*1 207 (2009) 999, 1009 State, 698, 716, A.2d 976 409 Md. Gregg v. See done acts to have been (“we legislative interpret do language statutory reasons, do we construe nor nonsensical nugatory the law portion renders manner DeHaan, Co. v. Mut. Auto. Ins. Farm State superfluous.”); (2006). 163, 170-171, 900 A.2d Md. dissent. respectfully I A.2d 112 MEDICAL OF MARYLAND
UNIVERSITY CORPORATION, al. et SYSTEM
v. WALDT, et al. Marie Rebecca Sept.Term, 2008. No. 130 Maryland. Appeals Court of Nov. 2009. 9, 2009. Denied Dec.
Reconsideration *5 (Lisa Brown, LLC, Neal M. Brown J. Russell of & Waranch Lutherville, MD), brief, on for Petitioners/Cross-Respondents. Curiae The Medical and Chirugical Faculty
Amicus of Ma ryland, Inc. State Maryland Society: Stephen Medical t/a Johnson, Counsel, Baltimore, H. Esquire, General MD Joseph Schwartz, III, Esquire, Kasemeyer, Esquire, A. Pamela Metz Wise, Schwartz, Wise, P.A., Esquire, J. Steven Metz & Balti more, MD, for Petitioners/Cross-Respondents. (Jamison Silverman,
Andrew G. Slutkin G. White of Thomp- son, White, LLC, Baltimore, MD), brief, Slutkin & Respondent/Cross-Petitioners. Maryland
Brief Amicus Curiae of the Ass’n for Justice: Perilman, Seabrook, David M. Kopstein, Esquire, Kopstein & MD, for RespondenVCross-Petitioners. BELL, C.J., HARRELL, BEFORE
ARGUED BATTAGLIA, GREENE, ADKINS, ELDRIDGE, JOHN C. (Retired, RAKER, (Retired, Specially Assigned) IRMA S. Specially Assigned), JJ.
GREENE, Judge. This case arises from a medical claim filed malpractice husband, Rebecca and her Respondents, Roy Marie Waldt (‘Waldts”), in the Circuit Court for Baltimore City. Waldt *6 2002, procedure underwent a treat December of Mrs. Waldt bleeding in her brain. The caused aneurysm procedure brain, physi- and extensive resulting Mrs. Waldt’s a stroke The that Petition- impairment. argue cal and mental Waldts ers, University Maryland and the Medi- Gregg Dr. Zoarski (“UMMS”), and treatment of Mrs. did System’s cal care Waldt proper conform standard of care and the medical to the obtain informed con- providers properly did not Mrs. Waldt’s procedure. performing sent before trial, expert At the Waldts called Dr. Gerard Debrun as an witness, testimony as to the standard of offering expert his care and on the issue of The trial judge informed consent. excluded Dr. testimony Debrun’s standard of care on grounds that Dr. Debrun did not meet the minimum requirements for an witness as set forth Md.Code (1974, 3-2A-04(b)(4) Vol.), § Repl. 2006 of the Courts & (“the Rule”).1 Proceedings Judicial Article 20 Percent Debrun was also from prevented giving expert testimony on the informed consent claim because the trial court determined the witness did not have sufficient experience with the specific procedure qualified expert. to be as an At the conclu- chief, sion of the Waldts’ case UMMS and Dr. Zoarski moved for summary judgment on both counts. The Waldts conceded that no evidence of negligence presented was the court granted judgment favor UMMS and Dr. hearing Zoarski. After arguments concerning the informed claim, that, consent the court ruled without expert claim, on the informed question consent there was no for the jury, granted judgment and thus and Dr. UMMS Zoarski. (1974, Vol.), 3-2A-04(b)(4) Repl. § 1. Md.Code 2006 of the Courts & Proceedings Judicial Article states: provider qualified expert A health care who attests in a certificate of a proceeding panel or who testifies in relation to a before an arbitration concerning compliance departure or a court from standards may annually percent expert’s of care not devote more than 20 professional directly activities to activities that involve personal injury claims. appealed Special Appeals, to the Court of which Waldts ruling negligence court’s as to the medical overturned the trial claim and the trial court on the informed consent claim. upheld UMMS, 217, 254, 267-68, Waldt v. 956 A.2d Md.App. (2008). 244-45, The intermediate court held that appellate percent not dedicate more than 20 of his Dr. Debrun did directly involving testimony, activities to activities testify and he therefore as to standard qualified Rule. The Special care to the 20 Percent Court of pursuant legally application stated: correct the 20 Appeals “[A] Rule have led the court to conclude that Dr. Percent should care disqualified giving Debrun was not from standard of 956 A.2d at testimony.” *7 certiorari to determine whether the Court granted 239. We the 20 Percent Rule Special Appeals properly interpreted of court’s the court affirmed the trial properly and whether as an on informed ruling to exclude Dr. Debrun judgment Special of the Court of consent. We reverse Rule interpretation in to its of 20 Percent Appeals regard determina- respect and affirm with informed consent tion. AND
FACTS PROCEDURE by in the facts as set forth the Court of adopt, part, We Special Appeals Waldt: in Marie City,
In the Circuit Court for Baltimore Rebecca husband, Zoarski, Roy Gregg and her sued Waldt M.D., System Medical University Maryland and the of (“UMMS”) a device called malpractice. Using for medical (“neuroform Microdelivery System” Stent the “Neuroform stent”), Zoarski, Radiology Dr. the Chief of Interventional UMMS, aneurysm to treat an performed procedure at had During in Mrs. brain. the proce- in a vessel Waldt’s blood dure, bleeding which caused into artery perforated, The left Mrs. the brain and a stroke. stroke Waldt with and mental deficits. significant physical alleged negli- two of complaint, types In their Waldts i.e., 1) negligence, by failure Dr. Zoarski to gence: ordinary adhere to the performance standard care the actual 2) i.e., the procedure; and informed consent negligence, failure Dr. Zoarski to obtain patient’s informed procedure. consent to the The Waldts’ sole claim against was for liability UMMS vicarious for the alleged malpractice of Dr. Zoarski. discovery, the course of the Waldts identified Dr. Debrun
[James Gerard]
as their
witness. Dr. De-
brun was
educated
France and practiced interventional
neuroradiology for 45 years before
retiring
July
2001.
field,
He has held
many positions
including: Chief of
Neuroradiology
Paris,
at the University Hospital of
Director
Neuroradiology
University
Canada,
of London in
Department
Chairman of the
of Radiology at Massachusetts
General Hospital, Visiting Professor at Harvard Medical
School, and Director of Interventional Neuroradiology at
Hopkins Hospital
Johns
in Baltimore. Dr. Debrun has
lectured extensively and written hundreds of articles on the
subject of neuroradiology. He has in the past performed
coiling procedures
over 30
to treat wide-neck aneurysms.
Between 10 and 15 of those aneurysms were
similar
size
to Mrs.
aneurysm.
Waldt’s
Because Dr. Debrun’s retire-
ment preceded the market
stent,
release of the neuroform
he never performed
coiling
procedure using that stent.
records,
Debrun read Mrs. Waldt’s medical
including
*8
Dr. Zoarski’s notes
coiling
about the
procedures;
reviewed
the angiograms taken at
during
various intervals
the proce-
dure; and read literature about the neuroform
system,
stent
published by
manufacturer,
its
Boston Scientific.
