was taken to the operating room, and the baby was delivered at 5:40 a.m. in poor condition. The child now suffers from permanent cerebral palsy (CP), developmental delays, and other severe disorders.

The plaintiff filed suit against the hospital, saying that its medical team negligently delayed performing the Caesarean section. The plaintiff asserted that the standard of care required a delivery by 4:15 a.m. and that the hospital failed to recognize ominous signs of fetal distress on the heart monitor. Following a two-week trial, a Baltimore City jury returned a verdict, awarding the plaintiff $4 million for lost wages, $25 million for future medical expenses, and $26 million for non-economic damages, culminating in a $55 million judgment. The trial court subsequently reduced the non-economic damages to $680,000 under Maryland’s statutory cap and adjusted lost wages, leaving the medical expenses intact. Both parties filed cross-appeals.

The Parties’ Arguments on Nonparty Cause of Medical Malpractice

The primary issue on cross-appeal focused on a pre-trial motion in limine filed by the plaintiff. It sought to entirely exclude any testimony regarding the professional standard of care applicable to nurse-midwives or any assertion that the midwife breached that standard.

The Hospital’s Arguments

The hospital opposed the motion, arguing that the midwife’s gross deviation from the standard of care was central to its defense. The hospital asserted a complete denial of liability, contending that it was not negligent and did not cause the child’s brain damage. Instead, the hospital argued that the injuries were entirely and irreversibly inflicted hours prior to the patient’s arrival at the hospital due to the midwife’s actions.

To support its position, the hospital pointed to:

1. Expert Witness Deposition: Expert testimony stating that the midwife’s unmonitored, massive intramuscular injections of Pitocin caused “uterine tetany” (continuous contractions without relaxation), completely cutting off the oxygen supply to the fetus and causing the ultimate neurological damage.
2. Physical Trauma: Expert evidence showing that the baby suffered a cephalic hematoma due to physical trauma from the midwife trying to force the baby’s head through a narrow pelvis using fundal pressure during a five-hour second-stage labor.
3. State Board Actions: An emergency order from the Maryland Board of Nursing that had suspended the midwife’s license for violating the Nurse Practice Act during her treatment of the mother.

The Plaintiff’s Arguments

The plaintiff argued that under Maryland’s system of joint and several liability, any negligence by a non-party was completely irrelevant to whether the hospital’s independent delays also contributed to the injury. The plaintiff maintained that if the jury found the hospital was even a partial cause of the injury, the hospital would be fully liable. Therefore, introducing standard of care violations of a non-party would only serve to unfairly prejudice the plaintiff, confuse the jurors, and waste time by putting an “empty chair” on trial.

The Court’s Ruling on Nonparty Cause of Medical Malpractice

The trial court originally granted the plaintiff’s motion in limine. It forbid the hospital from using words like “negligence” or “deviation from the standard of care” when describing the midwife’s interventions. It restricted the hospital to introducing only the raw physical facts of what the midwife did and how the hospital staff reacted.

The Court of Special Appeals reversed the judgment. It remanded the case for a brand-new trial, holding that the trial court committed an abuse of discretion that denied the hospital a fair trial.

1. Issue Preservation and Waiver

The court first dismissed the plaintiff’s procedural argument that the hospital had waived the issue by failing to repeatedly proffer the excluded evidence during the trial. The appellate court said that when a trial judge makes an explicit, unconditional final ruling on a motion in limine to exclude evidence, the proponent is not required to disrupt the trial with futile offers of proof to preserve the issue for appeal.

2. Relevancy of a Non-Party’s Negligence

The court addressed a novel question in Maryland. Is evidence of a non-party’s professional negligence relevant when a defendant asserts a complete denial of liability? The court answered with a yes. It ruled that negligent medical treatment is fundamentally more likely to cause severe trauma than non-negligent, standard care.  The trial court stripped away the context of the midwife’s breach of care. It left a “logical hiatus” in the narrative presented to the jury.

“With no one allowed to show what part the [non-party’s] conduct played, the jury would be left to wonder whether anyone other than the defendant could have caused [the] plaintiff’s injuries.” 

3. Contributory vs. Comparative Negligence Context

The court rejected the plaintiff’s argument that “empty chair” defenses are only appropriate in states with comparative negligence systems. That’s where fault is apportioned among tortfeasors. The court explained that when a defendant seeks complete exoneration on the grounds of sole proximate causation, the underlying tort system (comparative or contributory) is irrelevant. If a non-party’s negligence is the 100% sole cause of an injury, the defendant cannot be “a” cause of the injury. This means liability never attaches to the defendant in the first place.

4. The Ruling Was Not Harmless Error

The appellate court specifically emphasized that the error was prejudicial. The plaintiff actively exploited the trial court’s restrictive ruling. During the trial, the plaintiff’s counsel and experts suggested to the jury that the midwife’s actions were standard, benign, and completely appropriate. They portrayed her as an experienced professional whose methods were just “how midwives practice”. The trial court barred the hospital from demonstrating that these methods were actually dangerous, illegal, and flagrant standard of care violations. Thus, the evidence gave the jury a one-sided picture of the facts.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Nonparty Cause of Medical Malpractice

Defendants in medical malpractice cases rarely admit their errors. It is amazing that in nearly every case, defendant doctors can find some “expert” doctor to state under oath that the defendant did not commit malpractice. You would think that there is never any malpractice being committed. However, those same defendant doctors agree to large settlements in a high percentage of cases.

That defense testimony often involves blaming a nonparty for solely causing the injury. This can be frustrating for plaintiffs. The defendants do not bring those other actors into the case as parties. That would allow those actors to defend themselves. As a result, the plaintiffs are then forced to take that role.

These concerns are weighed against the important principle that juries should generally be given a complete of picture of what happened in a case. Of course, this is subject to rules of evidence that prevent irrelevancy and prejudice. However, when it comes to who caused an injury at issue, both parties should be allowed to put on their expert cases.

Here, the trial court had precluded the defense from showing that the actual sole cause of the baby’s injury was the midwife. That left the jury without any way to assess the actions of the midwife that preceded the hospital’s involvement.

Plaintiffs can be frustrated when such evidence is a weak attempt to evade responsibility. However, the answer is for plaintiffs to demonstrate that weakness, not to prevent the defense from putting on the expert supported evidence.

Notes

The docket shows that the case was closed out several months after returning to the trial court. That means that the parties likely settled the case.

You can also read other Blog posts on cases with causation issues., and specifically involving nonparty malpractice:

• Nonparty Malpractice: American v. Reiss 1
• Verdict Sheet Nonparty Malpractice: American v. Reiss 2
• Intervening & Superseding Negligence: Copsey v. Park
• Settlement Admissibility: Glory Days v. Fletcher
• Subsequent Negligence: Browne v. State Farm

Stay tuned for Part 2 of this series. I will then cover the remainder of the court’s opinion. It focused on the distinctions between ordinary medical malpractice claims and unpled informed consent theories. Specifically regarding the utilization of general anesthesia.

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.

Medical malpractice litigation often involves complex objective data, from electronic medical records to advanced diagnostic imaging. When a catastrophic surgical complication occurs, both sides search for pieces of physical or radiological evidence that can vindicate their theory of the case. However, just because a piece of medical data exists does not mean a witness has a legal right to introduce it to a jury.

In Part 1, I explored how the defense “opened the door” to letting the jury know the defendant doctor lacked board certification. They did so by extensive credential-bolstering.

Background on Fact Witness Evidence: The Battle Over the Aorta Sizing

As detailed in my previous post, the plaintiff suffered catastrophic, life-altering injuries, including permanent paralysis from the waist down. This followed a botched aortobifemoral bypass surgery. The core dispute that went before the Harford County jury came down to a question of anatomy and millimeter measurements.

The plaintiff’s primary theory of negligence was that the surgical team committed a critical error. This was when they selected a 16×8 mm synthetic graft.  She presented evidence showing that her native abdominal aorta was only 7–8 mm in diameter. This meant the large graft choice created a severe, dangerous size mismatch. That caused her blood vessels to shred and hemorrage.

The defense rejected this narrative.  The doctor maintained that the patient’s aorta actually measured 14 mm in diameter, which would have made the 16×8 mm graft appropriate and anatomically sound.

The doctor, a vascular surgeon, sought to break this deadlock and prove his measurements were correct. He tried to introduce a chest CT scan of the patient. Crucially, this specific CT scan was captured during an entirely separate, unrelated hospital visit. The doctor proffered that looking at the objective calibration markers on this specific chest image can calculate the true size of the patient’s abdominal aorta.

The trial judge blocked the defense from using this imaging. Following the jury’s multi-million dollar verdict for the plaintiff in the trial, the intermediate appellate court reversed the trial judge, ruling that excluding the CT scan was a reversible error. The plaintiff then appealed the issue to the state’s highest court.

The Parties’ Arguments on Fact Witness Evidence: Relevancy vs. Personal Knowledge

The legal battle over the diagnostic scan forced both sides to clash over two foundational building blocks of evidence law: what makes a document “relevant,” and what gives a witness the legal right to talk about it?

The Defendant’s Argument: Crucial Objective Evidence

The doctor argued that because the primary battleground of the trial was the actual physical size of the patient’s aorta, a diagnostic scan capable of measuring that aorta was relevant under Maryland Rule 5-401.

The defense contended that even though the doctor was testifying exclusively as a fact witness and not an expert, he should be allowed to look at the CT scan on the witness stand, identify the aorta, and compare it to the calibration on the image. The defense warned that if physicians are banned from explaining objective factual images simply because they didn’t review them during treatment, they would be stripped of the ability to properly defend themselves against negligence claims.

The Plaintiff’s Argument: A Total Lack of Personal Knowledge

The plaintiff’s legal team countered that the scope of a fact witness’s testimony is strictly confined to what they actually saw, heard, and did during the active treatment window.

The plaintiff pointed out in the trial record: the doctor had never looked at, reviewed, or relied upon this specific chest CT scan while making medical decisions or operating on the patient. In fact, the doctor did not even know the scan existed at the time of the alleged malpractice. Therefore, the plaintiff argued, the doctor possessed no personal knowledge regarding the scan, rendering any testimony he might give about it legally inadmissible.

The Court’s Ruling on Fact Witness Evidence: Fact Witnesses are Tethered to Personal Knowledge

The Court of Appeals ultimately reversed the intermediate appellate court and ruled that the trial judge acted within his discretion when he prohibited the doctor from testifying about the diagnostic scan.

The court first clarified that the plaintiff’s definition of “relevancy” was a bit too narrow. Under Maryland Rule 5-401, any evidence that has a tendency to make a fact of consequence more or less probable is relevant. The actual size of the patient’s aorta was the central issue of the lawsuit. Thus, the scan itself could technically be deemed relevant if properly introduced.

However, the court noted that establishing relevancy is merely the first step of the evidentiary hurdle. A party must still have a legally qualified witness on the stand to identify, interpret, and explain that relevant evidence to a jury.

