Barton v. Advanced Radiology

Willie James Barton, Jr. et al. v. Advanced Radiology P.A., et al., No. 1336, September Term 2019. Opinion by Wells, J. CIVIL LAW – MEDICAL MALPRACTICE – “LOSS OF CHANCE” Appellants argue that the trial court inappropriately applied the theory of “loss of chance” when it granted appellees’ motion for judgment notwithstanding the verdict (JNOV) under Rule 2-532. CIVIL LAW – MEDICAL MALPRACTICE – “LOSS OF CHANCE” The Court of Special Appeals held that “loss of chance” remains unavailable as a tort cause of action in Maryland. CIVIL LAW – MEDICAL MALPRACTICE – “LOSS OF CHANCE” Although the trial court used terms like “chance of survival” and “loss of survival” when it granted appellees’ motion JNOV, the court properly considered whether appellants had proven that appellees’ negligence was a proximate cause of the decedent’s death, rather than engage in a “loss of chance” analysis.

CIVIL PROCEDURE – MOTION NOTWITHSTANDING THE VERDICT – APPELLELATE STANDARD A trial court’s decision to grant a motion JNOV shall be reviewed assuming the truth of all credible evidence on the issue, and all inferences that may be fairly deduced therefrom in the light most favorable to the nonmoving party. The amount of legally sufficient evidence needed to create a jury question is slight. Thus, if the nonmoving party offers competent evidence that rises above speculation, hypothesis, and conjecture, the JNOV should be denied. CIVIL PROCEDURE – MOTION NOTWITHSTANDING THE VERDICT – APPELLELATE STANDARD Appellees focused on one part of appellants’ causation expert’s testimony in persuading the trial court to grant JNOV in their favor.

On review, we take the whole of the expert’s testimony into account and all inferences that may be fairly deduced therefrom in the light most favorable to the appellants, the nonmoving party. We conclude that the testimony produced the “slight” evidence needed to permit the jury to resolve any conflicts in the evidence. Consequently, the trial court abused its discretion in granting appellees’ motion JNOV. Circuit Court for Baltimore County Case No. 03-C-18-002119 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1336 September Term, 2019 ______________________________________ WILLIE JAMES BARTON, JR., ET AL. v. ADVANCED RADIOLOGY P.A., ET AL. ______________________________________ Reed, Wells, Zarnoch, Robert A., (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Wells, J. ______________________________________ Filed: November 23, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-11-23 10:08-05:00 Suzanne C. Johnson, Clerk Appellants, Charles Burton, individually and as personal representative of his wife,1 Lana Burton’s estate, Larae Burton McClurkin, Willie Barton, and the Estate of Melba Barton appeal from an order in which the Circuit Court for Baltimore County granted appellees, Advanced Radiology, P.A. and Dr. Sanford Minkin, judgment notwithstanding the verdict. A jury found that appellees breached the standard of care in the treatment of Lana Burton and that this breach was a cause of her death. The jury awarded $282,529.00 in non-economic damages to the Estate of Lana Burton, $300,000.00 to her husband, Charles Burton “for the loss of financial support as well as the replacement value of the services that she furnished or probably would have furnished,” and $2 million in non- economic damages to Larae Burton McClurkin, her daughter. The trial court granted the appellees judgment notwithstanding the verdict, finding that the appellants failed to prove that Dr. Minkin’s breach of the standard of care was the proximate cause of Lana Burton’s death.

Specifically, the court found that appellants’ causation expert established that Ms. Burton had a greater than fifty percent probability of survival even if one assumed that Dr. Minkin failed to timely diagnose her with breast cancer. 1 In the Burtons’ Second Amended Complaint Charles Burton is listed as personal representative of the estate of his late wife, Lana Burton. On the caption of the Burtons’ brief, and elsewhere, Larae Burton McClurkin is listed as Ms. Burton’s personal representative. It was nowhere obvious when the personal representative of Ms. Burton’s estate had changed, if in fact it had. This appeal followed.

Appellants present three questions for our consideration, which we have condensed and rephrased2: I. Did the trial court err in granting the appellees’ motion for judgment notwithstanding the verdict?