In a
discovery deposition, Dr.
opined
Debrun
that Dr. Zoarski
breached the standard of care when he performed the
alia,
coiling procedure by, inter
using the guide wire to
coil,
“fish” for the stuck third
in doing
and
so perforating
the [middle cerebral artery]
away
at a site
from the aneu-
rysm. He explained that the perforation was caused Dr.
by
wire,
Zoarski’s manipulation
guide
by
and not
the
itself,
(1)
stent
because
angiogram
an
taken during the
the
deployed
shows the stent and
coils
procedure
perfectly
(2)
(as
the
in
in
the location of
bleed
shown
an
place,
and
from the
to have been
angiogram)
aneurysm
too distant
(3)
notes,
stent,
and
Dr.
own
made
by
caused
Zoarski’s
event,
perfor-
time of
reflect his
at the
belief
of
aneurysm.
occurred
from the site
away
ation
229-30,
223,
226,
Dr. Debrun that he retired in testified then. directly patient has not care since He participated $30,000 an average per year serving expert from as earns cases, cases. In most such malpractice witness medical plaintiff. Ordinarily, expert he is an witness for he four expert as an witness three or medical participates He he year. spends cases a estimates that less malpractice per participates 50 hours in that endeavor. He year than by reviewing medical case it and given malpractice having (or rarely He testifies in court before deposition his taken. the cases trial. panel) because most of settle before bar, $23,028. had paid case at Dr. Debrun been Dr. other than the only Debrun’s source income significant pension. he earns an witness is his money as that, Debrun testified in 2004 and he further per “professional an 559 hours average year devoted his service witness in activities” unrelated to
217 These into malpractice medical cases. activities fall five categories:
(cid:127) Performing peer Surgical review submitted articles for (16
Neurology, journal: year medical 192 hours per month); hours per
(cid:127) Journal International Interventional Reading
Neuroradiology Neurological Surgery Journal: and 240 (20 month); year per per hours hours (cid:127) colleagues Observing performing procedures: various (8 month); year
hours hours per per (cid:127) Discussing medical cases ongoing patient physicians: with (1.33 month); year per
16 hours per hours (cid:127) international Attending conferences the field inter- year radiology: per (approximately
ventional hours month). per 1.33 hour[s] 233-34, A.2d at 232.
After his considering Dr. Debrun’s about activi- ties, judge granted the trial the motion to exclude his testimo- ny with care: respect standard of has has
[T]he witness indicated and testified that he is retired.
He not seen any patients July has since 2001. That he spends reading journals, journals, most his time writing review, peer observing colleagues performing other other procedures going to conferences meetings. indicating
He is one meeting year also that per he goes to does not have to do with his practice of medicine any patients. journals do he reads however, patients, have to with his they do do have to do with his previous practice of medicine.
He does not nor an keep calendar electronic device with to his regards appointments or where he has to be or what he has to do. *10 he and he it he knows has to be 'writes says
He where and he aware of where he is piece paper, down on a is he to there. supposed supposed to be at the time is be conferences, not At he has presented these seminars or He indi- retiring____ since also any since —he said papers to, the ... meeting last he has gone [inter- cates that the conference, the last one about neuroradiology was ventional ago. years three practiced has not since 2001.
He also stated that he the to conferences on interventional gone He has these conferences____ any But he doesn’t use neuroradiological information that he receives at these conferences for the He plaintiffs. in court behalf of doesn’t use testifying on he from any reading information that receives of the journals. knowledge use the information or that any
He doesn’t colleagues he from in Paris when he talks to receives his He up going just them or tries to on what is on. does keep what on in field. just going it to be informed on is his one absolutely amazing. finds be And The Court that to witness, can’t question that was asked Court question, recall this moment the exact but the witness’ was, I I response actually working was or after quote, when retired. in the practice has no license medicine
The witness there, only but he This is neither here nor United States. he in Paris so write says prescriptions has his license he can family for his members. He privileges anywhere. no he has no patients,
He has he any provides. not for medical treatment that He is paid he any opinions colleagues not for from or paid gets colleagues they what gives to about do. time, more expert finds devotes
At this Court than of his activities percent [sic] testifying injury cases. involving personal or expert thus permitted give Dr. Debrun was not on the of care. standard granted
The trial court motion Dr. also UMMS and prevent Zoarski Dr. Debrun from testifying about consent ruled judge informed claim. trial that Dr. De- brun the use of the neuroform stent. performed Dr. Debrun had never a procedure observed the neuroform stent was not utilizing approved as it for use until after United States Dr. Debrun retired from active practice. The judge expertise trial ruled that Debrun’s neuroradiology field interventional was not sufficient him qualified particular to be as an this case. *11 appeal Special
On to the Court of the Appeals, Waldts argued judge excluding that the trial erred in Dr. all of (1) testimony. They argued Debrun’s that trial judge: the improperly interpreted meaning the of “professional activities” in calculating percentage what of his time Dr. Debrun testifying, devotes to and thus should not have exclud- care; (2) testimony ed his of regarding the standard and erred Dr. Debrun preventing testifying from the concerning informed consent claim. appellate
The intermediate court held that Dr. Debrun should have been testify allowed to of standard care. opined: The court “of, to,
The dictionary “professional” definition of relating or a profession.” characteristic of Merriam-Webster’s Col- legiate Dictionary (11th 2003). ed. five areas activities Dr. testimony reading Debrun described his — and peer editing journals, medical col- consulting with cases, leagues about their ongoing observing colleagues performing procedures, medical attending confer- ences—all were related to radiology, interventional pro- his fession, and as explained we have were directly not activities personal involved injury cases.... legal- [A] ly application correct of the 20 Percent Rule should led have the court to conclude that Debrun not disqualified was giving testimony. from standard care expert Waldt, Md.App. at 956 A.2d at Ultimately, 239. intermediate appellate judgment court reversed the entered and remanded the case to the ordinary negligence claim
on the proceedings. for Court further Circuit affirmed the trial court’s of Special Appeals The Court Maryland Citing the informed consent claim. judgment on 5-103,2 issue had not been ruled that Rule court the Waldts failed appeal because preserved properly of Dr. Debrun’s a sufficient the substance proffer make The intermediate court testimony. appellate informed consent reasoned: in the record about evi- information specific
Without
admitted,
has
will not be
trial
ruled
dence the
court
determine whether
court erred
appellate court cannot
the evidence inadmissible
ruling
abused its discretion
discretion
any error or abuse of
cannot determine whether
offering party----
prejudicial
that
there was not an
appellees
with the
agree
We
pre-
of Dr. Debrun’s
adequate
made
proffer
of the trial
propriety
serve for review the issue
ruling.
court’s
stating
went *12 ruling Dr. did not for court’s exclusion Debrun the basis —that to informed necessary the foundation offer whatever have to was not going give ruling he was opinions consent — the at or of error an abuse discretion.” A.2d 249. petition a for of certiorari Dr. Zoarski and UMMS filed writ appellate to court’s for this Court review the intermediate expert on concerning qualification Dr. Debrun’s as an decision Maryland part: 2. Rule 5-103 states (a) predicated upon ruling. may Error not be Effect of erroneous party prejudiced ruling the is admits or excludes evidence unless (2) ruling proof.
