Retina Grp. of Wash., P.C. v. Crosetto

Panel: Woodward, C.J., Eyler, Deborah S., Fader, JJ. Eyler, Deborah S., J. ¹⁵³ In the Health Care Alternative Dispute Resolution Office ("HCADRO"), Gustavo and Cristina Crosetto filed suit for medical malpractice against Reginald Sanders, M.D., and The Retina Group of Washington, P.C. ("RGW"), in which Dr. Sanders has an ownership interest. The complaint alleged that at the relevant time Dr. Sanders was acting as an agent of RGW and within the scope of the agency.

After the Crosettos filed a certificate of qualified expert attesting that Dr. Sanders ¹⁵⁴ deviated from the requisite standard of care in treating Mr. Crosetto, causing the alleged injury, they unilaterally waived arbitration, pursuing their claims against Dr. Sanders and RGW in the Circuit Court for Montgomery County. Before trial, RGW objected to a proposed verdict sheet that would permit separate verdicts to be returned as to it and Dr. Sanders. RGW argued that any liability it might have would be coextensive with that of Dr. Sanders, because the Crosettos' certificate of qualified expert only identified Dr. Sanders, and no other agent of RGW, as having breached the standard of care. The court overruled RGW's objection.

The case went to trial before a jury. RGW moved for judgment, which the court denied. The jury returned a verdict in favor of Dr. Sanders but against RGW for the medical negligence of "any one of [RGW's] agents (excluding Defendant [Dr. Sanders] )." RGW moved for judgment notwithstanding the verdict ("JNOV") on the ground that the Crosettos did not identify, before or during trial, any agent of RGW who deviated from the standard of care, other than Dr. Sanders. The court denied the motion.

RGW noted this appeal, presenting two questions, which we have rephrased as follows: I. Did the trial court err by allowing the Crosettos to pursue a claim against RGW for the medical negligence of any agent other than Dr. Sanders?

II

Was there legally sufficient evidence to support the jury's verdict that an agent of RGW, other than Dr. Sanders, was negligent? ⁸⁷⁶ We find error as to both issues and shall reverse the judgment against RGW. FACTS AND PROCEEDINGS On December 2, 2014, Mr. Crosetto went to his ophthalmologist, Amy Green-Simms, M.D., complaining of "shade" and "flashes" affecting the vision in his left eye. Dr. Green-Simms referred Mr. Crosetto to RGW, where, that same day, he met ¹⁵⁵ with Vinay Desai, M.D., an ophthalmologist who specializes in retinal disease. Dr. Desai diagnosed Mr. Crosetto with a "giant retinal tear" in the left eye and told him that the tear needed to be surgically repaired promptly.

During the December 2, 2014 examination, the intraocular pressure ("IOP") in Mr. Crosetto's left eye was determined to be 28 mmHg by Tono-Pen and 29 mmHg by slit-lamp. The normal range for IOP is between 10 and 22 mmHg. Dr. Desai did not prescribe pressure-lowering medication for Mr. Crosetto to take before surgery. In Dr. Desai's view, Mr. Crosetto's IOP was temporarily elevated due to the dilation drops he had been given earlier that day.

Because Dr. Desai's schedule did not permit him to perform the surgery, he contacted Dr. Sanders, a vitreoretinal surgeon with RGW, who agreed to do so. Dr. Desai transmitted his documentation of Mr. Crosetto's December 2, 2014 office visit to Dr. Sanders the same day. Dr. Sanders operated on Mr. Crosetto two days later, on December 4, 2014, at the Friendship Ambulatory Surgery Center ("FASC"). David Warrow, M.D., a retina fellow with RGW, was present and observed.

Dr. Sanders first saw Mr. Crosetto on the morning of the surgery. He did not measure Mr. Crosetto's IOP at that time. The surgery was performed in two phases. First, Dr. Sanders attached a scleral buckle to Mr. Crosetto's left eye and sutured the tear in the retina.

Next, Dr. Sanders performed a vitrectomy to replace the vitreous humor in the eye with a gas bubble that would hold the retina in place, giving it time to heal. Specifically, Dr. Sanders filled Mr. Crosetto's eye with a 20% C3F8 gas tamponade. C3F8 gas at a 20% concentration expands post-operatively before dissipating over time. During the surgery, the IOP in Mr. Crosetto's left eye was controlled mechanically.

