211 A.3d 475
Md. Ct. Spec. App.2019Background
- In 2011 Reiss had a nephrectomy for renal cell carcinoma; an adjacent enlarged lymph node was left in place because of proximity to the inferior vena cava.
- His oncologist monitored the node with serial CTs (many without IV contrast); radiologists Bracey and Sung Kee Ahn repeatedly reported no lymphadenopathy but noted scans were "suboptimally evaluated" without contrast.
- A 2015 CT (interpreted by Dr. Kim) showed increased soft-tissue density; biopsy then confirmed the node was cancerous and later deemed unresectable.
- Reiss sued multiple physicians; claims against the original surgeon (Davalos) were dismissed pretrial, leaving the radiologists as defendants. Trial testimony included experts on prognosis and resectability but no expert testimony that the non-party physicians (Davalos, DeLuca, Eugene Ahn) breached the applicable standard of care.
- The court, over objection, included on the verdict sheet a question asking whether negligent acts by those non-party physicians were a substantial factor in causing Reiss’s injury; the jury initially produced an inconsistent verdict and awarded damages, then on further instruction returned a verdict finding the radiologists not negligent.
- The Court of Special Appeals held the trial court erred in submitting the non-party negligence question because defendants produced no expert evidence that any non-party breached the standard of care; the error was prejudicial and requires a new trial.
Issues
| Issue | Reiss's Argument | Radiologists' Argument | Held |
|---|---|---|---|
| Whether the verdict sheet properly asked if non-party physicians’ negligence was a substantial factor when no expert testified those non-parties breached the standard of care | Inclusion was improper and prejudicial because no admissible expert evidence supported non-party negligence | Copsey/Martinez allow defendants to present non-party negligence; issue is moot because jury found radiologists not negligent | Court reversed: trial court erred to submit the question without expert proof that non-parties breached the standard of care; error was prejudicial; remand for new trial |
| Whether a defendant may present non-party medical negligence without expert testimony | Expert evidence is required to show a medical provider breached the professional standard of care | Claimed Copsey/Martinez freed them from an expert requirement when denying liability (or that the issue was moot) | Held defendants must produce expert testimony, to a reasonable degree of medical probability, to generate a triable issue on non-party medical negligence (except in rare cases obvious to lay jurors) |
Key Cases Cited
- Copsey v. Park, 453 Md. 141 (2017) (recognizes defendant’s right to introduce evidence of non-party medical negligence to show defendant was not negligent or that subsequent treating physicians were superseding causes)
- Martinez ex rel. Fielding v. Johns Hopkins Hosp., 212 Md. App. 634 (2013) (defendant entitled to present evidence of earlier non-party negligence to deny liability; exclusion of that evidence denied fair trial)
- Karl v. Davis, 100 Md. App. 42 (1994) (expert opinions must be expressed to a reasonable degree of probability; failure to do so can defeat a malpractice claim)
- Retina Group of Washington, P.C. v. Crosetto, 237 Md. App. 150 (2018) (critical expert commentary without an opinion to a reasonable degree of probability is insufficient to generate a triable issue that physician breached the standard of care)