by ruling, and Offer of In case the is one the ... evidence, excluding the substance of the evidence was made known apparent from the context to the court offer on record was within the evidence offered. which of the standard care.3 The filed a for cross-petition Waldts Special Appeals’ review of the Court of decision on Dr. De- brun’s exclusion as an on the informed consent claim.4
DISCUSSION Twenty I. Percent Rule argue Special Petitioners that the Court of erred in Appeals ruling overturning regarding the trial court’s the 20 Percent They argue Rule. that Dr. Debrun’s conducting activities — review, peer reading journals, observing procedures, discuss- ing patients colleagues, with former attending and confer- not “professional ences —were activities” in the of sense relat- ing Petitioners, to the profession According of medicine. retired, Debrun all is of his professional activities are for purpose cases, testifying medical malpractice percent therefore 100 of his time dedicated to activities directly giving testimony. Allowing related him to qualify witness, contend, as an Petitioners the pur- eliminates pose of the requirement, allowing professional witnesses to presented following questions 3. Dr. Zoarski UMMS in their petition for writ certiorari: Maryland Legislature 1. professional Did the intend to exclude testifying malpractice witnesses from in medical cases where 100% professional directly testimony personal their activities involve injury claims? correctly 2. interpreted Whether trial court the statute to ad- fact, public policy by finding, vance the stated as a matter of that a professional witness devoted more than his 20% time directly testimony personal injury activities that involve claims. certiorari, cross-petition 4. their presented Waldts the follow- ing questions: Special 1. Appeals Did the Court of commit reversible error when it proffer concluded sufficient of Dr. Debrun's was not made, of Dr. substance Debrun’s was not and/or apparent trial court from the within context which he was expert? offered as an Special Appeals 2. Did Court of commit when reversible error it *13 properly concluded that the trial court expert excluded Dr. Debrun as an failing witness on the of issue informed consent for to have a testimony? sufficient factual basis his for 222 members being themselves
criticize doctors without practicing profession. of counter, Dr. activities reasoning that Debrun’s
The Waldts activities,” relate to directly but did not “professional were malpractice cases. The Waldts medical giving engaged activities Debrun that because all the contend neuroradiology, and involve field of interventional concern the medicine, “professional as they of count profession his former activities.” is meaning statutory text an issue we review
The
Park and
Capital
Maryland-National
as a matter
law.
Anderson,
694,
172, 181,
699
Planning v.
Md.
909 A.2d
395
State,
1111,
v.
446, 452,
1114
Moore
(2006);
Md.
A.2d
3-2A-04(b)(4)
(2005).
§of
of the Courts
portion
The relevant
“may
Article states that an
Proceedings
Judicial
&
annually
percent
expert’s profes
more than 20
devote
testimony in
directly
activities that
involve
sional activities to
plain language
of the section
injury claims.”
personal
qualified
to discern whether
suggests that
perform
we must
mathemati
testify
requirement,
this
under
“directly
identify
we must
those activities that
equation:
cal
(the numerator)
personal
injury
claims”
involve
body of
comprise
those activities that
and then divide it
(the denominator).
See
general
“professional activities”
243,
(identifying
In Witte
369 Md.
801 A.2d
this
clear
the numerator and set a
standard
Court addressed
testimony.”5
“directly
those
involve
identifying
activities
Azarian,
(2002), was
v.
369 Md.
223
think,
A more
approach,
reasonable
we
is to
the
regard
(1)
only
in,
as
the
the
including
statute
time
doctor spends
from,
or traveling to or
court or
for
deposition
purpose
the
testifying,
testify,
of
to
waiting
observing
or
events
(2)
preparation
testifying,
spent assisting
the time
an
attorney or other member of a
team in
litigation
developing
responding
interrogatories
or
to
and other
of
forms
discov-
(3) the
ery,
spent
reviewing
time
notes and
materi-
other
als, preparing
reports,
conferring
attorneys, insur-
team,
adjusters,
litigation
ance
other members of a
the
or
patient,
being
others after
that
will
informed
the doctor
be called
or
likely
upon
sign
testify,
to
affidavit
otherwise
(4) the
any
time
on
has a
spent
activity
similar
that
relationship
clear and direct
to be
the
given
or
doctor
the
preparation
give testimony.
doctor’s
Witte,
535-36,
This Court did not address in Witte which activities “professional qualify as activities” for of purposes calculating yet denominator. have meaning We rule on phrase “professional activities” as it is used the 20 Percent statutory cases, Rule. In ... interpretation cardinal rule “[t]he is to ascertain and Legislature.” effectuate intent State, 431, 443, 388, Chow (2006); v. 393 Md. 903 A.2d 395 Lake, 301, 316, v. 1036, Oakland Mountain 392 Md. 896 A.2d (2006). 1045 If the statute is unambiguous clear and based plain language, our end inquiry then will there. v. Bowen 587, 613-14, 242, 402 Annapolis, (2007); Md. 937 A.2d 257-58 Osborne, 563, 571-72, 427, Walzer v. Md. 395 911 A.2d 431-32 (2006); DNR, 563, 576-78, 186, Kushell v. 385 Md. 870 A.2d (2005). 193-94
A
however,
“ambiguous,”
statute is
when there exist
more
interpretations
two or
reasonable
of the words used.
UMMS,
217,
experts giving testimony
well. Waldt
as
v.
181
(2008).
956 A.2d
Walzer,
572-73,
Md.
the structure the its how the of laws; history, includ- legislative statute relates to other the statute, explanations the comments and ing derivation by during legislative it authoritative sources the regarding it; or added to the process, proposed and amendments statute; the and the relative ration- general purpose behind of constructions. legal competing and effect various ality 525-26, (citing Beyer Morgan A.2d at 165 v. 369 Md. 707, (2002); State, 349-50, 335, A.2d Liver 369 Md. Diamond, 304, 317-19, 799 A.2d pool v. Baltimore 369 Md. (2002)). 1264, 1272 below,
In proceedings Special Appeals the the Court of legislative the of the 20 Percent Rule. The history reviewed appellate court concluded: intermediate length medical malprac- The Witte Court discussed at the the 1970’s that to the enactment tice insurance crisis of led 1976, Act in the of the Health Claims Arbitration Assembly the why thought General that reasons the malpractice brought by law about the changes medical help legislature that the Act would solve crisis. Act, qualified the to include a certificate of further amended in part upon based recommendations expert requirement, study force the by made a 1985 task convened whether and, so, if what continuing changes insurance crisis was Act the be made to the to further ameliorate crisis. could proposed, only As Senate Bill would be if qualified sign he or she not certificate did receive 50 percent or more income from testimony and other activities personal related to claims. injury language That was Rule, is, become the amended to 20 Percent that to qualify, certifying expert cannot devote more than 20 his or percent her activities activities directly involving personal injury claims.
As the Court explained, legislative history Witte suggests the 1986 amendments to Act General of two Assembly imposing minds such eligibility requirements upon expert signing witnesses certificates. hand, On the “professional one it wanted to exclude certain eligible witnesses” from “the pool experts” available to hand, sign certificates merit. the other it did On want to pool “shrink” size of that so to “deny parties ability to pursue and defend [malpractice] these The legislators claims.” in part achieved that balance language changes keying critical numerical measure time, income, ment to instead of narrowing activities *16 originally personal described as “related to” injury claims to the limited more world of activities “directly involving testi mony in personal injury claims.”
