The injury victim in a medical malpractice lawsuit is nearly always required to present expert testimony to establish that a physician breached the applicable standard of care and that the breach caused the victim’s injury. The Maryland Court of Appeals was asked whether the same standard applies to a doctor who defends a malpractice claim by asserting that the negligence of another party caused the victim’s injury. Under the facts of the case, the court decided that expert testimony was required.
Facts of the Case
Martin Reiss suffered from tumors in his kidney. A surgeon made a plan to remove the cancerous kidney as well as an enlarged lymph node that was adjacent to the kidney. The surgeon removed the kidney in 2011 but elected not to remove the lymph node because it was close to a large blood vessel that transports blood to the heart.
After the surgery, Reiss was treated by Dr. Russell DeLuca, an oncologist. Dr. DeLuca suspected that the lymph node was cancerous but agreed that it could not be removed safely. He opted to treat Reiss with chemotherapy. The treatment caused the lymph node to shrink, confirming that it was cancerous.
During a period of five years, Dr. DeLuca ordered periodic CT scans of the lymph node to determine whether it was enlarging. Between 2011 and 2014, Dr. Victor Bracey, a radiologist, interpreted the scans. He noted that a contrast dye was not used to perform scans, making interpretation less than optimal. He nevertheless concluded that the lymph node was not enlarging.
In 2015, a different radiologist, Dr. Elizabeth Kim, interpreted a non-contrast CT scan and found “soft tissue density” in the vicinity of the lymph node. She also concluded that the lymph node had enlarged since 2011. A biopsy confirmed that the lymph node was cancerous. A new oncologist agreed that the condition was inoperable.
Reiss sued Dr. Bracey and the surgeon who removed his kidney. He alleged that the surgeon was negligent for not removing the lymph node. At some point, Reiss dismissed his claim against the surgeon.
Reiss alleged that the lymph node could have been surgically removed at an earlier time. He alleged that by 2015, it had become inoperable. He contended that Dr. Bracey was negligent for failing to diagnose the enlargement of his lymph node at a time when it could have been removed.
Dr. Bracey denied that he was negligent. In his answer to the complaint, Dr. Bracey contended that Reiss’ oncologists were negligent and that their negligence caused Reiss’ injury.
Reiss presented the expert testimony of Dr. Paul Collier, a vascular surgeon, to establish that the lymph node could have been safely removed at any time before 2015 but not later. Dr. Bracey called Dr. James Black as an expert in vascular surgery. He agreed that the lymph node could have been removed in 2011 but disagreed with Dr. Collier’s opinion that the lymph node could not have been removed after 2015.
Reiss called Dr. Barry Singer as an expert in oncology. Dr. Singer testified that Reiss would have had a much greater probability of survival if the lymph node had been removed between 2011 and 2014. Dr. Singer opined that a biopsy would have confirmed that the lymph node was cancerous. He testified that surgical removal of cancer is always the best treatment option and that Reiss would have been cured if the lymph node had been removed. He explained that Reiss’ life expectancy is significantly shorter because the cancerous lymph node was not removed.
Alleged Negligence of Non-Parties
Dr. Bracey did not designate an expert to support his claim that Reiss’ oncologists were negligent. He instead made a general reservation of his right to rely on Reiss’ expert witnesses.
The trial judge ruled that the alleged negligence of the oncologists was relevant to Dr. Bracey’s defense. The judge also ruled that Dr. Bracey would not be allowed to cross-examine Reiss’ experts about the alleged negligence of his oncologists. The judge decided that Dr. Bracey needed to rely on his own experts and that disclosing an intent to rely on Reiss’ experts did not comply with expert designation rules. That ruling was not appealed.
Reiss called Dr. DeLuca as a fact witness. Dr. DeLuca testified that he discontinued chemotherapy because Dr. Bracey’s radiological reports convinced him that the cancer was in remission. He explained that he did not order dye to be used in administering the CT scan because he did not want to damage Reiss’ remaining kidney. He also testified that he did not refer Reiss’ case to the tumor board for an opinion on the viability of removing the lymph node because he relied on the surgeon’s opinion that the lymph node could not be removed safely.
Reiss’ new oncologist testified that he consulted with a general surgeon who advised against surgical removal of the lymph node because there was no clear separation between the lymph node and the vein. In that surgeon’s view, the risk of surgery would have outweighed the anticipated benefit. The oncologist acknowledged, however, that he did not ask a vascular surgeon to review the case.
No expert witness testified that the surgeon who removed Reiss’ kidney breached an applicable standard of care by not removing his enlarged lymph node. Nor did any expert witness testify that the standard of care required Dr. DeLuca or Reiss’ new oncologist to refer Reiss to a surgeon to remove the lymph node or to order a biopsy.
The jury demonstrated its confusion about the verdict form before finally determining that Dr. Bracey was not liable for Reiss’ injury. Reiss appealed.
Under Maryland law, “evidence of non-party negligence is relevant and admissible in medical malpractice cases.” The court noted that evidence of negligent acts by other doctors are relevant for three purposes: (1) to prove that the defendant doctor was not negligent; (2) to prove that the defendant doctor’s negligence was not a cause of the patient’s injuries; or (3) to prove that another doctor’s negligence was a superseding cause of the patient’s injuries “that cleaved the chain of causation running from the defendant’s negligence.”
Dr. Bracey was therefore entitled to introduce evidence that other doctors were negligent — for example, by not removing the lymph node during Reiss’ initial surgery, by not ordering dye to be used in the CT scan, by not performing a biopsy, or by not removing the lymph node after its cancerous nature became clear. If the jury decided that Reiss was injured because of mistakes made by other doctors and that Dr. Bracey did not contribute to that injury, it was entitled to find in Dr. Bracey’s favor.
The jury heard evidence about the decisions made by other doctors. The question before the court was whether the jury could find that those doctors were negligent in the absence of expert evidence.
Dr. Bracey made the technical argument that he never asserted the negligence of other doctors as an affirmative defense and therefore had no burden to prove their negligence. Rather, he denied liability and raised non-party negligence as an alternative theory of causation that, in his view, he didn’t need to prove.
The court of appeals concluded that the label attached to the defense is not dispositive. The court held that “expert testimony is required to establish non-party medical negligence without regard to whether a defendant is raising the non-party medical negligence as an affirmative defense or in connection with a general denial of liability.”
That holding is consistent with the general rule that juries require the assistance of expert witnesses to determine whether a physician breached an applicable standard of care. Dr. Bracey’s “alternative theory of causation” could not be advanced without evidence. Expert evidence is required to persuade a jury that medical negligence occurred. Without that evidence, a jury would have no basis for concluding that Dr. Bracey’s “alternative theory” was grounded in fact.
Whether or not Dr. Bracey had the burden of persuasion, he had the burden of producing admissible evidence that non-party doctors were negligent. That burden of production could only be met by introducing expert opinions. Since Dr. Bracey failed to offer expert opinions, it was error for the trial court to submit a jury form that asked whether non-party physicians were negligent. That question sent the message that non-party negligence could relieve Dr. Bracey of liability. In the absence of expert evidence that the other doctors were negligent, the jury should not have considered their conduct in determining whether Dr. Bracey was liable. The court therefore remanded the case for a new trial.