The court emphasized the strict boundaries governing fact witnesses in professional malpractice actions:

Witness Testimony Criteria

The court reviewed the record. It found that none of the defense’s designated expert witnesses had reviewed or relied upon this chest scan to form their trial opinions.  That left only the defendant doctor to introduce it.

It was undisputed that the doctor had never used, reviewed, or even known about this chest scan while treating the patient. Thus, he fundamentally lacked the personal knowledge required of a fact witness under Maryland law.

Conclusion

Then the court concluded:

“Clearly, then, it was within the trial judge’s discretion to prohibit [the doctor] from testifying about this CAT scan because such testimony would have gone outside the realm of [the doctor’s] personal knowledge regarding what he did and what he observed in the treatment of [the patient]”.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Fact Witness Evidence

The Court of Appeals struck the correct balance in this opinion on fact witness evidence. There was an aspect of relevancy to the CT scan. That is, if it showed the size of the aorta at a relevant time. However, the court appropriately ruled that a fact witness who had no personal knowledge of the scan could not testify about it. A party can use a properly designated and disclosed expert witness to testify about the scan if it is part of their opinions.

It is not clear why the defense did not have their experts use the CT scan. The court’s opinion states that none of the defense experts reviewed the CT scan. Nor did they rely on it in forming their opinions. So it does not sound like it was not used in discovery. But the question is why. The answer is not apparent from the opinion. It is not clear when the defense discovered the CT scan. That timing may have played into their ability to use it.

This decision stands as a reminder to trial practitioners. A fact witness must remain exactly that—a witness to the actual facts they personally experienced.

You can read additional Blog posts on cases involving evidence issues.

Thank you for reading our two-part series on this Maryland case. You or a loved one may have suffered life-altering injuries due to a surgical error, surgical mismatch, or medical malpractice in a hospital. Reach out to us today for an assertive, highly experienced analysis of your case.

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 to Evidence of Board Certification

In May 2007, the patient sought medical care at a vascular surgery practice. This was after experiencing persistent and severe pain in her thighs and buttocks. Medical evaluations revealed that a severely blocked aorta caused her symptoms. Medical providers scheduled her to undergo an aortobifemoral bypass surgery on July 16, 2007. This was to restore proper blood flow to her pelvis and lower extremities. The defendant doctor, a vascular surgeon and a colleague would perform the procedure.

During an aortobifemoral bypass, surgeons cut the abdominal aorta below the renal arteries. They utilize a synthetic graft to reconnect the aorta to the femoral artery. The surgeon must determine the proper size of the graft intraoperatively through visual inspection of the patient’s aorta.

A critical error allegedly occurred during the operation. The surgical team elected to utilize a 16×8 mm graft. However, the sutures used to attach the patient’s natural tissue to the synthetic graft failed to hold. This caused massive, immediate hemorrhaging. The doctors attempted to secure the bypass multiple times. However, with each subsequent attempt, the sutures ripped open, causing the patient to lose more blood.

Failed Graft

The surgeons relaized that the primary aortobifemoral bypass was failing. They aborted the procedure. Then they converted it into an emergency axillobifemoral bypass. This connects the axillary artery to the femoral artery, and they used a much smaller 8 mm graft.

Though they successfully completed the alternative bypass, the damage was already done. By the time the hemorrhaging was controlled, the patient had lost 5,100 ccs of blood—virtually her entire bodily blood volume. This profound loss of blood and oxygen resulted in devastating, permanent injuries: the patient was left permanently paralyzed from the waist down and suffered temporary failure of her kidneys, liver, heart, lungs, and spinal cord.

This is the factual background to the issue of admissibility of evidence that the defendant doctor did not have board certification.

The Trial and the Verdict

At trial, the plaintiff’s primary theory of negligence centered on a sizing mismatch. She argued that her native aorta was only 7–8 mm in diameter. That made the 16×8 mm graft choice inappropriate and negligent. The defendant doctor countered, claiming her aorta was 14 mm and that his graft choice was sound.

The jury ultimately believed the plaintiff, finding that the doctors had departed from the standard of care. They awarded her a total of $2,874,398 ($224,398 for past medical expenses, $2,000,000 for future medical care, and $1,333,000 for pain and suffering, which was reduced to the statutory non-economic damages cap of $650,000).

The defendant appealed, and the intermediate appellate court reversed the verdict on two key evidentiary points. The plaintiff then successfully petitioned the state’s highest court for review.

The Parties’ Arguments: Bolstering vs. Rebuttal

The central issue involves whether the jury was allowed to receive evidence that the defendant doctor did not have board-certification in vascular surgery.

The Defendant’s Argument: Legally Irrelevant Under Precedent

Pretrial, the defense team won a motion in limine keeping the doctor’s lack of board certification out of evidence. They relied heavily on established Maryland precedent holding that a physician’s failure to pass a board exam is generally irrelevant because it does not make it more or less probable that the physician botched a specific procedure.

The vascular surgeon argued that his choice not to obtain board certification in vascular surgery was not proper evidence because it had no bearing on whether he met the standard of care on the specific day of the operation. He argued that the trial judge committed a reversible error by later reversing this motion and allowing the jury to hear evidence about his lack of board certification.

The Plaintiff’s Argument: The Defense “Opened the Door”

The plaintiff’s legal team argued that while board certification status might be initially irrelevant, the defendant altered the rules of engagement during the trial.

When called to the stand, the defendant doctor’s counsel engaged in an extraordinary, 11-page examination detailing his extensive academic honors, his residency at a prestigious hospital, his teaching history, his elite surgical numbers, and his unpaid community board service. The plaintiff argued that because the defense chose to paint the doctor as a paragon of vascular surgery, fairness dictated that after the defendant “opened the door,” the plaintiff should be allowed to show that the defendant lacked board certification in that very specialty.

The Court’s Ruling: The Doctrine of “Opening the Door” to Evidence of Board Certification

In an unanimous decision, the judges reversed the intermediate appellate court and firmly ruled that the trial judge did not abuse his discretion in allowing the plaintiff to inquire into the defendant’s lack of board certification.

The court began by noting a fundamental distinction in medical malpractice law: the difference between an expert witness and a fact witness. The defendant was testifying exclusively as a fact witness—meaning his testimony was legally constrained to a recitation of what he did, saw, and observed while treating the patient.

Witness Accreditation Limits

The court noted that while “witness accreditation” (eliciting a witness’s background to make them relatable to a jury) is standard practice, it has strict boundaries for fact witnesses. The court explained the equitable concept of “opening the door”:

“‘Opening the door’ is simply a way of saying: ‘My opponent has injected an issue into the case, and I ought to be able to introduce evidence on that issue.’ It is a method by which we allow parties to ‘meet fire with fire’… the doctrine is really a rule of expanded relevancy.”

The doctor’s counsel ignored explicit warnings from the trial judge and engaged in extensive “puffing.” This lasted across 11 pages of transcript. Thus, the defense effectively placed the doctor’s professional qualifications at issue. Fairness dictated that if the defense could “puff up” his reputation, the plaintiff had every right to “puff down” by exposing his lack of board certification.

The court also briefly addressed the defense’s complaint that the plaintiff’s counsel used this information during closing arguments to attack the doctor’s overall credibility. The court noted that because the defense counsel failed to lodge an immediate objection during the closing argument, they legally waived any right to appeal that specific point.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Evidence of Board Certification

The Little opinion strikes a good balance. It recognizes the general rule that a defendant doctor’s lack of board certification ordinarily will not be admissible into evidence. However, if the defense goes too far in building up the doctor’s qualifications, admission of the lack of board certification into evidence is appropriate to balance the picture. It helps the juries receive a truthful, realistic portrait of the witness.

Moreover, if a physician wishes to testify as an expert and command the wide-ranging credibility that comes with extensive professional accreditation, their counsel must designate them as an expert subject to discovery.

The defense team attempted to have it both ways. They insulated the doctor as a mere fact witness while trying to extract the persuasive benefits of an elite expert witness. The court correctly identified this tactic. If a fact witness is allowed to spend lengthy time discussing matters wholly irrelevant to the actual operation—such as their charitable fundraising or undergraduate honors—they have left the realm of a fact witness and must face standard impeachment.

Trial Judge’s Correct Rulings

Here, the trial judge initially granted the doctor’s motion in limine. Then the judge warned the defense multiple times that they were playing with fire. He only reversed his ruling when the defense flagrantly overstepped.

You can read other Blog posts on cases involving Evidence issues.

Be sure to check back for Part 2 of this series. I will analyze the second half of the case regarding the exclusion of an unrelated chest CT scan. If you or a loved one has suffered a life-altering injury due to surgical error, contact us for an evaluation of your rights.

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 roots of this legal battle trace back to 1997. A 58 year-old patient started a care relationship with a family practice physician. Between 1997 and early 2004, the patient regularly visited the defendant. During this time the patient experienced severe, ignored clinical symptoms. These included bouts of diarrhea and constipation, alongside a significant loss of weight. Despite these classic warning signs, the defendant allegedly failed to perform or order standard, routine screenings. These would have included a colonoscopy, annual digital rectal examinations, or annual hemoccult testing.

Ultimately, on May 25, 2004, the defendant performed a digital rectal examination and hemoccult testing. These resulted in an immediate referral to a general surgeon. Subsequent diagnostic testing revealed a large colon tumor, leading to a diagnosis of Stage IV colorectal cancer with liver metastasis. The cancer eventually spread to the patient’s spine, resulting in death on March 14, 2008.

On March 8, 2011, the plaintiffs, the surviving spouse and three adult children, filed a wrongful death action. This was within three years of the death. The action alleged that the defendant’s failure to timely test and diagnose the colorectal cancer directly led to the patient’s death.

The defendant moved to dismiss the suit. The plaintiffs brought their wrongful death claims within three years of the death. However, the decedent had not filed a medical malpractice lawsuit within the statute of limitations for personal injury before passing. The trial court agreed with the defense on the wrongful death SOL. It ruled that because the underlying personal injury claim was time-barred at the time of death, the wrongful death action was similarly precluded. The plaintiffs appealed the dismissal.

Parties’ Arguments on Wrongful Death SOL

The primary issue centered on the interpretation of Maryland Code, Courts and Judicial Proceedings Article § 3-901(e). It defines a “wrongful act” as one “which would have entitled the party injured to maintain an action and recover damages if death had not ensued.”

The Defendant’s Position

The defendant argued that a wrongful death claim cannot exist in a vacuum; it is inextricably linked to the underlying medical malpractice. The defense argued that the statute phrase “if death had not ensued” required the decedent to possess a viable tort claim at the exact moment of death. The statute window for the decedent to sue for medical malpractice had closed prior to death under § 5-109(a). Thus, the defendant maintained that no “wrongful act” could legally exist to support the surviving beneficiaries’ claims.

The Plaintiffs’ Position

Conversely, the plaintiffs argued that Maryland’s wrongful death statute created an entirely new, separate, and independent cause of action designed to compensate beneficiaries for their own distinct losses, rather than a surviving claim that merely substituted the decedent’s place. They said that the three-year limitation period detailed in § 3-904(g)(1) serves as the sole time constraint for filing a wrongful death suit. Furthermore, the plaintiffs argued that the statute definition of a “wrongful act” refers strictly to the tortious nature of the behavior itself at the time of its occurrence, rather than the procedural viability of a personal injury lawsuit on the calendar date of the victim’s passing.

