October 3, 2020

The Court of Special Appeals of Maryland (“Maryland Appellate Court”), in its unreported opinion dated October 2, 2020, stated that the issue before it was whether the Maryland medical malpractice plaintiff’s expert witness, Dr. Sanford Davne, was in compliance with the so-called “twenty-percent rule,” which generally precludes testimony in medical malpractice cases by experts who spend more than twenty percent of their time acting as expert witnesses. (As of October 1, 2019, the statute has been amended to increase the threshold from 20% to 25% and to clarify that the relevant period for calculation is the 12 months immediately before the claim is filed. Those changes are not at issue in this case.)

Dr. Davne, an orthopedic surgeon, testified that the surgery performed by the defendant, Dr. Falik, a neurosurgeon, violated the applicable standard of care by failing to recognize that the plaintiff’s husband was a high risk patient and for not opting for less invasive alternatives to surgery. The plaintiff’s husband died from complications following the back surgery.

Twenty-Percent Rule

CJ §3-2A-04(b)(4) stated at the time: “A health care provider who attests in a certificate of a qualified expert or who testifies in relation to a proceeding before an arbitration panel or a court concerning compliance with or departure from standards of care may not have devoted more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims.”

During the Maryland medical malpractice trial, the trial court decided that despite Dr. Davne’s failure to produce relevant documents, he was nonetheless qualified to testify. The jury returned its verdict for the plaintiff in the amount of $911,227.02. After trial, Dr. Falik filed a written memorandum renewing his motions for judgment. The trial court reconsidered and found that it had erred in allowing Dr. Davne to testify and therefore granted a judgment notwithstanding the verdict. The plaintiff appealed.

Maryland Appellate Court Opinion

The Court of Appeals of Maryland (Maryland’s highest appellate court) has stated: “[T]o discern whether an expert is qualified to testify under this requirement, we must perform a mathematical equation: we must identify those activities that “directly involve testimony in personal injury claims” (the numerator) and then divide it by those activities that comprise the body of “professional activities” in general (the denominator).”

The Maryland Appellate Court stated in the present case: “Although we don’t require an exhaustive accounting of an expert’s timesheets, we need sufficient information from which to make an accurate calculation … Here, [the plaintiff] failed to satisfy both her burden of production and her burden of persuasion … In sum, there was insufficient information for the trial court to determine either a numerator or denominator under the twenty percent rule calculation outlined in Waldt. As a result, the trial court was left without the ability to corroborate the assertion that Dr. Davne satisfied the twenty percent rule. In such a circumstance, we hold that the trial court did not abuse its discretion in finding that [the plaintiff] failed to satisfy her burden of production.”

The Maryland Appellate Court stated, “when the trial court learned or realized it had erred in admitting Dr. Davne as an expert witness, it was not required to compound the error. Instead, it allowed the jury the opportunity to decide the case and then corrected its own error … Once the trial court determined that Dr. Davne was barred by the twenty percent rule, [the plaintiff] had no evidence to support the notion that Dr. Falik violated the appropriate standard of care. As such, the only appropriate remedy was to grant the judgment notwithstanding the verdict.”

Source Brown v. Falik & Karim, P.A., No. 3377 September Term, 2018.

If you or a loved one may have been injured as a result of medical malpractice in Maryland, you should promptly find a Maryland medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you or your loved one in a Maryland medical malpractice case, if appropriate.

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