Marcantonio v. Moen

• Decision Date: 24 December 2007
• Docket Number: No. 1428, Sept. Term, 2006.,1428, Sept. Term, 2006.
• Citation: Marcantonio v. Moen, 937 A.2d 861, 177 Md. App. 664 (Md. App. 2007)
• Parties: Charles MARCANTONIO Personal Representative of The Estate of Sherri Schaefer, et al. v. Melissa MOEN, et al.
• Court: Court of Special Appeals of Maryland

937 A.2d 861

177 Md. App. 664

Charles MARCANTONIO Personal Representative of The Estate of Sherri Schaefer, et al. v. Melissa MOEN, et al.

No. 1428, Sept. Term, 2006.

Court of Special Appeals of Maryland.

December 24, 2007.

Jack A. Gold, Rockville (Lawrence S. Lapidus, Washington, DC and Anthony G. Newman, Bethesda), on the brief, for appellant.

Thomas C. Marriner, Annapolis and Marianne D. Plant, Baltimore (Craig B. Merkle, Baltimore, A. Gwynn Bowie, Jr., Annapolis, Catherine W. Steiner, Towson), on the brief, for appellee.

Panel: SALMON, JAMES R. EYLER and MEREDITH, JJ.

SALMON, J.

This case arises out of a survivorship/wrongful-death lawsuit in which summary judgment was granted in favor of the defendants who are healthcare providers. According to the plaintiff's evidence, the decedent's chance of survival from cancer was eighty percent on the date of the alleged malpractice (failure to order appropriate test and failure to correctly interpret a sonogram) and fifty to sixty percent when appropriate treatment began. The major issue to be decided is whether proof that a healthcare provider was responsible for a twenty- to thirty-percent reduction in the decedent's chance of survival is sufficient to prove that the malpractice caused the death.¹ We shall hold that it is not.

I.

Sherri Schaefer was diagnosed with cancer on April 27, 2001. Beginning in May 2001, Ms. Schaefer was treated for that disease at The Johns Hopkins Hospital in Baltimore. The treatment ultimately was unsuccessful, and she died of cancer on May 18, 2005.

About six months before her death, Ms. Schaefer and her husband, Charles Marcantonio, brought a medical malpractice suit in the Circuit Court for Anne Arundel County against Dr. Melissa Moen, a gynecologist, and the corporation for whom she was acting as an agent, i.e., Women's OB/GYN, P.A. In their suit, plaintiffs also named as defendants Dr. Paula A. Decandido, a radiologist, and Dr. Decandido's employer, Anne Arundel Medical Center, Inc.

Shortly after Ms. Schaefer's death, her husband, individually and as personal representative of Ms. Schaefer's estate, filed an amended complaint in which he asserted survivorship and wrongful-death claims against the defendants.

The defendants filed a joint motion for summary judgment about eighteen months after the original complaint was filed. The motion was supported by deposition excerpts from three of the expert witnesses named by the plaintiff. The basis for the summary judgment motion was that, according to the defendants, the plaintiff could not prove that any act of negligence on the part of any defendant proximately caused Ms. Schaefer's death.

The plaintiff filed a timely opposition to the motion that was supported by additional deposition excerpts, together with two affidavits. One affidavit was from Dr. Francis Hutchins, a gynecologist, and the second was from Dr. Barry Shmookler, a pathologist.

Counsel for Dr. Moen and Women's OB/GYN, P.A., the defendants against whom Dr. Hutchins' affidavit was directed, filed a motion to strike Dr. Hutchins' affidavit on the ground that it was inconsistent with his prior deposition testimony. Anne Arundel Medical Center and Dr. Decandido made an oral motion to strike the affidavit of Dr. Shmookler at a hearing held on July 27, 2006.

After hearing arguments of counsel, the circuit court struck the affidavits of Dr. Hutchins and Dr. Shmookler because, in the court's view, the affidavits were in conflict with the testimony previously given by affiants at deposition. Additionally, the court granted summary judgment against the plaintiff and in favor of all defendants on the ground that plaintiff could not prove that the negligence of the defendants proximately caused Ms. Schaefer's death.

In this appeal, the plaintiff-appellant claims that the trial court erred in (1) granting summary judgment in favor of the defendants and (2) striking the affidavits of Drs. Hutchins and Shmookler.

II.

Ms. Schaefer was a gynecological patient of Dr. Moen from 1986 through April 27, 2001. Following the onset of menopause in 2000, Ms. Schaefer was treated by Dr. Moen with cyclic hormone replacement therapy ("HRT"), a treatment that provokes a monthly shedding of the uterine lining. A patient going through menopause will continue to have periodic bleeding resembling a menstrual cycle when undergoing cyclic HRT.

During an office visit on August 27, 2000, Ms. Schaefer complained of heavier than normal vaginal bleeding. Dr. Moen ordered a sonogram to find out the cause of the problem.

