In 2013, Ms. Sabrina Kiebler became pregnant and had an uneventful pregnancy for the first approximately 29 weeks of the pregnancy. On December 23, 2013, Ms. Kiebler presented at Bayview Medical Cenetr (“Bayview”), complaining of decreased, but not absent, fetal movement, which had been ongoing for two days. A fetal biophysical profile (“BPP”), a non-invasive test using ultrasound to assess various components of fetal well-being, was performed, and a score of 8/10 (in the “normal” range) was recorded. A fetal heart monitor was attached to Ms. Kiebler, and the electronic fetal monitoring (“EFM”) tracings that were recorded at that time were classified as Category I, which is generally regarded as “normal.” At that time, Ms. Kiebler was discharged from the hospital.
Two days later, on Christmas Day, she returned to the hospital, complaining of two further days of decreased fetal movement. Another BPP was done, resulting in a diminished score of 6/10. Moreover, it was determined that Ms. Kiebler had elevated liver enzymes and elevated blood pressure, and she was diagnosed as having severe preeclampsia, a complication of pregnancy characterized by hypertension, edema, and/or proteinuria. After it was determined that delivery was not imminent, Ms. Kiebler was admitted to the hospital for further testing and possible preterm delivery.
Bayview doctors prescribed her betamethasone, a steroid given to accelerate fetal lung maturity and mitigate neonatal respiratory complications, that is, in anticipation of an impending induced delivery. Doctors also administered magnesium sulfate and Cervidil®, the former to provide neuroprotection and seizure prophylaxis and the latter to start cervical ripening in an attempt to induce labor. Fetal heart monitoring was performed on a continual basis beginning shortly after Ms. Kiebler was admitted to Bayview. From the time Ms. Kiebler was admitted on December 25, 2013, until 3:30 a.m. the following morning, the EFM waveforms were Category I, similar to those recorded two days earlier. Beginning at 3:30 a.m., the EFM tracings were Category II, which are indeterminate. After 7:00 a.m. (according to plaintiffs’ expert testimony) or 8:00 a.m. (according to Bayview’s expert testimony), the decelerations became recurrent, potentially an indication of fetal distress.
Because of the change in the EFM tracings, at 8:17 a.m., Douglas Michael Bourque, M.D., the attending physician, obtained Ms. Kiebler’s consent to perform an emergency Cesarean delivery. The parties’ experts disputed whether a Category III tracing was detected near the time of delivery.
P. was delivered by Cesarean section at 8:50 a.m. His Apgar scores were 2 and 6 at one and five minutes after delivery, respectively. He was “initially non[-]vigorous, with no respiratory effort,” and his fetal heart rate was less than 100 beats per minute. Umbilical cord blood gas sampling disclosed that P. was suffering from acidemia, a pathological condition resulting from excessively low blood pH. On the other hand, P. had no seizures, no sign of intracranial hemorrhage, and no indication of organ dysfunction, and moreover, ultrasound images of his head were normal. Based on these observations, as well as the rapid recovery suggested by the positive change in Apgar score between one and five minutes, treating physicians elected not to perform brain scans or MRI imaging.
P. was admitted to the neonatal intensive care unit, where it was noted that he had respiratory distress, metabolic acidosis, and poor muscle tone. Bayview doctors “identified no evidence” of hypoxic ischemic encephalopathy (“HIE”) or “other brain injury” at the time of birth, a conclusion disputed by the plaintiffs’ experts. Ultimately, at two years of age, P. was diagnosed with spastic diplegic cerebral palsy.
In March 2021, the plaintiffs filed a two-count Maryland birth injury medical malpractice complaint in the Circuit Court for Baltimore City, alleging medical negligence and failure to obtain informed consent. The gravamen of their complaint was that Bayview’s physicians breached the standard of care in failing to deliver P. by emergency Cesarean section by midnight rather than 8:17 a.m. on December 26, 2013, and that, had they done so, he would not have suffered his birth injury.
The circuit court held a two-day hearing on Bayview’s Daubert motion, focusing primarily on the plaintiffs’ theory of causation and Bayview’s challenge to it. Three witnesses testified: Dr. Cardwell and Dr. McDowell for the plaintiffs, and Dr. Clark for Bayview. Following the conclusion of the hearing, the circuit court held the matter sub curia, and
four weeks later, it issued a memorandum opinion, excluding the plaintiffs’ causation experts. The plaintiffs appealed.
The Appellate Court of Maryland stated in its unpublished opinion filed on September 24, 2024, ” We “review a trial court’s decision concerning the admissibility of expert testimony under Maryland Rule 5-702 for abuse of discretion.””
““[I]n conducting its analysis under [Md.] Rule 5-702, a trial court should consider a number of factors in determining whether the proffered expert testimony is sufficiently reliable to be provided to the trier of fact” … Those factors include:
(1) whether a theory or technique can be (and has been) tested;
(2) whether a theory or technique has been subjected to peer review and publication;
(3) whether a particular scientific technique has a known or potential rate of error;
(4) the existence and maintenance of standards and controls; . . .
(5) whether a theory or technique is generally accepted[;]
(6) whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying;
(7) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
(8) whether the expert has adequately accounted for obvious alternative explanations;
(9) whether the expert is being as careful as he or she would be in his or her regular professional work outside his or her paid litigation consulting; and
(10) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.
The Appellate Court of Maryland held in its Opinion: “We find neither error nor abuse of discretion in the circuit court’s application of these factors. Factors (1), (2), (5), (7), and (10) all weigh against Dr. McDowell’s causation theory—that such factors as fetal heart tracings, acidemia, nucleated red blood cell count, and neuroimaging, none of which, individually, is predictive of neurological injury, may nonetheless, when considered cumulatively, support a causal link to that injury. Factor (8) also weighs against Dr. McDowell’s causation theory because, as the medical literature submitted in this case demonstrates and as appellants’ experts acknowledge, P.’s risk of cerebral palsy attributable to his prematurity alone was approximately forty to fifty times greater than that of a baby born at full term. As for appellants’ experts’ belated assertion that a “sentinel event” occurred prior to delivery, we agree with the circuit court that this assertion appears to have been formed “expressly for the purposes of testifying” in this case, Rochkind, 471 Md. at 35 (cleaned up), and therefore, factor (6) also weighs against appellants’ causation experts’ opinions.”
Source Kiebler v. Johns Hopkins Bayview Medical Center, Inc., No. 2173 September Term, 2022.
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