Beyond
legislative
the
as gleaned by
intent
the Court in
Witte, nothing
Act,
legislative
the
history of
through
the
amendments,
the 1986
light
sheds
on the meaning of the
phrase “professional activities” as the denominator for the
20 Percent Rule.
(internal
242-43,
citations Following its review of the available legislative history, the appellate intermediate court in this case turned to the dictio- “of, of nary professional: to, definition relating or characteris- tic of a profession.” Merriam-Webster’s Collegiate Dictio- nary (11th 2003). definition, 991 ed. Under this the court ruled that all of Dr. Debrun’s listed reading and activities — peer editing journals, of medical consulting colleagues cases, ongoing about their observing colleagues performing medical conferences —related to his procedures, attending and radiology, qualified and thus as profession of interventional The total number of hours devoted to activities. professional ruled that only was 559. The court also the these activities directly involving time Dr. Debrun dedicated activities he indicated originally was the hours as such Therefore, Special to the Court of testimony. pursuant his calculation, only percent devoted 8 of his Appeals’ Dr. Debrun directly involving testimony. professional time activities of defini disagree Special Appeals’ with the Court We A it profession of activities.” carries with “professional tion vocation, a or and individual who concept business responsibility obligation has some engages profession a are “pursuit[s] his or her field. Activities purpose or within active,” to be “active” is to be “charac which a person speculation.” or by contemplation terized rather than by action Collegiate Dictionary that, 13. We hold Merrlam-Webster’s activi qualify “professional for an activities to as individual’s profession or must advance ty,” activity contribute or belongs which individual involve individual’s classifying “profes participation profession. active activities,” a must be drawn between sional distinction furthering spent versus hours spent profession hours one’s v. Estate personal leisurely pursuits. or See Gawel (E.D.Mich.2000) (“[A]n Schatten, ex F.Supp.2d or her and is majority professional ‘a of his time’ pert devotes he or spends under the statute where she the bulk qualified time, other opposed to recreational or their time, medi engaged practice in either active personal re Michigan statute that teaching.”) (interpreting cine of their spend majority profes witnesses to quires expert *17 or teaching). in active clinical practice sional time in line with “professional Our activities” interpretation have on how witnesses other states that restrictions Kansas, example, time. for spend professional must their percent at of their requires witnesses to devote least 50 practice two-year clinical time active professional
227 period preceding the incident in giving rise action which (2005). testifying. § witness is 60-3412 Kan. Stat. Ann. In calculating percentage of time a doctor devoted to active clinical practice, the Kansas Supreme Court considered all of the following activities to be in “professional included care, time”: patient direct group therapy, spent time in on-call room, the emergency governmental consulting, writing, edit- ing, directorships of academic programs, involvement with professional organizations committees, and teaching. 373, (2003). Dawson v. Prager, 1036, 276 Kan. 76 P.3d Though the court never explicitly stated a definition of “pro- activities,” fessional all of these activities involve some contri- bution to or in profession advancement of medicine or involve the doctor’s active in participation the profession. Similar decisions have been made under Ohio and North See, Carolina e.g., law. Cornett v. Watauga Surgical Group, P.A., 805, 669 S.E.2d 808 (N.C.Ct.App.2008) (listing clinical practice, rounds, leading residents, assisting performing ad- functions, conferences, ministrative attending and participat- ing committee meetings as a professional doctor’s activi- ties); Kean, 255, Goldstein v. App.3d Ohio 461 N.E.2d (1983) (counting scholarly research and writing, medi- cal/legal consulting, care, patient direct evaluating work- compensation er’s professional claims as time for purposes of calculating percentage of professional time spent on clini- treatment). cal
As the demonstrate, decisions of other state courts requiring “professional time” to advance or contribute to the profession or involve participation active profession way some does not “professional mean time” is limited to Indeed, active clinical practice. the text of the 20 Percent Rule necessarily requires time spent testifying to be included activity. “[G]iven that ‘activities in directly volving personal injury claims’ is the subset of activities addressed Rule, numerator the 20 Percent those activities are included in the meaning of phrase ” Waldt, ‘professional activities.’ 956 A.2d at 238. Time spent testifying in and preparing for testifying *18 medicine, practice not active eases is malpractice
in medical by provid- something profession but it still contributes malpractice for the resolution necessary expertise ing 3-2A-02(c)(2)(ii)(A) of the Courts & addition, § claims. In in med- expert witnesses requires Article Proceedings Judicial cases to malpractice ical relating consultation experience, provided
have had clinical in the defendant’s taught medicine clinical or practice, care, in the field of health or or a related field of specialty care or treat- provided the defendant in which health care years within 5 of the date of the to the plaintiff, ment the cause of action---- rise to giving act or omission alleged added.) (Emphasis that current clinical or Year Rule demonstrates
This Five have merely must witness required work is not education —the in years of the incident within five experience had such stated below: Special Appeals the Court of As question. ie., witness, with- one expert non-practicing A retired or clinical, consulting prac- teaching-based, or existing an out testify negligent or about tice, certify qualified remains not more committed or omitted to have been alleged act (or she) practicing. he retired or ceased after years than five contemplated thus amendments Special Session The 2004 certify qualified will be that some witnesses even their field experience their upon based testify in that field. practice are active they longer no though A.2d at 238-39. required, is not practice clinical Though active than activities other engage doctor must still satisfy required a doctor is still in court. Such testifying to continue allows a doctor qualified Percent Rule. This the 20 him or her from expertise, prevents his or her but to utilize witness. purely launching a second career (at must still percent) least 80 activities primary professional is professing. that he or she profession in the medical be case, that he Dr. Debrun testified present directly related to on activities per year 50 hours spends only giving testimony malpractice medical cases. agree We that, Witte, the Court of Special Appeals under these 50 hours are the extent of Dr. Debrun’s activities that are directly related to giving testimony and therefore count as the numer- ator the 20 percent calculation. Dr. Debrun testified that *19 compensated he is for all directly his work that relates to preparing giving testimony for and the remainder of his time any does not fall into of the four categories established by Witte. activities,
Under our professional construction of Dr. De- professional brun’s activities are testifying limited to medi- malpractice cal and assisting peer cases review medical journals. We examine each of these two activities in turn: discussed,
Testifying. previously As activities related to giving testimony must be a part greater of the category of professional activities. The necessarily numerator is included in the denominator.
Peer review. Dr. Debrun testified to the work involved peer journals review of medical as follows:
Dr. Ausman of Surgical [editor ... Neurology] sends me approximately three or four articles month I every am I spend read. And three or four hours in reading each article. Then on I my computer, write my comments about the article.
If the article can be published as it is or if the article has improved be or if things missing are in the article and answer, depending my he sends the article back to the author who will it again [sic], send back with all the revision and, finally, I if will be asked I consider that the article is ready for publication.
