The Court of Special Appeals of Maryland (“Appellate Court”), Maryland’s intermediate appellate court, held in its unreported opinion filed on August 17, 2016 that the Maryland medical malpractice plaintiff had failed to establish that the 19-day delay from a radiologist’s incorrect interpretation of the plaintiff’s first CT scan that showed a mass in his abdomen and the mass being identified by a second CT scan 19 days later was the cause of the plaintiff’s terminal prognosis five years later (i.e., the Maryland medical malpractice plaintiff was unable to establish causation because he was unable to show that “but for” the first radiologist’s failure to interpret correctly the first CT scan, the plaintiff’s injury would not have occurred).
The Alleged Facts
The Maryland medical malpractice plaintiff underwent a CT scan of his abdomen on February 23, 2006 that the radiologist interpreted as showing “[n]o acute finding in the abdomen.” On March 14, 2006 (19 days later), the Maryland medical malpractice plaintiff underwent a second CT scan of his abdomen that two other radiologists independently reported showed a mass in the plaintiff’s abdomen and stated that they “cannot exclude carcinoid tumor.” A surgeon reviewed the second CT scan on March 16, 2006 and reported that the mass looked benign and recommended a follow-up CT scan in three to four months to assure stability. No biopsy or surgery was performed at that time.
Follow-up CT scans were performed during the next four years (the third CT scan was performed in April 2007; the fourth CT scan was performed in April 2008; and, the fifth CT scan was performed in February 2010), each of which was interpreted as showing the mass at a stable size—approximately three centimeters—neither growing nor shrinking.
On December 30, 2011 (over five years after the first CT scan), the Maryland medical malpractice plaintiff underwent his sixth CT scan that showed that the mass had doubled in size to approximately 6.4 centimeters. Surgery was performed but the mass could not be fully removed. A biopsy of the mass showed that it was a cancerous tumor.
In January 2013, the plaintiff and his wife filed their Maryland medical malpractice lawsuit that alleged that the first radiologist was negligent in interpreting the first CT scan and was negligent in failing to timely diagnose the cancerous tumor. The surgeon who evaluated the plaintiff after the second CT scan was not named as a defendant.
The Maryland medical malpractice jury found that the first radiologist was negligent but also determined that the remaining defendants were not negligent. The jury awarded the Maryland medical malpractice plaintiff $20,635: $1,635 in past medical expenses and $19,000 in noneconomic damages. Both parties appealed.
The Appellate Court Decision: Causation
The Appellate Court stated that in order to prove causation, the plaintiff must proceed by way of the “but for” test in cases where only one negligent act is at issue: cause-in-fact is found when the injury would not have occurred absent or “but for” the defendant’s negligent act. If two or more independent negligent acts bring about an injury, however, the “substantial factor test” controls: causation may be found if it is “more likely than not” that the defendant’s conduct was a substantial factor in producing the plaintiff’s injuries.
The Appellate Court further stated that Maryland medical malpractice cases normally require expert testimony to establish causation.
The Appellate Court determined that based on the evidence in the present case, a reasonable fact-finder could not find evidence of causation, by a preponderance of the evidence: the plaintiff is unable to establish that the 19-day delay between the first radiologist’s incorrect interpretation of the first CT scan and the mass being identified was the cause of the plaintiff’s terminal prognosis five years later because the surgeon who reviewed the second CT scan and chose not to perform surgery did not do so because the first radiologist incorrectly interpreted the first CT scan – the surgeon chose not to remove the plaintiff’s tumor for reasons completely unrelated to the first radiologist, and the plaintiff did not name the surgeon as a party to his Maryland medical malpractice case. Thus, the plaintiff was unable to establish causation because he was unable to show that “but for” the first radiologist’s failure to interpret correctly the first CT scan, the plaintiff’s injury would not have occurred.
Source Hardy v. Advanced Radiology, P.A., No. 1603, September Term, 2014.
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