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Verdict Sheet Nonparty Malpractice: American v. Reiss 2
The Baltimore Medical Malpractice Blog features legal issues in Maryland medical malpractice cases. In this blog post, I discuss a verdict sheet issue involving nonparty malpractice. The case is the Court of Appeals reported decision in Advanced Radiology Services, LLC v. Reiss, 470 Md. 555 (2020).
In part 1 of this blog post, I discussed the evidentiary requirements for the defense to raise the negligence of nonparty doctors.
Factual Background
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. (Op. at 2). The oncologist administered chemotherapy over the course of four years. Ultimately, the cancerous node grew until it was inoperable. (Id. at 3).
The plaintiff filed a medical malpractice case 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 oncologists were negligent and had caused the plaintiff’s injuries. However, the defense expert witnesses did not opine on these matters. The defense stated it reserved the right to rely on the plaintiff’s experts. (Id. at 5).
At trial, the defense did not call expert witnesses to give the standard of care or causation testimony concerning nonparty doctors. The trial court 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).
Verdict Sheet Question on Nonparty Malpractice
The court placed a question on the verdict sheet despite the plaintiff’s objection. 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, who were responsible for determining the outcome of the case, 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 and 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, a higher court, reversed the decision of the lower court. This reversal was significant as it indicated a disagreement with the lower court’s ruling, prompting the defense to appeal the decision further. (Id. at 13-14).
Court of Appeals
The Court of Appeals first held that expert testimony is required to establish nonparty medical negligence without regard to whether a defendant raises 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. (Id. at 25).
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. at 27).
The court then turned to the verdict sheet. The sheet asked the jury whether specified nonparty doctors committed malpractice that was a substantial factor in causing injury to the plaintiff. Since the defense failed to present expert testimony in support of the question, the circuit court erred in submitting it to the jury (Id. at 31).
The issue was whether this error was prejudicial. The focus is on whether the mistake undermines faith in the jury’s verdict. (Id. at 32). The court found that the jury was obviously confused by the verdict sheet because they found in favor of the defendants and awarded the plaintiff $4.8 million. When completing a second verdict sheet, the jury could not put this out of their minds. (Id. at 32-33). In addition, they heard improper arguments about the negligence of nonparty doctors for which there was no evidence. The court could not conclude that the jury would have found for the defense if they had not heard the arguments against the nonparty doctors. More likely than not, the court found that the error influenced the verdict and required reversal. (Id. at 33-34).
Commentary by the Baltimore Medical Malpractice Lawyer on Verdict Sheet Question on Nonparty Malpractice
The court’s decision in this case was correct. The defense’s arguments that other doctors’ negligence caused the plaintiff’s injuries without proper evidence were indeed prejudicial. This prejudice is evident, regardless of the confusion on the verdict sheet. The defense presented the jury with an alternative explanation for the injury, unsupported by evidence. Even if they found the defendants not liable, the jury’s reasoning could have been influenced by these unsupported arguments.
Furthermore, the verdict sheet contained an inappropriate question about nonparty malpractice. This question was unsuitable for multiple reasons. Firstly, the defense failed to introduce expert evidence to support its arguments of nonparty malpractice. Even if there had been such evidence, the question would still have been inappropriate. The defendants did not file a third-party claim. Although the defense would be entitled to argue nonparty malpractice if they had put on sufficient expert testimony, there was no reason to ask the jury about it.
The question asked if the nonparty doctors were a substantial factor in causing injury to the plaintiff. The answer to this question has no bearing on the defendants’ liability. If the answer is no, the defendants can be liable or not liable. The same is true if the answer is yes. More than one tortfeasor can be a substantial factor in causing injury.
The inclusion of this question was nonsensical, and it is not surprising that it caused confusion. The court appropriately reversed the defendants’ verdict, highlighting the need for clearer legal procedures.
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.