Barton v. Advanced Radiology P.A.

• Decision Date: 23 November 2020
• Docket Number: No. 1336, Sept. Term, 2019,1336, Sept. Term, 2019
• Citation: 242 A.3d 240,248 Md.App. 512
• Parties: Willie James BARTON, Jr., et al. v. ADVANCED RADIOLOGY P.A., et al.
• Court: Court of Special Appeals of Maryland

248 Md.App. 512

242 A.3d 240

Willie James BARTON, Jr., et al.

v.ADVANCED RADIOLOGY P.A., et al.

No. 1336, Sept. Term, 2019

Court of Special Appeals of Maryland.

November 23, 2020

Argued by: George Somerville Tolley III (Ellen B. Flynn, Dugan, Babij. Tolley & Kohler, LLC, Timonium, MD), all on the brief, for Appellant.

Argued by: Andrew E. Vernick (Christopher A. Vernick, Vernick & Associates, LLC, Annapolis, MD) all on the brief, for Appellee.

Reed, Wells, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.

Wells, J. Appellants, Charles Burton, individually and as personal representative of his wife,¹ Lana Burton's estate, Larae Burton McClurkin, Willie Barton, and the Estate of Melba Barton appeal from an order in which the Circuit Court for Baltimore County granted appellees, Advanced Radiology, P.A. and Dr. Sanford Minkin, judgment notwithstanding the verdict. A jury found that appellees breached the standard of care in the treatment of Lana Burton and that this breach was a cause of her death. The jury awarded $282,529.00 in non-economic damages to the Estate of Lana Burton, $300,000.00 to her husband, Charles Burton "for the loss of financial support as well as the replacement value of the services that she furnished or probably would have furnished," and $2 million in non-economic damages to Larae Burton McClurkin, her daughter.

The trial court granted the appellees judgment notwithstanding the verdict, finding that the appellants failed to prove that Dr. Minkin's breach of the standard of care was the proximate cause of Lana Burton's death. Specifically, the court found that appellants’ causation expert established that Ms. Burton had a greater than fifty percent probability of survival even if one assumed that Dr. Minkin failed to timely diagnose her with breast cancer

.

This appeal followed. Appellants present three questions for our consideration, which we have condensed and rephrased² :

I. Did the trial court err in granting the appellees’ motion for judgment notwithstanding the verdict?

II. Did the trial court abuse its discretion in limiting Dr. Pushkas’ testimony regarding his use of a website's survivability algorithm?

We hold that the circuit court erroneously found that appellants failed to show appellees’ negligence was a proximate cause of Ms. Burton's death. Consequently, the trial court abused its discretion in granting appellees’ judgment notwithstanding the verdict. Because we reverse the trial court's entry of judgment in appellees’ favor and reinstate the jury's verdict and award, we decline to address the second issue.

FACTUAL AND PROCEDURAL BACKGROUND

Charles Burton, individually and as the personal representative of the Estate of Lana Burton, Larae Burton McClurkin, Willie James Barton, Jr., and Melba Ann Barton³ sued Advanced Radiology, P.A., Advanced Radiology, LLC, and Dr. Sanford Minkin, alleging that Dr. Minkin failed to properly diagnose Lana Burton (hereafter, "Ms. Burton") for Stage I breast cancer

, which later spread to other parts of her body and, sadly, led to her death on February 17, 2016. Charles Burton is Ms. Burton's husband. Larae McClurkin is Ms. Burton's daughter. Willie Barton is Ms. Burton's father. Melba is Ms. Burton's mother.⁴ (Hereafter, the appellants will be referred to collectively as "the Burtons.")

A. Ms. Burton's Breast Cancer Diagnosis

and Treatment

In November 2011, Ms. Burton underwent a routine breast cancer

examination at Advanced Radiology. The results of that examination indicated she had no abnormalities. Roughly six months later, May 11, 2012, Ms. Burton found a lump in her right breast and returned to Advanced Radiology. They performed a mammogram and an ultrasound examination. Dr. Minkin, a radiologist, prepared a report that described the lump as both "normal glandular tissue" and that it was "benign."

One year and three months later, August 9, 2013, Ms. Burton returned to Advanced Radiology for a follow-up examination. A mammogram

and ultrasound showed abnormalities that were "highly suspicious for extensive malignancy in the right breast centrally and in the lower outer quadrant [of the right breast] with malignant adenopathy

." The following month, Ms. Burton underwent a biopsy that revealed that she did, in fact, have Stage III, "triple negative" breast cancer, in the abnormal areas identified from the previous month's exams. Ms. Burton immediately began chemotherapy and radiation treatments, which she continued for more than two years. Unfortunately, the cancer had spread to her neck, liver, and her lungs. Because the cancer had become pervasive, Ms. Burton stopped receiving chemical and radiation treatments. She died on February 17, 2016 at the age of 56.