II

Did the trial court abuse its discretion in limiting Dr. Pushkas’ testimony regarding his use of a website’s survivability algorithm? We hold that the circuit court erroneously found that appellants failed to show appellees’ negligence was a proximate cause of Ms. Burton’s death. Consequently, the trial court abused its discretion in granting appellees’ judgment notwithstanding the verdict. Because we reverse the trial court’s entry of judgment in appellees’ favor and reinstate the jury’s verdict and award, we decline to address the second issue.

FACTUAL AND PROCEDURAL BACKGROUND Charles Burton, individually and as the personal representative of the Estate of Lana Burton, Larae Burton McClurkin, Willie James Barton, Jr., and Melba Ann Barton3 sued 2 Appellants’ verbatim questions are: 1. Did the trial court err by misapplying the loss of chance doctrine when evidence presented was that Lana Burton’s chances of survival at the time of the malpractice were over 80%; fell to lower than 50% at the time of diagnosis; and she died from metastatic breast cancer? 2. Did the trial court err in granting Appellees’ Motion for Judgment Notwithstanding the Verdict by setting aside the jury’s verdict and giving preference to Appellees’ characterization of the evidence? 3. Did the trial court [err] when it precluded Appellants’ expert from utilizing a reasonably reliable authority? 3 Ms. Burton’s maiden name was “Barton.” 2 Advanced Radiology, P.A., Advanced Radiology, LLC, and Dr. Sanford Minkin, alleging that Dr. Minkin failed to properly diagnose Lana Burton (hereafter, “Ms. Burton”) for Stage I breast cancer, which later spread to other parts of her body and, sadly, led to her death on February 17, 2016.

Charles Burton is Ms. Burton’s husband. Larae McClurkin is Ms. Burton’s daughter. Willie Barton is Ms. Burton’s father. Melba is Ms. Burton’s mother.4 (Hereafter, the appellants will be referred to collectively as “the Burtons.”) A. Ms. Burton’s Breast Cancer Diagnosis and Treatment In November 2011, Ms. Burton underwent a routine breast cancer examination at Advanced Radiology.

The results of that examination indicated she had no abnormalities. Roughly six months later, May 11, 2012, Ms. Burton found a lump in her right breast and returned to Advanced Radiology. They performed a mammogram and an ultrasound examination. Dr. Minkin, a radiologist, prepared a report that described the lump as both “normal glandular tissue” and that it was “benign.” One year and three months later, 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 4 Apparently, Melba Barton passed away sometime after the filing of the second amended complaint. There, she is named as Ms. Burton’s “surviving” mother. The verdict sheet, however, notes “the Estate of Melba Barton” as one of the plaintiffs. 3 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 (hereafter, “the healthcare providers”) advancing four theories of liability, each in a separate count: I. Survival Action – Negligence, II.

Survival Action – Informed Consent, III. Survival Action – Loss of Consortium, and IV. Wrongful Death under Maryland Code Annotated, (1974, 2013 Repl. Vol.) Courts and Judicial Proceedings Article, §§ 3-901 through 3-904.

B. The Trial The case was tried before a jury in the Circuit Court for Baltimore County over ten days: June 10-20, 2019. We summarize the competing versions of fact and opinion surrounding Ms. Burton’s care. 1. Plaintiffs’ Case At trial, the Burtons called two expert witnesses in support of their theories of liability. The first, Dr. Rebecca Zuurbier, a radiologist, testified as an expert witness on the standard of care.

She opined that all of Ms. Burton’s mammograms before May 11, 2012 indicated that she had no abnormalities. But, Dr. Zuurbier testified that the May 11th mammogram’s images revealed a grape-sized mass in Ms. Burton’s right breast. Dr. Zuurbier noted that Dr. Minkin did not perform a biopsy of the lump. He only performed a mammogram and an ultrasound.

In Dr. Zuurbier’s opinion, Dr. Minkin’s failure to 4 perform a biopsy on a mass the size of the lump in Ms. Burton’s breast fell below the standard of care, even though both the mammogram and the ultrasound did not indicate that cancer was present. The second expert, Dr. Gabriel Pushkas, an oncologist and hematologist at Johns Hopkins Medicine, Suburban Hospital, testified as the Burtons’ causation expert. Based on the imaging from Ms. Burton’s medical examinations that Dr. Minkin performed at Advanced Radiology, Dr. Pushkas opined that she had Stage I cancer in May 11, 2012. But, eighteen months later, when she returned to Advanced Radiology on August 9, 2013, the tumor had grown, and she was diagnosed with “triple negative” Stage III breast cancer.

