Wadsworth v. Sharma

• Decision Date: 01 July 2021
• Docket Number: No. 1703, Sept. Term, 2019,1703, Sept. Term, 2019
• Citation: 254 A.3d 66,251 Md.App. 159
• Parties: Scott WADSWORTH, et al., v. Poornima SHARMA, M.D., et al.
• Court: Court of Special Appeals of Maryland

251 Md.App. 159

254 A.3d 66

Scott WADSWORTH, et al.,

v.Poornima SHARMA, M.D., et al.

No. 1703, Sept. Term, 2019

Court of Special Appeals of Maryland.

July 1, 2021

Argued by: Brian S. Brown (Eleanor T. Chung, Christopher T. Casciano, Elisha N. Hawk, Brown & Barron LLC, Baltimore, MD), on the brief, for Appellant.

Argued by: Michael A. Damiano (Ronald U. Shaw, Shaw & Marrow, P.A., Hunt Valley, MD), on the brief, for Appellee.

Panel: Shaw Geter, Wells, James P. Salmon (Senior Judge, Specially Assigned), JJ.

Salmon J.

The main problems to be resolved in this case are ones of first impression and can be summarized as follows: A patient sees an oncologist in April 2013 at a point where she has stage IV metastatic ¹

breast cancer. No one survives that type of breast cancer. Nevertheless, with proper treatment, she, at that point, had a life expectancy of eighty months. As a result of the doctor's negligence, the cancer was not discovered at that time. Almost three years later, in February 2016, the cancer was discovered by another healthcare provider. Thereafter, the patient received the same cancer treatment that she would have received if the cancer had been discovered in April of 2013. The patient died of metastatic breast cancer, at age 53, in June 2017. Thereafter, her personal representative brought a survivorship action against both the doctor who had failed to diagnose the cancer and the doctor's employer. The patient's husband and other close relatives of the patient ("plaintiffs-appellants") also filed a wrongful death action against the same defendants. The plaintiffs-appellants claimed that the doctor's negligence, although it did not cause the victim's death, shortened her life expectancy by thirty months. The questions presented are:

(1) Do the relatives of the decedent have a viable wrongful death action against the doctor or her employer?

(2) Can the personal representative of the decedent successfully bring a survivorship action against the doctor or her employer in this matter?

We shall answer "no" to question 1 and "maybe" as to question 2.

A Baltimore County circuit court judge considered a summary judgment motion filed by the oncologist and her employer ("defendants-appellees") that raised the aforementioned two questions. The motions judge answered "no" to both questions. He reasoned that to prevail, the plaintiffs-appellants would have to prove that the defendants-appellees’ (alleged) negligent failure to diagnose the cancer

destroyed a substantial (better than 50%) possibility of survival. The court stressed that at the time of the misdiagnosis, the decedent did not have a substantial chance of surviving the breast cancer and therefore the plaintiffs-appellants could not prove that the negligent act caused the decedent's death. In granting summary judgment, the court also opined that plaintiffs-appellants were attempting to proceed under the "loss of chance" doctrine, which is not recognized in Maryland.

Plaintiffs-appellants filed a motion for reconsideration in which counsel for the personal representative explained, for the first time, exactly what damages he sought to recover in the survivorship action. Counsel said:

[T]he evidence in this case demonstrates, had Plaintiffs’ Decedent's solitary bone-only breast cancer

metastasis been timely diagnosed and appropriately treated by Defendants in April 2013, as was required by the standards of care, Plaintiffs^[’^] Decedent, Stephanie Wadsworth, would have, more likely than not,

lived an additional 30-months (or 2.5-years) beyond June 10, 2017, (well into December 2019), and would still be alive today enjoying the love and company of her surviving husband, daughter, son, and father. This is a legally cognizable injury. Stephanie Wadsworth should not have died on June 10, 2017. Two and a half years of life, time, and precious moments were unnecessarily taken from Stephanie Wadsworth. This is Stephanie Wadsworth's injury for which her beneficiaries ^{[2 ]} stand in her shoes in the Plaintiffs’ survival action.

(Emphasis added.)

In this opinion, we shall refer to the above as the "lost years" argument.

I.Factual Background³

Stephanie Wadsworth died on June 10, 2017 survived by her husband, Scott Wadsworth, her father, Joseph Eline, Jr. and two children, Elizabeth Wadsworth and Matthew Wadsworth. On October 18, 2018, the aforementioned relatives filed a First Amended Complaint ("the complaint") in the Circuit Court for Baltimore County. One count alleged a wrongful death action against defendants-appellees Poornima Sharma, M.D., University of Maryland Oncology Associates, P.A. ("UMOA") and University of Maryland Community Medical Group, Inc. ("UMCMG"). The complaint alleges that at the time of the failure to diagnose, Dr. Sharma was employed by both UMCMG and UMOA. In the same complaint, Scott Wadsworth, as personal representative of the estate of Stephanie Wadsworth ("Mrs. Wadsworth"), filed a survivorship action against the same defendants-appellees.