Court’s Ruling on Wrongful Death SOL

The Court of Appeals of Maryland reversed the circuit court’s dismissal, holding that a wrongful death claimant’s right to sue is absolutely not contingent upon the decedent’s ability to file a timely negligence lawsuit before their death.

In analyzing the statutory framework, the court acknowledged that the phrase “if death had not ensued” carried an inherent ambiguity. Both parties presented reasonable, conflicting interpretations. To resolve this, the court explored the historical purpose of the statute, which was originally adapted from the English Lord Campbell’s Act of 1846 to fix a harsh common-law rule that allowed wrongdoers to escape civil liability entirely if their victims died.

The court determined that the legislature did not intend to craft a definition of “wrongful act” that would condition a family’s recovery on whether a terminally ill patient managed to sue a medical provider before passing away. Additionally, the court ruled on a vital secondary issue. The specific statute of limitations governing medical malpractice claims against medical providers (§ 5-109) applies strictly to personal injury claims and does not govern or bar an independent action for wrongful death. Consequently, the case was remanded for further proceedings.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Wrongful Death SOL

The Mummert decision confirmed the independent nature of a wrongful death claim and SOL. The damages available in a wrongful death action include the loss of a spouse’s companionship, parental guidance, and the mental anguish suffered by surviving relatives. These are distinct from the medical bills and conscious pain and suffering damages sought in a personal injury or survival action. The injuries belong uniquely to the living beneficiaries. It is logical that their right to seek a remedy should not be dictated by the procedural clock ticking against the deceased.

Furthermore, tying a family’s right to sue to the decedent’s ability to file a timely pre-death claim would yield absurd and unjust outcomes. Many medical malpractice cases involve a failure to diagnose aggressive diseases like cancer. A physician’s negligence may not cause death until years after the initial error. A patient can be severely weakened, undergoing grueling treatments, or simply unaware of the full scope of a legal right. Forcing them to initiate a lawsuit while on their deathbed just to preserve their family’s future security creates a cruel and unnecessary hurdle.

Consequences of a Contrary Holding

The court could have ruled in favor of the defendant on the wrongful death SOL. It would have inadvertently carved out an unjust legal loophole for negligent medical providers. A doctor’s diagnostic error may be severe enough to cause a slow, terminal decline. That may outlast the standard personal injury statute of limitations. That doctor would be insulated from wrongful death liability. The court correctly recognized that a tortfeasor should not shield themselves. They must face the financial consequences of a fatal mistake even when the victim succumbed to their injuries slowly. Maryland courts separate the limitations period of wrongful death from the underlying negligence timeline. They ensure that families retain a fair, uncompromised path to accountability.

You can read additional Blog posts on Maryland appellate opinions on the topics of Statute of Limitations and Causes of Action.

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 Refiling in HCADRO Medical Malpractice

This is a medical malpractice claim. The plaintiff seeks damages for severe personal injuries allegedly resulting from substandard medical treatment. The plaintiff filed the claim against the defendants. They were a corporate medical system operating a local hospital and an individual doctor acting as a specialized hospitalist. Initially, the plaintiff tried to comply with the mandatory arbitration framework under the HCMCA. She filed a claim before the Health Care Alternative Dispute Resolution Office (HCADRO). However, the procedural foundation of that initial filing was fatally flawed. On January 28, 2011, the circuit court dismissed the plaintiff’s action against the medical system defendant. The plaintiff failed to sufficiently identify the responsible medical providers within the Certificate of Qualified Expert (CQE). The circuit court ordered the dismissal without prejudice, in compliance with standard HCMCA enforcement mechanisms.

Following this dismissal, the plaintiff sought to exploit a statutory safety valve rather than returning to the administrative forum. On March 29, 2011, the plaintiff skipped the HCADRO entirely. She filed an entirely new civil action directly within the Circuit Court for Montgomery County. The plaintiff relied on a specific limitations-savings provision, under the Courts and Judicial Proceedings Article (CJP) § 5-119. She said it permitted the filing of a new complaint directly in the circuit court. She said that this filing effectively resurrected the claim and tolled the applicable statute of limitations.

Other Procedural Deficits

The case moved into discovery against both the medical system and the individual hospitalist physician. Additional procedural deficits emerged. The trial court gave a scheduling order. It included the deadlines by which the parties were required to list their expert witnesses. 

Despite the mandates of this scheduling order, the plaintiff failed to identify any expert witnesses intended to be called at trial against the corporate medical defendant within the deadline. Furthermore, the plaintiff failed to file a timely response to the medical system defendant’s subsequent motion for summary judgment. It had been brought based upon that exact absence of expert testimony. With respect to the individual defendant physician, the plaintiff did produce a medical expert for deposition. However, during the course of record proceedings, the plaintiff admitted that this expert was a neurologist. Thus, his qualifications did not enable him to testify to the standard of care expected of a hospitalist.

There was an absence of standard-of-care expert evidence against both defendants. The trial court granted summary judgment in favor of the medical system and the physician. The plaintiff orally requested the court during proceedings for an additional opportunity to cure the discovery deficiencies. The trial court denied it by entering summary judgment. Following the entry of judgment, the plaintiff filed a motion to alter or amend the judgment regarding the individual physician. She attached an “amplified” affidavit from the neurologist that tried to revise and bolster his professional qualifications. The trial court denied this motion, and the plaintiff’s appealed.

Parties’ Arguments on Refiling in HCADRO – Medical Malpractice

On appeal, the primary dispute turned on a matter of statutory interpretation regarding the precise scope of CJP § 5-119. The plaintiff said that the circuit court committed reversible error by dismissing the March 29, 2011 complaint against the healthcare defendant. Then the plaintiff focused heavily on the literal text of CJP § 5-119. It contains a disjunctive phrase. This allows a non-negligent claimant whose case the court dismissed without prejudice to “commence a new civil action or claim for the same cause”. The plaintiff argued that the General Assembly’s use of the disjunctive “or” gave injured parties an absolute choice between alternative paths. Under this interpretation, the plaintiff claimed a right to go around the administrative HCMCA framework. She could file a fresh civil action directly in the circuit court. This treats the savings provision as a standalone procedural bridge.

Conversely, the defendants argued that CJP § 5-119 could not be read in a vacuum. The defendants maintained that while § 5-119 functions as a narrow, limitations-savings provision, it lacks any language describing the initial venue or forum where a “cured” claim must be filed. The defendants noted that CJP § 3-2A-04(b)(1) says that any “claimant or plaintiff” must file an expert certificate and report directly “with the Director” of the HCADRO. Therefore, the defendants argued that a plaintiff whose certificate is deemed legally deficient by a court cannot utilize a limitations-savings statute to completely bypass mandatory arbitration and strip the HCADRO of its threshold jurisdiction.

Summary Judgment

Regarding the summary judgment and discovery rulings, the plaintiff argued that the trial court abused its discretion by denying her a final opportunity to cure her expert identification deficiencies before the formal close of discovery. The plaintiff noted that discovery still had approximately one month remaining. Thus, the harsh consequence of summary judgment—which acted as a dismissal of her claims—should be only for the worst instances of non-compliance. Regarding the physician, the plaintiff said that her expert’s extensive medical experience qualified him to offer standard-of-care opinions, regardless of whether he practiced specifically as a hospitalist. The plaintiff further insisted that the trial court abused its discretion in denying her post-judgment motion to alter or amend, saying that the attached affidavit clarified and amplified the expert’s qualifications to survive summary judgment.

The individual defendant physician said that the plaintiff’s expert entirely lacked the requisite clinical experience to testify regarding the standard of care for a hospitalist. The physician argued that a neurologist’s specialized training and skill in interpreting magnetic resonance imaging (MRIs) could not be replace or compare to the day-to-day operational standard of care required of a hospitalist. Because the plaintiff admitted on the record that her expert could not state the standard of care expected of a hospitalist, the physician argued that summary judgment was required as a matter of law.

Court’s Ruling

The Court of Special Appeals affirmed the judgments of the circuit court across all issues. Reviewing the statutory interpretation question de novo, the appellate court held that neither CJP § 5-119 nor any other statute provision allows a medical malpractice plaintiff to re-file a dismissed claim in the circuit court without first filing a legally sufficient Certificate of Qualified Expert within the HCADRO framework. The court said that CJP § 5-119 is a narrow limitations-savings statute that must operate with the whole HCMCA. While § 5-119 protects a diligent claimant from being barred by the statute of limitations, it does not alter the absolute forum requirements of CJP § 3-2A-04(b)(1), which commands that expert certificates be filed exclusively with the Director of the HCADRO. 

The court noted that under the statute scheme, a plaintiff cannot pursue an action in any state court unless it strictly complies with the HCMCA. Because a proper certificate is a condition precedent, the court said that a plaintiff whose certificate is ruled deficient must return to the HCADRO to file anew. The court further ruled that the HCADRO, rather than the circuit court, is the appropriate forum to resolve any underlying limitations or tolling disputes.

Summary Judgment

Turning to the entry of summary judgment, the appellate court held that the trial court was correct as a matter of law. The court noted that to establish a prima facie case of medical malpractice in Maryland, a plaintiff must affirmatively prove:

1. The applicable standard of care;
2. That the defendant violated said standard; and
3. That the violation proximately caused the injuries.

Because medical malpractice actions are complex, plaintiffs need expert testimony to establish a breach of the standard of care. In this instance, the plaintiff failed to designate any expert witness against the medical system defendant. This left the court with no choice but to conclude that the case could not proceed. Against the individual physician, the plaintiff admitted that her expert could not testify regarding the standard of care expected of a hospitalist. Due to this failure to produce qualified expert testimony on the standard of care, the plaintiff could not establish a prima facie case, making summary judgment legally required.

Finally, the appellate court reviewed the trial court’s discovery and post-judgment rulings under a deferential abuse of discretion standard. The court held that the trial court did not abuse its discretion in refusing to grant the plaintiff additional time to cure her discovery failures. The record revealed a persistent history of non-compliance, including a failure to abide by scheduling deadlines or to respond to the pending summary judgment motion. Similarly, the court found no abuse of discretion in the denial of the motion to alter or amend. The plaintiff’s “amplified” affidavit did not contain newly discovered evidence or information from subsequent events. Rather, it merely rehashed the expert’s neurological background. The plaintiff had already admitted it was insufficient to establish the standard of care for a hospitalist.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Refiling in HCADRO

The HCMCA can be a legal minefield in medical malpractice cases for even experienced practitioners. Even more challenging were the early cases. They had to establish the controlling application of language that parties could interpret reasonably in multiple ways. In the process, there were harsh results as the Maryland appellate courts clarified these principles.

Puppolo continues to stand for the principle that plaintiffs have to fix deficient CQEs in HCADRO, not the circuit courts.

You can read other Blog posts involving Procedure issues in HCADRO and the circuit courts.

