242 A.3d 240
Md. Ct. Spec. App.2020Background
- May 11, 2012: Lana Burton presented with a palpable right-breast lump; Dr. Minkin read a mammogram/ultrasound and characterized the finding as benign (no biopsy performed).
- August 9, 2013: Follow-up imaging and biopsy revealed triple‑negative Stage III breast cancer; she underwent treatment but disease metastasized and she died on February 17, 2016.
- Plaintiffs (husband, daughter, parents, and estate) sued Advanced Radiology and Dr. Minkin for medical malpractice (survival, informed consent, loss of consortium, wrongful death).
- Jury found breach and causation and awarded substantial non‑economic damages to several plaintiffs.
- Trial court granted defendants’ motion for judgment notwithstanding the verdict (JNOV), concluding plaintiffs failed to prove proximate causation because plaintiffs’ expert had opined survival probabilities that exceeded 50% even after delayed diagnosis. Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court err by granting JNOV for lack of proximate causation? | Jury verdict should stand; causation supported by plaintiffs’ experts and other evidence — jury resolved conflicts in plaintiffs’ favor. | Plaintiffs’ causation expert gave testimony (post‑diagnosis survival ≈66%) that shows it was not more likely than not defendants’ delay caused death. | Reversed JNOV. Court held the full record (crediting all reasonable inferences for plaintiffs) supplied the "slight" legally sufficient evidence to let the jury resolve causation conflicts. |
| Did the trial court improperly apply or rely on "loss of chance" doctrine? | Plaintiffs argued the court misapplied loss‑of‑chance (which Maryland doesn’t recognize) when it focused on survival probabilities. | Defendants contended the court applied traditional proximate‑cause analysis, not the loss‑of‑chance theory. | Court confirmed Maryland does not recognize loss‑of‑chance as an independent tort in wrongful‑death/survival claims, and concluded the trial judge performed a proximate‑cause inquiry (although the judge’s focus was misdirected). |
| Did the court abuse discretion by limiting plaintiffs’ expert testimony about a survivability algorithm? | (Short form) Exclusion deprived jury of reliable support for causation. | (Short form) Limitation was within trial court’s discretion. | Not decided on appeal — court reversed JNOV and reinstated the verdict, rendering this issue moot. |
Key Cases Cited
- Weimer v. Hetrick, 309 Md. 536 (1987) (Maryland Court of Appeals: wrongful‑death claims require traditional "more likely than not" proximate‑cause standard; rejected loss‑of‑chance theory for wrongful death)
- Fennell v. Southern Maryland Hospital Ctr., 320 Md. 776 (1990) (Court of Appeals declined to recognize loss‑of‑chance damages in survival actions)
- Marcantonio v. Moen, 406 Md. 395 (2008) (Court of Appeals reaffirmed that loss‑of‑chance doctrine is inapplicable where pre‑negligence survival chance exceeded 50%; addressed expert affidavit issues)
- Hicks v. United States, 368 F.2d 626 (4th Cir. 1966) (early adoption and oft‑quoted articulation of loss‑of‑chance concept in medical‑malpractice context)
- Goldberg v. Boone, 396 Md. 94 (2006) (described loss‑of‑chance as a "diminished prospect for a better result")