Martinez v. Johns Hopkins Hospital

BERGER, J. This case involves a medical malpractice action filed in the Circuit Court for Baltimore City. Appellant and cross-appellee, Enzo Martinez (“Martinez”), a minor, by and through his parents, 1 alleged that appellee and cross-appellant, The Johns Hopkins Hospital (“the Hospital”), negligently failed to perform a timely Caesarean section, causing Martinez to suffer from cerebral palsy, retardation, and other disorders. After a two week trial, a jury awarded Martinez $4 million for lost wages, $25 million for future medical expenses, and $26 million for non-economic damages. The court entered judgment in favor of Martinez in the amount of $55 million.

Thereafter, the Hospital filed a motion for new trial, to alter or amend judgment, and for remittitur. The trial court denied the Hospital’s request for a new trial. The trial court further reduced the jury’s award for lost wages from $4 million to $2,621,825, and reduced the jury’s $26 million award for non-economic damages to $680,000. 2 Martinez filed a notice of appeal on September 18, 2012. The Hospital filed a cross-appeal on September 19, 2012.

Martinez presents one question for review, which we have rephrased as follows: 1. Whether the circuit court erred by reducing the jury’s non-economic damages award on the basis that Maryland’s cap on non-economic damages is unconstitutional because it violates the separation of powers doctrine under the Maryland Declaration of Rights. ⁶⁴⁰ The Hospital presents four questions for review, which we have reordered and rephrased as follows: 1. Whether the circuit court abused its discretion by precluding evidence regarding the standard of care applicable to nurse-midwives, and a midwife’s breach of that standard of care while treating Ms. Fielding. 2. Whether the circuit court abused its discretion by admitting evidence that Ms. Fielding was never offered general anesthesia. 3.

Whether there was sufficient evidence to support a jury award of $25 million for Martinez’s future medical expenses. 4. Whether the circuit court abused its discretion by declining to annuitize the jury award. For the reasons set forth below, we hold that the circuit court erred in precluding evidence of the nurse-midwife standard of care, and in precluding evidence of a breach of that standard of care by a nurse-midwife while treating Ms. Fielding. Accordingly, we reverse the judgment of the Circuit Court for Baltimore City and remand for further proceedings.

For guidance on remand, we shall also address whether the circuit court erred in admitting evidence regarding the offering of general anesthesia. FACTUAL AND PROCEDURAL BACKGROUND On March 25, 2010, Ms. Fielding began labor with her first child, Martinez. Ms. Fielding elected to have a natural birth at home, with the assistance of Evelyn Muhlhan, a registered nurse midwife (“Midwife Muhlhan”), and a doula. 3 Ms. Fielding (who was 10 days overdue) was in labor for 14.5 hours during the first stage of labor, and at least five hours more in the second stage of labor. 4 The position of the ⁶⁴¹ baby was occiput posterior. 5 This means that the baby’s head was down; however, unlike the usual presentation, he was facing forward instead of inward, toward Ms. Fielding’s spine. 6 At 12:30 a.m., Midwife Muhlhan attempted to expedite delivery while at Ms. Fielding’s home. First, Midwife Muhlhan applied fundal pressure 7 to Ms. Fielding two or three times.

Second, Midwife Muhlhan injected Ms. Fielding multiple times with Pitocin, a hormone that increases the strength and frequency of contractions. Third, misjudging the state of her labor, Ms. Muhlhan performed an episiotomy, which is a procedure performed upon immediate delivery in which the perineum is cut in order to enlarge the vaginal opening. Finally, Ms. Muhlhan directed Ms. Fielding to cleanse herself with a probiotic treatment, as an alternative to taking antibiotics, in order to prevent the potentially fatal transmission of Group B streptococcus bacteria (for which Ms. Fielding had tested positive), to the baby during labor and delivery. After providing these treatments, Midwife Muhlhan “decided it was time to go to the hospital.” Midwife Muhlhan sutured the episiotomy and called an ambulance.

Ms. Fielding arrived at the Hospital at 3:30 a.m. on March 26, 2010. Ms. Fielding was an unknown patient to the Hospital. The Hospital’s labor and delivery team evaluated Ms. Fielding’s status and the best way to deliver her baby. The team also applied a fetal heart rate monitor.

The medical ⁶⁴² records indicate that the descent level of the baby was assessed as +1 station 8 when Ms. Fielding arrived at the Hospital. The baby remained at +1 after they gave Ms. Fielding a chance to push a few times. 9 At 3:45 a.m., Dr. Christopher Ennen, the treating physician, and Dr. Sherrine Ibrahim, the attending senior resident physician, determined that Ms. Fielding would be unable to deliver Martinez vaginally. Rather, the Hospital’s physicians concluded that an “urgent” Caesarean section was required. 10 The Hospital’s physicians determined that an “emergency” Caesarean section was not required because the fetal heart rate monitor indicated that the fetus was being adequately oxygenated. 11 ⁶⁴³ The Hospital team took Ms. Fielding’s medical history and drew blood for laboratory testing. The blood tests were sent to the Hospital’s laboratory on a “stat” basis, meaning they were the “highest” priority and should be completed “as quickly as possible.” The Hospital explained at trial that the blood testing was necessary in order to determine whether it would be safe to administer spinal/epidural anesthesia to Ms. Fielding during the Caesarean section procedure.