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 previous Part 1, I covered the trial court’s refusal to reopen discovery. Then Part 2 involved the limits placed on unapproved drug testimony under Daubert-Rochkind. Part 3 discussed the exclusion of post-dated medical literature.

Factual Background on Other Patient Evidence in Medical Malpractice Case

The multiple week trial progressed in the circuit court. A key element of the plaintiffs’ causation and damages strategy hinged on proving that if the decedent had been correctly diagnosed with cardiac amyloidosis during his lifetime, his condition could have been stabilized. To demonstrate this concept in the medical malpractice case, the plaintiffs sought to introduce the live testimony of a fact witness that had been an other patient who had taken the same drug treatment.

In this medical malpractice case, the other patient was an independent third party. He had no personal, familial, or professional relationship with the decedent. Nor did he possess any firsthand knowledge regarding the specific medical care, evaluations, or consultations provided by the defendant doctors. The other patient had also been diagnosed with cardiac amyloidosis.

According to the plaintiffs’ proffer, the other patient was prepared to testify that following his diagnosis, he successfully obtained the medication tafamidis through an experimental compassionate use program. He would testify that the drug effectively arrested the progression of his disease, stabilized his cardiac function, and significantly extended his life.

However, the timeline of the other patient’s medical journey differed from the decedent’s. Medical providers did not diagnose the other patient with cardiac amyloidosis until 2018. This was months after the decedent had already passed away. It was outside the February 2015 to December 2017 treatment window that formed the baseline of the lawsuit. The defendants objected to the other patient taking the stand. They argued that his anecdotal medical history was legally irrelevant and structurally prejudicial. The trial judge sustained the objection and barred the other patient from testifying int he medical malpractice trial. The plaintiffs appealed.

Parties’ Arguments

On appeal, the plaintiffs contended that the trial court committed a reversible error and abused its discretion by keeping the other patient from testifying. They argued that the other patient was a fact witness whose testimony proved the element of proximate causation. Specifically, they asserted that the other patient’s real-world survival story offered tangible, living proof to the jury that cardiac amyloidosis was not an automatic, immediate death sentence between 2015 and 2017.

By showing that another individual survived the exact same disease using a specific medical pathway, the plaintiffs believed they could demonstrate a “reasonable probability” that the decedent would have survived as well had he been properly diagnosed. The plaintiffs maintained that any differences between the other patient’s medical condition and the decedent’s went to the weight of the evidence, which the jury should evaluate, rather than its admissibility.

The defendants counter-argued that the trial court’s decision was a textbook application of Maryland Rules 5-401 and 5-402 governing legal relevance. They emphasized that in a medical malpractice action, a plaintiff cannot establish the standard of care or proximate causation by introducing the isolated, anecdotal experiences of a single, unrelated patient.

The defendants pointed out that the other patient’s diagnosis occurred in 2018. This meant his access to experimental protocols post-dated the decedent’s lifetime. It could shed no light on what treatments were widely accessible or standard between 2015 and 2017. They argued that allowing an unrelated patient to testify about his personal medical success would invite the jury to engage in speculation, drawing an unscientific, emotional equivalence between two entirely distinct human bodies and clinical timelines.

Court’s Ruling

The Appellate Court of Maryland looked at the trial judge’s exclusion of the other patient under a de novo standard for the threshold determination of legal relevance, and an abuse of discretion standard regarding the trial court’s overall management of witness evidence. The appellate court affirmed the trial court’s ruling, holding that the other patient’s proposed testimony was irrelevant as a matter of law.

Citing Maryland Rules 5-401 and 5-402, the court noted that evidence is only admissible if it has a logical tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Two Flaws

The court split its medical malpractice analysis of the other patient’s testimony into two fatal flaws:

First, the court discussed the complete absence of factual overlap. The other patient had no connection to the case, no knowledge of the decedent, and no insight into the actions of the defendant physicians. His testimony amounted to an isolated, personal case study of an entirely different patient with a distinct genetic makeup, age, medical history, and clinical progression.

Second, the court focused on the timeline gap. Because the other was not diagnosed until 2018, his inclusion in an experimental compassionate use program occurred after the decedent had already died. The court noted that availability of an experimental protocol in 2018 does not prove that a community physician in 2015 or 2016 could have legally or practically secured that same treatment for a patient.

The appellate court concluded that the other patient’s personal clinical outcome had absolutely no legal relevance. It did not show whether the defendants breached the standard of care or caused the decedent’s death. Because the testimony could not make any fact of consequence more or less probable, it was properly barred.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on the Relevance of Other Patient’s Experience

The Appellate Court of Maryland’s decision to affirm the exclusion of the other patient’s testimony was correct. A single patient’s positive response to a drug or protocol proves nothing. It does not show how a different patient will react to that same drug. Two patients diagnosed with the exact same broad disease category may have vastly different situations. Different comorbidities, genetic expressions, structural heart damage, and tolerance levels. Allowing the other patient’s evidence would unfairly shift the burden onto the defense. They would have to practically litigate the other patient’s medical chart. They would try to prove why his body was different from the decedent’s. This would result in a potentially confusing, time-wasting “mini-trial” within a trial.

If the court allowed this testimony, defendants would conversely be incentivized to search the country for patients who took the drug and died. They would present their own parade of tragic anecdotes. Broad, peer-reviewed epidemiological data, and clinical trials may be relevant, but not individual anecdotes.

In addition, the other patient did not enter the medical system as an amyloidosis patient until 2018. Thus, his narrative belongs to a different era of medical availability. Things can change fast in the evolution of experimental drug pipelines. A drug may be highly restricted or completely not available in one year. Then it might suddenly open up through an expanded access protocol two years later. Permitting the jury in this medical malpractice case to listen to the other patient’s timing would could confuse them with a different compassionate use framework.

Series Conclusion

With this fourth holding affirmed, the Appellate Court of Maryland then completely upheld the defense verdict in DeMizio v. Johns Hopkins Health System Corp. Taken as a whole, this four-part opinion serves as a reminder for Maryland trial lawyers. Success in complex medical malpractice actions requires compliance with scheduling orders, a foundation for expert opinions, a literature focus on the exact dates of treatment, and also a rejection of anecdotal evidence.

You can read other Blog posts on Evidence issues in other cases.

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 4, I will discuss the relevance in a medical malpractice case of an other patient’s experience with the drug treatment at issue.

In Part 1, I looked at the trial court’s refusal to reopen a discovery window. Also, Part 2 involved the court’s restriction of expert testimony regarding non-FDA-approved pharmaceuticals under the Daubert-Rochkind framework.

Factual Background on Medical Article in Medical Malpractice

The core liability dispute in the underlying lawsuit focused on whether the defendants failed to properly and timely diagnose the decedent’s cardiac amyloidosis. The relevant period of medical evaluation and care provided by the defendants spanned from February 2015 until the patient’s sudden cardiac death on December 15, 2017.

At trial, the parties disputed what diagnostic criteria and clinical guidelines governed a reasonably competent cardiologist’s knowledge and actions during that specific 2015–2017 timeframe. The plaintiffs sought to introduce into evidence a specific medical article published by the Cleveland Clinic. This article updated guidelines for cardiac amyloidosis. It mapped out advanced clinical paths to identify the disease before fatal cardiac events occurred.

The journal published the Cleveland Clinic article in December 2017—the exact month and year of the decedent’s death. The journal released it at the very tail end of the relevant treatment. Thus, it was not available to the medical community during the nearly three years of prior evaluations that formed the basis of the negligence claims. Furthermore, the plaintiffs’ legal team failed to identify, produce, or otherwise disclose this specific literature during the discovery period. They waited until the middle of the trial to attempt to introduce it. They were trying to bolster the live testimony of their expert witnesses cardiologist. The defendants immediately opposed its admission, causing an extensive sidebar and a formal evidence ruling by the trial judge.

Parties’ Arguments

At trial and on appeal, the plaintiffs said that the trial court committed error. It completely kept out the Cleveland Clinic article. They argued that the literature was not being offered to introduce a new, after death method. Rather, to support and confirm the existing diagnosis techniques that their expert witness was already stating to the jury.

The article was published in December 2017. The plaintiffs maintained it was strictly at the same time as the final month of the decedent’s life. It accurately showed the peak of medical knowledge at the exact moment his care finished. The plaintiffs further argued that the defendants could suffer no genuine prejudice or unfair surprise from the text. The Cleveland Clinic is a famous institution. Its published diagnosis thresholds should be familiar to any board-certified cardiologist’s conduct in a court of law.

The defendants argued that the trial court’s decision to bar the article was a proper and necessary application of Maryland evidence law. They said that the standard of care must be measured by the knowledge available to a practitioner at the time of the alleged negligent acts, not through the lens of retrospective literature.

The defendants pointed out that the article was published in December 2017. It could not possibly have informed or guided a physician’s clinical decisions in 2015, 2016, or the vast majority of 2017. Introducing a post-dated or contemporaneous diagnostic guideline, they argued, would unfairly invite the jury to judge the defendants’ past actions using subsequent medical consensus. Finally, the defendants raised a clear procedural objection. They emphasized that the plaintiffs’ failure to disclose the article during the formal discovery window denied the defense an opportunity to review the text with their own experts. This constituted an incurable trial-by-ambush tactic.

Court’s Ruling on Medical Article in Medical Malpractice

The Appellate Court of Maryland reviewed the trial judge’s exclusion of the medical article. It used an abuse of discretion standard for the procedural discovery violation. It used a de novo standard for the underlying legal relevance regarding the standard of care. The appellate court affirmed the trial court’s ruling on both grounds, finding no error or abuse of discretion.

First, the court addressed the temporal relevance of the literature. The appellate court reiterated a foundational tenet of Maryland tort law. The medical standard of care is strictly measured by the clinical information, diagnostic tools, and scientific consensus available to a practitioner at the exact time the alleged negligent act or omission occurred.

The Cleveland Clinic article was published in December 2017. It was physically impossible for it to have informed, influenced, or guided the defendants’ diagnostic actions during the preceding years of the patient’s treatment. The court noted that a physician cannot be held liable for failing to adhere to a diagnostic guideline that had not yet been written, compiled, or disseminated to the wider medical community.

Second, the court affirmed the exclusion based on the plaintiffs’ clear procedural default. By failing to disclose the Cleveland Clinic article during the active discovery phase, the plaintiffs violated the structural requirements designed to prevent surprise at trial.

Finally, the appellate court observed that even if the exclusion had been technically improper, it constituted entirely harmless error. The trial record revealed that the plaintiffs’ expert cardiologist was still fully permitted to testify at length regarding the underlying diagnostic criteria. This was based entirely on his personal clinical knowledge and active practice. Thus, the physical absence of the document did not prevent the plaintiffs from presenting their core theory of liability to the jury.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Medical Article in Medical Malpractice

The Appellate Court of Maryland’s decision to uphold the exclusion of the Cleveland Clinic article was predicable based on its date. It sounds like the plaintiffs were able to get the substance equivalent into evidence through the expert’s testimony. That’s probably the best they can do given that the release date of the article was after almost all of the treatment already had occurred.

