The Court of Special Appeals of Maryland (“Maryland Appellate Court”) affirmed a defense verdict in a Maryland medical malpractce case in an unreported opinion filed on December 7, 2018, despite the inadmissible testimony of a defense fact witness who was a physician at the hospital where the medical negligence allegedly occurred. The Maryland Appellate Court stated: “Maryland’s appellate courts have never adopted the approach that testimony from a subsequent treating physician raises a plaintiff’s burden of proof.”
The Maryland medical malpractice plaintiff had her right lung surgically removed one month before she went to a hospital’s Emergency Department due to swelling and pain in her left leg. The defendant doctor determined that the plaintiff had swelling to both legs and ordered medical testing that showed the presence of extensive clots in both legs. At that time, the plaintiff still had pulses in both legs.
The defendant doctor subsequently performed a digital rectal exam on the plaintiff and discovered that she had visible bright red blood from her rectum. Further medical testing determined that the plaintiff was anemic and she had lost about one-third of her blood volume in the period of time since her lung removal surgery. Based on the plaintiff’s anemic state, the defendant doctor decided not to order blood thinners that normally are given to patients with DVTs in their legs, in an effort to avoid causing a fatal hemorrhage in the plaintiff.
The plaintiff subsequently lost pulses in her legs and the defendant doctor then attempted to consult a vascular surgeon at the hospital, but a vascular surgeon was not on call at the time. After consulting with the plaintiff’s cardiovascular surgeon, the defendant doctor decided to transfer the patient to a higher-level hospital that could provide the necessary care for the plaintiff. Bad weather at that time dictated that a helicopter could not provide the emergency transportation. An ambulance subsequently provided the transportation to the receiving hospital, where the plaintiff’s left leg was amputated.
Shortly before the plantiff was transported between the hospitals, a vascular surgeon came on-call at the first hospital but he was not asked to examine the plaintiff and he had no involvement in her treatment except he reviewed the venous duplex scan.
The Maryland Medical Malpractice Trial
The defendants called the on-call vascular surgeon to testify at trial on their behalf. The defendants did not identify the vascular surgeon as an expert witness in their Expert Designation, nor did they do so in their Pre-Trial Statement. Instead, he was specifically identified as a Non-Expert Witness. Furthermore, the vascular surgeon was never qualified nor accepted by the circuit court as an expert in the case. As such, the Maryland Appellate Court held that the vascular surgeon was testifying only as a fact witness and not an expert witness.
The Maryland Appellate Court assumed, without concluding, that the vascular surgeon’s testimony exceeded the scope of permissible fact witness testimony (the plaintiff contended that the vascular surgeon testified to matters beyond his observation of the venous duplex scan, and he gave speculative opinions about how he would have treated the plaintiff if given the chance, and thus his testimony went beyond a recitation of what he observed and did).
The Maryand Appellate Court stated that the vascular surgeon provided testimony as to the analysis that he would have undertaken had he been called to treat the plaintiff, and as to whether he could have treated the plaintiff at the hospital. The Maryland Appellate Court stated that although the vascular surgeon’s testimony may have been improperly admitted, the substance of his testimony properly came before the jury in other ways. The Maryland Appellate Court stated, “In analyzing the testimony provided by other witnesses in this case, there is simply nothing to support [the plaintiff’s] contention that appellees used [the vascular surgeon’s] testimony to “bolster” their defense.” The Maryland Appellate Court held that the vascular suregon’s testimony “to the extent to which it touched upon the standard of care, was merely cumulative, and it cannot be said that the admission of his testimony had a “probable” effect on the outcome of the case … the admission of [the vascular surgeon’s] testimony was merely harmless error, and … there are not grounds to reverse the circuit court’s judgment.”
The Maryland Appellate Court further held that “the State of Maryland has never adopted the approach that hypothetical testimony from a subsequent treating physician raises the plaintiff’s burden of proof in a medical malpractice case.”
Source Hall v. Massey, No. 956 September Term, 2017.
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