At the end of the procedure, Dr. Sanders administered Diamox, which lowers fluid production in the eye and therefore lowers the IOP. Before closing up, Dr. Sanders used his finger to measure Mr. Crosetto's IOP and noted that it was "normal." At the conclusion of the surgery, Mr. Crosetto's left eye was bandaged and patched, ¹⁵⁶ which was routine. The surgery was completed at 10:15 a.m. After spending 45 minutes in the recovery room, Mr. Crosetto was discharged to home, at 11:00 a.m.

At that time, he "was still feeling a lot of pressure in [his] eye." Between the end of surgery and Mr. Crosetto's release, Dr. Sanders did not check Mr. Crosetto's IOP. The next day, December 5, 2014, Mr. Crosetto attended a follow-up appointment with Dr. Desai. Mr. Crosetto reported that he could not see out of his left eye. Dr. Desai told him that it was normal not to regain vision so soon after the operation and that the gas bubble was affecting his vision but would "disintegrate in four to six weeks." Dr. Desai measured Mr. Crosetto's IOP, which was 38 mmHg.

He was not concerned about the increase in IOP because a significant increase in pressure would have been accompanied by uncontrollable pain, and Mr. Crosetto had been able to manage his pain with Tylenol. On December 6, 2014, Mr. Crosetto returned to RGW and met with Dr. Warrow. He still could not see out of his left eye ⁸⁷⁷ and was continuing to feel pressure. Dr. Warrow measured Mr. Crosetto's IOP and obtained a reading of 32 mmHg.

Dr. Warrow prescribed Diamox to help control the IOP. On December 10, 2014, Mr. Crosetto went to a follow-up appointment with Dr. Desai. At that time, the IOP in his left eye was 20 mmHg. Mr. Crosetto reported that he still could not see out of his left eye.

Dr. Desai reassured him that he was "doing well" and that the surgery had been successful. He told Mr. Crosetto that he would regain his vision after the gas bubble dissipated. Mr. Crosetto's next follow-up visit was on January 23, 2015, with Dr. Desai. Mr. Crosetto told Dr. Desai that he only could detect light out of his left eye.

Dr. Desai referred him to Martin Kolsky, M.D., a neuro-ophthalmologist. Dr. Kolsky diagnosed Mr. Crosetto with an atrophic optic nerve. Dr. Kolsky ruled out causes such as a hemorrhage, mass, or stroke, and concluded that the nerve atrophy may have resulted ¹⁵⁷ from ischemia, i.e. , loss of blood flow to the optic nerve. Mr. Crosetto never regained vision in his left eye.

On September 4, 2015, in the HCADRO, Mr. Crosetto and his wife filed a complaint against Dr. Sanders and RGW for medical negligence and loss of consortium. They alleged that Dr. Sanders was acting as RGW's agent at the relevant times. According to the complaint, the Defendants breach[ed] one or more applicable standards of medical care ... by ... failing to prescribe and administer a safe dosage of a gas tamponade C3F8 that was safely under the 20% level [and by failing to] properly and timely monitor[ ] Mr. Crosetto's eye pressure before, during and after the Surgery .... The Crosettos identified FASC and alleged that Susan Hanwell, M.D., an agent of FASC, served as the anesthesiologist during the operation.

They also alleged that "the Defendants employed various medical providers and medical staff at its place of business to provide medical treatment to Mr. Crosetto" and "[t]he Defendants were all acting within the scope of their respective employment when they rendered medical care ...." The complaint was accompanied by a certificate of qualified expert and report by Robert Josephberg, M.D., an ophthalmologist who specializes in retinal disease. In his certificate and report, Dr. Josephberg opined that 20% C3F8 gas expands in the eye and "elevate[s] pressure to act as a 'tourniquet ' that severely limits the blood supply to the eye." He asserted that Dr. Sanders breached the standard of care by administering a 20% C3F8 gas tamponade to Mr. Crosetto and by failing to monitor Mr. Crosetto's IOP before and after surgery. He asserted that "the breach of one or more standards of care by Dr. Reginald Sanders caused the permanent loss of vision in Mr. Crosetto's left eye." Dr. Josephberg identified Dr. Warrow and Dr. Hanwell as part of the "team" of doctors caring for Mr. Crosetto, but did not state that either of them, or anyone other than Dr. Sanders, breached the standard of care. ¹⁵⁸ On September 22, 2015, the Crosettos unilaterally waived arbitration in the HCADRO pursuant to Md. Code (1974, 2013 Repl. Vol.), section 3-2A-06B of the Courts and Judicial Proceedings Article ("CJP"), and on September 28, 2015, they filed their complaint in the Circuit Court for Montgomery County.