The procedural basis for the exclusion also was problematic for the plaintiffs. Disclosing the article for the first time during the plaintiffs’ expert’s trial testimony was not going to go well. Even though the expert had said in deposition that he was not relying on any medical articles, the plaintiffs still had a fair chance at using it if they had disclosed it before the expert had taken the stand.. Even if disclosure was the day before the expert testified, a judge could find that the defense could adequately consult with their experts and prepare cross examination.

You can read additional Blog posts on the topics of Expert Testimony and Discovery.

Stay tuned for Part Four of this series. I will examine the final issue raised on appeal. The total exclusion of a fact witness and the strict rules governing the legal relevance of non-party patient outcomes.

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 of the Blog series, I discussed the trial court’s denial of a motion to reopen discovery.

Part 3 will discuss the exclusion of post-dated medical literature. Part 4 will discuss the relevance in a medical malpractice case of an other patient’s experience with the drug treatment at issue.

Factual Background

The procedural core of this dispute emerged from a pre-trial motion filed by the defendants. The motion sought to exclude or restrict the testimony of the plaintiffs’ designated expert witness, a board-certified cardiologist . The plaintiffs intended to introduce three distinct clinical opinions through this expert witness. These would prove both a breach of the standard of care and legal causation. The trial court ultimately allowed the expert witness to testify regarding two of his clinical conclusions. However, the primary conflict on appeal focused on his third opinion. The defendants had breached the medical standard of care by failing to treat the patient with the drug tafamidis. Or by failing to refer him to a center where he could get the drug.

The relevant treatment window a from February 2015 until the patient’s sudden death in December 2017. The FDA had not approved the drug tafamidis for any therapeutic use within the United States. The FDA did not officially grant regulatory approval for the drug until 2019.

Expert Testimony on Experimental Drug

At the pre-trial evidentiary hearing, the expert witness stated that despite the lack of domestic FDA approval, the European Union and Japan had already approved tafamidis for treating cardiac amyloidosis during 2015 and 2016. He said that clinical studies showed the medical community widely knew about the drug’s safety and effectiveness. They were accessible to American cardiologists at that time.

To bridge the regulatory gap, the expert witness maintained that patients of financial means could have traveled abroad to obtain the medication. Alternatively, he claimed that the patient could obtain the drug in the USA “off-label” through special “amyloid centers.” These were located at elite institutions like Harvard, Stanford, and Johns Hopkins via compassionate use or special prescribing protocols.

The expert witness said that a reasonably competent cardiologist operating between 2015 and 2017 had to either prescribe tafamidis off-label or immediately refer the patient to an amyloid specialist who could secure the drug. However, at the hearing, the expert witness failed to produce, cite, or reference a single peer-reviewed publication, clinical guideline, or objective data source. He did not show that American cardiologists had generally accepted this non-FDA-approved drug during the relevant time period.

Parties’ Arguments

On appeal, the plaintiffs contended that the trial court committed a reversible abuse of discretion by overly restricting the expert witness’s testimony. They argued that the expert firmly grounded his conclusions in decades of personal clinical experience, extensive active practice, and a comprehensive awareness of ongoing global medical literature.

The plaintiffs maintained that because the expert witness was a highly qualified, board-certified cardiologist who actively treated amyloidosis patients in his own practice, his insights into cutting-edge therapeutic options should have been presented to the jury. Barring this testimony, they argued, caused severe and fatal prejudice to their case. It entirely eliminated their ability to argue a primary theory of negligence: that a viable, life-extending treatment protocol existed and should have been pursued by the defendants.

The defendants argued that the trial court properly ruled in its role as a judicial gatekeeper. They maintained that the expert witness’s opinion regarding tafamidis was a classic example of speculation that lacked any objective factual or scientific foundation. The defendants claimed that under longstanding Maryland law, the standard of care is not formulated in a vacuum. It must reflect what a reasonably competent practitioner would do under similar circumstances within the domestic medical community.

They argued that a drug entirely lacking FDA approval during the years of treatment cannot be forced upon the medical community as a mandatory standard of care without objective evidence showing widespread domestic acceptance. Because the expert witness offered nothing but his own personal assertions (ipse dixit) to support his claim that off-label use was the expected standard, the defendants argued the testimony was properly excluded as unreliable.

Court’s Ruling on Experimental Drug Expert Testimony

The Appellate Court of Maryland reviewed the trial court’s decision under an abuse of discretion standard. It noted that a trial judge’s determination to admit or exclude expert testimony will not be disturbed unless the ruling is completely unsupported by logic, fact, or guiding legal principles. The appellate court affirmed the trial court’s exclusion. It held that the trial judge correctly applied the standards of Maryland Rule 5-702 and the Daubert-Rochkind reliability framework.

Under Maryland Rule 5-702(3), a court must determine whether a sufficient factual basis exists to support an expert’s testimony. That requires an evaluation of both the adequacy of the data and the reliability of the underlying methodology. To guide this assessment, courts utilize the ten non-dispositive Daubert-Rochkind factors. The appellate court walked through the trial judge’s factor-by-factor analysis. It balanced both the strengths and terminal deficiencies of the expert’s proffer.

Application of Factors

• Factors Weighing in Favor of Admissibility (Factors 6 and 10): The court acknowledged that the expert witness’s opinions grew naturally out of his independent clinical research and regular practice rather than developed solely for litigation (Factor 6). Furthermore, the court agreed that the field of cardiology is universally recognized as capable of reaching reliable results regarding medical standards of care (Factor 10) .
• Factors Compelling Exclusion (Factors 2, 5, and 7): Despite the expert’s qualifications, the court found fatal flaws under the remaining criteria. Under Factor 2 (peer review and publication), the court highlighted that the expert witness produced zero published literature stating that tafamidis was an accepted standard of care in the U.S. between 2015 and 2017. Under Factor 5 (general acceptance), the court observed that while the drug was “out there” or available globally, the expert provided no evidence of its widespread domestic acceptance among American practitioners during the relevant treatment years. Most critically, under Factor 7 (unjustified extrapolation), the court determined that because the drug entirely lacked FDA approval during the decedent’s lifetime, concluding that prescribing it was the mandatory standard of care constituted an impermissible leap.

The appellate court concluded that the expert witness failed to bridge the massive “analytical gap.” That gap was between the empirical data (global trials and localized experimental use) on one side. On the other was his sweeping conclusion (a nationwide standard of care). The opinion rested solely upon the ipse dixit—the uncorroborated word—of the expert. Thus, the appellate court held that the trial court properly exercised its discretion to exclude the testimony.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Experimental Drug Expert Testimony

The Appellate Court of Maryland’s decision to affirm the restriction of the expert witness’s testimony was not surprising. Patients often face hurdles in gaining access to medical treatment that is available in other countries, but that the FDA has not approved for use in the USA. These hurdles can be at multiple stages. A patient may not be able to find a doctor who will consider such a treatment. In addition, the hurdle may be an insurance company that will not pay for the treatment.

In this case, the insurmountable hurdle was the legal system. Showing the availability of the treatment was not enough. Nor was showing wide acceptance in other places. The plaintiff’s expert had to establish that the medical community in the USA had widely accepted the treatment. For the patient in this case, that would not come until two years later, when it was too late.

You can read more Blog posts on issues involving expert witnesses.

Stay tuned for Part 3 of this series. I will analyze the trial court’s exclusion of the post-dated Cleveland Clinic medical article. I will also further explore the temporal constraints governing evidence in medical negligence actions.

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 will involve the limits placed on unapproved drug testimony under Daubert-Rochkind. Then Part 3 will discuss the exclusion of post-dated medical literature. Part 4 will discuss the relevance in a medical malpractice case of an other patient’s experience with the drug treatment at issue.

Factual Background

The underlying medical malpractice action was brought by the plaintiffs in May 2020. The lawsuit alleged that multiple medical defendants failed to appropriately diagnose and treat the decedent’s underlying cardiac amyloidosis. This was during a relevant treatment period from February 2015 until his sudden death in December 2017.

From its very start, the case faced procedural friction and experienced structural delays over several years. A substantial portion of this stagnation was directly attributable to successive legal counsels for the plaintiffs entering appearances and subsequently withdrawing from active representation. Specifically, the plaintiffs’ initial filing counsel withdrew in December 2020. This resulted in the court to pushing the original July 2021 trial date back to March 2022.

Replacement counsel stepped in, but subsequent complications and scheduling conflicts forced further adjustments, delaying the trial to May 2023. In early 2023, the plaintiffs’ legal team suffered consecutive departures. One co-counsel withdrew in February, and lead counsel left in April due to health complications. Consequently, the trial date was postponed yet again, resetting the operational schedule to January 2024.

Amidst these compounding delays, the operative discovery deadlines had long since crystallized under the court’s scheduling order. The circuit court originally set discovery to close on January 27, 2022. There were minor disputes regarding document production. The court then permitted discovery to remain partially open for a highly limited purpose. It definitively established a final, modified discovery deadline of May 31, 2022.

Plaintiffs’ Motion for Reopening of Discovery

More than a full year after this final discovery deadline closed, the plaintiffs again secured their new legal representation, with incoming counsel entering an appearance in July 2023. On the exact date of his appearance—fourteen months after the absolute expiration of discovery and four months before the rescheduled trial date—the plaintiffs’ new attorney filed a motion requesting the court to reopen discovery. The explicit purpose of the motion was to depose two of the defendants’ expert witnesses, whose identities and specialized expert reports had already been provided during the original, active discovery period.

Parties’ Arguments on Reopening Discovery & Medical Malpractice

In seeking leave to reopen the discovery window, the plaintiffs argued that the requested modification was narrow in scope and would only require the discovery window to be active for a very brief period. They emphasized that at the time of the motion in July 2023, the scheduled trial date was still several months away, meaning that it could easily accommodate the expert depositions without requiring an additional postponement of the trial itself.

New counsel further maintained that prior legal representation had committed a disservice to the plaintiffs by failing to execute these depositions while discovery was open, effectively arguing that the clients should not be penalized for the strategic omissions or failures of their previous attorneys. Finally, the plaintiffs claimed prejudice, asserting that entering a medical malpractice trial without having conducted pretrial depositions allowed the defense experts to unfairly adapt, surprise, and shape their live trial testimony to the direct detriment of the plaintiffs’ case.

Defense Arguments

Conversely, the defendants argued that there was absolutely no good-faith basis to disturb the long-standing scheduling order by reopening discovery in this medical malpractice case. They pointed to the extensive administrative history of the case, highlighting that the numerous prior delays were entirely attributable to the plaintiffs’ compounding counsel turnovers and internal management. The defendants asserted that the trial court was legally and equitably required to protect the integrity of the judicial schedule, ensure finality, and shield the defendants from ongoing litigation costs.

They emphasized that the plaintiffs had been provided an ample, fair, and multi-year opportunity to depose the defense experts during the active discovery period, and that a sudden shift in trial strategy by incoming counsel did not constitute an extraordinary circumstance or legal justification. Reopening discovery, they warned, carried an unacceptable risk of throwing other pre-trial deadlines off track, disrupting expert schedules, and inevitably precipitating yet another trial delay.

