The Maryland Court of Special Appeals decided on 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 the plaintiff’s 77-year-old mother.
At issue was the medical treatment for her ankylosing spondylitis and osteopenia. The patient was admitted to the hospital under the care of a doctor who ordered a CT scan that showed a fracture of the T10 vertebra and a possible fracture of the T9 vertebra with associated hematoma and malalignment.
The radiologist who interpreted the results recommended immobilization and an MRI, but neither was ordered by the doctors. The patient’s condition worsened, and she was transferred to another hospital for immediate spinal fusion surgery. The patient developed an infection after the surgery and ultimately died.
The patient’s surviving child filed a wrongful death and survival action against the doctors, the radiologist, and the hospital.
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 internal and geriatric medicine to testify on causation, and (3) a radiologist who testified that had the woman been properly immobilized her paralysis and subsequent infection would not have happened.
Before trial, the defendants moved to strike or preclude the testimony of three of the plaintiff’s expert witnesses. The trial court granted the defendants’ motions and subsequently granted their motion for judgment, which the plaintiff appealed.
Maryland Rule 5-702 Governs This Case
Maryland Rule 5-702 governs the admissibility of expert testimony, and it provides three requirements to determine if such testimony is admissible.
The first requirement is that the witness is qualified as an expert, the second requirement is that the testimony is appropriate on the particular subject, and the third requirement is that a sufficient factual basis exists to support the expert testimony.
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 expert.
I’m just kidding, even Med Mutual is not making these kinds 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 experience to offer testimony in this malpractice case.
On this doctor, the court was crystal clear that the fact that the 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 neurological rather than an orthopedic standpoint.
The issue regarding the internist was interesting. The internist agrees 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 does not mean that the expert is not qualified to speak to the issue. (This would still be great fodder on cross-examination.)
Finally, regarding the radiologist, the doctors pressed another reasonable concession by the 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.
Good Run of Expert Opinions
This case fits in nicely 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.
The take-home message in both: Maryland courts will not exclude otherwise qualified medical doctors from testifying at trial based on micro details of their practices or what they are relying upon to draw their conclusions.
You can read the court’s opinion here.
2022 Case on Expert Qualifications – Jordan v. Elyassi’s Greenbelt Oral & Facial Surgery, P.C.
This case involves the interpretation of Section 3–2A–02(c)(2)(ii) of the Healthcare Malpractice Claims Act (HCMCA). The plaintiff in a medical malpractice case must file a valid Certificate of Qualified Expert (CQE) signed by an attesting expert, and the attesting expert must meet certain qualifications, including board certification in the same or a related specialty as the defendant, unless they fall under an exception, such as having taught medicine in the defendant’s specialty or related field.
The plaintiff’s CQE was struck down by the circuit court due to the attesting expert’s teaching experience being deemed not recent enough, and the case was dismissed with prejudice. The appellant argues that the teaching experience exemption does not include a recency requirement and that the dismissal was inappropriate.
The doctor argued that the exception to board certification for experts who taught medicine should only apply to those who taught within five years of the alleged malpractice. However, the court disagrees and finds that the exception is not time-bound and applies equally to recent and distant teaching experience.
Holding in Jordan v. Elyassi’s Greenbelt Oral & Facial Surgery, P.C.
The court concludes that the attesting expert’s teaching experience satisfies the exception regardless of when it occurred and that the trial court’s dismissal was in error. The court determined that the exception to board certification for experts who taught medicine does not have a five-year recency requirement and that the plain language of the statute does not include any such requirement. The court also stated that the purpose of the Health Care Malpractice Claims Act (HCMCA) is to weed out non-meritorious medical malpractice claims but not to create roadblocks to the pursuit of meritorious medical malpractice claims and that the CQE requirements should not be interpreted so broadly as to place roadblocks to recovery in meritorious medical malpractice cases.