They filed an amended complaint on July 7, 2016. That complaint removed all references to FASC ⁸⁷⁸ and Dr. Hanwell. 1 Discovery closed on August 15, 2016. On August 23, 2016, the parties filed a Joint Pretrial Statement. Under "Nature of the Case," counsel for the Crosettos wrote: The Plaintiffs, as husband and wife, bring this medical malpractice claim in four counts alleging, inter alia , simply that the Defendant retina surgeon breached the standard of care by neglecting to review and/or consider the patient's pre-existing medical conditions that made him vulnerable to the Defendant surgeon's use of an excessive and dangerous level of a 20% gas/air tamponade perfluoropropane (C3F8) that expanded to up to four times it's [sic] volume.

These negligent acts allegedly caused suffocation of the Plaintiff's central retinal artery to his left eye's optic nerve resulting in permanent loss of vision. In another section of the Joint Pretrial Statement entitled "Claims and/or Defenses," counsel for the Crosettos referred only to allegedly negligent acts and omissions by the "surgeon Defendant," clearly referring to Dr. Sanders. On August 26, 2016, the Crosettos filed a supplemental certificate of qualified expert and report by Dr. Josephberg, as required by CJP section 3-2A-06D. The supplemental certificate and report was substantively similar to the initial certificate and report.

It eliminated the prior references to Drs. Warrow and Hanwell, however, and added a sentence stating, somewhat cryptically, "[t]hat after [s]urgery Dr. Sanders or RGW failed to monitor Mr. Crosetto ... and failed to measure ¹⁵⁹ the IOP and follow-up with care by prematurely discharging him[.]" Other than Dr. Sanders, Dr. Josephberg did not identify any agent of RGW who breached the standard of care. The case was set for a jury trial to begin on November 28, 2016. On October 11, 2016, the Crosettos filed a second amended complaint.

They alleged for the first time that agents of RGW were negligent by failing to "prescrib[e] and administer[ ] eye pressure lowering drops on and after December 2, 2014 through [s]urgery[.]" No person other than Dr. Sanders was alleged to have breached the standard of care, however. On November 15, 2016, the court held a hearing on preliminary matters, including proposed jury instructions and verdict sheets. RGW objected to a proposed verdict sheet that posed separate liability questions for Dr. Sanders and RGW. RGW argued that there was no claim of negligence on the part of any agent of RGW other than Dr. Sanders.

Therefore, its only liability would be for the negligence of Dr. Sanders, if any. The Crosettos countered that RGW could be held vicariously liable for Dr. Sanders's negligence and for the negligence of its agents other than Dr. Sanders. Specifically: Doctor Sanders did the surgery, and the gravamen of the case clearly is a 20 percent versus 15 percent [concentration of C3F8 gas]. That's why he's a defendant. [A]lso, his employer [RGW] is a defendant because his partner[ ], Doctor Des[a]i, pre-op saw Mr. Crosetto and did not give him pressure lowering [medication].

So he's an agent of the corporation. That's not Doctor Sanders['s] conduct. The court ruled that the Crosettos could pursue a claim against RGW for the negligence ⁸⁷⁹ of its agents in addition to Dr. Sanders, saying, "at this point, I think we'll ask the jury if anybody else committed negligence[.]" The court reasoned that that theory of negligence "was out there and [RGW] could have explored it in discovery[.]" 2 ¹⁶⁰ The trial began as scheduled, on November 28, 2016. In opening statement, counsel for the Crosettos said: [W]e also contend that on December 2nd ...

Dr. Desai who's a partner at RGW and is a defendant, [ 3 ] did not prescribe pressure lowering drops. In other words, the plaintiffs contend that if somebody has high eye blood pressure and they're going into surgery two days later; give them medication to lower the pressure. Dr. Josephberg was the Crosettos' sole liability expert at trial. He criticized Dr. Desai, stating that an IOP of 29 mmHg "should have been pre-treated [before surgery]." He observed that "29 pressure was definitely something that should have been treated by I'd say 98 percent of specialists." However, he did not offer an opinion to a reasonable degree of medical certainty that Dr. Desai breached the standard of care by not prescribing eye pressure-lowering medication prior to surgery.