Dr. Pushkas explained Stage III this way: If the tumor gets so large that it is even larger than two inches, then the chances of lymph nodes being involved is fairly high. Not only that, but usually with cancer like this we would have small areas of involvement elsewhere in the body and then we’re talking about a Stage 3 breast cancer. Also, if this cancer has already gotten – even though it is not quite as big as I just told you, but it is already involving part of the chest wall so that you cannot remove it by surgery alone, then it is Stage 3 disease. Dr. Pushkas used an analogy of an intruder in a house to explain what “triple negative” breast cancer is. “[The] cancer is hiding in a room behind a locked door and it is growing in there and eventually it is going to destroy the whole house.” Dr. Pushkas continued: We have three keys.

If we have the keyholes, we can open the door with these three keys and destroy the cancer before it destroys the patient. If there are no keyholes on the door, somebody locked the door and just pasted over the holes, we cannot use any of the treatments that we have against cancers that would have the keyholes. That severely limits our ability to treat the cancer and kill the cancer with any chemotherapy. We do have chemotherapy, but it is not as effective and it is much rougher than the ones up here.

So, in a case like this, it is particularly important that we get to the cancer early before it gets to the point where we cannot control it anymore 5 because our chemotherapy is not that good for triple-negative breast cancer. Other portions of Dr. Pushkas’ testimony play a central role in this appeal and will be discussed in greater detail in the following section. 2. Defendants’ Case The healthcare providers’ presentation began with a videotaped deposition of Dr. Minkin. Several excerpts from Dr. Minkin’s deposition testimony were read into the record.

Later, Dr. Minkin testified in-person. After discussing his credentials, he described for the jury how one would perform a mammogram reading, and what he would look for to detect abnormalities. The study he did of Ms. Burton’s right breast on May 11, 2012, to his eye, showed “a moderate amount of fibroglandular tissue with no focal masses, no evidence of architectural distortion, malignant like or calcifications….” In other words, there was nothing remarkable about Ms. Burton’s breast tissue that was inconsistent with her mammograms from 2008 to that point. That is why, he explained, he only did an ultrasound after the mammograph and not a biopsy.

The results of the ultrasound that he ordered did not alarm him. The ultrasound encompassed several different views of Ms. Burton’s right breast. Although the imaging showed some darker and lighter areas of breast tissue where Ms. Burton felt a lump, in his opinion the mass was “either normal glandular tissue or a fat lobule, or there [was] no mass.” In short, he did not conclude that the areas on the May 11, 2012 ultrasound merited a biopsy. Dr. Peter Kaufman, an oncologist, testified on behalf of the healthcare providers on the standard of care.

In Dr. Kaufman’s opinion, any delay in Dr. Minkin’s diagnosis of Ms. Burton’s breast cancer had no effect on the ultimate outcome of her case. 6 Sure, so [Ms. Burton] unfortunately was diagnosed with triple -- that we term as triple-negative breast cancer. So this is a type of breast cancer that is known to have a poor prognosis. In her case particularly, she had an unusually rapid course. So, from the time she was diagnosed, which was August or September of 2013 -- well, let me phrase it another way.

She was diagnosed at that time, and then underwent very appropriate, very reasonable and appropriate standard treatment, mastectomy, chemotherapy and radiation therapy, and unfortunately recurred without a, I should say, developed metastatic disease unusually rapidly after the completion of her treatment, and she received state of the art treatment. Dr. Julia Flukinger, a radiologist, and Dr. David Hicks, a pathologist, testified as experts for the defense. Dr. Flukinger testified about the mammography images that were generated for Ms. Burton. She said that she did not do a “spot compression” of Ms. Burton’s breast during the May 11, 2012 examination, because she was “fairly certain that [if] there were real findings that [she] would be able to find [it] with ultrasound.” She did not think a biopsy was necessary.

Dr. Flukinger also produced the images from Ms. Burton’s September 2013 exam and noted several masses in Ms. Burton’s breast from the “6:00 to the 8:00” positions. She noted that there were also “highly suspicious findings” in Ms. Burton’s lymph nodes. The healthcare providers offered Dr. Hicks as their causation expert. Dr. Hicks reviewed the biopsy from Ms. Burton’s August 2013 examination, and prepared slides from that tissue.

