Inference of Negligence: Frankel v. Deane
The Baltimore Medical Malpractice Lawyer Blog, your database for in-depth analysis of Maryland reported appellate opinions in medical malpractice cases, presents a comprehensive review of the Court of Appeals decision in Frankel v. Deane, 480 Md. 682 (2022). The Frankel reported case, which focused on expert testimony, a prevalent issue in medical malpractice cases, is a crucial addition to our searchable Maryland medical malpractice law database. It specifically dealt with inference of negligence.
Factual Background on Inference of Negligence
The case involved an oral surgeon removing upper and lower wisdom teeth. The plaintiff signed consent forms, and the doctor’s notes stated that the plaintiff was told of possible complications, mainly pain, burning, paresthesia, lower lip, chin, and tongue. Afterward, the plaintiff was in pain and couldn’t speak or feel her tongue (Op. at 1).
Six months later, the plaintiff still could not feel her tongue. (Id. at 3). The plaintiff brought a medical malpractice claim asserting that the oral surgeon had severed her lingual nerve while removing the wisdom teeth, and another member of the practice failed to refer her to a nerve specialist. (Id. at 3-4).
Expert Testimony
The plaintiff had an expert opine that the permanent injury was bilateral neurotmesis, which is a complete transection of the inguinal nerve bilaterally. (Id. at 5).
Another expert opined how the defendant breached the standard of care:
(1) the injury “likely occurred while the third molar in question was being sectioned and the bur traversed the lingual plate causing the lingual nerve to be severed”; (2) the injury could have been avoided by placing “a retractor or a periosteal elevator . . . between the lingual plate and periosteum during the time of sections and/or adequate buccal and distal troughs . . . around the teeth”; and (3) the failure to take either precautionary step deviated from the standard of care in oral surgery practice and caused Ms. Deane’s injuries. Further, Dr. Kotikian would testify that “if the teeth [had not been] transected, then the surgeon cut the flap too widely and outside the intended surgical field.”
(Id. at 6). He added that a temporal injury is a risk of the procedure. Still, a permanent one resulting from a complete severance of the nerve would involve a breach of the standard of care. (Id. at 7).
In addition, the other practice member who examined the plaintiff should have given her steroids and referred her for prompt nerve repair. (Id.).
Courts’ Rulings
The defendants moved for summary judgment, arguing that evidence was insufficient for an inference of negligence under Meda v. Brown, 318 Md. 418 (1990). The defense also contended that permanent injury can happen without negligence. (Id. at 8). The defense also argued that the expert testimony was inadmissible under the Frye-Reed standard and Rule 5-702. (Id. at 9). The Circuit Court for Calvert County conducted a Frye-Reed hearing, excluded the plaintiff’s expert testimony, and entered summary judgment for the defense. The circuit court emphasized that the plaintiff’s experts had not reviewed the results of an early examination of the plaintiff, which had reported that her symptoms had improved. (Id. at 12).
The Court of Special Appeals reversed, holding that the expert’s failure to consider the notes from the early examination went to weight, not admissibility. The court further held that the plaintiff’s expert’s opinions were sufficient to meet the standard for inference of negligence. (Id. at 13).
Court of Appeals on Inference of Negligence
The Court of Appeals held that the circuit court had improperly taken sides in a credibility contest. The defendants claimed that the plaintiff had reported an improvement in symptoms, which the plaintiff denied. (Id. at 18-19). The circuit court also inappropriately determined the credibility of the parties’ experts. (Id. at 25).
Last, the circuit court erred in finding that the plaintiff’s expert opinions were inadmissible under Meda v. Brown. The circuit court had concluded that the plaintiff’s injury was a recognized complication of the procedure that happened in the absence of negligence. As a result, the circuit court held that an inference of negligence was impermissible. (Id.)
In doing this, the circuit court ignored the plaintiff’s expert’s opinion – that this type of permanent injury only happens due to a breach of the standard of care. (Id. at 27-28). Moreover, the circuit court misapplied Meda. There, the plaintiff’s experts could not determine precisely how the compression caused the nerve injury. There were several ways. However, the experts opined that the defendants’ deviation from the standard of care failed to protect the nerve. (Id. at 28). The Court of Appeals found that the plaintiff in this case has a theory of negligence that substantially tracks the analysis permitted under Meda, and the expert testimony should have been allowed. (Id. at 29).
The Court of Appeals adopted the Daubert approach in Rochkind v. Stevenson during this litigation. (Id. at 29-30). The Court of Appeals remanded the case to the circuit court, allowing the circuit court to determine whether to do a Daubert analysis on remand.
Dissent
A dissenting opinion disagreed with remand allowing a Daubert analysis because the case only involved issues concerning the Meda case. (Dis. at 1). The circuit court did not make any substantive ruling on Frye-Reed. There was no Frye-Reed question for review, so the Daubert analysis does not apply to this remand. (Id. at 6).
Commentary by the Baltimore Medical Malpractice Lawyer
The Frankel case is an important affirmation of the inference of negligence principles in the Meda case. It may have clarified one aspect of the injury issue – that if a doctor can cause the general type of injury (e.g., nerve injury) without negligence, an inference of negligence can still apply if the specific injury cannot. In Frankel, while a doctor can cause a temporary lingual nerve injury can be caused without negligence, a permanent one only occurs due to negligence. I believe that was already the case under Meda, but Frankel is a welcome confirmation.
The dissent makes a good point about a Daubert review being inappropriate on remand. However, based on the expert testimony discussion, I do not believe the plaintiff will have a Daubert problem.
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.