(Nor did he opine that any such failure caused Mr. Crosetto's optic nerve to atrophy.) Dr. Josephberg's testimony focused on Dr. Sanders. He opined that because a 20% C3F8 gas tamponade has expansive qualities, it should not have been used because Mr. Crosetto had an elevated IOP two days before surgery. He testified that he personally would have used a 14% C3F8 gas tamponade because the gas does not expand at that percentage. He ¹⁶¹ further stated, "if you're going to use 20 percent you better have a good reason[,]" and "if you're going to put an expanding bubble in, you better monitor it even under normal circumstances for the first five to eight hours after the case and make sure the pressure doesn't spike." Dr. Josephberg opined that this was necessary "[b]ecause the maximum expansion [of 20% C3F8] is in four to eight hours" and lack of blood flow to the optic nerve for only 60 minutes will cause permanent damage.

He concluded that Dr. Sanders breached the standard of care by discharging Mr. Crosetto 45 minutes after surgery instead of monitoring him for "six to eight hours" to watch for a spike in IOP. When counsel for the Crosettos questioned Dr. Josephberg about whether RGW and Dr. Sanders violated the standard of care, the following exchange occurred: Q Do you have an opinion based upon a reasonable degree of medical certainty, ⁸⁸⁰ your training and clinical experience as to whether the 20 percent gas injected by Dr. Sanders during the December 4th surgery expanded in the eye and further elevated his eye pressure causing an arterial occlusion or any other defect that caused his loss of vision? A Yes. I do.

Q And what is that opinion? A That the 20 percent expanded and caused the damage to the optic nerve. ... Q Doctor, do you have an opinion based upon a reasonable degree of medical certainty as to whether RGW violated the standard of care as to Mr. Crosetto by not adequately monitoring his eye pressure? ... A Yes.

I do. Q What is that opinion? A They violated the standard of care[.] Q How so? A By not monitoring for five to ten hours. ¹⁶² Q Do you have an opinion based upon a reasonable degree of medical certainty as to whether Dr. Sanders violated the standard of care as to Mr. Crosetto by not adequately monitoring his eye pressure after his surgery on December 4th?

A Yes. I do. Q And what is that opinion? A That he violated the standard of care.

Q And do you have an opinion based upon a reasonable degree of medical certainty as to whether RGW's failure to monitor the standard of care caused Mr. Crosetto's loss of vision? [RGW's Counsel]: Objection. THE COURT: I'm sorry. Repeat the question? ... Q Do you have an opinion based upon a reasonable degree of medical certainty as to whether RGW's failure to monitor Mr. Crosetto post-surgery caused his loss of vision? [RGW's Counsel]: Objection.

THE COURT: What I assume by the question for the Doctor's assumption is that the employees are agents of RGW when you say that? [Crosettos' Counsel]: Yes, sir. THE COURT: Is that right? [Crosettos' Counsel]: Yes, sir. THE COURT: All right. For the previous reasons stated, I'll permit the question. ...

A Basically all I could state-I'm not sure of the employer relationship here. ... Q Doctor, do you have an opinion? A Yes. Q Okay.

And what is that opinion? ¹⁶³ A If Dr. Sanders is an employee of RGW then they would violate the standard of care. (Emphasis added.) Dr. Josephberg testified that Mr. Crosetto lost the vision in his left eye because there was an insult to his optic nerve that resulted in atrophy. He opined that the insult happened within the first ten-to-fifteen hours after the surgery. In other words, the damage was done before the December 5, 2014 office visit. 4 Dr. Josephberg did not testify that Dr. Warrow breached the standard of care. ⁸⁸¹ Nor did he identify any agent of RGW, other than Dr. Sanders, who breached the standard of care during or after Mr. Crosetto's December 4, 2014 surgery.

