August 27, 2013

162017_132140396847214_292624_nOn August 22, 2013, Maryland’s highest appellate court, the Court of Appeals of Maryland (“Court of Appeals”), reinstated  a Maryland medical malpractice verdict in the amount of $2,874.398 that the intermediate appellate court (the Court of Special Appeals of Maryland) had vacated earlier.

In reinstating the plaintiff’s win, the Court of Appeals held that when a defendant physician testifies as a fact witness, the defense must limit the witness accreditation and substantive testimony to that of a fact witness. In this case, the defendant physician’s witness accreditation exceeded the reasonable limits for accreditation of a fact witness because it inquired extensively into his professional accomplishments. Furthermore, the defendant physician’s attempt to testify regarding a CT scan would have gone beyond the legitimate testimony of a fact witness because the defendant had no personal knowledge of the scan.

The Underlying Facts

The medical malpractice plaintiff had gone to the medical malpractice defendant, who was a vascular surgeon, in May 2007, complaining of pain in her thighs and buttocks that turned out to be due to a blocked aorta. The plaintiff was scheduled for aortobifemoral bypass surgery on July 16, 2007 that was intended to remove the buildup of plaque in the aorta and thereby restore appropriate blood flow to her pelvis and lower extremities.

Aortobifemoral bypass surgery involves the surgeon cutting the abdominal aorta below the renal arteries and then using a graft to connect the aorta to the femoral artery. The surgeon must determine the proper size of the graft by visually inspecting the aorta during surgery. In this case, the defendant chose to use a 16 x 8 mm graft that did not hold. The defendant converted the aortobifemoral bypass surgery into an axillobifemoral bypass, which involves a bypass at the axillary artery that is then reconnected with the use of a graft to the femoral artery. The defendant was able to complete the axillobifemoral bypass with the use of an 8 mm graft but by then the plaintiff had lost so much blood that she became permanently paralyzed from the waist down and suffered temporary damage to her kidneys, liver, heart, lungs, and spinal cord.

The plaintiff subsequently filed her Maryland medical malpractice lawsuit in which she alleged that the defendant mismatched the size of her aorta and the size of the graft used in the initial attempt at completing the aortobifemoral bypass – the plaintiff alleged that her aorta was 7-8 mm and therefore the 16 x 8 mm graft was much too large. The defendant contended that the plaintiff’s aorta was 14 mm and therefore the 16 x 8 mm graft was proper.

The jury evidently agreed with the plaintiff and disagreed with the defendant, awarding the plaintiff $224,398 for past medical expenses, $2,000,000 for future medical expenses, and $1,333,000 for pain and suffering (which was reduced to $650,000, the amount of the Maryland cap on noneconomic damages in medical malpractice cases that was in effect at that time).

The Appeal

On appeal, the Court of Appeals considered two issues: Did the trial judge abuse his discretion in finding that evidence of the defendant’s lack of board certification was admissible as a result of the defendant’s extensive testimony regarding his accomplishments, credentials, and qualifications? Did the trial judge abuse his discretion in prohibiting the defendant from testifying about a CT scan that the defendant had never used in his treatment of the plaintiff?

As to the first issue, the Court of Appeals stated that in a medical malpractice case, there is a legal distinction between a defendant physician who testifies based solely on what he did and what he observed in his actual treatment of the patient (a fact witness), and a physician who gives opinions based upon facts and/or materials furnished to him during the course of litigation (an expert witness). As a fact witness only, the defendant’s substantive testimony is limited to an explanation of what he did or observed, and why, concerning the alleged malpractice; furthermore, the proper scope of his witness accreditation is limited, which will affect the admissibility of evidence offered by the plaintiff that the defendant is not board-certified in vascular surgery.

However, in the present case, the defendant’s lawyer was found to have “opened the door” as to the defendant not being board-certified in vascular surgery by the defendant’s attorney attempting to paint a picture of the defendant as a model of excellence in the field of vascular surgery and as a great humanitarian, thereby exceeding the basic background information appropriate for accreditation of a fact witness and placing at issue the question of his excellence in the field of vascular surgery. As such, it was appropriate for the plaintiff’s attorney to be allowed to inquire about the defendant’s lack of board certification.

As to the second issue, the Court of Appeals stated that the trial judge properly precluded the defendant from testifying as to the excluded chest CT scan that showed the size of the plaintiff’s aorta because the defendant was testifying as a factual witness only and as such, he must have personal knowledge of the matters to which he would testify. Inasmuch as the record showed the complete lack of any indication that the defendant used or relied on the CT scan in his treatment of the plaintiff, he lacked the necessary personal knowledge upon which to testify with regard to the CT scan and the CT scan was properly excluded during trial.

Source Victoria Little v. Roger Schneider, No. 88.

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