The Hospital also administered IV penicillin to Ms. Fielding to reduce the risk of passing her Group B streptococcus bacteria on to Martinez. Further, the Hospital obtained Ms. Fielding’s consent for spinal/epidural anesthesia, administered medications to reduce the strength of Ms. Fielding’s contractions, and made other pre-delivery preparations. Some of the laboratory test results were returned at 3:57 a.m. The tests showed a negative result for syphilis.

At 4:14 a.m., the Hospital re-ordered the remaining blood tests, which related to Ms. Fielding’s blood type and platelet count. 12 The remaining laboratory test results were returned at 4:52 a.m. The Hospital determined that, based upon the test results, it would be safe to use spinal/epidural anesthesia for Ms. Fielding’s Caesarean section. The anesthesia was administered and Ms. Fielding was prepared for surgery. At 4:57 a.m., the Hospital transported Ms. Fielding to the operating room.

Martinez was delivered at 5:40 a.m., and his condition at birth was poor. He now suffers from cerebral palsy, retardation, and other disorders. Martinez, by and through his parents, filed a complaint alleging that the Hospital negligently failed to perform a timely Caesarean section. In short, Martinez argued that “had [Martinez] been delivered by 4:15 a.m., as the standard of care required, he would not have suffered any injury.” Further, Martinez argued at trial that the Hospital also “fail[ed] to recognize ominous signs of fetal distress.” Mar ⁶⁴⁴ tinez contended that the Hospital should have converted to an emergency Caesarean section based on the status of Martinez’s fetal heart rate monitor.

Accordingly, Martinez concluded that the Hospital was also negligent in performing an urgent Caesarean section, rather than an emergency Caesarean section. The Hospital argued that Midwife Muhlhan was solely responsible for Martinez’s injuries, and, therefore, that Martinez’s injuries “occurred a number of hours prior to the delivery and prior to the arrival at Johns Hopkins.” Additionally, the Hospital argued that the timing in performing the urgent Caesarean section was medically necessary in order to evaluate the effects of Midwife Muhlhan’s treatment on Ms. Fielding. The Hospital posited that the delay in receiving blood tests was due, in part, to Ms. Fielding’s lack of cooperation. 13 Finally, the Hospital maintained that an emergency Caesarean section was not required because the fetal heart rate monitor indicated that the fetus was being adequately oxygenated. After a two week trial, a jury awarded Martinez $4 million for lost wages, $25 million for future medical expenses, and $26 million for non-economic damages.

The court entered judgment in favor of Martinez in the amount of $55 million. Thereafter, the Hospital filed a motion for new trial, to alter or amend judgment, and for remittitur. After a two day hearing, the trial court denied the Hospital’s request for a new trial, and reduced the jury’s award for lost wages from $4 ⁶⁴⁵ million to $2,621,825. The trial court further ruled that the Maryland cap on non-economic damages (“the Cap”) was constitutional, and reduced the jury’s $26 million award for non-economic damages to $680,000 in accordance with the Cap.

Martinez noted this timely appeal, and the Hospital also noted its timely cross-appeal on the following day. Additional facts relevant to the issues on appeal are summarized below. A. Motion in Limine Martinez filed a pre-trial motion in limine seeking to exclude testimony regarding the standard of care applicable to Midwife Muhlhan, and Midwife Muhlhan’s alleged breach of that standard of care while treating Ms. Fielding. The Hospital filed an extensive response, arguing that the midwife standard of care, and Midwife Muhlhan’s breach of that standard of care, were relevant to the Hospital’s defense.

The Hospital’s theory was that the Hospital was not negligent, nor was it a cause of any injury to Martinez. Rather, the Hospital contended, the injury was solely caused by Midwife Muhlhan’s negligence before Ms. Fielding ever arrived at the Hospital. In support of its opposition to the motion in limine, the Hospital attached an order from the Maryland Board of Nursing (“the Board”), which suspended Midwife Muhlhan’s certification and license to practice as a nurse-midwife. The order provided that the Board had never authorized Midwife Muhlhan to perform home deliveries, and concluded that Midwife Muhlhan had violated the Nurse Practice Act (“NPA”) based upon the care that she provided to Ms. Fielding and other patients.

In particular, as to the care rendered to Ms. Fielding, the Board found that: [Midwife Muhlhan] violated the NPA during her care of [Ms. Fielding] for reasons including, but not limited to, the following: i. Practicing as a CRNM in a home delivery setting without an approved Agreement that includes home births and practicing without a collaborating physician for homebirths. ⁶⁴⁶ ii. Lack of documentation, including labor and delivery records and fetal monitoring strips, regarding the patient’s intra-partum course. iii. Failing to treat the patient’s GBS per Center for Disease Control guidelines and lack of documentation that the patient declined and understood the risks of declining antibiotics. iv.

Performing an episiotomy when the baby’s head was not crowning and the baby was at +1 station. v. Administering Pitocin intramuscularly to augment labor and failing to document any fetal monitoring after administration. vi. Using or directing the use of fundal pressure, which is not considered an acceptable practice to hasten vaginal delivery. Accordingly, as a result of the treatment that Midwife Muhlhan provided to Ms. Fielding and four other individuals, the Board suspended Midwife Muhlhan’s certification and license to practice as a nurse-midwife. 14 The Board took emergency action to suspend Midwife Muhlhan’s license on the basis that “the public health, safety or welfare imperatively require[d] emergency action[.]” Additionally, the Hospital attached to its response to the motion in limine an excerpt from Dr. Katz’s deposition. Dr. Katz determined that when Ms. Fielding arrived at the Hospital, there was evidence of “uterine tetany” due to the Pitocin administered by Midwife Muhlhan.

