236 A.3d 518
Md.2020Background
- 2011: Reiss underwent nephrectomy for renal cancer; an adjacent enlarged lymph node near the inferior vena cava (IVC) was left in place because surgeon Davalos considered it unsafe to remove.
- Between 2011–2014 multiple non‑contrast CTs were read by radiologists Bracey and Sung Kee Ahn as showing no lymphadenopathy, but the reports noted the scans were suboptimal without IV contrast. In 2015 another radiologist reported increased soft‑tissue density; biopsy confirmed cancer.
- Reiss sued the radiologists (Bracey and Sung Kee Ahn / American Radiology), alleging their readings caused the lymph node to become unresectable and reduced his chance of cure. He later voluntarily dismissed claims against the urologist Davalos.
- The radiologists denied liability and blamed non‑party treating physicians (Davalos and oncologists DeLuca and Eugene Ahn), but did not designate or call experts to opine that those non‑parties breached the standard of care.
- The jury initially returned an inconsistent/“aberrant” verdict: found the defendants not negligent but answered a verdict question finding non‑party negligence and awarded $4.8M; court sent jury back, and they later returned a defense verdict. Court of Special Appeals reversed; Court of Appeals granted certiorari.
- Court of Appeals held expert proof is required to generate a jury question of non‑party medical negligence (except obvious cases) and that submitting the non‑party question without such proof was prejudicial — case remanded for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Whether expert testimony is required to establish non‑party medical negligence and causation when defendant denies liability and asserts non‑party negligence as an alternative theory | Reiss: Yes — medical negligence and causation require expert proof except in obvious cases | Radiologists: No — because they did not assert an affirmative defense, they need not present expert proof to generate the issue | Held: Yes. Expert testimony to a reasonable degree of medical probability is required to generate a jury question on non‑party physician negligence (unless negligence is obvious). Defendant may elicit plaintiff’s expert on cross or call its own expert but is not compelled to call one. |
| 2) Whether submission of the verdict question about non‑party negligence (Question 6) was prejudicial | Reiss: Submission was prejudicial — the jury was confused and initially awarded damages based solely on a finding of non‑party negligence unsupported by expert proof | Radiologists: Harmless — jury later returned a defense verdict after being sent back to deliberate | Held: Prejudicial. The erroneous question likely affected the jury, contaminating deliberations and requiring a new trial. |
Key Cases Cited
- Copsey v. Park, 453 Md. 141 (2017) (defendant generally denying liability may present evidence of non‑party negligence and superseding cause)
- Martinez ex rel. Fielding v. Johns Hopkins Hosp., 212 Md. App. 634 (2013) (evidence of non‑party negligence is relevant when defendant denies liability)
- Meda v. Brown, 318 Md. 418 (1990) (expert testimony required in medical malpractice cases because subject matter is complex)
- Armacost v. Davis, 462 Md. 504 (2019) (medical malpractice governed by traditional negligence elements and standard of care principles)
- Kearney v. Berger, 416 Md. 628 (2010) (expert opinion must be expressed to a reasonable degree of medical probability/certainty)
- State ex rel. Janney v. Housekeeper, 70 Md. 162 (1889) (negligence must be affirmatively proved; not presumed)