Peer scholarly review of work ais vital in the step scientific research process, guaranteeing legitimacy of methods and analysis of results. See Peter Cummings and Frederick P. Rivara, Reviewing Manuscripts Archives Pediatrics for Medicine, and Adolescent 156 Archives of Pediatrics and (“Peer (2002) review is a critical Adolescent Medicine element process.... editorial goals provide are to work, a check on their regarding to the authors expert advice methods, and information validity of the data the scientific suitability decision about editors for use their to the ”); .... see also Journal publication paper Association, for Authors Information American Medical (last Reviewers, http://jama.ama-assn.org/misc/aboutjama.dtl 2009). these articles Dr. Debrun’s work on visited Oct. is not for his though paid even he “professional,” qualifies He is contributing profession. time, he is because through years experience knowledge gained utilizing his field. advancing and is however, activities, being related despite
Dr. Debrun’s other actively neuroradiology, do not interventional to the field of of the field or or advancement development contribute and are the field participation active involve Dr. Debrun’s activity address each activities. We therefore in turn: *20 testified that he does Dr. Debrun himself
Reading journals. than the other any particular purpose for journals not read doing are people know what “interested to fact that he is something situation where the occasional today.” Apart from in, Dr. a case he testified coincidentally related to he read gained knowledge not use the that he does Debrun stated better classi- This time would be reading journals. through personal is for his own “leisurely” or as it “personal” fied edification. Dr. De- reading journals, As with
Observing procedures. for his purely is procedures his observation of brun stated that is not gained the information knowledge and personal own field, his nor does it involve of the any used for advancement in this engages field. He participation own active the field doing and to know people what are activity know “[t]o on To informed what neuroradiology. be of interventional inon the field.” going Dr. Debrun colleagues. with former
Discussing patients colleagues call he has with phone the occasional testified that doing.” are they them what “asking purpose is for the for knowledge this testimony that he uses There no curiosity. His personal his satisfy other than to anything not contribute doing doctors are does told other being what in the active participation “field” or involve his anything to the field. that the last Dr. Debrun testified
Attending conferences. years before his four or five he attended was conference calcula- included reasonably cannot be testimony. This if the attendance activities. Even of his current annual tion or recent, at a conference presented he has not been more had Therefore, he retiring. conference since for a paper written of medicine anything profession has not contributed through activity this in the actively participated profession activity.” a “professional it is not classification, 50 hours Dr. Debrun devotes this Under testimony and 242 directly involving to activities annually (50 on annually hours activities professional hours total to review). in Dr. on This results peer and 192 hours to activities of his time devoting 20.66% Debrun therefore does not testimony. Dr. Debrun directly involving from properly prevented Rule and was the 20 Percent satisfy Accordingly, of care. testimony regarding the standard giving Special Appeals of the judgment we reverse the Court issue. ruling affirm the trial court’s this Claim II. Informed Consent court held that the issue appellate The intermediate on the issue judge’s trial exclusion of Debrun’s appeal. properly preserved informed consent was not sufficient- proffer failed to The court reasoned that the Waldts *21 in accordance with of the excluded evidence ly the substance “[ejrror 5-103, may states that not be Maryland Rule which admits or excludes evidence upon ruling a predicated ... by ruling, party prejudiced unless the is by made known to the court substance of the evidence was or from the context....” apparent offer on the record court held that the appellate the intermediate Additionally, ruling her that Dr. judge trial did not abuse discretion Debrun did not the necessary have foundation to offer an opinion on informed consent. affirm the Court Special We Appeals’ uphold conclusion and the trial judge’s ruling exclud- ing testimony. Dr. Debrun’s informed consent case,
In an scope informed consent “the of the physician’s duty to inform is to be measured the materiality of the information to the decision of the A material patient. physician risk is one which a knows or ought know would be a significant person reasonable in the patient’s posi ” v. Hardy, Sard 432, 444, tion .... 281 Md. 379 A.2d (1977). Expert necessary to establish the material risks and other pertinent regarding information treatment or procedure. Waldts offered Dr. Debrun as their expert witness for the informed consent claim.
The trial judge testimony regarding heard Dr. Debrun’s qualifications, including his education and experience field of interventional neuroradiology. Debrun testified throughout his career he had operated on about 30 aneurysms Waldt’s, like Mrs. 10-15 of which were similar Waldt’s, size to Mrs. and four or five of which were “wide aneurysms. neck” He also testified that he traditionally used procedure balloon that is different from a stent and that he had never used the neuroform stent because it was not approved use the United States until after he retired practice. from active
Maryland Rule 5-702 makes it the of the responsibility trial judge to determine whether qualifies individual as an dire, Debrun’s voir witness.6 After Dr. the trial judge 5-702, Maryland "Testimony by Experts,” 6. Rule states: admitted, Expert testimony may opinion be in the form of or other- wise, if the court determines that the will assist the trier of fact to understand the evidence or to determine a fact in issue. determination, (1) making that the court shall determine whether the skill, qualified expert by knowledge, experience, witness is as an education, (2) training, appropriateness expert testimony (3) particular subject, on the whether sufficient factual basis support expert testimony. exists *22 regarding testify qualified Dr. Debrun was ruled that consent, stating: informed formal need not be training experience or expert’s
The expert witness]. as an qualified testify him to be [for that here. There is no issue of is, informal, and training has formal
The witness of that nature. journals things and readings from his subject of the is knowledge the witness’ It must be that so that the average layperson than the better significantly jury. to the appreciable help be of testimony would mat- guess particular I this testimony, Any physician’s agrees The ter, jury. Court helpful would be experience. as an without actual may qualify witness that, if sufficient possesses The the witness agrees Court observation, the study from knowledge obtained special of that. agrees Court with all or her judge The trial exercises his part.
It is the last is determining particular whether the witness discretion would be of sufficiently qualified opinion that his or her assistance. and basis has not specific appropriate grounds ruling.
been met for that to occur and Court’s of the substance of Dr. proffer The Waldts did not make a only proffer at that time. The anticipated Debrun’s regarding had made previously that counsel the Waldts testified about Dr. Debrun’s was that he would have the neuroform stent and that it was not approved uses of like Mrs. approved aneurysm for use on an Waldt’s. A.2d There no proffer at 248. neuroform stent on Mrs. to the risks inherent to use such as: aneurysm, Waldt’s stent; of success
coiling probability with the neuroform stent; with the neuroform coiling procedure in coiling of the risks inherent with the neuro- frequency stent; form were available as alternatives procedures what stent; were the risks coiling with the neuroform what how did the risks inherent procedures; inherent those procedures compare those both nature and frequency stent; the risks inherent in coiling with the neuroform risks of coiling procedure which the neuroform stent were *23 disclosed to Mrs. Waldt and which were not.
Waldt, 260, Sard, 181 at 956 A.2d at Md.App. (citing 249 281 1024). 448, Md. at 379 A.2d at the trial appealed judge’s ruling Waldts to the Court of
Special Appeals. The intermediate
court
appellate
held that
the Waldts failed to
the issue for
preserve
appeal by not
making a sufficient
on
proffer
the trial record of what the
been,
substance of Dr.
testimony
Debrun’s
would have
had he
Waldt,
testify.
258,
been
to
allowed
181
at
956 A.2d
Md.App.
at 247. The court held that Dr. Debrun’s intended testimony
concerning
approved
the
uses of the neuroform stent did not
address the issue of informed consent because it was not
testimony
concerning
material risks of the procedure.
Waldt,
181
at
956
Md.App.
A.2d at 248.
Without
testimony
proffer
would establish the
of an
elements
claim,
informed consent
Special
Court of
Appeals “[did]
not have before
[it]
information
to address
[needed]
whether exclusion of Dr.
Debrun’s
on the informed
Waldt,
consent claim
prejudicial
was
error.”
In
of Special Appeals
Court
stated that the
trial judge’s ruling excluding Dr. Debrun was not an error or
Waldt,
an abuse of discretion.
at
956
Md.App.
A.2d
that,
Harold,
at 249. Acknowledging
under Rodman v.
167, 172-73,
(1977),
Md.