Court Ruling on Reopening Discovery & Medical Malpractice

The circuit court denied the plaintiffs’ motion to reopen discovery, expressing concern regarding the compounding delays and the danger of throwing the remaining trial deadlines off track. On appeal, the appellate court reviewed this denial under the highly deferential “abuse of discretion” standard. The court emphasized that the control of a trial calendar and the modification of a scheduling order are matters strictly committed to the sound judgment and discretion of the trial court.

To determine whether the trial court acted within its lawful bounds, the appellate court applied the framework established in Maryland jurisprudence, which dictates that a party seeking to modify a scheduling order past its deadline must demonstrate both substantial compliance and good cause.

Analysis

First, analyzing substantial compliance, the appellate court found that the plaintiffs’ delay was completely divorced from a minor or “technical” violation. The motion was brought more than fourteen months after the formal close of discovery. Thus, it represented a total failure to meet the scheduling order’s structural terms, precluding any finding of substantial compliance.

Second, evaluating good cause, the court ruled that a tactical change in trial strategy or the personal assessment by incoming counsel that prior counsel had failed the client does not constitute a legally sufficient justification for noncompliance. The court observed that the defendants’ experts had already submitted highly detailed written expert reports during the active discovery window. Therefore, the plaintiffs were not operating completely in the dark or facing a dynamic of trial-by-ambush.

The Appellate Court balanced the absence of a valid reason for the fourteen-month delay against the prejudice of delaying an already heavily derailed case. The court held that the trial judge acted with reference to guiding legal principles. The Appellate Court found that the ruling was firmly supported by logic and the facts on record. It concluded that the trial court did not commit an abuse of discretion.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Reopening Discovery & Medical Malpractice

The abuse of discretion standard is very deferential. The trial judge could have decided this issue either way and it likely would not have been reversed on appeal. 

Some medical malpractice lawyers do not take the depositions of the opponents’ expert witnesses for strategic reasons. The deposition can give the expert the opportunity to prepare and a preview of questions the lawyer will ask at trial. In most instances medical malpractice lawyers choose to conduct the depositions. However, the argument that the earlier lawyer’s failure to depose the experts had resulted in prejudice was likely to face an uphill battle. Combined with detailed expert witness reports having been provided to the plaintiffs, these factors provided grounds that the trial judge could rule against reopening discovery. 

The plaintiff’s attempt to reopen discovery was not frivolous. The trial was months away. There was time to conduct the depositions in a way that would not further delay the case or cause extreme prejudice to the defense. Some judges may have allowed such a request. One of the reasons that the request was not successful here was the multiple prior lengthy delays in the case.

Practical Considerations

A replacement lawyer joining a case has to be realistic. The court may not allow expert depositions in a circumstance like this. Filing the motion to reopen discovery is a fine way to proceed. As discussed above, it could have gone either way.

However, there is a more concerning situation here. It happens whenever a lawyer withdrawals from a case. There has to be a concern that a major problem has occurred with respect to the ability to win. That could be a problem with evidence coming out that is harmful to your claim. It could also be damage to the relationship between attorney and client.

We don’t know whether either of those situations were present here. However, it is notable that multiple rounds of prior counsel withdrew from the case (including experienced medical malpractice lawyers). Then the plaintiffs lost the case of trial.

It appears that the plaintiffs represented themselves on appeal.

Stay tuned for Part Two of this series. I will analyze the trial court’s exclusion of the plaintiffs’ expert cardiology testimony. It regarded off-label drug availability under the Daubert-Rochkind standard.

You can read other Blog posts on cases involving Discovery 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.

The Baltimore Medical Malpractice Lawyer Blog reports on a birth injury jury verdict. At our Baltimore medical malpractice law firm, we review many cases where families face lifelong challenges because of a medical provider’s mistakes. Birth injuries are among the most devastating types of medical malpractice we handle. When a medical team fails to follow standard protocols during labor and delivery, a healthy pregnancy can quickly turn into a tragedy. This post is about medical malpractice and excess use of Pitocin.

A recent medical malpractice trial brought this reality into sharp focus. A jury awarded over $10 million to young girl and her family following a multi-week trial. The young child suffered severe, permanent brain damage at birth due to medical malpractice committed by a doctor and nurse.

Despite clear evidence that the medical team deviated from acceptable standards of care, the hospital and its insurance providers refused to settle the case before or during the trial. Instead, the defense tried to shift the blame onto the mother. The jury rejected this defense, holding the medical providers fully accountable. The multi-million-dollar verdict will ensure the child has the financial support necessary to cover her extensive, lifelong medical and care needs.

This case centers on a highly potent and commonly used labor-inducing drug: Pitocin. The jury found that the medical staff administered excessive amounts of the drug. This triggered prolonged contractions that deprived the baby of oxygen before birth. This preventable oxygen deprivation resulted in permanent brain damage and cerebral palsy.

To understand why this happens—and how it constitutes medical malpractice—it is vital to understand what Pitocin is, how it should be managed, and the severe physiological toll its misuse takes on an unborn baby.

A Brief History of Pitocin: Use and Guidelines

Oxytocin is a natural hormone that the human body produces that, among other functions, stimulates uterine contractions during labor. In the early 20th century, scientists discovered that pituitary extracts could mimic this effect. By the 1950s, a synthetic version of oxytocin developed. This synthetic hormone’s brand name is Pitocin.

Because Pitocin can effectively start or speed up labor, it became a standard tool in labor and delivery wards across the country. However, its strength and unpredictability quickly became apparent. In 2007, the Institute for Safe Medication Practices labeled synthetic oxytocin a “high-alert medication.“  They placed it in the same risk category as insulin and heparin. This was because of its high potential to cause significant patient harm when misused. The Food and Drug Administration (FDA) also enforces strict “black box” warnings on Pitocin. They explicitly stated that it is not indicated for elective induction of labor. This means it should not be used simply for convenience.

Who Should Receive Pitocin?

Pitocin is for medical inductions or labor augmentation when continuing the pregnancy poses a greater risk to the mother or child than delivering. Appropriate clinical scenarios include:

• Preeclampsia or severe maternal hypertension
• Maternal diabetes
• Premature rupture of membranes (PROM) (the mother’s water breaks, but labor does not start naturally)
• Uterine inertia (contractions are too weak or have stopped entirely, halting labor progress)

Who Should NOT Receive Pitocin?

The FDA and obstetric guidelines explicitly outline contraindications where Pitocin can cause severe injuries. Medical providers should generally not use it if the mother or baby has any of the following conditions:

• Significant cephalopelvic disproportion (the baby’s head is too large to fit through the mother’s pelvis)
• Unfavorable fetal positions (such as a transverse lie)
• Fetal distress when delivery is not imminent
• Placenta previa or vasa previa (complications involving the location of the placenta or blood vessels)
• A hyperactive or hypertonic uterus
• A history of major uterine surgery, including a previous classical Cesarean section (due to the high risk of uterine rupture).

Strict Guidelines for Safe Administration – Excess Pitocin Medical Malpractice

Because every patient responds differently to the drug, medical protocols dictate that Pitocin must be administered conservatively.

1. Low and Slow Dosing: Medical providers must start it at a very low dose via an intravenous (IV) pump and titrated (increased) slowly and incrementally.
2. Continuous Monitoring: The medical team must utilize continuous electronic fetal monitoring to track the baby’s heart rate alongside a uterine tocodynamometer to measure the frequency and duration of contractions.
3. Active Management: Once an acceptable contraction pattern is achieved (typically one strong contraction every 2 to 3 minutes, lasting 80 to 90 seconds), there is no medical justification to increase the dosage. If the baby shows signs of distress, the nurse or doctor must immediately turn down or shut off the Pitocin drip.

The Danger of Misuse: How Excess Pitocin Causes Brain Damage – Medical Malpractice

When medical providers violate these safety guidelines and administer excessive Pitocin—as occurred in this $10 million case—the consequences can be catastrophic. The progression from a high dosage of medication to a permanent neurological disability follows a specific, devastating chain reaction:

Excessive Pitocin Administration

Uterine Tachysystole (Contractions too long, strong, or frequent)

Placental Compression (Blood flow restricted; no rest time to recharge)

Fetal Hypoxia / Asphyxia (Severe oxygen deprivation)

Hypoxic-Ischemic Encephalopathy (Permanent brain cell death)

Cerebral Palsy

1. Excessive Pitocin Leads to Uterine Tachysystole

When excess Pitocin from medical malpractice is introduced into the mother’s bloodstream, it overstimulates the uterine muscles. This triggers a condition known as uterine tachysystole or hyperstimulation. Instead of normal, rhythmic contractions with healthy resting periods in between, the uterus contracts too frequently (more than five contractions in a 10-minute window), too intensely, or for prolonged periods without relaxing.

2. Tachysystole Deprives the Baby of Oxygen

An unborn baby does not breathe air; instead, they receive oxygen-rich blood from the mother through the placenta and umbilical cord. During a normal uterine contraction, the blood vessels supplying the placenta are temporarily compressed, briefly slowing down the exchange of oxygen. This is normal, and a healthy fetus can tolerate it, provided there is an adequate resting period between contractions. During that rest phase, the placenta recharges with fresh, oxygenated blood.

When excessive Pitocin causes prolonged or rapid-fire contractions, the uterus never fully relaxes. The continuous pressure clamps down on the blood vessels, restricting or completely cutting off the blood and oxygen supply to the baby. The baby is effectively forced to hold their breath through back-to-back contractions without a chance to recover, resulting in severe oxygen deprivation (fetal hypoxia or birth asphyxia).

3. Oxygen Deprivation Causes Permanent Brain Damage

Without sufficient oxygen, the baby’s brain cells quickly begin to starve and die. This specific type of brain injury is HIE: Hypoxic Ischemic Encephalopathy. As the period of asphyxia extends, the baby’s body attempts to survive by shifting to anaerobic metabolism, which causes a dangerous buildup of acid in the blood (metabolic acidosis), further destroying fragile brain tissue.

4. Brain Damage Manifests as Cerebral Palsy

The areas of the brain most vulnerable to oxygen deprivation during labor are those responsible for motor control, movement, and muscle coordination. When HIE permanently destroys these tracking centers, the child develops Cerebral Palsy (CP). Cerebral palsy is a lifelong, non-progressive but uncurable neurological disorder that impacts muscle tone, posture, balance, and voluntary movement. Children with severe cerebral palsy may struggle with spastic limbs, have difficulty walking, require feeding tubes, and face profound cognitive or developmental delays, necessitating around-the-clock medical attention for the rest of their lives.

Accountability in the Delivery Room for Excess Pitocin & Medical Malpractice

Every hospital has clear protocols regarding Pitocin administration. Labor and delivery nurses have training to read electronic fetal monitor strips. If the monitor shows “late decelerations” (drops in the baby’s heart rate following a contraction) or if the contractions are occurring too closely together, the standard of care requires the medical staff to intervene. They must stop the Pitocin, administer oxygen to the mother, or prepare for an emergency Cesarean section if the fetal distress cannot be resolved.