Dr. Katz explained that, as a result, there was no relaxation in between contractions. Relaxation between contractions is important, Dr. Katz testified, because this is when “there is re-establishment of blood flow and there is proper oxygen exchange.” By contrast, Dr. Katz stated that “[w]hen you have lack of relaxation, there is no opportunity for exchange to happen[,] or less opportunity, and that can very adversely affect fetal oxygen status.” Dr. ⁶⁴⁷ Katz concluded that because of the Pitocin injections administered by Midwife Muhlhan, there was an “absence of oxygen [to Martinez which] is what ultimately caused damage.” Dr. Katz further observed in his deposition testimony that Martinez had “cephalic hematoma, which cannot be explained except by trauma ... and the cause of that, of course, is the trying to force a head that was in a unique form through a narrow pelvis 15 ... [and by] try[ing] to force it with oxytocin, excessive stimulation or by pushing on the fundus or by exposing it to five hours of second stage [labor] when it’s not making progress.” Further, Dr. Katz explained that: [The] baby’s head [was] in occipital-posterior being banged against a pelvis for several hours with somebody pushing on the top of the baby trying to push it out between the labia, so much so to deform it that reportedly it was crowning [16] .... And then [the baby went] all the way back up, not being delivered successfully ... Based upon this treatment, Dr. Katz concluded that injury was caused to Martinez “during those times when [Midwife Muhlhan was] hitting and beating up on this baby.” Finally, Dr. Katz’s deposition testimony provided that fundal pressure is no longer used in labor and deliveries, and that applying fundal pressuring during the second stage of labor in these circumstances constituted a breach of the standard of care.

After holding a hearing, the trial court granted Martinez’s motion in limine, ruling that, “[t]here cannot be testimony as to what the standard of care is for midwives or that this was a breach of the standard of care----” In support of its ruling, the trial court explained: ⁶⁴⁸ ----The issue here is the standard of care, whether or not, Hopkins breached the standard of care and whether that conduct caused [the injuries]. Not somebody else’s breach of a standard of care. Not somebody else’s negligence. [The Hospital’s] conduct [is what is relevant], because if [Midwife Muhlhan] breached the standard of care [but] caused no damage, then it’s totally irrelevant.... [or it could be that] she didn’t breach the standard of care, [but] caused the damage____ ... if you have testimony as far as causation. You have testimony that fundal pressure was applied at home, before she came to Hopkins, and if you have causation testimony----[t]hen why do you have to tell the jury that—and that is a breach of standard of care, that’s negligence to do that. # * * I just—I’m concerned about the potential prejudice from the jury feeling there is a third-party here, who is not a party to the action.

Accordingly, the trial court concluded that, as to Midwife Muhlhan’s conduct, only evidence regarding causation was relevant. The trial court, therefore, limited the Hospital to presenting evidence of: (1) the physical actions and conduct of Midwife Muhlhan; and (2) the reactions of the Hospital personnel when learning of this conduct. B. Testimony Regarding Midwife Muhlhan The following is a summary of the relevant testimony introduced at trial regarding the treatments used by Midwife Muhlhan. i. Midwife Muhlhan’s Use of Pitocin The Hospital asked its treating physician, Dr. Ennen, about his reaction when he learned that Ms. Fielding was given “two ⁶⁴⁹ to three injections intramuscular, or IM injections, of Pitocin at home.” Dr. Ennen replied that his reactions were “[s]urprise and shock.” Dr. Ennen then explained that “Pitocin is something that we use in the hospital through an IV to—in very carefully monitored doses to cause uterine contractions to be more frequent and/or stronger.

It’s never, in my experience that I know of, used as injections in the muscle in a non-monitored situation to cause labor to progress.” The Hospital also offered testimony from Ms. Naomi Cross (“Nurse Cross”), the nurse primarily responsible for Ms. Fielding’s nursing care. However, upon Martinez’s objection, the trial court precluded Nurse Cross from giving her firsthand account of how Midwife Muhlhan’s actions affected her management of Ms. Fielding, or her experience with Pitocin. The trial judge did not elaborate on the basis for precluding this testimony. 17 The Hospital’s expert witness, Dr. Katz, provided the following opinion on Midwife Muhlhan’s use of Pitocin: The Pitocin further aggravated the ability of the fetus to deal with the circumstances presented to it. And that was after the huge dose of Pitocin was given.

When asked to clarify what he meant by a “huge dose,” Dr. Katz explained: I assume that even if I take the lowest potential measurable dose that one can give by injection, it is 1,000 fold more than what you give in a hospital.... The concentration of Pitocin in the vial that is available commercially is one unit per milliliter. To give the jury an idea of what a milliliter is, we have in a small tablespoon—correction, in a small teaspoon, we have about five milliliter. That will be approximately five units or 50,000 milliunits.

In that little teaspoon. We in the hospital give usually one, two, five or 10 milliunits, not ⁶⁵⁰ thousands of milliunits. So you have an aurea difference here, even with the smallest syringe. Martinez’s expert witness, Dr. Balducci, also addressed the use of Pitocin: What I perceive here is the midwife had given a shot of IM or sub-q Pitocin____ And it sounds like they gave one milliunit, which is a very small dose, to enhance the contractions.

