In its unreported decision filed on January 11, 2016, the Court of Special Appeals of Maryland (“Maryland Appellate Court”) affirmed the trial court granting summary judgment to the Maryland medical malpractice defendants in a Maryland medical malpractice case shortly before the scheduled trial, finding that the plaintiffs’ failure to secure a medical expert to testify on their behalf during the trial was sufficient reason for the trial court to grant the defendants’ motion for summary judgment.
The Underlying Facts
The two surviving sons of a man who died allegedly as a result of medical negligence brought a Maryland medical malpractice case on their own behalf and on behalf of their father’s estate, alleging that the defendant physician and the defendant Maryland hospital had breached the standard of care by failing to perform immediate deep nasal suctioning of their father on the morning of May 13, 2009, when the defendant physician learned that the man’s oxygen saturation levels had lowered and that he had vomited earlier that day. The plaintiffs alleged that as a result, a massive aspiration of tube feeding went into his lungs; that the massive aspiration, and not a mucous plug, had caused his cardiorespiratory arrest; and, that the defendant physician’s negligence was the proximate cause of the man’s death ten months later, on March 17, 2010.
Following the two brothers’ repeated failures to comply with discovery requests and their apparent lack of cooperation with their attorneys in prosecuting their Maryland medical malpractice wrongful death case, their attorneys sent a letter to them on August 13, 2014, stating their intent to withdraw as counsel pursuant to Maryland Rule 2-132(b). The letter stated that “a conflict has arisen whereby we believe we cannot comply with the Maryland Lawyer’s Rules of Professional Conduct.” The letter further advised the brothers that they should arrange to have another attorney enter an appearance or they should notify the court that they intended to proceed pro se.
On September 5, 2014, the plaintiffs’ attorneys filed their motion to withdraw their appearance, asserting that “[m]ultiple circumstances have arisen within the past several weeks between the Plaintiffs and the undersigned counsel that warrant counsel withdrawing their representation of the Plaintiffs in this case.” No opposition was filed to the plaintiffs’ attorneys’ motion to withdraw their appearance.
The trial court granted the attorneys’ motion to withdraw their appearance as to one brother by an order dated October 3, 2014, and as to the other brother by an order dated October 7, 2014.
In the meantime, the brothers scheduled a de bene esse videotaped deposition of their sole medical expert to be used at trial in lieu of the expert’s live testimony. However, on October 14, 2014, the brothers notified defense counsel that the deposition was cancelled and had not been rescheduled.
On October 29, 2014, the defendants filed a motion for summary judgment on the ground that the plaintiffs could not present a prima facie case of medical negligence without expert testimony. On November 14, 2014, the brothers retained new counsel but neither they nor their new counsel filed an opposition to the defendants’ motion for summary judgment.
At a hearing on November 17, 2014, the trial court granted the defendants’ motion for summary judgment, stating, in part, “And so the Defendants of this case, were the case even to proceed to trial, would be granted a directed verdict, if you will, or judgment at the close of Plaintiffs’ case, because the Plaintiff [sic] has not produced expert testimony. This is a complex-medical-issue case, not just a medical-issue case, a complex-medical-issue case for which an expert would be required. And the Plaintiffs do not have one. And there is no — there is nothing we could put in front of the jury on causation or anything else without such an expert. . . .” The brothers appealed.
The Maryland Appellate Court stated that it is well established that the plaintiff in a complex medical malpractice action in Maryland must introduce expert testimony to prove a breach of the standard of care and causation. In the present case, the father had a history of complex medical problems prior to the alleged negligence, the propriety of the defendant physician’s treatment would not be within the knowledge of the average layperson, and the causal connection, if any, between the defendant physician’s acts or omissions and the father’s death over a year later also is not within such common knowledge. Expert witness testimony at trial on the standard of care and causation was essential to prove a prima facie case. Since the plaintiffs’ designated expert had to either appear in court and testify in person at trial, or his testimony had to be admitted by means of a de bene esse deposition, and neither was going to happen, the Maryland Appellate Court held that the plaintiffs would not be able to present a prima facie case and the trial court correctly granted summary judgment for the defendants.
Source Hannon, et al. v. Mercy Medical Center, Inc., et al.
If you suffered serious harm that may be due to medical malpractice in Maryland, you should promptly find a Maryland medical malpractice lawyer who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.
Turn to us when you don’t know where to turn.