New Maryland Medical Malpractice Lawyers Opinion

The Maryland Court of Appeals reached a decision in University of Maryland Medical System v. Waldt, a case that is reverberating among medical malpractice lawyers in Maryland. (Note: In yet another incredible turn, the Maryland high court has – temporarily at least – withdrawn this opinion.) Yet the back story is better than the case. Two of the most prolific lawyers in Maryland’s history tried this case: Steve Snyder and Billy Murphy. As discussed below, Steve Snyder said he would retire if he lost this case on appeal. (I think he will get a takey-backsie on this one.) In the trial, the Baltimore City judge that tried the case had to give this admonition:

“This is it. Last warning to everybody,” she said. “No finger-pointing, children. No stomping your feet. No screaming. No yelling. No dancing around. No calling names. No throwing sticks and stones. No putting gum in each other’s hair.”

So it got out of control. (More on that later.) But this opinion is important; the underlying trial was an epic and personal war, and Maryland malpractice law is much more clear or an abyss of confusion, depending upon who you ask. While you take a breath, let’s talk about the facts.

This is the tragic case of a Mount Airy woman who was paralyzed on her left side as the result of an operation to treat a brain aneurysm. Plaintiff underwent a procedure at the University of Maryland Hospital to treat an aneurysm which caused bleeding that lead to her injuries, according to the evidence offered by Plaintiff’s attorney at trial.

At trial, Plaintiff called an expert to offer opinions both on the standard of care and on informed consent. The trial judge, Baltimore City Circuit Court Judge Lynn Stewart, excluded the expert’s testimony because the expert devoted over 20% of his professional activities to activities that directly involve testimony in personal injury claims. (Maryland law requires malpractice experts to spend less than 20% of their time in medical malpractice or other personal injury cases.) Because this was the Plaintiff’s only expert, the court directed judgment in favor of the Defendants.

The expert was not just some random guy. He held positions at Massachusetts General Hospital, Harvard, and John Hopkins. The doctor was also not caught up in the medical malpractice testifying racket: he made less than $50,000 a year. He had not, however, seen patients since 2001 and was no longer licensed to practice medicine in the United States. Interestingly, he said he had a medical license in France, but only to write prescriptions for family members. His professional activities included conducting literature peer reviews, reading journals, observing procedures, and discussing patients with former colleagues. His testimony at trial:

Murphy: Now, you testified that you no longer practice medicine but you handle cases for plaintiffs’ lawyers who are suing others for malpractice?

Expert: Yes.

Murphy: That’s all you basically do now except for read journals and go to an occasional meeting, right?

Expert: Yes.

Murphy: So, you are a professional witness, sir, aren’t you?

Slutkin: Objection, your honor.

Judge: Overruled.

Murphy: You are a professional witness, aren’t you, sir?

Expert: I guess I am.

The Maryland Court of Special Appeals disagreed that the expert should be disqualified, finding that the evidence showed that the expert did not violate the 20% rule. The Maryland Court of Appeals reversed and affirmed the judgment.

(Brief intermission: technically, it is the Court of Special Appeals of Maryland and the Court of Appeals of Maryland. But I think it sounds funny.)
The case boiled down to how do you define “professional activities” under Maryland law, a term the Court of Appeals found was ambiguous. The court jumped into the Serbonian Bog of interpreting legislative history but found nothing particularly fruitful. So it ended up where the Court of Special Appeals did with Webster’s Dictionary. The CSA used the dictionary definition of professional: “of, relating to, or characteristic of a profession” which led to the conclusion that 8% of the Plaintiff’s expert activities were personal injury-related. The Court of Appeals, disagreed, using a series of definitions:

A profession carries with it the concept of a business or vocation, and an individual who engages in a profession has some responsibility and obligation or purpose within his or her field. Activities are “pursuit[s] in which a person is active,” and to be “active” is to be “characterized by action rather than by contemplation or speculation.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 13. We hold that, for an individual’s activities to qualify as “professional activity,” the activity must contribute to or advance the profession to which the individual belongs or involve the individual’s active participation in that profession. In classifying “professional activities,” a distinction must be drawn between the hours spent furthering one’s profession versus the hours spent on personal or leisurely pursuits.

Under this math, the court found that the expert spends 20.66% of his time involving personal injury cases.

Judge Raker, joined by Chief Judge Bell and Judge Eldridge, dissented that this holding was not supported by principles of statutory construction or case law and that this new law was more confusing than clarifying to trial judges (a concern expressed by many Maryland malpractice lawyers after this opinion was issued). Judge Raker wrote:

The majority’s interpretation of “professional activities” is not supported by ordinary principles of statutory construction or by case law in other jurisdictions that have considered similar issues. The majority’s construction is a bald interpretation, with no support whatsoever. The majority’s definition of professional activities confuses, rather than clarifies, the meaning of “professional activities.” No guidelines are provided to establish what qualifies as “contributing to or advancing” a profession and, by itself, the phrase is impossible to understand. Many professionals do not seem to contribute to or advance the profession to which they belong. For example, tax professionals routinely concentrate on applying settled principles of taxation and family physicians apply settled principles of medicine to diagnose a common cold. Under the majority’s theory, does the application of settled principles “advance” a profession or maintain the status quo? The majority’s definition also does not explain at what point in time courts should assess whether a professional activity has “contributed to or advanced” a profession. Since this phrase is inherently results oriented, determining whether an activity contributes to or advances a profession can often only be made after enough time has passed to assess the impact of the activity. If an activity, originally characterized by a court of law as not contributing to or advancing a profession, is later found to do so, would the court be required to review its initial determination? Lower courts are left in the dark after reading the majority’s opinion.

To me, the keywords here are “results-oriented.” This is what we will get with this decision. With no direction, trial judges will choose which way they want to go on how they define professional activities. This means you are going to have a much more hard time predicting which experts will testify for them and which experts they will strike. Result: a lot of appellate opinions and reversals that could have been avoided with a clearer law.

There is also spirited debate about the extent to which this expert could testify about the informed consent claim. In Maryland, medical malpractice lawyers are not required to procure expert medical testimony to establish the scope or the “breach of the doctor’s duty,” but medical expert testimony is required to establish the (1) nature of the risks inherent in a particular procedure or treatment, (2) probabilities of therapeutic success, (3) frequency of the occurrence of particular risks, (4) nature of alternatives to treatment and (5) whether or not disclosure would be detrimental to a patient. In this case and in many malpractice cases, some of these facts could have been brought out through the Defendant doctor.

Both Maryland appellate courts found that the expert could not testify on informed consent because the issue was not preserved for appeal; even if it had been, the expert’s limited experience with similar procedures and his failure to disclose any specific scientific or factual underpinnings for any knowledge about the material risks of the device used in the procedure did not quality him to offer expert opinions. But there was a spirited dissent on this. I support Judge Raker’s dissent, which says that since she would have found that the expert could testify under Maryland law, the case should be remanded and the informed consent issue could be explored on remand.

But the dissent on this issue argued the expert would testify that the Defendant doctor failed to inform Plaintiff that the stent at issue had only been approved by the FDA in the limited instance when the patient’s aneurysm could not be treated by an alternative procedure. Knowledge concerning the limited extent of FDA approval of the stent should, according to the dissent, be material to the decision made by the patient.

Much of the background of this case I found in the Maryland Daily Record blog, which discusses an article in the Baltimore Examiner for this trial. I never saw the article because I took the Baltimore Examiner straight to the recycling bin when it was delivered. You probably did, too, if you are a Maryland resident. But we may have been wrong. This is a great article.

Here are my highlights.