The following exchange ensued during Dr. Balducci’s cross-examination: Q: And the bottom line is that if you have that overstimulation situation [from use of Pitocin], it can cause lack of perfusion to the baby, and, therefore, lack of oxygen to the baby; is that correct? A: That could occur. Q: Can result in a severe lack of oxygen and, ultimately, neurological injury if it persisted? A: That’s correct.

Q: Okay. You would agree that and understand why the Hopkins personnel were shocked or surprised, whatever word you want to use, when they got a history that she had two or three doses of IM Pitocin? You would agree with that, wouldn’t you? A: I don’t know if I’d be shocked.

I mean, I think the midwives— Q: Surprised? Can we agree on surprised? A: Well, I think I’ve seen midwives use this before in delivery centers, but they use small doses. They don’t—I still, to this day, don’t know what the dose was.

I’m understanding the midwife said it was 1— The trial judge sustained the Hospital’s objection to Dr. Balducci’s last comment and instructed the jury to disregard the statement. The Hospital’s counsel then asked: Q: You would understand if the Hopkins personnel were surprised when she reported a history of the different doses of IM Pitocin? ⁶⁵¹ A: Yeah, surprised. Q: Okay. And that’s because you’re not aware of any physicians that are using that approach?

A: No, sir. Q: And you don’t know if it was a minute or two later [when Midwife Muhlhan checked the fetal heart rate]. We just don’t know— A: Well, that’s the way midwives will practice. If they hear 100, they’ll turn her, and they’ll recheck.

The trial court sustained the Hospital’s objection to the last statement by Dr. Balducci. Martinez’s expert witness, Dr. Stokes, provided the following testimony regarding the use of Pitocin: Q: You’re [sic] never given I-N [sic] Pitocin during the second stage of labor. A: I have not. Q: And you’re not familiar with any obstetrician giving IN [sic] Pitocin in second stage labor, are you?

A: Not in recent years, but certainly, it was done in the past. Q: You’re not familiar with any literature that advocates the use of I-N [sic] Pitocin during the second stage of labor, are you? A: I’m not familiar with any literature in the OB/GYN. No. Q: ....

You’re not going to administer Pitocin except in a hospital setting with IV drip that you can control and constant electronic fetal monitoring to be able to observe and check the status of the fetus; is that correct, sir? A: That’s the way obstetricians do it. It’s not the way midwives do it. Upon the Hospital’s objection, the trial court then instructed the jury to disregard Dr. Stokes’ last statement: ⁶⁵² THE COURT: All right.

Ladies and gentlemen, you’re to disregard the comment about what midwives do or don’t do. That’s not an issue in this case. ii. Midwife Muhlhan’s Use of Fundal Pressure One of the Hospital’s witnesses, Dr. Lauren Krill, testified that, “[a]s a second year resident, like I said, I didn’t realize that fundal pressure is something that somebody would actually do.” Dr. Ibrahim, a resident physician at the Hospital, testified that Mr. Fielding told her he was “uncomfortable with some of the things that were going on at home. And he demonstrated to me that the—someone had used fundal pressure "with two hands pushing on his wife’s chest.” Finally, the Hospital’s obstetrical expert witness, Dr. Katz, testified that, “Yes, I think fundal pressure under these circumstances plays a role [in Martinez’s injury].... ” On the other hand, however, the trial court stopped Dr. Katz from testifying the instant he uttered the word “deviation” when referring to Midwife Muhlhan’s care: Q: When did, is it your opinion, with that hypothetical I gave you, that the injury occurred.

A: Yes, it happened during the pushing phase of Mrs. Fielding, when the contractions were associated with substantial deviations and— THE COURT: Stop. Martinez’s expert witnesses testified as follows on cross-examination regarding the use of fundal pressure: A: Forceful fundal pressure with contractions is not something I would do. But the bottom line here is it didn’t make any difference. Q: Okay, okay.

Because fundal pressure tends to do more harm than good, I think your words? A: I’ve seen ribs being broken. You can rupture a uterus. So we don’t do it anymore. ⁶⁵³ C. Testimony Regarding the Hospital’s Offering of General Anesthesia The following is a summary of the relevant testimony regarding whether the Hospital “offered” Ms. Fielding general anesthesia as an alternative to other forms of anesthesia.

Martinez’s counsel asked its first obstetrical expert witness, Dr. James Balducci, whether the Hospital “ever offered [Ms. Fielding] general anesthesia.” The Hospital objected, and the trial court initially overruled the objection. The Hospital explained to the trial judge that the objection was due to the fact that Martinez had not alleged a claim founded upon informed consent. Thereafter, the trial court sustained the objection. Martinez’s second obstetrical expert witness, Dr. Richard Stokes, was asked whether Ms. Fielding’s medical records indicated that she should not receive general anesthesia.

Dr. Stokes interjected that the “option [of general anesthesia] was never offered to the patient.” Additionally, Dr. Stokes testified that the Hospital “did not offer the option of being put to sleep, which would have gotten her baby out a whole lot sooner.” When Ms. Fielding testified, Martinez’s counsel asked whether she was “ever given a choice between general anesthesia versus a combined spinal-epidural.” The Hospital objected, and the trial court overruled the objection. Thereafter, Ms. Fielding testified: “No. I was never given that option.” In a subsequent bench conference, the Hospital again explained its argument regarding informed consent. The following colloquy ensued: THE COURT: There won’t be an argument. There won’t be an argument about informed consent. [MARTINEZ’S COUNSEL]: No. [THE HOSPITAL’S COUNSEL]: I just wanted to make sure that you understood there was [a] reason [for the objection]. ⁶⁵⁴ THE COURT: No. I kind of wondered what it was.

