211 A.3d 475
Md. Ct. Spec. App.2019Background
- In 2011 Reiss had a kidney removed for renal cell carcinoma; an enlarged adjacent lymph node was left in place because of proximity to the inferior vena cava.
- Between 2011–2014 radiologists Bracey and Sung Kee Ahn read non-contrast CTs and reported no lymphadenopathy, noting scans were "suboptimally evaluated" without IV contrast.
- In 2015 another radiologist, Kim, identified an enlarging soft-tissue density; biopsy then confirmed metastatic cancer and the node was deemed unresectable.
- Reiss sued multiple physicians; he later dismissed claims against the surgeon Davalos and Chesapeake Urology, leaving the two radiologists and their practice as defendants.
- At trial plaintiff’s experts opined removal earlier would likely have cured Reiss and that biopsy would have shown cancer; no expert testified to a reasonable degree of medical probability that the non-party physicians (Davalos, DeLuca, Eugene Ahn) breached the standard of care.
- The trial court’s verdict sheet included, over plaintiff’s objection, a question asking whether negligent acts by the non-party physicians were a substantial factor in causing injury; the jury’s initial answers were inconsistent (awarding damages despite finding defendants non-negligent), prompting further deliberation and a second verdict finding the radiologists not negligent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by submitting a verdict question on non-party medical negligence when defendants produced no expert proving breach by non-parties | Reiss: inclusion was improper because no expert opined, to a reasonable degree of medical probability, that non-party physicians breached the standard of care; question prejudiced jury. | Radiologists: Copsey and Martinez permit admission of non-party negligence evidence as a defense; issue is moot because jury found radiologists non-negligent. | The court erred: defendants needed admissible expert proof (reasonable degree of medical probability) to submit non-party negligence to the jury; absent that, question should not have been on verdict sheet and error was prejudicial. |
| Whether expert testimony is required for a defendant to assert non-party malpractice as a defense (outside rare lay-obvious cases) | Reiss: standard malpractice proof rules apply; expert needed to show breach by non-party. | Radiologists: argued Copsey/Martinez let them rely on non-party negligence without the same expert burden when denying liability. | Held: Expert testimony is generally required to prove breach of professional standard by a non-party unless negligence is obvious to a layperson; Copsey/Martinez do not excuse that requirement. |
| Whether the initial inconsistent verdict rendered the non-party question harmless | Reiss: juror confusion and the initial $4.8M award despite finding defendants non-negligent shows prejudice from the improper question. | Radiologists: because final verdict found no negligence by defendants, the non-party question is moot/harmless. | Held: Not harmless—jury confusion likely influenced deliberations; reversible error and new trial required. |
Key Cases Cited
- Copsey v. Park, 453 Md. 141 (Md. 2017) (defendant may present evidence of non-party medical negligence to show he was not negligent or that subsequent treating physicians’ negligence was a superseding cause)
- Martinez ex rel. Fielding v. Johns Hopkins Hosp., 212 Md. App. 634 (Md. Ct. Spec. App. 2013) (defendant entitled to introduce evidence of non-party’s standard of care and breach when asserting complete denial of liability)
- Karl v. Davis, 100 Md. App. 42 (Md. Ct. Spec. App. 1994) (expert opinions must be expressed to a reasonable degree of medical probability or will not generate a triable issue)
- Retina Group of Washington, P.C. v. Crosetto, 237 Md. App. 150 (Md. Ct. Spec. App. 2018) (critical expert comments insufficient without probability-level opinion that standard of care was breached)
- Armacost v. Davis, 462 Md. 504 (Md. 2019) (elements of medical negligence and requirement that professional standard of care ordinarily be shown by expert testimony)