In their this that a sufficient holding erred in Appeals Special Court of and that appeal the issue preserve not made to was proffer Debrun as an refusing qualify erred in judge the trial issue, contend that the Waldts preservation On the expert. made counsel for the Waldts made when proffer sufficient neuroform testify that the intended it clear that Dr. Debrun like Mrs. aneurysm an for use on approved stent was not Waldts, information that this is According to Waldt’s. informed decision making patient material to a would be Sard, acknowledged this Court surgery. concerning the consent, general catego- identifying of informed the doctrine patient: be communicated information that must ries of (2) ailment, risks of a (1) the nature and the the nature of (4) (3) success, frequency treatment, probability (5) the treat- risks, alternatives to available occurrence *24 The 438-40, 1019-20. Waldts 379 A.2d at ment. 281 Md. at of stent uses testimony approved about acknowledge that categories. five into one of these neatly not have fit would decision on Court’s Notwithstanding, they rely this (2006), Borne, holding A.2d 698 v. 396 Md. Goldberg dis- also need to be may considerations that certain other The by case case basis. Waldts and resolved on a cussed stent and the uses of the neuroform argue approved that the that were not aneurysms for only approved that it was fact one) (of was not which Mrs. Waldt’s surgery amenable to decision a material factor Mrs. Waldt’s would have been surgery. concerning 5-103(a)(2) to allow ade of Rule purpose
The it is proffer, courts. Without quate by appellate review there courts to determine whether appellate for impossible State, v. error or not. See Merzbacher prejudicial was (1997). 391, 416, agree with the Md. 697 A.2d We proffer that a sufficient was Special Appeals Court of The testimony. Debrun’s as to the substance of Dr. made about the testify that Dr. would proffer Debrun Waldts’ The intermediate of neuroform stent. uses approved appellate explained, court from the excerpts record the argue Waldts constitut- (albeit
ed proffer only proffered reveal that vaguely) substantive of Dr. Debrun was that the neuro- form stent device was not on approved use Mrs. Waldt’s type aneurysm. proffer This is not a of a risk inherent the procedure that Mrs. underwent. proffer Waldt It is a expert testimony procedure that the was contraindicated for Mrs. and therefore should not have been performed on her. That expert testimony would be relevant to an claim, ie., ordinary negligence that the doctors breached the standard care in their treatment of Mrs. Waldt performing a contraindicated procedure on her. It is not relevant to an informed consent claim.
[*] [*] * * Indeed, what little information was imparted to the court about the substance of Dr. anticipated Debrun’s that, review, sketchy was so we are unable to determine even the theory of the Waldts’ informed consent claim. they seeking prove Were that risk of bleeding brain was inherent in the neuroform stent coiling procedure and occurred greater with frequency coiling proce- dure opposed to the cardiac stent coiling procedure, so there was a more significant bleeding risk of in the brain neuroform stent coiling than with the cardiac coiling? stent they Or were seeking prove that the risk bleeding in the brain was inherent in the neuroform stent coiling procedure or, but not in the clipping procedure, if inherent in the clipping procedure, of a frequency lower *25 than would be material to person? a reasonable As we can ascertain none of this from the proffer, we do not have before us the information we need to address whether exclusion of Dr. testimony Debrun’s on the informed con- sent prejudicial claim was Accordingly, error. the issue is not properly before this Court for review.
Waldt,
261-62,
248,
ADKINS, dissenting. Judge,
I. the first issue. respect majority opinion with join I *26 II.
I respectfully dissent from the majority opinion regard informed estimation, Waldts’s consent claim. In my it was error for the trial court to find that Dr. Debrun was “not qualified as an expert testify with regards to informed consent in reference to this procedure this device.”1 As a result of ruling, this the trial granted court judgment against the Waldts for failure to a prove consent, lack of informed the grounds that Waldts had no testify “with regards to the nature of the risks inherent this particular treatment the probabilities therapeutic [or] success.” The proffered Waldts that Dr. Debrun would testify about Dr. Zoarski’s failure to inform Ms. Waldt the Neuroform stent had only approved by been the FDA in the limited instance when the patient’s aneurysm is not amenable to surgical clipping, procedure. alternative I believe that instance, this knowledge concerning the limited extent FDA approval Neuroform stent could be material to Ms. Waldt’s consent. Materiality of this information was a fact to be determined jury.
The majority clothes its rejecting decision the Waldts’s informed consent claim in procedural i.e., wrap, as a non- preservation Yet, issue. holding that “a sufficient proffer was not made as to the substance of Dr. Debrun’s testimony,” the majority actually makes ruling, substantive one that could have a widespread impact on informed consent claims. supra, Majority Opinion, 983 A.2d majori- at 129. The ty maintains proffer falls short because it did not include testimony about the actual risks of using Neuro- form stent or the probabilities of therapeutic success. In so, doing it implicitly rejects as insufficient the Waldts’s proffer that Dr. Debrun would testify “that the neuroform addressing 1. proffer Waldts’s of Dr. Debrun’s on the issue, informed consent I have not considered whether Dr. Debrun disqualified would giving be under rule from 20% on the 1, 28, McQuitty informed Spangler, consent claim. See v. 410 Md. (2009) (holding A.2d that a informed consent claim sounds negligence). That issue was not raised in this Court. type of use on Mrs. Waldt’s approved device was not stent *27 181 Sys. Corp., Md. Med. v. Univ. Waldt aneurysm.” (2008). 223, implicit This 261, 248 217, 956 A.2d about that holding a constitutes rejection identifies the expressly it immaterial unless FDA is approvals approval. the FDA to withhold that would cause risks Goldberg v. decision undermines our holding But this (2006), held that in which we Boone, 94, A.2d 698 Md. 912 396 a broader may require consent informed obtaining patient’s a addressing risks. See merely than those range of disclosures Dingle v. 125, (quoting at 716 912 A.2d Goldberg, 396 Md. (2000)) that 354, 370, 157, 165 (holding Belin, 749 A.2d 358 Md. “ routinely,’ we also ... must be disclosed although ‘[r]isks need may ... also ‘other considerations have made clear that ”). Goldberg, In the information discussed and resolved.’ be the unusu performed was that he had by the doctor withheld in the only previous once complicated procedure ally surgical in the doctors experienced and there were more years, three by jury found held that information could be region. We material, obli and was of the doctor’s disclosure part to be gation. bright-line [for] held that “there is no test Goldberg we a order by physician
items that must be disclosed from 396 Md. at patient.” an informed consent a procure Rather, to disclose physician obligated A.2d at 716. a is “would be material to a reasonable any information that having to decide whether position patient in the person ” treatment in issue.... Id. submit to the medical patient’s is therefore a inquiry of the informed consent focus treating physician. of a judgment and not perspective, 432, 442, A.2d Hardy, 281 Md. See Sard v.
(1977) (“[T]he ... physician not what the appropriate test know[;] rather, ... the focus is a should patient thinks intelligent make an requires order to patient data what decision.”). Goldberg ratio- easily
The facts of this case fit within though Evidence introduced that even Ms. Waldt’s nale. aneurysm could have been treated with surgical clipping, she was advised that the Neuroform stent awas safe and success- treatment, ful widely used and that it Europe, had best chance of among success the treatment options available to her. The absence of FDA approval for use when other surgery was could at available least indicate to Ms. Waldt that the Neuroform stent had not undergone rigorous the full testing process ordinarily that accompanies an FDA approval. Although a her patient might place faith her doctor despite information, she right knowingly has the make that choice. In a risky procedure, patient’s knowledge device has not been tested the FDA or approved for that particular tip against use could the balance going forward with *28 the operation when alternatives are available.