Now I understand. [MARTINEZ’S COUNSEL]: No. We don’t have a count for it. Right____ General negligence. THE COURT: Right. Finally, during Martinez’s cross-examination of the Hospital’s obstetrical expert, Dr. Michael Katz, Martinez’s counsel asked: “[W]as Ms. Fielding, the patient, ever given the choice of which anesthesia?” The Hospital’s objection was overruled.

Dr. Katz testified: “I don’t believe she was given, or should have been given [the choice of which anesthesia].” 18 In closing argument, Martinez’s counsel stated that the Hospital “could have converted to general anesthesia at any time they wanted[.]” Moreover, Martinez’s counsel explained: “They want to say, oh my God, the risks. It’s a one percent risk. There is a risk for anything.” Martinez’s counsel further stated during closing argument: You’re supposedly the number one hospital in the world, but can’t get blood for an hour and 14 minutes, and is now too intimidated to use general anesthesia with a one percent risk? Ask any mother in that situation---What would any mother, any reasonable mother in that circumstance do?

We’ve got nine women on this jury. You all know what you would do. You would say give me the general anesthesia____ She wasn’t even given the option because they were just going to wait. The Hospital did not object to Martinez’s closing arguments.

The jury was instructed on general negligence, and was not instructed on informed consent. D. Motion for New Trial The trial court held a post-trial hearing on the Hospital’s motion for new trial, to alter or amend judgment, and for ⁶⁵⁵ remittitur. The trial court considered various issues, including the preclusion of evidence regarding the midwife standard of care, the admission of evidence regarding the Hospital’s offering of anesthesia to Ms. Fielding, the sufficiency of the evidence to support the jury verdict, and the Hospital’s request to annuitize the jury award. Ultimately, the trial court rejected each of the Hospital’s arguments.

In considering the first issue, the trial court ruled that the exclusion of midwife standard of care evidence did not deny the Hospital a fair trial. In particular, the trial judge observed: [T]he defense was not prevented and did, in fact, present evidence that the midwife’s conduct was dangerous under the circumstances, why it was dangerous under the circumstances that it caused the damages, and how it caused the damages. Defense was free to vigorously argue that the midwife’s conduct was the proximate cause. They were, however, prevented from characterizing the conduct as “negligent.” Telling the jury that a nonparty is negligent as opposed to how the conduct affected what happened to the plaintiff would have been prejudicial and not relevant to the case.

Regarding the second issue, the trial judge observed that the testimony regarding whether general anesthesia was “offered” would “not be admissible if it goes to informed consent.” The trial judge, however, ruled that the challenged evidence was admissible to show that Ms. Fielding had not refused general anesthesia: On the issue of informed consent, the defense presented evidence that the mother was very uncooperative, combative, resisting, and making management generally, more difficult of her. The challenged evidence was therefore not admitted as an informed consent issue, but it was relevant to show that they were not waiting for blood work because of the mother’s refusal or anything that the mother did. The trial judge also recognized that Martinez’s closing argument was improper and “exceed[ed] the directions that I had ⁶⁵⁶ given from the bench on the issue of informed consent.” The trial judge, nevertheless, pointed out that the Hospital did not object to Martinez’s closing argument. Accordingly, the trial judge explained that, “had an objection been made, I was prepared to sustain the objection and give a curative instruction to the jury.” Accordingly, the trial court denied the Hospital’s motion for a new trial.

I. MARTINEZ’S APPEAL STANDARD OF REVIEW “Evaluating the constitutionality of an act of the Maryland General Assembly is a question of law[,]” as is “the interpretation of the Constitution and the Maryland Declaration of Rights.” DRD Pool Serv., Inc. v. Freed, 416 Md. 46, 62 , 5 A.3d 45 (2010). The Court of Special Appeals, however, “has no discretion but to follow the law as enunciated by the Court of Appeals.” Freed v. DRD Pool Serv., Inc., 186 Md.App. 477, 481 , 974 A.2d 978 (2009), aff'd sub nom., 416 Md. 46 , 5 A.3d 45 (2010). DISCUSSION Constitutionality of the Maryland Cap on Non-Economic Damages Martinez argues that the Maryland cap on non-economic damages (“the Cap”) is unconstitutional because it violates the separation of powers doctrine under the Maryland Declaration of Rights. Martinez, therefore, contends that the jury award for non-economic damages should not have been reduced from $26 million to $680,000.

The Hospital posits that it is well settled under Maryland law that the Cap is constitutional. We hold that the constitutionality of the Maryland cap on non-economic damages is moot in light of our finding that a new trial is warranted pursuant to the Hospital’s cross-appeal. 19 ⁶⁵⁷ II. THE HOSPITAL’S CROSS-APPEAL STANDARD OF REVIEW Evidentiary rulings will not be disturbed “absent error or a clear abuse of discretion.” Thomas v. State, 429 Md. 85, 97 , 55 A.3d 10 (2012) (citations omitted). “[A]ll relevant evidence is admissible. Evidence that is not relevant is not admissible.” Md. Rule 5-402.

