Am. Radiology Servs., LLC v. Reiss

• Decision Date: 24 August 2020
• Docket Number: No. 50, Sept. Term, 2019,50, Sept. Term, 2019
• Parties: AMERICAN RADIOLOGY SERVICES, LLC, et al. v. Martin REISS
• Court: Court of Special Appeals of Maryland

470 Md. 555

236 A.3d 518

AMERICAN RADIOLOGY SERVICES, LLC, et al.

v.Martin REISS

No. 50, Sept. Term, 2019

Court of Appeals of Maryland.

August 24, 2020

Argued by Mark D. Maneche (Natalie C. Magdeburger and Kimberly A. Longford, Pessin Katz Law, P.A., Towson, MD; Andrew E. Vernick and Mark J. Alderman, Vernick & Associates, LLC, Annapolis, MD), on brief, for Petitioners.

Argued by David M. Kopstein (Kopstein & Associates, LLC, Seabrook, MD; H. Briggs Bedigian, Gilman & Bedigian, LLC, Timonium, MD), on brief, for Respondent.

Amici Curiae American Medical Association, and Medchi, the Maryland State Medical Society in Support of Petitioners: Philip S. Goldberg, Esquire, Shook, Hardy & Bacon, L.L.P., 1800 K Street, NW, Suite 1000, Washington, DC 20006.

Amicus Curiae Maryland Association for Justice, Inc. on Behalf of Respondent: George S. Tolley III, Esquire, Dugan, Babij, Tolley & Kohler, LLC, 1966 Greenspring Drive, Suite 500, Timonium, MD 21093.

McDonald, Watts, Hotten, Getty, Booth, Biran, Irma S. Raker (Senior Judge, Specially Assigned), JJ.

Booth, J. Under Maryland law, we require affirmative proof of medical negligence before such a claim can be submitted to a jury. To establish medical negligence, it is necessary to determine whether a physician breached a duty of care, and whether the breach caused the plaintiff's injury. As this Court recognized 130 years ago, "all persons are presumed to have duly performed any duty imposed on them" and therefore "negligence cannot be presumed, but must be affirmatively proved." State ex rel. Janney v. Housekeeper , 70 Md. 162, 16 A. 382 (1889). Moreover, except in rare cases where negligence is obvious and within the common knowledge of a layperson, we require that medical negligence be established by expert testimony.

In this case, we are asked to determine whether expert testimony is required to establish the medical negligence of a non-party physician in a medical malpractice case, where the defendant physicians (the "Defendants") deny liability but assert, as an alternative causation theory, that the negligence of a non-party physician was a cause of the plaintiff's injuries.¹ In other words, where medical negligence is raised as part of a defense, may a jury consider whether a non-party physician was negligent and caused injury to the plaintiff without the expert testimony that is ordinarily required to establish medical negligence?

Under our jurisprudence, expert testimony is required to establish medical negligence and causation when such matters are outside the common knowledge of jurors. To the extent that a defendant elects to raise non-party medical negligence as part of its defense, the defendant has the burden to produce admissible evidence to allow a jury to make a finding on that issue. In this case, the trial court erred in allowing the Defendants to raise and argue the issue of non-party negligence and to submit the issue to the jury because the record was devoid of admissible evidence sufficient to generate a triable issue of non-party physician negligence. Therefore, we affirm the judgment of the Court of Special Appeals.

I.Factual and Procedural History

A. Background

In August 2011, Martin Reiss was diagnosed with a renal tumor in his kidney and an adjacent enlarged lymph node. Julio Davalos, M.D., a urologist, surgically removed Mr. Reiss's cancerous kidney. Dr. Davalos did not remove the enlarged lymph node as he had originally planned because of its proximity to the inferior vena cava, which is "a large blood vessel responsible for transporting deoxygenated blood from the lower extremities and abdomen back to the right atrium of the heart." William D. Tucker & Bracken Burns, Inferior Vena Cava , National Center for Biotechnology Information (May 1, 2020), https://perma.cc/CU7C-D77E.

After surgery, Mr. Reiss was treated by Russell DeLuca, M.D., an oncologist. Dr. DeLuca also believed that the enlarged lymph node was cancerous but that it could not be removed safely because of its proximity to the inferior vena cava. Dr. DeLuca treated Mr. Reiss with Sutent, a chemotherapy drug. Mr. Reiss's lymph node shrunk in response to the treatment, confirming that the node was cancerous.

Dr. DeLuca treated Mr. Reiss between August 2011 and September 2015. During this time, he ordered periodic CT scans of the cancerous lymph node and the surrounding area. Radiologist Victor Bracey, M.D., first interpreted the imaging studies performed on Mr. Reiss in December 2011 and compared them to studies from September 2011. Dr. Bracey noted no signs of "lymphadenopathy" or enlargement of the lymph node, because it measured only .8 centimeters, rather than the previous measurement of 2.4 centimeters. However, Dr. Bracey also noted that because the scan had been performed without IV contrast dye, which enhances the clarity of CT images, it was "suboptimally evaluated," meaning that it was difficult to interpret.