In his opinion, those images showed “actively proliferating” tumor cells in the breast which is a feature “of an aggressive breast cancer.” “We are dealing with a high-grade invasive carcinoma.” The tumor was large and rapidly growing. With another slide, Dr. Hicks noted that the cancerous growth had spread to Ms. Burton’s lymph nodes. In Dr. Hicks’ opinion, this tumor was not present before 2013. The doctor explained that 7 Ms. Burton, unfortunately, had a “triple negative” form of breast cancer, “and [because of] their aggressive growth and their ability to spread early, I think that more likely than not it would have been present as micro-metastatic disease.” In other words, the cancer was so small that it was undetectable in May 11, 2012.

And as for the lump that Ms. Burton felt in 2012, Dr. Hicks testified that the lump “subsequent[ly] grew and changed. And so I think that more likely than not there was tumor present in May of 2012 and we saw it manifest as an abnormal lymph node with metastatic disease.” 3. Healthcare Providers’ Motion for Judgment At the conclusion of the presentation of all the evidence, the healthcare providers moved for judgment. The focus of their argument was that Dr. Pushkas’ testimony was that if Dr. Minkin had diagnosed Ms. Burton with cancer in May 11, 2012, she would have had “an 80% chance of 5[-]year survival.” Fifteen months later, after she was diagnosed and had started treatment, Dr. Pushkas estimated that Ms. Burton had a 66% chance of survival.

In other words, the defense claimed that Dr. Pushkas did not opine that the healthcare providers’ negligence was the probable cause of Ms. Burton’s death, because she had a 66% probability of survival even after the cancer was discovered. As might be expected, the Burtons argued just as strenuously that Dr. Pushkas’ testimony had established causation. In short, they argued, “In this case there was no question that Ms. Burton would have survived had she been diagnosed in May of 2012.” 8 At the end of counsels’ arguments, the court reserved a decision on the defense’s motion for judgment under Rule 2-519(d).5 4. The Verdict The 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. 5. Motion for Judgment Notwithstanding the Verdict After the verdict, the healthcare providers immediately filed post-trial motions, including a motion for judgment notwithstanding the verdict. Essentially, the motion reiterated in greater detail what they had argued in the motion for judgment. They argued that Dr. Pushkas said that in 2013, when Ms. Burton was diagnosed with cancer, she had a better than 50% probability of surviving five years, even if one assumed that Dr. Minkin misdiagnosed her in 2012.

The Burtons argued that the jury evaluated the totality of the evidence and found in their favor. In other words, they argued that Dr. Pushkas’ testimony, taken with the other 5 Maryland Rule 2-519(d), Reservation of Decision in Jury Cases, states: In a jury trial, if a motion for judgment is made at the close of all the evidence, the court may submit the case to the jury and reserve its decision on the motion until after the verdict or discharge of the jury. For the purpose of appeal, the reservation constitutes a denial of the motion unless a judgment notwithstanding the verdict has been entered. 9 evidence, showed that Ms. Burton’s cancer should have been caught in 2012. It was not.

As a result, she met an untimely death. After counsels’ arguments, the court ruled from the bench and granted the healthcare providers’ motion. As will be discussed in greater detail, the trial judge agreed with the healthcare providers that Dr. Pushkas failed to establish that Dr. Minkin’s alleged negligence was a proximate cause of Ms. Burton’s death. The Burtons filed a timely appeal.

Additional facts may be introduced, as needed. DISCUSSION I. The Trial Court Improperly Granted Judgment Notwithstanding the Verdict A. Standard of Review Maryland Rule 2-532(a) permits a party to move for judgment after a jury has rendered a verdict, but “only if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion.” Generally, the motion must be “filed within ten days after entry of judgment on the verdict.” Rule 2-532(b) (Hereafter, “motion JNOV”). “An appellate court reviews the circuit court’s decision to allow or deny . . . [a Judgment Notwithstanding the Verdict] to determine whether it was legally correct.” Retina Group of Washington, P.C. v. Crosetto, 237 Md. App. 150, 174 (2018) (quoting Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503 (2011)). “We assume the truth of all credible evidence on the issue, and all fairly deducible inferences therefrom, in the light most favorable to the party against whom the motion is made,” which, in this case, are the 10 Burtons. Orwick v. Moldawer, 150 Md. App. 528, 531-32 (2003). The evidence legally supports a claim if any reasonable fact finder could find the existence of the cause of action by a preponderance of the evidence.

