The Maryland Court of Special Appeals issued a new opinion in Nance v. Gordon, a medical malpractice case in which, once again, the defendant won a trial court victory, by getting an entire case struck on micro form over structure. Thankfully, the Court of Special Appeals rescued this one.
A certificate of merit before a medical malpractice lawsuit in Maryland allows a certificate from someone of a different specialty than the defendant. But the statute requires, as it should I think, that it be signed by someone from the same “or related” specialty.
Let’s run though the facts real quick. Man goes to the emergency department complaining of blood in his urine. The hospital performs a urinalysis, which reveals blood and protein in the plaintiff’s urine. Afterwards, the plaintiff gets antibiotics for a urinary tract infection (“UTI”) and sent home. Around two months later, the plaintiff revisits the emergency department with the same complaint. This time, however, he also complains of fever, a sore throat, and right flank pain. The plaintiff is examined by a physician’s assistant, who discusses the plaintiff’s condition with the defendant urologist over the phone. The plaintiff is sent home again with more antibiotics for treating a UTI. He is never evaluated in person by an actual physician. Nearly two years later, the plaintiff returns to the emergency department, this time complaining of spitting up blood. Tests reveal that his kidneys were no longer functioning. A renal biopsy indicates that he has a severe irreversible kidney disease.
The plaintiff subsequently filed a medical malpractice action under the Health Care Malpractice Claims Act (“the Act”), claiming that the defendant urologist breached the applicable standard of care by failing to include nephritis in a differential diagnosis for the plaintiff. (A differential diagnosis requires the physician to consider all of the possible diseases that are responsible for the patient’s illness). Under the Courts and Judicial Proceedings Article (“CJP”) of the Act, the plaintiff was required to file a certificate of a qualified expert. In addition, the certificate must comply with the requirements in CJP § 3-2A-02(c)(2)(ii). I try not to cite statutes on here because it puts everyone to sleep for sure. But if you are still following along at this point, I think it will be helpful.
(ii) 1. In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert or testifies in relation to a proceeding before a panel or court concerning a defendant’s compliance with or departure from standards of care:
A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and
B. Except as provided in subsubparagraph 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant.
2. Subsubparagraph 1B of this subparagraph does not apply if:
A. The defendant was providing care or treatment to the plaintiff unrelated to the area in which the defendant is board certified; or
B. The health care provider taught medicine in the defendant’s specialty or a related field of health care.
In this case, the plaintiff’s expert witness specialized in pediatric nephrology. The expert witness testified in his certificate that the defendants committed medical malpractice by failing to include nephritis in the differential diagnosis. Judge Evelyn Cannon found, however, that the expert witness was not qualified to testify because he was not in a “related specialty.”
According to the CJP, it is not necessary for a certifying expert witness in a medical malpractice case to be the same kind of health provider as the defendant. Rather, the expert witness only needs to satisfy certain qualifications in “the same or a related specialty.” Here, the defendant argued that the expert witness’s specialty did not overlap with that of urologists, because nephrologists diagnose and treat nephritis while urologists do not. Conversely, the plaintiff contended that “nephrology and urology share the kidney as a common focus,” which was sufficient to show relatedness.
The court examined two cases to determine the meaning of “related.” First, in Demuth v. Strong, the court decided that the “related specialties” requirement is satisfied when there is an overlap between treatment and procedures across specialties. In DeMuth, even though the expert specialized in vascular surgery and the defendant orthopedic surgery, the specialties were “related” because the procedure for postoperative care and treatment of patients were the same. Second, in Hinebaugh v. Garrett County Memorial Hospital, the court found that the expert witness did not satisfy the “related specialty” requirement where he specialized in oral and maxillofacial surgery (OMS) and the defendants were a family medicine doctor and two radiologists. Here, the court emphasized the distinction between highly specialized physicians such as OMS dentists, who are only involved after the diagnosis of an injury, and front line physicians such as family medicine doctors and radiologists, who are responsible for the initial diagnosis.
In this case, the court agreed with the plaintiff that nephrology and urology shared the kidney as a common focus. However, the court stated that merely sharing the same organ is not enough to satisfy the “related specialty” requirement for certification purposes. Rather, the court must determine whether any overlap exists in treatment or procedure. On this point, the court concluded in the affirmative, stating that differential diagnoses are a treatment performed by both nephrologists and urologists. In addition, the court distinguished this case from Hinebaugh, stating that the plaintiff’s expert witness participated in on-call services for emergency departments as a front line physician, the same kind of treatment that the plaintiff received from the defendant.
Consequently, the court ruled that the plaintiff’s expert witness was qualified to testify as an expert under the Act. This is clearly the right call. I didn’t think this was a close case but obviously it was. Ultimately, plaintiff’s malpractice lawyers want to make sure they err on the right side of this issue. Because it is a loss for plaintiff to have to fight this fight even when justice ultimately prevails. Because, their case has just aged two years in the process.
The full opinion can be found here.