The complaint alleged that in 2006, Mrs. Wadsworth was diagnosed with stage IIIC left breast cancer

, for which she underwent a mastectomy of the left breast, followed by radiation and chemotherapy. In 2006, 2007, and 2008, she underwent a series of follow-up PET/CT scans that were all negative for metastatic cancer. Those follow-up PET/CT scans were ordered by Dr. Sharma who was Mrs. Wadsworth's treating oncologist.

On April 1, 2013, Mrs. Wadsworth underwent another follow-up PET/CT scan

. The imaging demonstrated an abnormal finding that a radiologist, at that time, described as a "[f]ocus of increased uptake in the right proximal clavicle of undetermined significance." According to plaintiffs-appellants, the radiologist's reading indicated new and potentially cancerous lesions not present on prior studies.

Dr. Sharma received, reviewed and was aware of the abnormal 2013 PET/CT scan

but, according to plaintiffs-appellants’ complaint, never reported the results to either Mrs. Wadsworth or her other treating healthcare providers. Moreover, Dr. Sharma never ordered any follow-up tests. These failures on Dr. Sharma's part, according to the plaintiffs-appellants, constituted actionable medical negligence even though Mrs. Wadsworth, in April of 2013, already had stage IV metastatic breast cancer, which was not curable.

Between April 2013 and February 2016, Mrs. Wadsworth had no pain or other noticeable problems related to her breast cancer

, but in February 2016, she fell and injured her right shoulder. She went to a hospital on February 29, 2016 complaining of right shoulder pain. A diagnostic bone scan revealed an aggressive malignant bone lesion in her right clavicle. Shortly, thereafter, a tissue biopsy confirmed the diagnosis of metastatic cancer in her left breast. A March 2016 PET/CT scan revealed a worsening metastatic lesion in the middle right clavicle. Mrs. Wadsworth was then given aggressive and appropriate treatment and therapy (the same treatment and therapy she would have received if the lesion had been properly diagnosed in April 2013), but as mentioned earlier, she died on June 10, 2017. Had her cancer been properly diagnosed in April 2013, according to one of the plaintiffs-appellants’ experts, she would have lived an additional 30 months, i.e., until December 2019 (approximately).⁴

One of plaintiffs-appellants’ oncology experts, Dr. Andrew M. Schneider, testified at deposition in answer to questions posed by defense counsel, that Mrs. Wadsworth's pain and suffering would have been the same if she had lived an additional 30 months as the pain and suffering she actually experienced when she died 30 months prematurely. The pertinent questions and answers were:

Q: The additional two-and-a-half years that you believe Ms. Wadsworth would have had, what would her quality of life have been like during those two-and-a-half years?

A: Excellent. So most cancer

patients die fast so they do well until they kind of just don't do well and they die, you know within weeks or, you know, a month or two. They don't have prolonged luckily, prolonged, you know, pain and suffering.

Q: Is it your testimony that she would have been in excellent health until a few weeks or month until she ultimately expired two-and-a-half years after when she did?

A: Well, I don't know how you define excellent health when you have metastatic cancer, but let's say that she would have had a good performance status and would have been able to enjoy life.

Q: What do you mean by "good performance status"?

A: Functionally. You know, she's walking, talking, eating, going out to dinner, living life. I can't say she was in excellent health, but she had metastatic cancer. You know, that I can't say.

Q: Would you have expected, based on what you reviewed in records, in addition to depositions of family members, that, of course, at the end, the way it actually was, would have been similar had she lived another two-and-a-half years?

A: I think at some point when she was going to die it would have been a similar course, yes.

Q: Do you have an opinion as to what point in time it would have taken a turn?

A: I already told you I thought I said, you know, weeks to a few months before death.

II.Question I – The Wrongful Death Claim

At common law, relatives of a decedent who died as a result of the negligence of another, had no cause of action against the tortfeasor. Stewart v. United Elec. L. & P. Co. , 104 Md. 332, 333-34, 65 A. 49 (1906). This changed in 1852 when the Maryland legislature passed a statute that was "almost a literal transcript of Lord Campbell's Act (9 and 10 Vic., ch. 93), [that] gives a right of action under certain conditions to designated relatives of a deceased person, but not to his personal representatives, when death has been caused by a wrongful act or by negligence." Id . at 334, 65 A. 49. Since 1852, the Maryland Wrongful Death Statute has been revised on several occasions. It is now codified in sections 3-901 through 3-904, Maryland Code Annotated (...