The Burtons sued Dr. Minkin and Advanced Radiology (hereafter, "the healthcare providers") advancing four theories of liability, each in a separate count: I. Survival Action – Negligence, II. Survival Action – Informed Consent, III.

Survival Action – Loss of Consortium, and IV. Wrongful Death under Maryland Code Annotated, (1974, 2013 Repl. Vol.) Courts and Judicial Proceedings Article, §§ 3-901 through 3-904.

B. The Trial

The case was tried before a jury in the Circuit Court for Baltimore County over ten days: June 10-20, 2019. We summarize the competing versions of fact and opinion surrounding Ms. Burton's care.

1. Plaintiffs’ Case

At trial, the Burtons called two expert witnesses in support of their theories of liability. The first, Dr. Rebecca Zuurbier, a radiologist, testified as an expert witness on the standard of care. She opined that all of Ms. Burton's mammograms

before May 11, 2012 indicated that she had no abnormalities. But, Dr. Zuurbier testified that the May 11th mammogram's images revealed a grape-sized mass in Ms. Burton's right breast. Dr. Zuurbier noted that Dr. Minkin did not perform a biopsy of the lump. He only performed a mammogram and an ultrasound. In Dr. Zuurbier's opinion, Dr. Minkin's failure to perform a biopsy on a mass the size of the lump in Ms. Burton's breast fell below the standard of care, even though both the mammogram and the ultrasound did not indicate that cancer was present.

The second expert, Dr. Gabriel Pushkas, an oncologist and hematologist at Johns Hopkins Medicine, Suburban Hospital, testified as the Burtons’ causation expert. Based on the imaging from Ms. Burton's medical examinations that Dr. Minkin performed at Advanced Radiology, Dr. Pushkas opined that she had Stage I cancer

in May 11, 2012. But, eighteen months later, when she returned to Advanced Radiology on August 9, 2013, the tumor had grown, and she was diagnosed with "triple negative" Stage III breast cancer. Dr. Pushkas explained Stage III this way:

If the tumor gets so large that it is even larger than two inches, then the chances of lymph nodes being involved is fairly high. Not only that, but usually with cancer

like this we would have small areas of involvement elsewhere in the body and then we're talking about a Stage 3 breast cancer. Also, if this cancer has already gotten – even though it is not quite as big as I just told you, but it is already involving part of the chest wall so that you cannot remove it by surgery alone, then it is Stage 3 disease.

Dr. Pushkas used an analogy of an intruder in a house to explain what "triple negative" breast cancer

is. "[The] cancer is hiding in a room behind a locked door and it is growing in there and eventually it is going to destroy the whole house." Dr. Pushkas continued:

We have three keys. If we have the keyholes, we can open the door with these three keys and destroy the cancer

before it destroys the patient. If there are no keyholes on the door, somebody locked the door and just pasted over the holes, we cannot use any of the treatments that we have against cancers that would have the keyholes. That severely limits our ability to treat the cancer and kill the cancer with any chemotherapy. We do have chemotherapy, but it is not as effective and it is much rougher than the ones up here. So, in a case like this, it is particularly important that we get to the cancer early before it gets to the point where we cannot control it anymore because our chemotherapy is not that good for triple-negative breast cancer.

Other portions of Dr. Pushkas’ testimony play a central role in this appeal and will be discussed in greater detail in the following section.

2. Defendants’ Case

The healthcare providers’ presentation began with a videotaped deposition of Dr. Minkin. Several excerpts from Dr. Minkin's deposition testimony were read into the record. Later, Dr. Minkin testified in-person. After discussing his credentials, he described for the jury how one would perform a mammogram

reading, and what he would look for to detect abnormalities. The study he did of Ms. Burton's right breast on May 11, 2012, to his eye, showed "a moderate amount of fibroglandular tissue with no focal masses, no evidence of architectural distortion, malignant like or calcifications...." In other words, there was nothing remarkable about Ms. Burton's breast tissue that was inconsistent with her mammograms

from 2008 to that point. That is why, he explained, he only did an ultrasound after the mammograph and not a biopsy. The results of the ultrasound that he ordered did not alarm him. The ultrasound encompassed several different views of Ms. Burton's right breast. Although the imaging showed some darker and lighter areas of breast tissue where Ms. Burton felt a lump, in his opinion the mass was "either normal glandular tissue or a fat lobule, or there [was] no mass." In short, he did not conclude that the areas on the May 11, 2012 ultrasound merited a biopsy.

Dr. Peter Kaufman, an oncologist, testified on behalf of the healthcare providers on the standard of care. In Dr. Kaufman's opinion, any delay in Dr. Minkin's diagnosis of Ms. Burton's breast cancer

had no effect on the ultimate outcome of her case.

Sure, so [Ms. Burton] unfortunately was diagnosed with triple -- that we

...