ANNAPOLIS, Md. (Legal Newsline) – On the rare occasions that defendants make their own medical malpractice claims, they still need to help a jury understand what they’re alleging, Maryland’s highest court has ruled.
The Court of Appeals decided Aug. 24 that medical malpractice defendants hoping to blame another health care provider for the plaintiff’s injuries must convincingly do so either with their own expert or by cross-examining the plaintiff’s.
The decision, along with the Court of Special Appeals’ previous ruling, reverses a Baltimore City judge who allowed the defendants to raise the question of negligence by others to the jury.
“We have consistently held that, other than an occasional ‘obvious injury’ case, expert testimony is required to establish medical negligence and causation, which is rooted in the notion that such complex issues are beyond the general knowledge and comprehension of layperson jurors,” Judge Brynja McDivitt Booth wrote.
“The need for expert testimony is not alleviated because a defendant asserts non-party medical negligence as an alternative causation theory in connection with a general denial of liability.”
Martin Reiss had a cancerous lymph node that wasn’t removed because of its proximity to the inferior vena cava. Low-resolution CT scans continued to show it was relatively small and that the tumor was in remission, but a new radiologist in 2015 found that the cancer had increased in size to the point that it was inoperable.
He sued the health care providers who treated him through the years, as well as a urologist who removed cancer from his kidney in 2011 but did not remove the lymph node tumor because of its location.
By the time of trial, only radiologists remained as defendants. They sought to blame Reiss’ oncologists by asking Reiss’ experts about the oncologists’ alleged negligence.
But no witness testified as to the urologist failing to remove the lymph node in 2011 or whether the oncologists should have ordered surgery afterward. Plaintiffs counsel objected when their expert was asked about the urologist’s standard of care, and the judge sustained. Defense counsel mentioned the non-parties during closing.
On the verdict sheet, jurors were asked if non-parties like the urologist caused Reiss’ injuries, over Reiss’ lawyers’ objection.
The jury failed to follow instructions and reached a verdict of $4.8 million in economic damages but ruled the trial defendants were not liable. The trial judge deemed this inconsistent and told jurors to try again. They again found the trial defendants weren’t liable and ordered no damages. Reiss appealed.
The question about non-parties was prejudicial, the two appellate courts have now ruled. The case is remanded, presumably for a new trial.
“In this case, the defendants’ attempt to rely upon the general pronouncements of preferred treatment by the plaintiff’s experts fell short of meeting the legal standard of establishing to a reasonable degree of medical probability that the non-party physicians’ conduct fell below the standard of care and caused the plaintiff’s injury,” Booth wrote.
“With no expert testimony to establish medical negligence or causation, the circuit court erred in submitting the question of non-party medical negligence to the jury.”