When a doctor or nurse ignores the warning signs on a monitor strip and continues to push Pitocin despite a hyperstimulated uterus, it crosses the line from a known medical risk into clear medical malpractice.

The $10 million verdict highlighted here serves as a reminder of why strict medical accountability is necessary. Preventable birth injuries leave families with overwhelming emotional and financial burdens. No amount of money can undo the neurological damage inflicted upon a child. However, a successful medical malpractice lawsuit provides the vital financial resources required to pay for specialized therapies, home modifications, medical equipment, and adaptive care.

If your child was diagnosed with cerebral palsy or HIE and you suspect that labor-inducing drugs like Pitocin were mismanaged during delivery, you have the right to seek answers. Our legal team will thoroughly investigate the medical records. We will hold negligent medical institutions accountable for the injuries they cause. Contact our medical malpractice lawyer to discuss your legal options.

You can read other case reports in the Blog, including Pitocin Misuse $951M, and other verdicts.

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.

Introduction

The Baltimore Medical Malpractice Lawyer Blog reports on a recent Appellate Court of Maryland reported opinion. It is on the legal landscape surrounding psychiatric immunity for medical malpractice and third-party liability. The case is Jacob Caples, et al. v. Sinai Hospital of Baltimore, Inc., et al. (No. 1527, September Term, 2024; filed May 1, 2026). The court addressed an issue regarding the statutory immunity traditionally granted to mental health care providers. 

Specifically, the court was asked to determine whether the Circuit Court for Baltimore City erred. It dismissed a wrongful death lawsuit under Maryland Code, Courts and Judicial Proceedings Article (“CJP”) section 5-609. This statute generally protects psychiatric professionals from civil liability for failing to predict or warn of a patient’s violent behavior. In reversing the lower court’s dismissal, the Appellate Court applied a legal precedent: psychiatric immunity does not apply when a patient expresses generalized homicidal intent and is directly discharged into the care of a readily identifiable victim within a foreseeable zone of danger.

Factual Background – Psychiatric Care Immunity & Medical Malpractice

The tragic facts under review are derived from the plaintiffs’ complaint and an accompanying case summary prepared by a doctor.  On November 17, 2020, the patient voluntarily admitted himself to the inpatient psychiatric unit at the defendant hospital after experiencing severe suicidal ideation involving a plan to harm himself with a knife. Hospital’s initial documentation recorded that the patient suffered from suicidal tendencies, irrational suspicion thoughts, and catatonic symptoms.

While hospitalized, the patient’s psychological state deteriorated into severe homicidal ideation. Hospital records revealed that on two separate occasions—including the very morning of his discharge—the patient explicitly told hospital staff that he wanted to kill “anyone that came near him” and “anyone who comes close”. Furthermore, the patient twice failed to check the assessment boxes confirming he was free of homicidal or suicidal thoughts on paper forms provided by staff. He also exhibited episodes of aggression that required chemical restraint/medication.

Despite these indicators, on November 24, 2020—just four hours after his second homicidal declaration—hospital discharged the patient “home to wife”. The hospital signed off on his release into the care of his spouse, without providing her, or the patient’s outpatient provider, any warning regarding his explicit homicidal ideations or aggressive episodes.

Eight days later, the patient acted on those thoughts. He bludgeoned and stabbed his wife to death in their home. A court later convicted the patient of first-degree murder and found him criminally responsible, resulting in a life sentence.

The Parties and Their Arguments

The action was brought in April 2024 by the adult sons of the decedent, and the decedent’s father, and as co-representatives of the estate. They filed a wrongful death and survival lawsuit alleging that the hospital and nurse practitioner who authorized the discharge were profoundly negligent in failing to warn the decedent of the imminent danger she faced.

The Defense’s Position

The hospital moved to dismiss the case prior to discovery, operating on literal interpretation of the immunity statute CJP § 5-609. The hospital argued it was completely insulated from liability because:

• Patient did not explicitly name his wife as his target, meaning he had not identified a “specified victim or group of victims” under the text of the law.
• His statements did not communicate an “imminent” threat since he did not act aggressively before discharge and explicitly denied homicidal intent directly prior to walking out the door.
• Relying on the 1999 case Falk v. Southern Maryland Hospital, Inc., hospital claimed that verbal declarations alone do not establish a legal “propensity for violence” without prior overt acts of violence.

The Plaintiffs’ Position

The plaintiffs countered that they had pled more than enough facts to bypass statutory immunity. They argued that hospital possessed direct knowledge of the patient’s violent inclinations. Most importantly, they asserted that because the hospital specifically discharged the patient directly into the care of his wife to return to their shared home, the hospital knew exactly who would be in his immediate physical proximity. Therefore, she was a readily identifiable victim within an obvious, localized zone of danger

The Court’s Decision on Psychiatric Care Immunity & Medical Malpractice

The Appellate Court of Maryland reversed the Baltimore City Circuit Court’s dismissal and remanded the case for trial. The court broke the text of CJP § 5-609 down into three key elements: Foreseeability/Specificity of the Victim, Imminent Threat, and Propensity for Violence.

1. Foreseeability and the “Zone of Danger”

The court distinguished this case from prior landmarks like Falk, Shaw v. Glickman, and Furr v. Spring Grove State Hospital. In those older cases, patients either escaped or were released broad-scale into the general public, making the pool of potential victims vast and unpredictable.

Here, the court noted that “anyone who comes close” is technically a broad category. However, the hospital possessed concrete knowledge of who would fit that definition. The hospital knew the patient was going home with his wife. The court explicitly held:

“Where a patient expresses an intent to kill or harm anyone in their proximity, we hold that the provider, at a minimum, must warn those to whom the patient is being discharged, as they are undoubtedly ascertainable potential victims within a zone of danger.” 

2. Deconstructing “Imminent Threat”

The court rejected the hospital’s claim that a temporary, last-minute denial of homicidal thoughts or a lack of overt acts erased the immediacy of the danger. Citing dictionary definitions and criminal law parallels (Porter v. State), the court noted that “imminent” simply means “ready to take place” or “happening soon”. Given that the patient made severe threats the morning of his discharge, whether the threat was legally “imminent” is a question of fact for a jury to evaluate, not a matter of law for a judge to dismiss.

3. Establishing a “Propensity for Violence”

Finally, the court ruled that an “overt violent act” is not a prerequisite to establishing a propensity for violence.  A history of suicidal ideation mixed with recurrent homicidal thoughts, a failure to verify safety on written assessments, and a documented need for aggressive-episode medication are legally sufficient to allow a jury to conclude a patient is naturally inclined toward violence.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Psychiatric Care Immunity & Medical Malpractice

As a Baltimore medical malpractice lawyers, I closely watch how courts interpret medical immunity laws. The Appellate Court’s decision in Caples v. Sinai Hospital is a well-reasoned, correctly decided opinion that applies common sense to psychiatric liability in Maryland.

The court rightfully looked past semantics to address the reality of clinical proximity. The patient stated he would kill “anyone who comes close.” When the hospital released him to go home with his wife, his wife became a definitive, predictable target. To claim she was an “unforeseeable” victim places form over substance.

When a hospital actively facilitates a discharge directly into the hands of a loved one, they hold an unyielding ethical and legal obligation to disclose that the patient voiced a desire to kill the very people surrounding him.

This ruling is a victory for patient advocacy, domestic safety, and medical accountability in Maryland.  It ensures that the families of victims who suffer from horrific, preventable tragedies will finally get their day in court.

Practical Considerations – Psychiatric Care Immunity & Medical Malpractice

While the plaintiffs will get their day in court, the practical challenges in these cases make it too early to celebrate. The court’s opinion was focused on facts in a light most favorable to the plaintiffs. The defendants can be counted on to develop a record supporting their release of the patient.

The defense will develop the picture by that the time of discharge, the patient was denying that he was going to hurt anybody. The hospital also likely will give the big picture challenges of treating patients who often will go back-and-forth between making threats and taking them back over the course of days in the hospital.

Causation

I suspect that the defense also will vigorously challenge causation. The murder was not until eight days after the discharge. The hospital can be counted on to develop, including through deposing the adult son, what happened during those days. The aim will be to make a case that even if the hospital had disclosed the exact things that happened during the patient’s hospitalization, that nothing different would’ve happened. In other words, the wife and adult son still would have taken the patient home. There is no indication that anything happened in those eight days that caused the wife and adult son to seek further treatment for the patient on an emergency basis. There was a follow up appointment the day before the murder. The parties will further explore all of this in discovery.

These are very tough cases for plaintiffs in general. Of course, further development of the case also could expose additional facts that are helpful to the plaintiffs. Not many of these types of cases get past motions or go to trial. If this one goes to trial, it should be interesting.

You can read other Blog posts on cases involving Immunity 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.

The Baltimore Medical Malpractice Lawyer Blog reports and discusses a jury verdict involving a fatal anesthesia complication that resulted from alleged excess anesthesia and medical malpractice. The result has sent a clear message to the medical community regarding the non-negotiable nature of patient monitoring and risk assessment. The case, which resulted in a $13.75 million jury verdict, highlights the devastating consequences that arise when standard protocols are ignored and communication between medical providers breaks down. While the financial figure is substantial, the true weight of the case lies in the preventable nature of the tragedy—a patient undergoing a diagnostic procedure lost their life due to failures in dose management and respiratory monitoring.

The Mechanics of Fatal Hypoxic Brain Injury – Excess Anesthesia & Medical Malpractice

At the center of this case is the administration of an excess dose of anesthesia, which led to a fatal hypoxic brain injury. To understand the gravity of this error, one must understand how anesthesia interacts with the human body. Anesthesia is to suppress the central nervous system to facilitate medical procedures. However, when the dose is excessive, this suppression extends to the brain’s respiratory centers.

Hypoxia occurs when the body or a region of the body is deprived of adequate oxygen supply at the tissue level. In a clinical setting, excessive sedation can lead to hypoventilation (dangerously shallow breathing) or complete apnea (cessation of breathing). When oxygen levels in the blood drop, the brain is the first organ to suffer. Brain cells are incredibly sensitive to oxygen deprivation; within minutes of oxygen loss, neurons begin to die. This cascade of cellular death is hypoxic-ischemic injury. In this specific case, the lack of oxygen reached a critical threshold, leading to irreversible damage that ultimately proved fatal, resulting in a wrongful death claim.

Recognizing Respiratory Failure During Procedures

The ability to recognize respiratory failure in its earliest stages is perhaps the most critical skill for any anesthesia provider. This is particularly true when the medical malpractice allegation is excess anesthesia. During a procedure, several key indicators signal that a patient’s respiratory system is struggling:

• Pulse Oximetry (SpO2): A rapid or steady decline in oxygen saturation levels is a primary warning sign.
• Capnography (EtCO2): This measures the carbon dioxide exhaled by the patient. A flatline or significant decrease in the EtCO2 waveform often indicates airway obstruction or apnea.
• Physical Observation: Clinicians must look for chest rise and fall. If the patient is making respiratory efforts but no air is moving, an obstruction is likely.
• Skin Tone: Cyanosis, or a bluish tint to the skin and lips, is a late-stage sign of profound hypoxia.