Barnes v. Greater Baltimore Medical Center, Inc., 210 Md. App. 457, 480 (2013). “In a jury trial, the amount of legally sufficient evidence needed to create a jury question is slight.” Id. (citing Hoffman v. Stamper, 385 Md. 1, 16 (2005)). Thus, if the nonmoving party offers competent evidence that rises above speculation, hypothesis, and conjecture, the JNOV should be denied. Aronson & Co. v. Fetridge, 181 Md. App. 650, 664 (2008) (internal quotation marks omitted).

B. The Trial Court Did Not Employ the “Loss of Chance” Theory When Rendering its Motion JNOV Ruling Before we address the substantive issue at the center of this appeal -- proximate cause -- we must first examine the concept of “loss of chance.” The Burtons argue that when the trial judge granted the motion JNOV, he erroneously applied the principles of “loss of chance,” which Maryland courts have not recognized as a viable tort theory. According to the Burtons, the healthcare providers argued to the trial court that, (a) the decedent had an 80% chance of five-year survival prior to the defendants’ proven negligence; (b) the [decedent’s] chance of survival at the time of diagnosis was greater than 50% and (c) the decedent in fact died within five years of the defendants’ negligence. The Burtons claim this syllogism amounts to a loss of chance argument. The healthcare providers assert that the trial court did not apply or misapply the loss of chance theory.

They claim that the trial court correctly found that the Burtons simply failed to establish causation consistent with well-established common law principles and the holding in Weimer v. Hetrick, 309 Md. 536 (1987). 11 C. Competing Tort Theories: Loss of Chance and Proximate Cause We acknowledge that questions of probability that arise when analyzing concepts like “loss of chance” and “more likely than not” can be confusing. Because each concept embraces a 50% threshold of proof, both concepts seem to be different sides of the same coin. They are not. “Loss of chance,” sometimes, perhaps more aptly called “loss of a chance,”6 is a tort theory that permits recovery for avoiding some adverse result or of achieving a more favorable result. The idea is that “a chance” has some inherent value; a tortious deprivation of such an opportunity should trigger liability.7 The Court of Appeals has called loss of chance simply a “diminished prospect for a better result.” Goldberg v. Boone, 396 Md. 94 (2006).

The theory has found application in various settings, such as in employment law, where loss of an opportunity for promotions due to discriminatory behavior has been deemed compensable. See, Doll v. Brown, 75 F.3d 1200, 1206 (7th Cir. 1996) (finding that the theory of loss of chance is “peculiarly appropriate in employment cases involving competitive promotion,” but refusing to hold that the theory was applicable to the case because the issue had not been briefed by the parties). The theory has also been applied in contract actions, where a plaintiff may recover for lost profits due to a breach of contract. 6 Reisig, Robert A., Jr., The Loss of a Chance Theory in Medical Malpractice Cases: An Overview, 13 Am. J. Trial Advoc. 1163 (1990). 7 Some courts have viewed loss of chance as a theory of causation rather than a separate theory of injury.

See e.g., Mandros v. Prescod, 948 A.2d 304, 310 (R.I. 2008) (holding that the theory of loss of chance is an alternative to conventional notions of causation). 12 See, Miller v. Allstate Ins. Co., 573 So. 2d 24, 29 (Fla. Dist. Ct. App. 1990) (finding that it is now an “accepted principle of contract law that recovery will be allowed where a plaintiff has been deprived of an opportunity or chance to gain an award or profit even where damages are uncertain”).

But perhaps the widest application of loss of chance has been in the field of medical malpractice. See, e.g., Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008); DeBurkarte v. Louvar, 393 N.W.2d 11 , 135 (Iowa 1986); Kallenberg v. Beth Israel Hospital, 357 N.Y.S.2d 508 (N.Y. App. Div. 1974), aff’d, 337 N.E.2d 128 (1975). Hicks v. United States, 368 F.2d 626 (4th Cir. 1966), was the first medical malpractice case to adopt loss of chance as a basis for recovery. There, a husband brought his diabetic wife to the Little Creek, Virginia, Amphibious Naval Base dispensary because she was suffering from intense abdominal pain.

Id. at 628 . After a ten-minute examination, a doctor sent the woman home with pain-relief medication, told her she had a “bug,” and asked