I do not advance the that proposition every nuance of a surgical procedure need be patient disclosed to a in order to obtain informed consent —some information is so commonplace that it could not reasonably expected be to affect a patient’s course of treatment. For example, no reasonable patient would base a decision to pursue surgery on the of type scalpel that in forceps procedure. would be used Other examples abound. But the disclosure at issue here is a far cry from a commonplace surgical component. sure,
To be
FDA approval
lack of
does not necessarily mean
that a treatment
high-risk.
is
Other courts have found this
disconnect sufficient
reason
hold that
information about
FDA approvals is not generally material
to a
in-
patient’s
See,
e.g., Southard v.
Univ.
formed decision.
Temple
Hosp.,
(2001)
(holding
Pa.
Contrary to the trial court’s neither ruling, holding our Goldberg nor our Sard limits a doctor’s disclosure holding obligation to information precisely demonstrating increased the patient-centered of patient.2 purpose risk “the preserve in Sard is to of care established standard of self-determination —the right physical fundamental patient’s 281 Md. doctrine[.]” informed consent very cornerstone a pursue elects to patient at 1021. a 379 A.2d When advice, that physician’s on a course of treatment particular physician. in her place decision to her trust making is patient must meaningful, patient for that decision to be order all facts. possess material something approval lack of FDA
Information about the deciding reasonably want to consider could patient physician trust her her confidence and place whether The presence she is about to undertake. about the treatment safety, although not is some indication approval of such approval FDA does not the absence of determinative. While risk, it mean that the device has higher establish a does A testing procedures. normal FDA undergone, passed, or not a device surgery may reasonably assume that person facing physi- FDA A surgery approval. to that has received critical if educating patient her responsibility cian carries the that Dr. Debrun proffer is false. Petitioner’s assumption FDA for use of the testify approval about the lack of would aneurysm was sufficient. type Neuroform stent for Waldt’s the trier of fact Dr. Debrun’s would “assist Md. or to determine a fact issue.” understand evidence Dr. Debrun’s and then Rule 5-702. To exclude *29 from the strays error. To hold otherwise grant judgment was Sard, in our Goldberg, that we have laid out path careful 2. The trial court noted that: expert testimony regards nature of the there has been no with to the particular this treatment. There has been no testi- risks inherent in necessary mony to make an informed to indicate ... what was regards this treatment. consent with to the material risks inherent in probabilities expert testimony regards to There has been no with expert therapeutic in this has been no success case.... There testimony given regards frequency with of occurrence of risks____
particular expert with re- There has been no gards treatment that to the nature of available alternatives to this patient.... have been disclosed to the Sard is clear that such should expert testimony required regards in to informed consent. 242 case, 1, v. 410 McQuitty Spangler,
most recent Md. 976 A.2d (2009). Accordingly, 1020 I would en- judgment vacate issue, on tered the informed consent and remand for further proceedings.
RAKER, ELDRIDGE, Judge, dissenting, joined J. I respectfully people dissent. Few favor a “professional view, however, I certainly my witness.” do not. professional expert Debrun is not a witness and does not fall the category precluded into of witnesses from in testifying medical malpractice by Maryland percent cases rule. I agree opinion Special with well-reasoned the Court of Appeals which the court held that the activities testified to by Dr. not “professional ‘directly Debrun are activities that ” cases,’ personal injury therefore, involve he precluded testifying was not from as an witnesses (1976, Vol., under Repl. Md.Code Courts and Supp.), Article, 3-2A-04(b)(4). Proceedings § Judicial See Waldt v. UMMS, 223, (2008). 217, 254, 181 Md.App. 956 A.2d 244-45 I however, disagree, with the Court of and the Special Appeals’ majority’s holding regard to the informed consent issue.
I.
3-2A-04(b)(4)
§
The critical
phrase
C.J.
is that an expert
not devote
“may
annually
percent
expert’s
more than 20
directly
activities to activities that
involve testi-
mony
personal
injury
Special
claims.” Both the Court of
Appeals
majority opinion
and the
the term
agree
“the
expert’s professional
ambiguous.
activities” is
See
243 activi- Appeals interprets “professional The Court of Special 3-2A-04(b)(4) “general § as a term for simply under ties” profession activities that relate to the health care those Waldt, 243, A.2d at Md.App. at 956 238. expert witness.” of followed the command set out Special Appeals The Court Azarian, v. (2002), Witte A.2d 160 in which 369 Md. statutory language limiting expert this stated that Court narrowly, creating had read so as to avoid an witnesses to be or defense impediment pursuit, unreasonable Id. at right negligence. common law of action for medical Witte set 533-34, following 169-70. out 801 A.2d at making percent factors to be considered in the 20 rule deter- mination: think,
“A more
we
is to
approach,
regard
reasonable
(1)
in,
including only
spends
statute as
the time the doctor
from,
traveling
deposition
purpose
or
to or
court or
for the
testifying, waiting
testify,
observing
to
or
events
(2)
preparation
testifying,
spent assisting
the time
attorney or other
of a
team in
litigation
developing
member
responding
interrogatories
or
to
and other forms of discov-
(3)
time
ery,
spent
reviewing
notes and other materi-
als,
reports
attorneys,
preparing
conferring
insur-
team,
adjustors,
ance
litigation
other members
patient,
being
or others after
informed that the doctor will
likely
sign
be called
an affidavit or otherwise
upon
testify,
(4)
spent
any
activity
the time
similar
that has a
relationship
given by
clear and direct
to be
preparation
give testimony.”
doctor
the doctor’s
535-36,
The
definition
clarifies,
meaning
“professional
than
activities.”
rather
guidelines
provided
qualifies
No
are
establish what
and,
itself, the
“contributing
advancing”
profession
by
to or
a
do
impossible
Many professionals
is
to understand.
phrase
to which
profession
not
to contribute to or advance
seem
concen-
they belong.
example,
professionals routinely
For
tax
principles
family
trate on
of taxation and
applying settled
principles
diagnose
settled
medicine to
a
physicians apply
majority’s theory,
does the applica-
common cold. Under
“advance” a
or maintain
principles
profession
tion of settled
majority’s
The
definition also does not ex-
quo?
the status
in time courts should assess whether a
plain
point
at what
activity
pro-
has “contributed to or advanced”
professional
oriented, de-
phrase
inherently
fession. Since- this
results
activity
contributes
to or advances a
termining whether
only
enough
can often
be made after
time has
profession
activity,
of the
If an
passed
impact
activity.
to assess the
contributing
a court of
originally
by
characterized
law as
so,
is later found to do
would the
advancing
profession,
to or
initial determination?
Lower
required
court be
to review its
majority’s
after
reading
opinion.
courts are left
the dark
majority’s definition of
part
professional
The second
a professional’s
par-
activities —activities which involve
“active
The
nothing
up
ambiguity.
to clear
ticipation” —does
participation”
that “active
is characterized
majority explains
contemplation
Maj.
rather than
or
by
by
speculation.”
“action
A
range
professions,
Factually,
percent
profes-
no more than 20
of Dr. Debrun’s
sional
involved
“directly
personal injury
activities
*32
expressly
claims.” “Professional activities” are not
defined in
3-2A-04(b)(4)
§
in
any
or
definition section
the Act. As this
Witte,
Court noted in
the
Legislature
only
chose
limit the
extent of
activities “directly involving testimony
in personal
claims” but did not interfere
or
injury
other-
limit
scope
categories
wise
the
of other
of professional activi-
Witte,
535,
ties.