The sonogram was performed on September 11, 2000, at Anne Arundel Medical Center and was interpreted by Dr. Decandido. At that point, the sonogram film revealed nothing abnormal in the uterus. Plaintiff alleged in his complaint that Dr. Decandido was liable for medical malpractice because she failed to report a 1.5 cm mass arising from the right ovary that was shown on the sonogram. As to Dr. Decandido and her employer, appellant asserted that, if the 1.5 cm mass had been reported in September 2000 to Dr. Moen, then appropriate additional tests would have been performed that would have resulted in Ms. Schaefer's undergoing a total hysterectomy at that time.

The allegation of medical malpractice against Dr. Moen and Women's OB/GYN, P.A., was that in late August 2000 Dr. Moen should have ordered, but did not, an endometrial biopsy,² which is a test to sample the lining of the uterus.³ Appellant's theory of malpractice against Dr. Moen was that if Dr. Moen had ordered an endometrial biopsy in August of 2000, the biopsy would have shown either overt cancer or complex hyperplasia with atypia.⁴ The proper treatment for both of these abnormalities is a total abdominal hysterectomy. The plaintiff claimed in his complaint that if Ms. Schaefer had had a total hysterectomy in September 2000 she would not have died of cancer.

Dr. Moen treated Ms. Schaefer for seven months after she ordered the sonogram. On April 27, 2001, following another episode of heavy vaginal bleeding, Dr. Moen recommended an endometrial biopsy. Ms. Schaefer consented to the biopsy, and it was performed that day in Dr. Moen's office. The biopsy revealed that the patient had endometrial cancer (i.e., uterine cancer).

Shortly after that diagnosis, in early May 2001, Ms. Schaefer underwent treatment provided by Dr. Robert Bristow, a gynecological oncologist.

The defendants, in their motion for summary judgment, contended that, in a complex medical malpractice case of this sort, the plaintiff needed a medical expert to prove that the alleged acts of malpractice proximately caused Ms. Schaefer's death. But, according to defendants, the depositions of plaintiff's own experts demonstrated that plaintiff could not prove proximate cause. In support of their motion, the defendants relied upon the deposition testimony of three witnesses named by plaintiff as expert witnesses, i.e., Dr. Robert Bristow, Dr. Francis Hutchins, and Dr. Barry Shmookler.

III.

A. Deposition of Dr. Robert Bristow

When Dr. Bristow first saw Ms. Schaefer as a patient in May 2001, she had Stage 3C endometrial cancer. He operated on Ms. Schaefer in June 2001. Thereafter he was her treating physician at The Johns Hopkins Hospital until her death. According to Dr. Bristow, Ms. Schaefer's cancer treatment was "fairly proactive and aggressive." He testified that, assuming a "fairly proactive and aggressive treatment approach," Ms. Schaefer had, at the time he operated on her in June 2001, a fifty- to sixty-percent chance of survival.

Dr. Bristow's exact testimony in regard to the chances of survival was as follows:

Q. And do you know what the survivability is for patients with 3C endometrial cancer?

A. Yes.

Q. What is that?

A. I mean, in general. Based on our experience and based on the literature.

Q. Based on your experience and the literature, what is the prognosis for 3C endometrial cancer?

A. Well, there's quite a range. It depends on the therapeutic treatment program, in many instances, and so there are some reports in the — in the literature of survivability range anywhere from thirty percent all the way up to eighty-five percent, with a general average probably being somewhere in the fifty to sixty-five or seventy-five percent for a five-year survival. That's assuming a fairly proactive and aggressive treatment approach.

Q. Did Ms. Schaefer get a fairly proactive and aggressive treatment approach?

A. I would say that she did, yes.

Q. In the medical records, there is a note of your discussing with Ms. Schaefer that her chances of survival following the surgery, and assuming she accepted the proactive and aggressive treatment you were recommending, were in the fifty to sixty percent range. Is that accurate?

A. I think that's a pretty fair estimate, yes.

(Emphasis added.)

Dr. Bristow was unable to say, one way or the other, whether Ms. Schaefer had metastatic cancer in September of 2000 when the sonogram was performed. In this regard, he said at deposition:

Q. But you're not able to say at what point in time she first had cancer?

A. Well, I can say that we diagnosed it when she had a major surgical operation here, and as I said, I believe it was in — I think it was in June of 2001. At the advanced stage that her cancer had presented, it had been growing for some period of time prior so that in order to achieve that degree of advanced stage.

Q. Okay.

A. It's very difficult to put a time estimate on how long that would have occurred, because cancers will vary in their growth rate, so it could have been anywhere from months to even years.

Q. Okay. And is it accurate to state that you can't say within reasonable medical probability at what point in time she had metastatic cancer?

A. Other than to say that at the time of the surgery that we did, it was pretty clear that she had metastatic cancer, but I'm unable to say at what point prior to that the metastatic cancer developed.

Q....