Defendants in medical malpractice cases will frequently defend themselves by pointing the finger of blame at another doctor who was involved in the plaintiff’s treatment. Sort of. They talk about but rarely do they put on the case with expert testimony. They just make a lot of rumblings about it in discovery.
Usually, the doctor who gets blamed is not a defendant in the malpractice case. I call this defense strategy “blaming the empty chair.” This defense strategy can be very effective in certain situations. Juries often feel sympathetic for injured plaintiffs, but may be reluctant to condemn the defendant doctors. The empty chair defense offers jurors a tempting “scapegoat” in this context. It is always so much easier to blame the guy who is not in the room. We do it all the time in our personal lives. (Clint Eastwood is a huge fan.)
American Radiology v. Reiss
This is exactly what happened in American Radiology v. Reiss where an empty chair defense was effectively used at trial. Defense counsel for the radiology defendant simply blamed the plaintiff’s surgeon, who was not a named defendant, even though there was no expert testimony offered at trial that the surgeon deviated from the standard of care.
Over the plaintiff’s lawyers’ objection, the jury’s verdict form included a question as to whether it found that negligent acts of of non-party physicians were a substantial factor in causing the harm. The jury found that the surgeon was negligent and the defendants were not. But maybe not. But… in what will go down in the annals of inconsistent jury decisions, the jurors also awarded $4,863,393.70 to the plaintiff.
Notwithstanding all of this insanity, the ultimate issue on appeal was can you raise the empty chair defense in a medical malpractice case without presenting expert testimony to support it?
Maryland Court of Special Appeals’ Opinion
The Maryland Court of Special Appeals got the first crack at this question on appeal last summer in Reiss v. American Radiology. The COSA held that medical malpractice defendants may not assert a defense of non-party medical negligence (i.e., blame another doctor) unless they present appropriate expert testimony to support it. In other words, if you want to say a non-party doctor was negligent you need to back that allegation up with expert testimony just like a plaintiff does. The COSA found that the defendant, American Radiology, failed to present evidence to support their defense that a non-party doctor was medically negligent. As a result, American Radiology’s defense was not supported and a new trial was awarded. American Radiology appealed the COSA decision and the Court of Appeals granted cert.
Maryland Court of Appeals Affirms
In an opinion issued earlier this week, the Court of Appeals agreed with COSA that expert testimony is necessary to support an empty chair defense. The Court of Appeals held that if a defendant accuses a non-party medical provider of negligence as part of its defense, there must be expert testimony to support that allegation:
Under our jurisprudence, expert testimony is required to establish medical negligence and causation when such matters are outside the common knowledge of jurors. To the extent that a defendant elects to raise non-party medical negligence as part of its defense, the defendant has the burden to produce admissible evidence to allow a jury to make a finding on that issue.
The Court explained the trial court should not have allowed American Radiology to raise the issue of non-party negligence and to submit that issue to the jury because there was no admissible evidence in the record to support the allegation that the non-party doctor was negligent.
American Radiology v. Reiss Take-Home Messages
Non-Party Medical Negligence Requires Evidentiary Support
The court made it very clear in its opinion that blaming the empty chair can still be a viable defense in a medical malpractice case, but only when there is evidence to support the alleged medical negligence of the non-party. The court explained that expert testimony is always required to prove medical negligence, because it involves issues that are beyond the general knowledge of laypersons. This need for testimony from an expert is not alleviated when the issue of medical negligence is raised as a defense. The question of whether medical negligence occurred is not “less complex” simply when it gets raised by a defendant.
A Separate Expert is Not Necessary So Long as Expert Testimony is Elicited
As for the question of what level of expert testimony is required to support an empty chair defense, the Court clarified that the defendant is NOT obligated to present their own designated expert on the issue of the non-party medical negligence. Rather, the defense can elicit supporting testimony through cross examination of plaintiff’s experts or from direct examination of their own experts. Any form of expert testimony in the record will be enough to satisfy this requirement. However, the best course of practice would be for a defendant to present their own separate expert witness to testify that the non-party breached the standard of care.
Expert Testimony is Required Regardless of Whether Non-Party Negligence is Raised as an Affirmative Defense or as a General Liability Denial
American Radiology argued that supporting expert testimony should only be required when non-party negligence is raised as an “affirmative defense.” The court rejected this position and agreed with the COSA:
We agree with the Court of Special Appeals that expert testimony is required to establish non-party medical negligence without regard to whether a defendant is raising the non-party medical negligence as an affirmative defense or in connection with a general denial of liability.
Once again, the court noted that expert testimony is required because the issue of medical negligence is considered too complex for a layperson. The complexity of medical negligence does not change simply because the issue is presented as part of a defendant’s general denial of wrongdoing rather than as a formal affirmative defense.
American Radiology v. Reiss Closing Commentary
It’s hard to see how anyone (except for maybe the defendant in the case) could argue with either the legal analysis or simple logic behind this decision from the Maryland Court of Appeals. All the court is saying is that we will not have a double standard when it comes to proving medical negligence.
If plaintiffs are required to present expert testimony when they accuse a defendant medical negligence, then the defendant’s should absolutely be required to present expert testimony when they accuse a non-party of medical negligence. There is no rational reason why this should not be the case. If defense lawyers want to raise an empty chair defense, they should be obliged to offer supporting expert testimony – just like everyone else.