Further, the Maryland Rules provide that: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Md. Rule 5-403. When determinations of relevancy are “the ultimate issue,” appellate courts are “generally loath to reverse a trial court).]” Tyner v. State, 417 Md. 611, 616-17 , 11 A.3d 824 (2011) (citations omitted). The trial court’s consideration of prejudice or confusion of the issues “will be accorded every reasonable presumption of correctness.... ” Cure v. State, 421 Md. 300, 331 , 26 A.3d 899 (2011) (citations omitted).

Thus, an ⁶⁵⁸ abuse of discretion exists when the “decision under consideration [is] well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” North v. North, 102 Md.App. 1, 14 , 648 A.2d 1025 (1994). “Trial judges do not, however, have discretion to admit irrelevant evidence.” Schneider v. Little, 206 Md.App. 414, 447 , 49 A.3d 333 (2012), cert. granted, 429 Md. 303 , 55 A.3d 906 (2012) (citing State v. Simms, 420 Md. 705, 724 , 25 A.3d 144 (2011)). DISCUSSION A. Exclusion of Evidence Regarding the Midwife Standard of Care and the Granting of Martinez’s Motion in Limine The Hospital argues that the trial court erred by precluding evidence of the midwife standard of care and Midwife Muhlhan’s alleged breach of the applicable standard of care. Martinez posits that this argument is not preserved for appellate review, and, regardless, the trial court properly excluded the evidence in question. In particular, Martinez argues that the trial court’s resolution of the motion in limine was not “clearly intended to be the final word on the matter” because the court did not “instruct [the Hospital] ... not to proffer the evidence again during trial.” We agree with the Hospital that this issue is preserved for our review because the trial court made a final ruling on the motion in limine.

We further hold that the trial court erred by excluding evidence of the midwife standard of care, and Midwife Muhlhan’s breach of that standard of care while treating Ms. Fielding. 20 This error denied the Hospital a fair trial. i. Waiver When a trial court makes a final ruling on a motion in limine to exclude evidence, a party is not required to proffer ⁶⁵⁹ the excluded evidence at trial in order to preserve its issue for appeal. See, e.g., Reed v. State, 353 Md. 628, 638 , 728 A.2d 195 (1999) (“When motions in limine to exclude evidence are granted, normally no further objection is required to preserve the issue for appellate review.”) (citations omitted); J.L. Matthews, Inc. v. Md. Nat’l Capital Park and Planning Comm’n, 368 Md. 71 , 106 n. 29, 792 A.2d 288 (2002) (“It is well-established that after the judge’s preclusion of the evidence [on a motion in limine ], Petitioner was not required to proffer that evidence at trial.”); Prout v. State, 311 Md. 348, 356-57 , 535 A.2d 445 (1988), superseded by rule on other grounds, Md. Rule 1-502, as recognized in Beales v. State, 329 Md. 263, 269 , 619 A.2d 105 (1993) (holding that when a trial judge determines that “questionable evidence will not be admitted ... the proponent of the evidence is left with nothing to do at trial but follow the court’s instructions”); Simmons v. State, 313 Md. 33, 38 , 542 A.2d 1258 (1988) (holding that after a final ruling to preclude evidence on a motion in limine, requiring a defendant “to offer the evidence again during the trial in order to preserve the issue for appellate review is unwarranted and would unduly interfere with the orderly progression of the trial”); Davis v. Petito, 197 Md.App. 487, 505 , 14 A.3d 692 (2011), rev’d on other grounds, 425 Md. 191 , 39 A.3d 96 (2012) (holding that a party “was not obligated to make a proffer once the court had finally ruled on her motion in limine ”). By contrast, when a ruling on a motion in limine is not final, the party wishing to raise the issue on appeal must make a timely proffer at trial.

Prout, 311 Md. at 356-57 , 535 A.2d 445 . Several cases have addressed whether a ruling on a motion in limine is final. See, e.g., id. at 356-57, 535 A.2d 445 (ruling on a motion in limine is final where “the trial judge resolves the[ ] motions [in limine] by clearly determining that the questionable evidence will not be admitted, and by instructing counsel not to proffer the evidence again during trial----”); Simmons, 313 Md. at 38 , 542 A.2d 1258 (citing Prout, 311 Md. at 358 , 535 A.2d 445 ) (ruling on a motion in limine is final when the trial judge has “directed defense ⁶⁶⁰ counsel to avoid raising the issue during his cross-examination of the witness”); id. at 38, 535 A.2d 445 (holding that a trial court’s ruling on a motion in limine was a final ruling when “[t]he trial judge unconditionally ruled that he would not ‘let anybody tell this jury what this man’s thought processes are’ ”). Based upon our review of the record, we conclude that the trial court’s ruling constituted a final ruling on the motion in limine.

The trial judge granted Martinez’s motion in limine, and expressly stated that “[t]here cannot be testimony as to what the standard of care is for midwives or that this was a breach of the standard of care----” Martinez points out that the ruling was not final because the trial court stated it would reconsider if “Plaintiff’s witnesses[ ] open the door.” However, the trial judge’s “opening the door” caveat was raised only due to a question by Martinez’s counsel seeking clarification of the ruling: [MARTINEZ’S COUNSEL]: [The Hospital’s counsel] are not permitted to create opening the door [ ] themselves on cross, correct? THE COURT: Right. I mean, you may open it through cross examination. [MARTINEZ’S COUNSEL]: Right. I understand.

But they can’t ask the question directly? THE COURT: Correct. The Hospital’s counsel then asked for further clarification. Counsel gave examples of what they could ask during cross-examination, but noted that they could not ask, “is it a violation of standard of care?” The trial judge replied, “[c]orrect.” In sum, just as in Prout , the trial judge determined that the evidence at issue would not be admitted.

