In its opinion filed on August 24, 2020, the Court of Appeals of Maryland (“Maryland Appellate Court”), Maryland’s highest appellate court, stated in a Maryland medical malpractice case: “we are asked to determine whether expert testimony is required to establish the medical negligence of a non-party physician in a medical malpractice case, where the defendant physicians (the “Defendants”) deny liability but assert, as an alternative causation theory, that the negligence of a non-party physician was a cause of the plaintiff’s injuries. In other words, where medical negligence is raised as part of a defense, may a jury consider whether a non-party physician was negligent and caused injury to the plaintiff without the expert testimony that is ordinarily required to establish medical negligence?”
The Maryland Appellate Court stated in the Maryland medical malpractice case it was deciding, “the erroneous submission on the verdict sheet of the issue of non-party medical negligence was prejudicial. The jurors’ confusion is obvious from the face of the aberrant verdict sheet—the jury awarded the Plaintiff $4.8 million in damages, even though they found that the Defendants were not negligent. They purported to award damages solely upon a factual determination that negligence by the non-party physicians caused the plaintiff’s injuries. The jury made this factual determination notwithstanding the fact that there was no admissible evidence that any of the non-party physicians breached the standard of care. The jurors could not have reasonably been expected to put that conclusion out of their minds when the circuit court directed them to return to their deliberations and complete a second verdict sheet.”
The Maryland Appellate Court held: “We hold that, to generate a defense of non-party medical negligence, expert testimony is required to establish a breach of the standard of care by the non-party and to establish causation. We have consistently held that, other than an occasional “obvious injury” case, expert testimony is required to establish medical negligence and causation, which is rooted in the notion that such complex issues are beyond the general knowledge and comprehension of layperson jurors. Accordingly, our requirement that medical negligence be established by expert testimony is tied to a party’s burden of producing admissible evidence sufficient to generate an issue for the jury. The need for expert testimony is not alleviated because a defendant asserts non-party medical negligence as an alternative causation theory in connection with a general denial of liability. In other words, the subject matter—medical negligence—does not become less complex or fall within a jury’s common knowledge simply because it is raised as a defense. We are not holding or requiring that the defendant must call his or her own expert to generate the issue to prove that the non-party physician was the negligent person. Assuming the discovery rules are satisfied, the defendant may elicit expert standard of care testimony through cross-examination of plaintiff’s expert, or may call an expert of his or her own, but the defendant is not required to call an expert of his or her own.”
“Moreover, to be legally sufficient, expert testimony in a medical malpractice action must be expressed to a reasonable degree of medical probability or certainty. In this case, the Defendants’ attempt to rely upon the general pronouncements of preferred treatment by the Plaintiff’s experts fell short of meeting the legal standard of establishing to a reasonable degree of medical probability that the non-party physicians’ conduct fell below the standard of care and caused the Plaintiff’s injury. With no expert testimony to establish medical negligence or causation, the circuit court erred in submitting the question of non-party medical negligence to the jury. We further hold that the error on the verdict sheet was prejudicial in this case.”
Source American Radiology Services, LLC, et al. v. Martin Reiss, No. 50, September Term, 2019.
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