In this case, the assistant allegedly failed to recognize the patient’s respiratory failure in time. The delay in recognition allowed the situation to escalate from a manageable respiratory event into a full cardiac arrest.

The Critical Response and the Impact of Delay

When medical providers identify respiratory distress, they must respond immediately. This typically involves the “ABC” (Airway, Breathing, Circulation) protocol: repositioning the airway, providing supplemental oxygen via bag-valve-mask ventilation, and, if necessary, intubating the patient to secure the airway. If these steps are not taken instantly, the heart, starved of oxygen, will eventually stop.

The report indicates that the failure to recognize the patient’s respiratory failure resulted in an eight-minute loss of pulse. This is a staggering amount of time in a medical setting. For every minute that passes without a pulse, the chances of a positive neurological outcome decrease significantly. By the eight-minute mark, the brain has sustained profound, widespread damage. Although the patient was resuscitated, the damage was done, leading to a decline that ended in hospice care due to sepsis.

High-Risk Profiles and Adjusting Care

A primary point of contention in the medical malpractice trial was alleged excess anesthesia that flowed from the failure to adjust care based on the patient’s known risk factors. The patient was heavy and suffered from obstructive sleep apnea (OSA). These are not merely background conditions; they fundamentally change the safety profile of anesthesia.

Patients with morbid obesity have decreased functional residual capacity, meaning they have less “oxygen reserve” in their lungs. When they stop breathing, their oxygen levels plummet much faster than a non-heavy patient. Furthermore, OSA makes the airway highly prone to collapse under sedation. For such high-risk individuals, the standard of care requires:

• Reduced dosages of sedative agents to prevent over-sedation.
• Continuous, vigilant monitoring of the airway and respiratory effort.
• Advanced airway equipment at the bedside for immediate use.

The defendants reportedly failed to implement these safeguards, treating a high-risk patient with a “one-size-fits-all” approach that proved catastrophic.

The Supervising Relationship: Anesthesiologist and Assistant – Excess Anesthesia & Medical Malpractice

The legal liability in this case split between the anesthesiologist assistant (82.5%) and the supervising anesthesiologist (17.5%). This division highlights the breakdown in the “Anesthesia Care Team” model. In this model, the supervising physician is responsible for the pre-operative assessment and for identifying risks that the assistant must manage during the procedure.

Professional standards dictate that the supervising physician must clearly communicate the patient’s risk profile to the assistant. In this case, the supervising anesthesiologist reportedly failed to warn the assistant of the patient’s condition or provide additional safeguards. While the assistant is directly responsible for monitoring the patient, the supervisor’s failure to “set the stage” for safety created a precarious environment. The jury’s verdict reflects this dual responsibility: while the person at the head of the bed bears the brunt of the liability for failing to react, the supervisor is held accountable for the systemic failure of communication and oversight.

Earlier recognition of the airway obstruction could have prevented the outcome. — Trial Expert Witness Testimony 

Excess Anesthesia – Medical Malpractice

This case serves as a somber reminder of the stakes involved in anesthesia, including medical malpractice attributed to excess anesthesia. It underscores that medical errors are rarely the result of a single mistake, but rather a chain of failures—poor communication, ignored risk factors, and delayed clinical recognition. For the medical community, the lesson is clear: vigilance is the only defense against the inherent risks of sedation.

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

The Baltimore Medical malpractice Lawyer Blog provides this post to analyze the May 4, 2026, Appellate Court of Maryland reported opinion in James Smith, Jr., et al. v. Upper Chesapeake Medical Center Inc. In the early months of 2020, the healthcare landscape transformed overnight. Hospitals pivoted to manage a global pandemic. The legal system considered how traditional standards of medical malpractice would apply to providers operating under “crisis standards of care.”  This legal opinion clarified the scope of statutory immunity for medical malpractice by healthcare providers during the COVID catastrophic health emergency.

Factual Background: A Patient in the Eye of the Storm

On March 5, 2020, the Maryland Governor declared a state of emergency and a catastrophic health emergency due to the COVID-19 pandemic. This declaration triggered specific powers under the Public Safety Article (“PS”) of the Maryland Code. It allowed the state to relax licensing requirements, mandate the suspension of elective procedures, and implement strict infection control protocols.

On April 5, 2020, the plainitff admitted to the emergency room at Upper Chesapeake Medical Center. He was suffering from acute respiratory failure, low oxygen, and intermittent fevers. Because his symptoms mirrored those of COVID-19, the hospital classified him as a “Person Under Investigation” (PUI). Medical providers intubated the plaintiff, placed him on a ventilator in the Intensive Care Unit (ICU), and kept him in strict isolation.

Throughout his stay, the plaintiff tested negative for COVID-19 on April 8, April 11, and April 29. Despite the negative tests, his deteriorating respiratory status and high clinical suspicion led the hospital to maintain his PUI status and isolation precautions until April 22, 2020, in accordance with their emergency response policies.

During this period, the plaintiff required repositioning every two hours to prevent skin breakdown. However, the hospital’s documentation indicated that staff failed to meet this standard between April 7 and April 14. On April 14, medical providers discovered a deep tissue injury on his sacrum. This injury progressed into an infected sacral decubitus ulcer that required multiple debridement and skin graft procedures. It ultimately left the plaintiff permanently disabled.

The Parties and Their Legal Arguments – COVID Immunity for Medical Malpractice

Plaintiffs

The litigation involved a patient and his spouse (the plaintiffs). They filed a negligence and loss of consortium lawsuit against a medical center and its health system (the defendants) in the Circuit Court for Harford County. This followed a permanent injury sustained during a month-long hospitalization in April 2020. The core of the dispute centered on whether statutory immunity under PS § 14-3A-06 shielded the hospital. That statute protects healthcare providers acting in good faith under a catastrophic health emergency proclamation.

The plaintiffs sought a narrow, patient-specific application of the immunity statute. They argued that while the patient initially admitted with symptoms consistent with COVID-19, this thereby justified a period of immunity. However, that protection should have “popped like a bubble” once multiple tests returned negative. According to their theory, once the medical providers ruled out the virus, the patient transitioned to “non-COVID” status. The hospital was then required to adhere to the normal, routine standard of care for his subsequent treatment. They contended that the failure to perform routine preventative measures, such as body repositioning to avoid deep tissue injuries, was a “normal” medical error unrelated to the pandemic emergency.

Defendants

In contrast, the defendants argued for a broader, operational interpretation of the law. They asserted that the pandemic’s impact was systemic. It could not be extricated from the care of any individual patient in an acute setting. The hospital provided evidence that it was operating under an Emergency Response Plan that mandated restrictive protocols for all “Persons Under Investigation” (PUI), regardless of their final diagnosis. These protocols included:

• Strict requirements for staff to don and doff full Personal Protective Equipment (PPE) before and after entering patient rooms.
• Policies aimed at conserving limited PPE and minimizing staff exposure, which reduced the frequency with which nurses and doctors could physically enter rooms.
• The use of “temporary disaster privileges” and modified documentation practices due to the “chaotic and busy” environment of the ICU.

The hospital maintained that because these emergency-driven protocols directly altered the delivery of care and resource allocation, the staff was acting in “good faith” under the Governor’s proclamation. They argued that it was illogical to expect providers to “switch gears” and maintain two different standards of care simultaneously within the same unit based on fluctuating test results.

The Court’s Decision on COVID Immunity for Medical Malpractice

The Appellate Court of Maryland affirmed the circuit court’s grant of summary judgment in favor of the hospital. The court held that statutory immunity under PS § 14-3A-06 does not hinge on whether a patient actually has the illness caused by the biological agent (COVID-19).

Key Findings

Key findings of the court included:

1. Good Faith as the Compass: The court emphasized that the General Assembly conditioned immunity on two factors. First, acting in good faith. Second, acting under a catastrophic health emergency proclamation. There was no dispute that the hospital acted in good faith.
2. Rejection of the “Bubble” Theory: The court found the plaintiffs’ “clean break” argument—that immunity should evaporate upon a negative test—to be “unreasonable and unrealistic”. It noted that it would force providers to run two different systems of care in the same ICU. There is one for COVID patients and one for non-COVID patients. That would “defy logic” and create “minefields” for frontline workers.
3. Systemic Impact: The court recognized that the emergency proclamation required the hospital to adopt modified protocols that “undoubtedly” affected the resources and level of care available to all patients. Because the hospital’s deviations from the standard of care were grounded in good-faith protocols responding to the emergency (such as PPE conservation and isolation policies), the hospital was entitled to immunity.
4. Legislative Intent: The court looked at the history of the statute (originally passed post-9/11). It noted that the law was intended to ensure hospitals had the capacity to handle large-scale epidemics without the paralyzing fear of liability for every deviation from normal routine caused by the crisis.

In conclusion, the court held that the statute does not provide “absolute” or “blanket” immunity for all actions. However, it protects care delivered in good faith in compliance with emergency directives. Because the hospital’s pandemic response directly influenced the plaintiffs care, immunity shielded the hospital from the negligence claim.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Covid Immunity in Medical Malpractice

The court’s decision highlights a significant shift in the legal burden typically found in medical malpractice litigation. Under a standard negligence framework, every case is assessed based on the specific “facts and circumstances” confronting the provider at the time of the alleged error. Ordinarily, a defendant hospital might be required to demonstrate specifically how the pressures of a pandemic—such as staffing shortages or equipment scarcity—directly prevented them from meeting the standard of care in a particular instance.

However, the application of PS § 14-3A-06 suggests that the government may have overextended immunity. It may go beyond what is strictly necessary to protect providers from the “chaos” of a crisis. It centers the defense on a broad “good faith” standard rather than a specific showing of impossibility or extreme difficulty. Therefore, there is no need for the hospital to prove a direct causal link between the pandemic and the specific failure to reposition the patient.

Critical Points

Critical points regarding this legal threshold include:

• The Good Faith Blanket: The hospital was not required to show that the pandemic made repositioning this specific patient impossible. They only had to show they were acting in “good faith” under a general emergency response plan.
• Presumptive Immunity: First, the hospital establishes it was following state-mandated or internal emergency protocols. Then immunity attaches regardless of whether those protocols were the actual reason the standard of care was missed.
• Shift in Accountability: The “bubble” theory is where immunity would lift once a patient tested negative. The court rejected it and prioritized systemic operational protection over individual patient outcomes.

This creates a robust shield for the healthcare industry during times of crisis. However, it arguably leaves patients who suffer “routine” injuries with little recourse. In a catastrophic emergency, the mere existence of a “good faith” effort to follow emergency protocols is sufficient. This waives liability, even if the provider could have reasonably met the standard of care despite the surrounding circumstances. This is a high bar for plaintiff. The statutory immunity provided by the General Assembly functions less like a nuanced defense. Rather, more like a broad jurisdictional bar for nearly any care delivered during a declared emergency.

You can read other Blog posts on Immunity, including another COVID case: Statutory Immunity: Constantine v. BWEP

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.