REI Expert: R.B. v. Hinting
The Baltimore Medical Malpractice Lawyer Blog discusses Maryland medical malpractice cases. In this post, I delve into a Daubert challenge to a reproductive endocrinology and infertility (REI) expert witness in a case alleging malpractice for failure to refer to fertility treatment. The case is the January 14, 2025, Appellate Court of Maryland unreported opinion in R.B. v. Hinting, et al., No. 1266. The expert’s opinion on the likelihood of a successful pregnancy is the key issue.
Factual Background
A 30-year-old woman was attempting to conceive a child, and her gynecologist incorrectly told her that her blood tests were normal. She had Diminished Ovarian Reserve (DOR), which causes the egg cells to diminish more rapidly. Her AMH level, a measure of ovarian reserve, was .212, well under the threshold for DOR. Accordingly, the gynecologist should have referred her for fertility treatment. (Op. at 1, 3).
The patient learned of the DOR 18 months later. By then, her AMH had decreased to .07. She immediately started fertility treatment but could not conceive. By August 2020, her AMH was then down to .03. At that point, further fertility efforts were not likely to succeed. (Id. at 1, 5).
She brought suit against the gynecologist and employer in the Circuit Court for Baltimore City. (Id. at 1, 4). She alleged that had the doctor told her of the blood tests, she then would have started fertility treatment that would have given her a likelihood of a successful pregnancy. The plaintiff had an expert witness whose qualifications included REI. (Id. at 6). The expert’s opinion on the likelihood of a successful pregnancy became the central issue in this case.
Daubert Motion
The defense filed a motion to preclude the plaintiff’s REI expert under Daubert, but the plaintiff opposed it. (Id. at 12, 16). The defense raised many arguments in their papers. The plaintiff’s expert testified at deposition that he had relied in part on nine medical articles he had provided to the parties before his deposition. (Id. at 10).
When the circuit court held its hearing on the Daubert motion, the focus was on a study published after the plaintiff’s expert’s deposition. This study, referred to as the Romanski study, found that women under the age of 35 with an AMH level of .3 or lower who underwent all types of fertility treatments had a live birth rate of 48.9 percent, which was comparable to the national rate for one IVF treatment (55%). The Romanski Study’s findings were a significant part of the case.
The plaintiff’s expert did not testify at the hearing. The defense noted that the Romanski study failed to get the plaintiff above the 50% required threshold. The defense also argued that the study was distinguishable because the plaintiff had experienced multiple miscarriages that allegedly were not experienced by the study participants. (Id. at 19-20).
The circuit court granted the defense motion, finding that the plaintiff’s expert had not accounted for the plaintiff’s miscarriage history, which the Romanski study participants did not experience. (Id. at 22).
Motion for Reconsideration
The plaintiff filed a motion for reconsideration, including an affidavit from her expert. The affidavit specified that the Romaski study did account for miscarriages by its participants. (Id. at 23). At the motion for reconsideration hearing, the plaintiff relied on the Jaswa study, which was part of the Romanski study, and found a 56.8% success rate for women with DOR and a single IVF cycle producing a quality embryo. (Id. at 25). The circuit court denied the motion for reconsideration and entered summary judgment against the plaintiff. The plaintiff appealed. (Id. at 25).
Appellate Court of Maryland on REI Expert & Daubert Challange
On appeal, the parties focused on the Romanski and Jaswa studies. The plaintiff argued that she exceeded the 50% threshold because the study participants had 3 IVF cycles. Her expert testified that she could have undergone more than the study participants, specifically 6-7, during the relevant period. (Id. at 26-27).
The Appellate Court noted that, as the parties’ arguments and focus have changed throughout the proceedings, the main issue has become the circuit court’s conclusion that the Romanski study did not account for the plaintiff’s history of miscarriages. No medical expert had testified on that issue. (Id. at 30-31). The plaintiff’s expert had submitted an affidavit that the study had accounted for that factor. The Appellate Court concluded that the circuit court had abused its discretion in reaching the opposite conclusion. (Id. at 31).
The Appellate Court noted that the defense did not raise its argument about miscarriages distinguishing the Romanski study until the hearing. The plaintiff submitted the affidavit as soon as it became an issue. (Id. at 32).
In its direction for remand, the Appellate Court specifically stated that the plaintiff’s expert should testify at the Daubert hearing. (Id. at 33).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on REI Expert & Daubert Challenge
The plaintiff should be grateful to be alive legally. In the circuit court, the parties presented arguments that kept changing during the proceedings on a complex medical issue. Much of the arguments involved lawyers expressing their interpretations of medical studies instead of presenting doctor testimony from a qualified specialist. The trial court held a Daubert hearing and then another hearing on the plaintiff’s motion for reconsideration.
Faced with this history, the Appellate Court could have easily found a way to affirm the summary judgment below without wading into the mess. Instead, the Appellate Court took a deep dive into the parties’ presentations. It observed that the only medical testimony was one affidavit during the hearing process. Moreover, in the ruling, the circuit court disregarded what was in that affidavit.
Remand
In directing that the plaintiff expert testifies in the Daubert hearing on remand, the Appellate court initiated a process where all arguments can be supported and tested by medical testimony. The court also flagged a key issue for remand: whether the plaintiff expert has sufficient support for his argument that the plaintiff, by undergoing more IVF treatments than the participants in the Romanski study, would have increased her chances of a live birth beyond the number accomplished in the study.
The Appellate Court has meticulously untangled the complexities created below and has given the plaintiff another chance. It was the legally correct and fair thing to do. As a result, the opportunity is there on remand for a complete and thorough presentation of the medical evidence relating to this claim.
The topic of expert testimony is one of the most frequent appellate issues in Maryland medical malpractice cases. For additional blog posts in this category, go to expert witnesses.
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.