New Maryland Case on Blaming a Non-Defendant

Defense lawyers in love blaming empty chairs.  A jury trial is about assigning blame and the easy out for the defense is to get the jury to blame another doctor who is not named at trial.  (This is also why plaintiffs’ lawyers get maligned over naming too many defendants — sometimes there is no choice.)

Usually, the doctor’s lawyer will not provide expert testimony to blame the doctor.  Normally,  the allegation is made indirectly with the hope that the jury blames a non-defendant doctor on their own.

This is a good strategy.  Jurors like reaching their own conclusions without getting beat over the head and most malpractice defense lawyers do not try to directly blame the empty chair for fear of running afoul of Maryland law.

new maryland appellate opinionIn Reiss v. American Radiology, the defense lawyers had no such trepidation and directly blamed a doctor who was not named as a defendant without any support from any direct support from an expert.  After a defense verdict, the Maryland Court of Special Appeals held that medical malpractice defendants can only claim a defense of non-party medical negligence (i.e., blame another doctor) if there is adequate expert testimony to support it. Adequate expert testimony requires expert testimony confirming that the non-party doctor breached the standard of care. If there is no adequate expert testimony, it is reversible error and confusing to the jury to permit this issue on a verdict sheet.

Facts of the Case

The plaintiff had cancer in a kidney and in a nearby lymph node. His surgeon removed the cancerous kidney but determined that he could not safely remove the lymph node because it was too close to a major artery. Instead, the lymph node was treated with chemotherapy which appeared to be successful initially. Following the successful chemo, the plaintiff’s oncologist ordered periodic CT scans of the lymph node and the surrounding area to look for signs of cancer. Over the next two years, the defendant radiologists at American Radiology repeatedly interpreted the plaintiff’s CT scans as normal,  reporting no signs of cancer near the lymph node.

Eventually, a different radiologist interpreted one of the plaintiff’s CT scans and identified evidence of cancer. This interpretation prompted a biopsy that confirmed that the plaintiff’s lymph node was cancerous.

The plaintiff sued American Radiology and the radiologists for negligently misinterpreting his CT scans as normal. The plaintiff also sued the surgeon who originally determined that his lymph node could not be surgically removed. The plaintiff alleged that this decision was negligent and that the surgeon should have removed the lymph node when he removed the kidney. Before trial, the plaintiff dismissed his claims against the surgeon and proceeded with his case against the radiologists only.

At trial, the radiologist’s defense lawyers (Natalie Magdeburger and Kimberly Longford) pointed the finger of blame at the surgeon who originally determined that the plaintiff’s cancerous lymph node could not be surgically removed. The defense lawyers argued that the surgeon should have removed the plaintiff’s lymph node and that this negligent decision was a superseding cause of the plaintiff’s injuries.

To hammer this point home, the defense lawyers got the court to incorporate the defense into the verdict sheet given to the jury. Specifically, a question on the verdict sheet asked the jury whether the non-party surgeon was negligent and whether that negligence caused the plaintiff’s injuries.

The jury reached two key conclusions: (1) the non-party surgeon WAS negligent in failing to remove the lymph node; and (2) the defendant radiologists were NOT negligent in interpreting the CT scans as normal. (They really did not need to answer the non-party surgeon question because the jury sheet instructions would have had them stop after finding the defendants not negligent.  But they proceeded to blame the non-party doctor, showing clearly the foundation of their verdict.)

So we know that the jury agreed with the radiologist’s finger pointing defense and concluded that the surgeon was at-fault and not the radiologists. The plaintiff appealed arguing that the jury should not have been instructed on this defense because the defendants did not present expert testimony to support it.

Analysis on Appeal

The issue the Maryland Court of Special Appeals was asked to consider in this case was whether the non-party medical negligence defense was properly submitted to the jury. The court began its analysis by discussing 2 recent Maryland cases in which the validity of the non-party negligence defense (i.e., the “empty chair defense”) was recognized in medical malpractice claims.

In Martinez ex rel. Fielding v. Johns Hopkins Hosp, the COSA held that a defendant hospital should have been allowed to present a non-party negligence defense in a birth injury case. Specifically, the hospital should have been permitted to present evidence showing that a non-party midwife’s prior negligence was the sole cause of the alleged birth injury.

 At issue in Copsey v. Park, another big Maryland case on the empty chair defense, was whether the last remaining defendant in a malpractice case could mount a valid defense based on blaming former co-defendants who had previously settled prior to trial. The Court of Appeals ruled that the defendant doctor was allowed to present evidence of negligence by subsequent treating doctors who were dismissed from the case.

The decisions in Martinez and Copsey clearly establish that non-party negligence defenses are valid in medical malpractice cases. The question presented in the instant case was not whether the non-party negligence defense was valid, but whether the defendants presented enough evidence to properly establish it at trial. In considering that issue, the Court first noted that a defense or issue should not be submitted to a jury “unless there is some admissible evidence to support it.” Riess (citing Barbosa v. Osbourne.

The Court explained that in this case, the defendant radiologists needed to present evidence showing that the non-party surgeon’s decision not to remove the plaintiff’s lymph node was medically negligent. This required expert testimony showing that the surgeon breached the standard of care in determining that the plaintiff’s lymph node was inoperable.

The Court ultimately held that the defendant radiologists failed to present this type of evidence and therefore failed to present a triable issue of fact as to the alleged negligence of the non-party surgeon. The defendant radiologists cited to expert testimony that was “arguably critical” of the surgeon’s decision, but no expert testified (to a reasonable degree of probability) that the surgeon breached the standard of care by not removing the lymph node.

Without this necessary expert testimony, the jury had no valid basis to conclude that the surgeon was negligent. Therefore, the Court held that it was reversible error for the trial court to instruct the jury on this non-party negligence defense and, accordingly, the plaintiff gets a new trial.

Notes and Comments

The decision in Reiss establishes some reasonable and much-needed ground rules for malpractice defendants seeking to use the empty chair defense in a medical negligence case. If the courts are going to allow medical malpractice defendants free rein to use the non-party negligence defense, they should at least have to meet some minimum burden of proof. Requiring defendants to present adequate expert testimony to support an empty chair defense does exactly that.