Between 2012 and 2014, Dr. Bracey evaluated three additional scans of Mr. Reiss's lymph node, each time finding no lymphadenopathy, but in each instance he noted that the scans were suboptimally evaluated for lack of contrast dye. Radiologist Sung Kee Ahn, M.D., also interpreted a non-contrast scan of Mr. Reiss's lymph node in March of 2012. Like Dr. Bracey, she did not report any signs of lymphadenopathy.

In September 2015, radiologist Elizabeth Kim, M.D., interpreted a non-contrast CT scan, and found "soft tissue density" in the vicinity of the lymph node, which could indicate an enlarged or diseased lymph node. Dr. Kim noted that the "soft tissue density" was "somewhat inseparable from the inferior vena cava" and had "increased in size" since Dr. Bracey's review of the CT scan performed in December 2011.

A biopsy was performed subsequent to Dr. Kim's report, which confirmed that the lymph node was indeed cancerous. Dr. DeLuca thereafter advised Mr. Reiss that the lymph node was cancerous, had increased in size, and was inoperable. Mr. Reiss ceased his treatment with Dr. DeLuca, and began treatment with oncologist, Eugene Ahn, M.D.² Dr. Eugene Ahn also believed that the cancerous lymph node could not be surgically removed because of its proximity to the inferior vena cava.

B. Litigation

In May 2016, Mr. Reiss filed a medical malpractice action against Dr. Davalos and his medical practice, Chesapeake Urology, P.A., as well as Dr. Bracey and Dr. Sung Kee Ahn, and their employer, American Radiologists, LLC. Mr. Reiss alleged that the cancerous lymph node could (and should) have been removed in 2011 but had become inoperable because of the Defendants’ negligence. Mr. Reiss alleged that Dr. Davalos breached the standard of care by failing to remove the lymph node in 2011 when he removed the cancerous kidney. He further alleged that Dr. Bracey and Dr. Sung Kee Ahn breached the standard of care by failing to alert his oncologist, Dr. DeLuca, of the alleged growth of the diseased lymph node when it could have been safely removed.

In June 2017, Mr. Reiss voluntarily dismissed his claims against Dr. Davalos and his urology practice prior to trial, leaving Drs. Bracey and Sung Kee Ahn and American Radiology ("the radiologists") as the sole Defendants.

1. Expert Designations and Pre-Trial Motions

Prior to trial, the Plaintiff and Defendants each designated expert witnesses. The radiologists generally denied liability and presented experts who rendered opinions that the radiologists did not breach the standard of care owed to Mr. Reiss, nor did their treatment of Mr. Reiss cause his alleged injuries. In addition to denying liability, the radiologists alleged in their discovery responses that Mr. Reiss's oncologists, Dr. DeLuca and Dr. Eugene Ahn, were negligent and had caused Mr. Reiss's injuries.³

Despite their assertions of negligence by the non-party providers, the Defendants did not specifically identify experts to render opinions on these matters. Instead, during discovery, Defendants included a pro forma statement advising that they reserved the right to rely on the opinions of Plaintiff's experts.⁴

Plaintiff filed a motion in limine to preclude the Defendants from arguing or presenting evidence of non-party negligence by other physicians who treated Mr. Reiss, including eliciting expert testimony from the Plaintiff's experts. The Defendants opposed the motion. Prior to trial, the judge ruled that under Copsey v. Park , 453 Md. 141, 160 A.3d 623 (2017), and Martinez ex rel. Fielding v. John Hopkins Hospital , 212 Md. App. 634, 70 A.3d 397 (2013), the Defendants would be permitted to mention that the Plaintiff had sued the surgeon, Dr. Davalos, and would be permitted to reference "claims and contentions against parties and non-parties when we're talking about evidence that has evidentiary value." Although the trial judge determined that arguments and evidence of negligence by non-parties were relevant and admissible under Martinez and Copsey , she ruled that on cross-examination, the Defendants would not be permitted to elicit opinions from the Plaintiff's expert witnesses concerning negligence of non-party physicians due to a lack of appropriate disclosure.⁵

2. Trial Testimony

The case was tried between June 26 and July 7, 2017. At trial, the radiologists contended that they did not breach the standard of care. They argued that their interpretations of Mr. Reiss's non-contrast CT scans were reasonable, appropriate, and within the standard of care. Specifically, they asserted that: (1) the CT scans did not show lymphadenopathy because the lymph node was less than one centimeter in size when they reviewed it; (2) they accurately reported that the lymph node was not abnormally enlarged; and (3) they warned Dr. DeLuca that the non-contrast CT scan was suboptimal, and therefore, more difficult for them to review.

Mr. Reiss called Paul Collier, M.D., an expert vascular surgeon, to establish that the lymph node could have been safely removed at any time before 2015, but not later....