CQE Employees: Retina Group v. Crosetto

The Baltimore Medical Malpractice Lawyer Blog discusses issues in Maryland medical malpractice cases. In this post, I examine a recurring problem – the sufficiency of a Certificate of Qualified Expert (CQE). Specifically, I discuss the issue of identifying employees and agents in the medical malpractice CQE. The case is the Court of Special Appeals’ reported opinion in Retina Group of Wash., Inc. v. Crosetto, 237 Md. App. 150 (2018).

Factual Background

The plaintiff went to the defendant medical group for problems with vision in his left eye. The first doctor the plaintiff saw in the group was Dr. Desai, who diagnosed a retinal tear and recommended prompt surgery. The plaintiff had elevated intraocular pressure (IOP), but Desai did not prescribe pressure-lowering medication. He believed that dilation drops caused the increase that then occurred. (Op. at 2).

Dr. Sanders performed the surgery two days later. He did not measure IOP before or after the surgery. In multiple post-op visits over the course of the next six weeks, the plaintiff had elevated IOP, and he also could not see out of the eye. The group then referred the plaintiff to a neuro-ophthalmologist who diagnosed the plaintiff with an atrophic optic nerve. (Id. at 4). He believed the cause specifically was likely a lack of blood flow to the optic nerve. Afterward, the plaintiff never regained vision in the affected eye. (Id. at 4).

CQE

The plaintiff filed suit in the Circuit Court for Montgomery County and included a medical malpractice CQE from an ophthalmologist expert witness who opined that employee or agent Dr. Sanders breached the standard of care in the gas bubble that he chose to use because it increases IOP and by failing to monitor IOP before and after the procedure. (Id. at 5).

After the close of discovery, the plaintiffs filed a supplemental CQE, which continued to identify Dr. Sanders as the group’s only employee or agent. (Id. at 7).

Before the trial, the group objected to a verdict sheet allowing the jury to return separate verdicts for the group and the doctor. It argued that the plaintiff’s CQE identified Dr. Sanders as the only employee or agent. The plaintiffs contended that the group could be held liable for any of its employees and agents, and the judge agreed. (Id. at 1, 7-8).

At trial, the plaintiffs’ expert opined that Dr. Desai failed to prescribe IOP-reducing drops before the surgery. (Id. at 8). However, the expert did not give this opinion to a reasonable degree of medical certainty and did not testify that it caused the optic nerve to atrophy. (Id. at 8-9). The plaintiffs’ expert also criticized the gas bubble that Dr. Sanders used and his failure to monitor IOP after the surgery. (Id. at 9).

On the special verdict sheet, the jury answered that Dr. Sanders did not violate the standard of care. Still, the group did so through other employees or agents. It awarded $1 million in damages to the plaintiffs, which later was reduced to $740,000 under the cap on non-economic damages. (Id. at 13). The group appealed. (Id. at 14).

Court of Special Appeals on CQE Employees in Medical Malpractice

The Court of Special Appeals noted that Maryland courts have interpreted the medical malpractice CQE rule to identify the specific employees and agents who breached the standard of care. (Id. at 17-20). The CSA also noted that if discovery revealed information that caused the plaintiffs’ expert to alter his opinions from the original CQE, he could have done so as long as the plaintiffs followed proper procedures. (Id. at 21).

From the beginning of the case, the plaintiffs were aware of Dr. Desai’s participation in their care but did not include him in their CQEs. The trial court was legally wrong to state that other employees and agents’ conduct was “out there,” and the defense could have explored it in discovery. (Id. at 22-23). The plaintiffs had to identify in the CQE which doctors breached the standard of care. It was not the defense’s burden to uncover breaches in discovery. (Id. at 23). The CSA also concluded that the circuit court erred in allowing the separate verdict sheet questions. (Id. at 24). In sum, the circuit court erred in allowing the plaintiffs to pursue claims based on other group employees and agents. (Id. at 25).

In addition, the plaintiffs’ evidence was insufficient against any other group employee or agent. The plaintiffs’ expert failed to state that his criticism of Desai was to a reasonable degree of medical probability. That standard is the standard required for an expert opinion. This failure left the jury to speculate about other employees and agents and their conduct. (Id. at 28). The CSA reversed the verdict. (Id. at 29).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on CQE Employees

Maryland law places a number of requirements on CQEs. Some of these rules are not always clear. As a result, there has been much litigation involving CQEs.

That litigation includes identifying medical corporations’ employees and agents in the CQE. However, this has been a clear requirement, and the amount of litigation on this issue is mystifying. Many years ago, Maryland appellate courts stated that CQE must identify individual medical care providers. However, lawyers have continued to file CQEs without doing that.

The court’s holding in Retina Group is straightforward and in accordance with prior medical malpractice cases in Maryland. When suing a corporate entity for medical malpractice, it’s crucial that plaintiffs identify the individual employees or agents by name and describe how they breached the standard of care and caused injury. This is not just a formality, but a key requirement that can make or break a case.

This requirement has become a bright-line rule. Plaintiffs can specifically argue many things. They can contend that they put the defense on notice regarding the employees or agents, identified them in discovery, etc. However, if plaintiffs do not include the employees and agents in the CQE, they will face dismissal. This is a serious consequence that cannot be overlooked. They can appeal and seek review from the highest court but will not get relief.

Strategy

Suppose discovery reveals the identity and actions of other employees or agents after the plaintiff files their initial CQE. In that case, they can amend their initial CQE and/or file a supplemental CQE under the rules at the end of discovery. This process allows plaintiffs to update their CQE with new information, ensuring they do not run afoul of the CQE rule’s requirement to identify employees and agents.

You can read more Blog posts on the topic of expert testimony, including one on Dunham v. UMD involving the same issue of identifying employees and agents in the CQE.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.