Maryland Appellate Court Discusses Loss Of Chance Doctrine, Which Maryland Rejects, And Proximate Cause In Reinstating Medical Malpractice Verdict For Plaintiffs

The Court of Special Appeals of Maryland (“Maryland Appellate Court”), Maryland’s intermediate appellate court, reinstated a Maryland medical malpractice jury’s verdict in favor of the plaintiffs in its published opinion filed on November 23, 2020.

The Underlying Facts

In November 2011, Ms. Burton underwent a routine breast cancer examination at Advanced Radiology. The results of that examination indicated she had no abnormalities. On May 11, 2012, Ms. Burton found a lump in her right breast and returned to Advanced Radiology, where a mammogram and an ultrasound examination were performed. Dr. Minkin, a radiologist, prepared a report that described the lump as both “normal glandular tissue” and that it was “benign.”

On August 9, 2013, Ms. Burton returned to Advanced Radiology for a follow-up examination. A mammogram and ultrasound showed abnormalities that were “highly suspicious for extensive malignancy in the right breast centrally and in the lower outer quadrant [of the right breast] with malignant adenopathy.” The following month, Ms. Burton underwent a biopsy that revealed that she did, in fact, have Stage III, “triple negative” breast cancer, in the abnormal areas identified from the previous month’s exams. Ms. Burton immediately began chemotherapy and radiation treatments, which she continued for more than two years. Unfortunately, the cancer had spread to her neck, liver, and her lungs. Because the cancer had become pervasive, Ms. Burton stopped receiving chemical and radiation treatments. She died on February 17, 2016 at the age of 56.

The Burtons sued Dr. Minkin and Advanced Radiology (“healthcare providers”) alleging four theories of liability: survival action – negligence; survival action – informed consent; survival action – loss of consortium; and, for wrongful death under Maryland Code Annotated, (1974, 2013 Repl. Vol.) Courts and Judicial Proceedings Article, §§ 3-901 through 3-904.

The Maryland medical malpractice wrongful death jury found in favor of the Burtons and awarded $282,529.00 in non-economic damages to the Estate of Lana Burton, $300,000.00 to Charles Burton, Ms. Burton’s husband, and $2 million in non-economic damages to her daughter, Larae Burton McClurkin. The jury declined to award damages to Ms. Burton’s father, Willie Barton, or the estate of her mother, Melba Barton.

After the verdict, the healthcare providers filed a motion for judgment notwithstanding the verdict. The trial judge granted the motion, finding that the plaintiffs’ expert, Dr. Pushkas, who testified, in part, that even if it was presumed that Dr. Minkin was negligent, patients like Ms. Burton had a 66% chance of survival after diagnosis, failed to establish that Dr. Minkin’s alleged negligence was a proximate cause of Ms. Burton’s death.

Maryland Appellate Court Opinion

The Maryland Appellate Court stated that the trial judge “should have focused on whether the totality of the evidence was sufficient for the jury to find that Dr. Minkin’s supposed failure to diagnose Ms. Burton’s cancer was a proximate cause of her death,” explaining that ““[p]roximate cause,” means that a plaintiff must prove with reasonable certainty, or that it is “more likely than not,” that a defendant’s negligence was a cause the plaintiff’s injury,” i.e., “a greater than 50% chance Dr. Minkin’s negligence caused Ms. Burton’s death.”

The healthcare providers argued that if Ms. Burton had an 80% chance of survival when Dr. Minkin allegedly misdiagnosed her in 2012, but still had a 66% chance of survival even after she was diagnosed in 2013, then the Burtons have not proven it was more likely than not that Dr. Minkin’s negligence led to Ms. Burton’s death. The Maryland Appellate Court responded, “The totality of Dr. Pushkas’ testimony provides more than merely conjecture or speculation that had Dr. Minkin performed a biopsy of the lump in Ms. Burton’s right breast in May 2012, it would have revealed that she had cancer. The biopsy would have also revealed that she was a triple-negative patient, and thus the usual course of treatment — chemotherapy, radiation, and hormonal drugs — would not be as effective for her, especially if the cancer spread to other parts of her body, which it did. It may be logically inferred from that testimony that had the cancer been discovered, Ms. Burton may have survived.”

The Maryland Appellate Court held: “as we must assume the truth of all the Burtons’ evidence and any inferences that might be fairly drawn from it in the light most favorable to them, we conclude that the jury could have reasonably found that if Dr. Minkin had caught Ms. Burton’s cancer in May 2012, she had an 80% probability of not dying from Stage I cancer. Because he did not intervene early, as he should have, the cancer developed to Stage III, spread to other parts of Ms. Burton’s body, and killed her. Dr. Pushkas’ testimony and the Burton’s other evidence, when viewed with the healthcare providers’ opposing evidence, produced the “slight” evidence needed to send the question of the healthcare providers’ alleged negligence to the jury … Consequently, we reverse the circuit court’s grant of judgment notwithstanding the verdict and reinstate the jury’s award. The jury was tasked with resolving the conflicting expert opinions. It did so here in favor of the Burtons.”

Source Willie James Barton, Jr. et al. v. Advanced Radiology P.A., et al., No. 1336, September Term 2019.

If you or a loved one may have been injured (or worse) 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.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in Maryland who may assist you.

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This entry was posted on Tuesday, November 24th, 2020 at 5:28 am. Both comments and pings are currently closed.

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