Nonparty Malpractice: American v. Reiss 1

The Baltimore Medical Malpractice Blog, a platform that delves into complex legal issues in Maryland medical malpractice cases, presents a detailed analysis of the evidentiary requirements for the defense to raise the issue of nonparty malpractice. Expert testimony, a recurring theme in medical malpractice opinions, is at the forefront of this discussion. The case under scrutiny is the Court of Appeals’ reported decision in Advanced Radiology Services, LLC v. Reiss, 470 Md. 555 (2020). 

Part 2 of this blog post will then discuss an issue involving the verdict sheet.

Factual Background

The issue before the court was whether the law required a defendant who sought to blame nonparty malpractice as the cause of the plaintiff’s injuries to put on expert testimony to establish that defense. (Op. at 1).

The plaintiff had a cancerous tumor in his kidney and lymph node. The urologist removed the kidney but not the lymph node because of its proximity to a large blood vessel, the inferior vena cava. (Id. at 2). Afterward, the oncologist administered chemotherapy over four years. Ultimately, the cancerous node grew until it was inoperable. (Id. at 3).

The plaintiff filed a medical malpractice case in the Circuit Court for Baltimore City against the radiologists who did not alert the oncologist of the growth of the cancerous lymph node at a time when they could have safely removed it. (Id. at 4). 

In discovery responses, the defendants alleged that the nonparty oncologists committed malpractice and had caused the plaintiff’s injuries. However, the defense expert witnesses did not opine on these matters. The defense also stated it reserved the right to rely on the plaintiff’s experts. (Id. at 5). 

Trial

At trial, the defense did not call expert witnesses to give the standard of care or causation testimony concerning nonparty doctors‘ malpractice. The trial court then sustained an objection to the defense questions of the plaintiff’s expert about the standard of care for the initial urologist. (Id. at 9).

During closing arguments, the defense arguments included assertions that nonparty doctors caused the plaintiff’s injuries. (Id. at 10).

The verdict sheet included a question to which the plaintiff objected. It asked the jurors if the actions of non-defendant doctors were a substantial factor in causing the plaintiff’s injury. (Id. at 11). 

The jurors did not follow the directions on the verdict sheet. They found the defendants had not breached the standard of care—they were supposed to stop there. Instead, they found the plaintiff was not contributorily negligent. The jury further found that the nonparty doctor’s negligent acts had been a substantial factor in causing the plaintiff’s injuries. The jury then awarded $4.8 million in economic damages. (Id. at 12).

The court advised the jurors that they had returned an inconsistent verdict sheet, saying that since the jury found the defendants did not breach the standard of care, it was unnecessary to answer the remaining questions. The court gave the jury a blank verdict sheet and sent them back to deliberate. The jury returned the sheet stating that the defendants had not breached the standard of care and did not answer other questions. The plaintiff moved for a new trial, and the court denied it. The plaintiff appealed. (Id. at 12-13).

The Court of Special Appeals then reversed. The defense appealed. (Id. at 13-14).

Court of Appeals on Nonparty Malpractice

The Court of Appeals held that expert testimony is required to establish nonparty medical malpractice without regard to whether a defendant is raising the nonparty medical negligence as an affirmative defense or in connection with a general denial of liability. The reason is that medical negligence and causation are beyond the understanding of ordinary lay jurors. The jury’s role is to make factual findings based on the evidence presented, and in cases involving medical issues, expert testimony is crucial to provide the necessary understanding. (Id. at 25).

Since the defendants sought to assert a defense that nonparty physician negligence caused the plaintiff’s injury, the defendants were required to produce and generate sufficient admissible evidence to enable the jury to make a factual finding of nonparty physician negligence. The defense had to produce admissible expert testimony as their burden of production. The subject matter does not become more comprehensible to lay jurors because it is a defense, a position taken by the defendant to counter the plaintiff’s claim, instead of a claim for medical malpractice, a legal action brought by a patient against a healthcare provider who has harmed them. (Id. at 26).

The exception is if the nonparty’s medical negligence is so obvious that ordinary laypersons can determine it breached the standard of care. Also, the court held that a defendant does not have to call its own expert to generate the issue. The defense can elicit standard of care testimony by cross-examining the plaintiff’s expert if discovery rules, which govern the exchange of information between parties in a lawsuit, are satisfied. This means that the defense must adhere to the rules regarding the timing and manner of the exchange of information. (Id. at 27).

Defense Failed to Meet Its Burden

In this case, the defendants did not identify or call expert witnesses to testify that nonparty physicians breached the standard of care or that a breach proximately caused the plaintiff’s injury. (Id.). The defendants’ cross-examination of the plaintiff’s expert witnesses was insufficient to establish a breach of the standard of care or causation. (Id. at 27-28). Nevertheless, the defense argued that the nonparty physicians’ actions fell below the standard of care. The jury did not have a factual basis to find negligence. (Id. at 28). As a result, the circuit court erred in submitting the question of nonparty medical malpractice to the jury. (Id. at 31).

Commentary by the Baltimore Medical Malpractice Lawyer on Nonparty Malpractice

This decision is the correct one. It would make no sense to say that a jury needs expert testimony to determine if the defendant committed medical malpractice, but it would not need expert testimony to determine if a nonparty doctor committed medical malpractice.

The court’s statement that the defense can rely on the plaintiff’s experts is a point that demands caution. In the case of American Radiology, the defense argued that it effectively used the plaintiff’s experts to meet its burden of production. However, the court meticulously examined this claim and demonstrated its shortcomings, underscoring the need for caution in such reliance.

It is anticipated that defendants may attempt to leverage the court’s statement to assert that they have successfully used the plaintiff’s experts to meet their burden of producing evidence of nonparty medical malpractice. However, it is crucial that the courts maintain the same level of scrutiny that the American Radiology Court did to expose any shortcomings. In most cases, defendants seeking to establish nonparty doctor negligence will need to rely on their own experts for this.

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.