News: An appellate court vacated a jury verdict of $911,000 in a medical malpractice suit. The plaintiff alleged a physician botched the patient’s back surgery, causing the patient’s death. The appellate court ruled the plaintiff did not prove her expert complied with the state court’s rule barring testimony from medical experts who allocate more than 20% of their time serving as experts.

The appellate court ruled the plaintiff failed to present records establishing how much of the expert’s professional activities were dedicated to serving as an expert. Once the court excluded the expert’s testimony, the patient had no evidence supporting a claim against the physician.

Background: An adult male patient underwent back surgery to treat an underlying condition. Complications caused directly by the surgery led to the patient’s death, and the patient’s wife filed a medical malpractice action. The plaintiff alleged the physicians breached their duty of care by failing to identify the patient as high-risk when determining the appropriate course of treatment. Furthermore, the plaintiff argued that if the physicians considered the patient’s physical condition, a less invasive alternative would have been chosen. Such less invasive alternatives were readily available, but were not discussed with the patient. However, the physicians proceeded in performing a highly invasive back surgery, which caused the patient’s death.

During the trial, the plaintiff presented expert witness testimony from an orthopedic surgeon. The defendants objected, claiming the expert was not qualified to testify based on a state rule precluding experts who dedicate more than 20% of their time serving as experts. The trial court permitted the expert testimony, a necessary element of the plaintiff’s case. The plaintiff was awarded $911,227.02.

The defendants raised a procedural challenge, again arguing the plaintiff’s expert should have been disqualified for failing to provide sufficient evidence concerning the 20% activity rule. Although the trial court initially permitted the testimony, it subsequently acknowledged its error and granted the defendants’ challenge, entering judgment for the defendants notwithstanding the adverse verdict.

The plaintiff appealed the trial court’s decision, arguing the trial court’s initial determination was correct and the trial court exceeded its discretion in subsequently disqualifying the expert. Regarding satisfying her burden of production, the plaintiff alleged the trial court erroneously granted the defendant physicians’ motion to compel the expert to produce his financial records without a subpoena. However, the appellate court did not find this argument compelling because the records were identified in the deposition notice for the expert.Also, it is the burden of the party who proffers the expert to produce sufficient financial records for the court to determine whether the expert meets the requirements of the 20% rule.

Accordingly, the appellate court determined the trial court did not abuse its discretion because based on the expert’s own testimony, at least 70% of his income was derived from serving as an expert witness in medical malpractice trials. The plaintiff failed to satisfy her burden and to produce evidence showing the expert complied with the state’s rule. The appellate court upheld the trial court’s decision and affirmed the judgment for the physicians.

What this means to you: This case provides another example of how trial strategy and preparation is essential to the positive outcome of a case, with particular focus on the selection and retention of expert witnesses. Expert witnesses often can make or break a case, and that is true for either party in a medical malpractice action. If a plaintiff presents a credible, unchallenged expert the jury believes, it may be difficult for a defendant care provider to overcome such compelling expert testimony. Fortunately for defendant care providers, there are many ways to challenge an opposing party’s proffered expert witness, whether such a challenge goes to if the expert can opine at all in the matter or if the challenge undermines the expert’s credibility and findings if permitted to opine.

In this case, the particular challenge went to the heart of the expert’s ability to testify: This particular state uses a bright-line 20% rule precluding individuals who devote more than 20% of their professional activities to those directly involving testimony in personal injury claims. (Note that such rules vary by state, so it always is important to consult with well-informed local counsel on such matters.) According to the court, the rule is straightforward and mathematical, identifying the offered expert’s activities and calculating those pertaining to personal injury litigation compared to those that do not; for example, those pertaining to providing direct medical services or otherwise. Courts applying the rule look to the activities and the value of the activities to determine the expert’s compliance. The burden of providing sufficient evidence for the court to conduct this analysis rests on the party who has retained and seeks to offer the expert’s testimony. If that party fails to provide evidence, then the expert is unable to testify.

During this litigation, the defendant care providers requested documents during discovery detailing the expert physician’s professional activities as well as a list of cases where he had served as an expert witness. However, the plaintiff and expert did not produce any responsive documents. Furthermore, while testifying, the expert claimed he did not keep a record of how much time he spent testifying, preparing to testify, and reviewing court records. When asked what percentage of his income was generated by court testimonies, the expert provided contradicting estimates ranging from 70% to 83%.

The defendant care providers rightly seized on this percentage, which vastly exceeds the 20% rule permitted for experts in the jurisdiction. Although the trial court initially incorrectly determined the issue, the care providers again properly persisted with their procedural challenge to the opposing expert. The court ruled the plaintiff did not met her burden and that based on the evidence presented, the testimony of her only expert witness should have been excluded based on the 20% rule violation. Because the plaintiff offered no other evidence establishing a breach of any duty by the care providers, once the expert’s testimony was excluded, the entire case had to be decided in favor of the defendant care providers. This dramatic reversal — a defense judgment after a jury verdict of nearly $1 million — confirms the importance of selecting the right expert, and the importance of challenging an opposing party’s improper expert.

Another quick but important lesson comes from the trial court’s actions in this case. Courts and judges are fallible, and make incorrect rulings on occasion, even against the weight of the evidence. But when such an incorrect ruling occurs, there are avenues for seeking reconsideration of the decision and politely informing the court of its mistake. The defendant care providers took such timely remedial action, even after an adverse verdict, and were successful in pointing out to the court its error — which the court then corrected and entered judgment in favor of the defendants. It is important to be persistent but polite in the face of an adverse ruling, and to recognize there are legal mechanisms and procedures for remedying incorrect rulings. In the end, the trial court and appellate court confirmed the plaintiff’s expert was properly excluded, and the care providers succeeded in defending against the action.

REFERENCE

  • Decided on Oct. 5, 2020, in the Court of Special Appeals of Maryland, Case Number 3377.