Affidavits: Thomas v. Shear 1
The Baltimore Medical Malpractice Lawyer Blog delves into the intricate world of medical malpractice opinions from the Maryland appellate courts. In this Blog post, we unravel affidavits with summary judgment motions—specifically, what unfolds when a summary judgment affidavit contradicts other testimony by the affiant. The case under our legal microscope is a reported opinion by the Court of Special Appeals of Maryland, Thomas v. Shear, 247 Md. App. 430 (2020).
In part 2 of this Blog post, I will examine the court’s decision on the issue of generating a genuine dispute of material fact to avoid summary judgment.
Factual Background
In 2000, the plaintiff underwent an aorto-bifemoral bypass graft at GBMC. This procedure created a new path around an obstructed blood vessel. (Op. at 3). Sixteen years later, the plaintiff filed a malpractice claim against the surgeon. Specifically, the complaint alleges that surgical clips were left behind, which caused the plaintiff to start having abdominal pain in 2014. (Id. at 4-5).
Discovery revealed a 2006 CT Scan of the plaintiff, which revealed kidney stones. In addition, it showed hydronephrosis, which is excessive fluid in the kidney due to urine backup. The scan also showed clips from the bypass. (Id. at 6).
Motions for Summary Judgment & Affidavits
The parties filed motions for summary judgment on the statute of limitations. The defense argued that the five-year statute of limitations in CJP 5-109(a) barred the plaintiff’s claim. The defense contended that if they put a clip on the ureter in 2000, that is when the injury occurred. Additionally, the defense asserted in the alternative that a 2006 CT scan showed hydronephrosis that the clip caused, resulting in the plaintiff’s claim. Under this argument, the claim was barred by 2011. (Id. at 9).
The plaintiff submitted expert affidavits that contradicted their previous deposition testimony, explaining that the change resulted from a review of the entire file relating to the 2006 visit. The experts first contended in depositions that the clips caused the 2006 hydronephrosis. They now claimed that the 2006 admission was not caused by the defendants’ negligence but rather by kidney stones. Accordingly, the plaintiff contended that there was no injury in 2006 from the negligence. (Id. at 7, 9-10). The defense filed a motion to strike the affidavits as contradictory to prior testimony. (Id. at 10).
The Circuit Court for Baltimore County ruled that the statute of limitations ran at the latest from 2006. The court also rejected the inconsistent affidavits from the plaintiff’s experts. Accordingly, the court granted the defense motion for summary judgment. (Id. at 12-13).
Court of Special Appeals
Maryland Rule 2-501(b) provides that a response to a motion for summary judgment that asserts the existence of a material fact or controverts any fact in the record must have an affidavit or other written statement under oath. But, under subsection (e), a party may move to strike an affidavit “to the extent that it contradicts any prior sworn statement of the person making the affidavit or statement.” Md. Rule 2-501(e). (Id. at 28).
Generally, if the court finds that the affidavit “materially contradicts the prior sworn statement, the court must strike the contradictory part.” Md. Rule 2-501(e)(2). The court is not required to strike a contradictory affidavit if it determines that:
(A) the person reasonably believed the prior statement to be true based on facts known to the person at the time the prior statement was made, and (B) the statement in the affidavit . . . is based on facts that were not known to the person and could not reasonably have been known to the person at the time the prior statement was made or, if the prior statement was made in a deposition, within the time allowed by Rule 2-415(d) for correcting the deposition. (Id.).
In this analysis, the court looks at whether the statements are irreconcilable. In other words, the prior statement and the affidavit cannot both be true. (Id. at 29).
CSA Analysis of Affidavits
The CSA observed that the plaintiff’s experts’ deposition testimony that surgical clips caused the 2006 hydronephrosis was explicitly opposite their affidavit statements that kidney stones, not the clips, caused the hydronephrosis. (Id. at 30). Both statements cannot be true. (Id. at 31).
The CSA further found that excuse was unavailable under Rule 2-501(e)(2). The court did not believe that the entire chart review was the reason for the change of opinion. The experts had the opportunity to review materials before their depositions. As a result, the circuit court properly excluded the affidavits. (Id.).
Commentary by the Baltimore Medical Malpractice Lawyer on Summary Judgment Affidavits
The courts’ rulings were straightforward application of the rule provisions governing motions for summary judgment and supporting affidavits. The facts in the case reflect the challenges involved in complex medical malpractice cases involving a lot of records.
The medical malpractice lawyer’s role is crucial in ensuring that their experts have all the records the defense may use to question them. Moreover, the lawyer must meticulously ensure that the records and expert opinions align with the plaintiff’s theory of the case. This includes addressing the issue of the statute of limitations and the timing of the injury.
The lawyer must prepare the experts for the anticipated defense questioning, including the records that the defense is likely to use. This preparation can significantly influence the outcome of the case.
In this case, in depositions, the defense asked the plaintiff’s experts about a CT scan they may have never considered. They also had not seen the other records from that visit. As a result, they gave what seemed to be answers on the spot that they had not thought out before. The result was testimony that contradicted the plaintiff’s theory of the case.
Deposition Changes
After the depositions, the experts then sought to change their opinions after reviewing the full file from the 2006 hospital visit. There was a way that they could have successfully done that.
After the depositions, the medical malpractice lawyer could recognize the inconsistency of the testimony and then give the entire file to the experts for review. Then, under Rule 2-415(d), the experts could change their testimony within 30 days of receipt of the deposition transcripts.
The defense could examine the experts at trial about the change in their testimony. However, the plaintiff would avoid summary judgment resulting from affidavits that contradicted prior testimony.
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.