In determining that “professional activities” must contribute to or advance profession to which an individual or belongs involve the individual’s active participation profession, the majority § does not reference the legislative intent of 3- 2A-04(b)(4) legislative history, rely its nor does it on any Maryland case law that defines “professional activities.” Fur- thermore, the three by cases referred to the majority from other states of its support “professional construction of activities” are not concerned with phrase.1 the definition of this majority 1. All three of only very the cases referenced consider specific "professional uses of an witness’s time.” In Dawson v. 1036, issue, Prager, (2003), 276 Kan. 76 P.3d the statute at 60-3412, § required Kansas Statute witness in a medical malpractice "professional action to devote at least of his time 50% two-year period preceding giving within the the incident rise to the have considered similar issues have states which Our sister encompass a wide activities” emphasized “professional Quintana v. United example, For range of activities. Inc., Servs., Sys., Div. Blood 811 P.2d Blood Appeals Court of considered the Colorado (Colo.Ct.App.1991), The court noted as activities.” “professional the nature of follows: a number accepted professions possess generally
“It is common, and foremost characteristics the first defining Profes- autonomy responsibility. is individual of which determine usually granted right sionals are Moreover, performed. their work will be details of how of their work and judge quality they rely peers related, and a reflection Closely as professionals. behavior conduct, its own right to determine profession’s practice under codes generally compose that professions proper define rules of behavior. of ethics which include formal profession long characteristics of Other in formalized institutions which are training, undertaken specialized knowledge transmit established to through licen- recognition expertise and formal profession sure and certification. professional activity characteristics of precisely
It is these grant profes- led the courts to the medical long which have *33 in the ‘preferred position’ which professions sion and other practice profession in actual clinical in the same which action ... Watauga Similarly, statute Cornett v. the defendant is licensed.” the P.A., 805, Group, (N.C.Ct.App.2008), makes Surgical 669 S.E.2d 807-08 activities,” requiring expert "professional instead that an no mention of offering testimony malpractice have in a medical case must witness "professional majority time" to active "[t]he devoted a of his or her party practice profession in which the of the same health clinical offered,” testimony against "[t]he or on whose behalf the or to whom professional health school or instruction of students in an accredited residency program in the same health accredited or clinical research party against profession whom or on whose behalf the in which the Kean, App.3d Finally, in Goldstein v. 10 Ohio is offered.” 255, 1350, (1983), required an 1352 the statute at issue 461 N.E.2d testifying malpractice devote "three- in a medical suit to witness practice professional to the active clinical in his field fourths of his time licensure, university.” in an accredited or to its instruction or trained and accepted customary practices similarly are taken conclusive professionals generally situated as professional evidence of the standard of care.” (internal omitted). Id. Harad v. Aetna Cas. & citations Co., (3d Sur. 979, Cir.1988), F.2d the United States Court of for the Appeals Third Circuit defined a vocation, arising occupation, act as “one out of a or calling, labor, employment involving specialized knowledge, or skill....” trial,
At Dr. Debrun he the engaged testified that follow- witness, ing testifying activities: as an review of peer medical journals, reading journals, observing dur- procedures rounds, ing grand discussing patients colleagues, with former and medical attending majori- educational conferences. The ty’s “professional contention that these not are activities” not they actively development because “do contribute of the field Dr. partic- advancement or involve Debrun’s active field,” ipation Maj. fails op. A.2d at test of sense and to an common leads absurd result. Dr. Debrun’s activities active in the participation demonstrate field of neuroradiology interventional and were not undertaken for personal gratification or as a leisurely pursuit, majority majority’s contends. Under the theory, are activities satisfy arise out of one’s but do high own vocation “contributing threshold of development field or involving the individual’s active participation the profession” “non-professional?” considered appears That the con- to be majority clusion the us would have reach. The standard majority appear any embraced would physi- exclude cian who has retired from practice the clinical of medicine and does not teach medicine. Debrun’s in peer participation review, clinical rounds physician satisfy consultations definition of “professional Peer activities.” review medical journals, journals, reading observing procedures, medical dis- cussing patients with former colleagues, attending confer- directly ences do not involve personal injury claims. *34 case, Witte to this
Applying this Court’s in holding Judge Deborah Eyler, writing for panel, the stated as follows: Witte narrowly holding profes-
“The
circumscribed those
testimony in
‘directly
personal
that
involve
sional activities
cases,’
by
and it
that
activities testified to
is clear
the
injury
phrase.
not
of that
scope
Dr. Debrun are
within
limited
The
are
enumerated
any
specifically
activities
not
those
Witte,
(1)
(3)
analysis
nor
through
in items
Court’s
(4),
spent
any
item
‘time
do
fall within the Court’s
they
ie.,
a
litigation-oriented activity ‘that has
activity,’
similar
given by
to be
relationship
clear and direct
testimony.’
preparation
give
the doctor’s
doctor or
added).
[Witte,
(emphasis
Md. at
The trial court’s Dr. Debrun from under the 20 Percent Rule was con- ing premised upon a an trary principle: expert provider that witness health care not in in practice engage ‘professional who is active does not ie., to in in engage any professional activity that activities’ — field, a health care an witness at least must be expert in in practicing field. Dr. Debrun had that Because been practice active five of the of the years allegedly within time (December 2002), he negligent qualified, act or omission as temporally, testify at least to witness for the It ‘professional Waldts. did matter that his activities’ did of patients. not include active treatment ‘of, to, definition of dictionary ‘professional’ is relating profession.’ or characteristic aof Merrlam-Webster’s Col- legiate Dictionary (11th 2003). ed. The five areas activities Dr. Debrun in reading described his — peer editing journals, consulting medical col- cases, leagues about their ongoing observing colleagues performing procedures, and attending medical confer- ences —all were related to radiology, interventional his pro- fession, and as have explained directly we were not activities in cases, involved in personal that injury phrase was in interpreted Witte. Also as we ex- have plained, those activities did directly not become ones involv- ing testimony injury personal merely cases Dr. because retired; Debrun was such a contrary construction would run legislature’s intention allow to certain retired or non- practicing professionals medical testify to malpractice (If case, cases. that were retired or non-practicing health care provider always devoting would be more than percent his or her ‘professional activities’ to directly cases.) testifying personal injury The evidence adduced before the the appellees’ court on motion limine showed that Debrun devoted no more year activities related to per professional 50 hours than cases, that injury he devoted 559 testifying personal per year Assuming hours other activities. facts, those level and we see the court credited first not, a legally it did then correct nothing suggest led the Percent Rule should have court application not disqualified that Dr. Debrun was from conclude testimony.” of care giving standard *36 240-41, 244-46, at 236-39. 956 A.2d at the 20 rule application percent by I would that of hold of was correct. Special Appeals the Court
II. disagree majority’s holding respect I with the with also I with disagree majority’s of informed consent. the issue the mate- holding proffered concerning that “no prima that make our a procedure rial risks of the would facie Maj. A.2d at 129. op. for informed consent.” case view, their my sufficiently proffered In the Waldts testify that Dr. Zoarski failed to inform Ms. expert would only approved Neuroform stent had been Waldt aneu- patient’s FDA in limited circumstances when surgical clipping. knowledge is not amenable to This rysm of FDA this stent is concerning approval the limited extent consent, informed issue Ms. Waldt’s material presented jury. have this issue which should been agree reasoning Judge I Adkins’s substan- regard, with Part II her on the issue in dissent. tive discussion I the Court of Accordingly, judgment would reverse the case that court directions Appeals, remand the Special of the Circuit Court and to order a judgment to reverse the new trial on all issues. joins opinion.
Judge dissenting ELDRIDGE this