The Maryland Court of Special Appeals decided a new malpractice case in Wantz v. Afzal.
Wantz is a Frederick County fatal medical malpractice case involving a staph infection following spinal fusion surgery after a slip and fall that allegedly caused the death of Plaintiffs’ 77 year-old mother.
During discovery, Plaintiffs’ malpractice lawyer proffered three medical experts: (1) a neurosurgeon, who testified in a videotaped trial deposition as to the cause of the woman’s paralysis and her likelihood of recovery, (2) a board certified doctor in in internal and geriatric medicine to testify on causation, and (3) a radiologist who testified that had the woman been properly immobilized her paralysis and and subsequent infection would not have happened.
The trial court struck all three experts. The CSA, in an opinion by Judge James R. Eyler, unanimously disagreed on all three experts, finding that on each expert, the trial court abused its discretion.
The doctors argued that the neurosurgeon was not qualified to testify because his only 50 years of experience in neurosurgery was not enough to qualify him as an experts.
I’m just kidding, even Med Mutual is not making these kind of arguments. I’m just making sure you are paying attention. The doctors’ objection was more thin sliced: the expert’s relative inexperience with performing spinal fusion surgery or following patients after such surgery did not provide the necessary experience to offer testimony in this malpractice case.
On this doctor the court was crystal clear that the fact that neurosurgeon had never performed the actual vertebral fusion aspect of the surgery does not disqualify him from
offering expert testimony. Even furthering its position, the court noted that the doctor had testified on cross-examination that he followed his patients post-operatively, and that it is not material that the care was from a neuorolgic rather than orthopedic standpoint.
The issue regarding the internist was extremely interesting. The internist agree that a neurosurgeon might be better qualified to render an opinion on causation. The doctor’s malpractice lawyer jumped on this issue to say this means the doctor was not qualified to testify. The court said that this certain does not mean that the expert is not qualified to speak to the issue. (This would be, of course, still be great fodder on cross examination.)
Finally, with respect to the radiologist, the doctors pressed another reasonable concession by Plaintiffs’ expert. The radiologist admitted that he was not qualified to discuss how the decedent should have been immobilized are outside of his expertise. But the CSA found that the trial court improperly conflated that question with the real issue: whether immobilization, regardless of how it should be done, would have prevented the progression of the patient’s spinal injury to the point of paralysis.
This case fits in nice with the Maryland Court of Appeals’ opinion last week in Muti v. University of Maryland Medical Systems with respect to what is required by experts at trial. Coincidentally, in both of these plaintiffs’ victories, the Plaintiffs were represented the well respected Baltimore firm Salsbury, Clements, Bekman, Marder & Adkins.
The take home message in both: Maryland courts are not going to exclude otherwise qualified medical doctors from testifying at trial based on micro details of their scope of their practices or what they are relying upon to draw their conclusions.
You can read the court’s opinion here.