Similarly, as in Simmons , the trial court directed defense counsel to avoid raising the issue during cross-examination. Accordingly, the trial judge made a final ruling on the motion in limine, and the Hospital was left with nothing to do at trial but follow the ⁶⁶¹ court’s instructions. We, therefore, hold that the issue is preserved for our review. ii. Relevancy of Midwife Standard of Care We now turn to the substantive question whether the Hospital was properly precluded from presenting evidence of the midwife standard of care, or Midwife Muhlhan’s breach of that standard of care while treating Ms. Fielding.

The Hospital argues that the midwife standard of care testimony was relevant for two reasons. First, the testimony was relevant to the Hospital’s defense that Midwife Muhlhan’s negligence solely caused Martinez’s brain damage before Ms. Fielding ever arrived at the Hospital, and, therefore, the Hospital was not a cause of injury. The Hospital argues that this is because “[njegligent and grossly negligent medical treatment ... is much more likely to cause injury than non-negligent medical treatment.” Second, the Hospital contends, it was relevant to explaining why the Caesarean section took place when it did. The Hospital alleged that it had to undertake additional evaluations to determine the effect of the Midwife’s negligence on the fetus and the mother before performing the Caesarean section. 21 Martinez argues that the trial court did not err because the Hospital’s causation defense was not contingent upon a finding that Midwife Muhlhan violated the standard of care.

Rather, if the jury were to find that Midwife Muhlhan was “the sole cause of [Martinez’s] injuries, the jury was obligated to find for the Hospital regardless of whether her conduct was negligent or completely innocent.” Accordingly, Martinez concludes that the standard of care testimony was irrelevant, and the trial judge did not err in precluding the testimony. On the record before us, we hold that the evidence of the midwife standard of care, and Midwife Muhlhan’s breach of that stan ⁶⁶² dard of care material to causing Martinez’s injury, is relevant to the Hospital’s defense that it was not negligent and not a cause of injury. 22 The trial court limited the Hospital to presenting evidence of: (1) the physical actions and conduct of Midwife Muhlhan; and (2) the Hospital’s immediate reactions when learning of this conduct. 23 The trial judge precluded any evidence that Midwife Muhlhan’s midwifery did not meet the applicable standard of care, or that Midwife Muhlhan’s actions were negligent. In making its ruling, the trial judge observed: Not somebody else’s breach of a standard of care. Not somebody else’s negligence. [The Hospital’s] conduct [is what is relevant], because if [Midwife Muhlhan] beached the standard of care [but] caused no damage, then it’s totally irrelevant____ [or it could be that] she didn’t breach the standard of care, [but] caused the damage---- We begin by examining the rationale employed by the trial court.

First, the trial judge determined that the standard of care evidence was not relevant because Midwife Muhlhan’s breach of her standard of care would not excuse the Hospital’s breach of its standard of care. Critically, this rationale necessarily presumes that the Hospital breached its standard of care. The Hospital’s defense, however, was that it was not negligent, and did not cause any injury to Martinez. Second, the trial judge observed that Midwife Muhlhan could have breached her standard of care but caused no damage, or caused damage without breaching the standard of care.

In either case, the trial judge reasoned that the standard of care ⁶⁶³ related to the midwife would be irrelevant. While the trial judge’s inferences are reasonable, his rationale does not recognize the other obvious possibility; namely, that Midwife Muhlhan breached her standard of care, and that the breach was the sole cause of Martinez’s injuries. This was precisely the defense advanced by the Hospital at trial. Thus, the relevant inquiry on appeal is whether evidence of a non-party’s negligence is relevant to a defendant’s complete denial of liability.

Maryland courts have seemingly not decided whether a party may defend itself with evidence of a non-party’s negligence. Courts in other jurisdictions, however, have considered the issue related to a non-party’s negligence, and have deemed such evidence admissible. See, e.g., Jefferson v. Lyon Sheet Metal Works, 376 S.W.3d 37, 45 (Mo.Ct.App.2012), reh’g and/or transfer denied (June 28, 2012) (“The trial court erred in prohibiting [defendant] from presenting its defense and advocating [third party’s] negligence at trial.”); Owens v. Dougherty, 84 S.W.3d 542, 548-49 (Mo.Ct.App.2002) (“[Defendant has] ... the right to contend that the negligence of someone else, even a non-party, was the sole cause of the incident in question.”); Archambault v. Soneco/Ne., Inc., 287 Conn. 20, 40-41 , 946 A.2d 839 (2008) (holding that defendant “is entitled to a new trial” because “a defendant may introduce evidence of a nonparty employer’s negligence as the sole proximate cause of the plaintiff’s injuries under a general denial”); Straley v. United States, 887 F.Supp. 728, 743 (D.N.J.1995) (“Defendants will be allowed to introduce evidence of [non-party’s] negligence in an effort to prove that it was the sole proximate cause of [plaintiffs] injuries. As stated above, however, unless the jury determines that his negligence bears a 100% causal relationship to the injuries, the issue of supervening causation will be destroyed and his negligence will cease to be relevant.”) (applying New Jersey law); Fabian v. Minster Machine Co., Inc., 258 N.J.Super. 261, 276 , 609 A.2d 487 (App.Div.1992) (citing Brown v. United States Stove Co., 98 N.J. 155, 171 , 484 A.2d 1234 (1984)) (“An ‘empty chair defense’ is not improper....”); Mengwasser v. Anthony Kempker Trucking, Inc., 312 S.W.3d 368, 375 (Mo. ⁶⁶⁴ Ct.App.2010), as modified (Apr. 27, 2010) (“[Defendant] argued that [it] was not at fault at all, and, in support of that argument, it was entitled to submit proof that any other person’s negligence, even that of a settling third party, proximately caused the accident.”); Wojcik v. City of Chicago, 299 Ill.App.3d 964, 971 , 234 Ill.Dec. 137 , 702 N.E.2d 303 (1998) (quoting Leonardi v. Loyola Univ. of Chicago, 168 Ill.2d 83, 101 , 212 Ill.Dec. 968 , 658 N.E.2d 450 (1995)) (“A defendant has the right not only to rebut evidence tending to show that defendant’s acts are negligent and the proximate cause of claimed injuries, but also has the right to endeavor to establish by competent evidence that the conduct of a third person, or some other causative factor, is the sole proximate cause of plaintiffs injuries.”); Krklus v. Stanley, 359 Ill.App.3d 471, 493 , 295 Ill.Dec. 746 , 833 N.E.2d 952 (2005) (quoting Leonardi, 168 Ill.2d at 101 , 212 Ill.Dec. 968 , 658 N.E.2d 450 ) (same); Worth v. Kolbeck, 273 Neb. 163 , 728 N.W.2d 282 (2007) (“[W]hen the evidence is sufficient to raise a jury question as to whether a defendant’s or a third person’s negligence proximately caused or proximately contributed to a plaintiffs injuries, then a trial court must inform the jury that the plaintiff is entitled to recover damages, if any, from the defendant if the jury finds that the defendant is guilty of negligence which solely or in concurrence with a third person proximately caused or contributed to the plaintiffs injuries.”).

Moreover, these cases support our analysis that evidence of both negligence and causation attributable to a non-party is relevant where a defendant asserts a complete denial of liability. See, e.g., Jefferson, 376 S.W.3d at 44 (citing Mengwasser, 312 S.W.3d at 372-73 ) (“[A] defendant may introduce evidence and argue that a third person, even a non-party, caused a plaintiffs injuries____[because] evidence that the [non-party] was negligent and that her actions caused the accident____[i]s both legally and logically relevant----”) (emphasis added); McDonnell v. McPartlin, 192 Ill.2d 505, 522 , 249 Ill.Dec. 636 , 736 N.E.2d 1074 (2000) (“[Negligent conduct and proximate cause are distinct, albeit related, concepts. Given their relationships, there is a pronounced tendency ⁶⁶⁵ when considering one to include the other.”); id. at 525 , 249 Ill.Dec. 636 , 736 N.E.2d 1074 (“[A] reasonable inference could be made that [non-party] Dr. Ahstrom was professionally negligent, and that such negligence was the sole proximate cause of plaintiffs claimed injury. Accordingly, defendants were entitled to make this argument to the jury.”) (emphasis added); Petre v. Kucich, 356 Ill.App.3d 57, 66-67 , 291 Ill.Dec. 867 , 824 N.E.2d 1117 (2005) (remanding for new trial and holding that “defendants will again be allowed to assert an empty chair defense and admit evidence of the [dismissed parties’] alleged postoperative negligence on the issue of proximate cause”).

See also Leonardi v. Loyola Univ. of Chicago, 262 Ill.App.3d 411, 415-16 , 199 Ill.Dec. 13 , 633 N.E.2d 809 (1993), aff'd, 168 Ill.2d 83 , 212 Ill.Dec. 968 , 658 N.E.2d 450 (1995) (“[T]he trial court properly permitted defendant to question other doctors concerning [non-party] Dr. Tierney’s duties and responsibilities.”). The Connecticut Supreme Court aptly explained the rationale for holding that evidence of negligence of a non-party is relevant to a defendant’s complete denial of liability: [A] defendant is entitled to try to convince the jury that not only did it not cause [the] plaintiffs injuries, but someone else did. A void of evidence concerning the [non-party]’s conduct would leave a logical hiatus in the story presented to the jury. With no one allowed to show what part the [non-party’s] conduct played, the jury would be left to wonder whether anyone other than the defendant could have caused [the] plaintiffs injuries.

Thus, the defendant ... was entitled to show that the [non-party’s] negligence was the sole proximate cause of the plaintiffs injuries. Archambault , 287 Conn, at 32-33, 946 A.2d 839 . We are persuaded by the logical and well-reasoned rationale of our sister jurisdictions. Here, the Hospital was entitled to try to convince the jury that not only was it not negligent and not the cause of Martinez’s injuries, but that Midwife Muhlhan was negligent and did cause the injuries.

There was a void of evidence that left a logical hiatus in the ⁶⁶⁶ story because the jury was not allowed to hear what role Midwife Muhlhan’s conduct played. This void was amplified by the fact that this was a medical malpractice case involving obstetrical medicine and treatment decisions. The Hospital’s defense was contingent upon showing that Midwife Muhlhan’s use of intra-muscular Pitocin injections, fundal pressure, and/or attempting home delivery after 41 gestational weeks solely caused Martinez’s injuries. Surely it was far from self-evident to the lay jury whether this treatment caused injury. 24 Accordingly, because the Hospital was precluded from presenting any evidence that Midwife Muhlhan breached the standard of care and was therefore negligent, it follows that the jury