RGW moved for judgment "with respect to any claims of breach of the standard of care on the part of Dr. Desai, or any other member of [RGW], other than Dr. Sanders." Its counsel argued that a claim against Dr. Desai "was never certified in Health Claims" and there was "no factual foundation in this record whatsoever that anybody from [RGW], other than Dr. Sanders, was involved in the discharge of Mr. Crosetto from" the surgery center. 5 The trial court denied the motion. After the defense case, counsel for RGW again moved for judgment, on the same grounds. 6 Closing arguments were presented, and the jurors were sent to deliberate. ¹⁶⁴ Using the special verdict sheet to which RGW objected, the jurors answered "no" to whether Dr. Sanders deviated from the standard of care but answered "yes" to whether RGW "by and through any one of its agents (excluding Defendant [Dr. Sanders] ) negligently failed to follow one or more standards of care owed to [Mr. Crosetto] before, on, or after the December 4, 2014, date of surgery." The jurors further found that "the violation of the standard of care by the agents and employees of [RGW] was a proximate cause of the injury to [Mr. Crosetto]." The jurors awarded $500,000 in damages to Mr. Crosetto and $500,000 in damages to the Crosettos for loss of consortium. Ultimately, the damages award was reduced from $1,000,000 to $740,000 pursuant to the applicable cap on non-economic damages. RGW filed a timely motion for JNOV, making the same arguments it had made in moving for judgment: 1) that the jury should not have been asked to decide the alleged negligence of any agent of RGW other than Dr. Sanders because no other agent was identified in either of Dr. Josephberg's certificates of qualified expert, and 2) that the evidence was legally insufficient to prove that an agent of RGW other than Dr. Sanders breached the standard of care.

On January 5, 2017, the trial court denied the motion, opining that ⁸⁸² "there was ample notice" to RGW that it "was and became an independent defendant," and that RGW was "perfectly able to ¹⁶⁵ flush out if there was any specific allegation in a much greater detail" itself. This timely appeal followed. DISCUSSION I. RGW contends the trial court erred by ruling that the Crosettos could pursue a medical negligence claim against it based on alleged breaches of the standard of care by one of its agents other than Dr. Sanders because Dr. Sanders was the only agent of RGW that Dr. Josephberg certified as having breached the standard of care. The Crosettos respond that the trial court properly exercised its discretion to allow them to pursue a negligence claim against RGW unrelated to Dr. Sanders's negligence, noting that the court found RGW had sufficient notice of such a claim.

The Crosettos maintain that disclosures made in certificates are preliminary and may be expanded upon as the litigation develops. With exceptions not pertinent here, the Health Care Malpractice Claims Act ("the Act") "establishes exclusive procedures for filing a civil action [for medical malpractice] ... against a health care provider." Carroll v. Konits , 400 Md. 167 , 178, 929 A.2d 19 (2007) ; see also CJP § 3-2A-02(a). Pursuant to the Act, a plaintiff alleging medical malpractice must file a claim with the HCADRO. CJP § 3-2A-04(a)(1)(i). 7 Within 90 days after filing such a claim, the plaintiff must "file a certificate of a qualified expert ... attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury[.]" CJP § 3-2A-04(b)(1)(i).

"[A] report of the attesting expert" must be attached to the certificate. CJP § 3-2A-04(b)(3)(i). 8 After ¹⁶⁶ filing the certificate, the plaintiff may waive arbitration and pursue his claim in the circuit court. CJP § 3-2A-06B(b)(1). If a plaintiff fails to file the certificate before filing suit in the circuit court, the action must be dismissed without prejudice.

Carroll , 400 Md. at 181 , 929 A.2d 19 ("[W]e conclude that the filing of a proper [c]ertificate operates as a condition precedent to filing a claim in a [c]ircuit [c]ourt ...."). 9 The Act further requires the filing of a supplemental certificate of qualified expert "[w]ithin 15 days after the date that discovery is required to be complete[d]." ⁸⁸³ CJP § 3-2A-06D(b). 10 ¹⁶⁷ As we and the Court of Appeals have explained repeatedly, the purpose of the health claims arbitration process in general and the certificate requirement in particular is "to weed out non-meritorious claims and reduce the costs of litigation." Wilcox v. Orellano , 443 Md. 177 , 184, 115 A.3d 621 (2015) ; see also Kearney v. Berger , 416 Md. 628 , 645, 7 A.3d 593 (2010) ; Walzer v. Osborne , 395 Md. 563 , 582, 911 A.2d 427 (2006) ; D'Angelo v. St. Agnes Healthcare, Inc. , 157 Md. App. 631 , 645, 853 A.2d 813 (2004). Therefore, the plaintiff's certificate of qualified expert must "identify with specificity, the defendant(s) (licensed professional(s) ) against whom the claims are brought, include a statement that the defendant(s) breached the applicable standard of care, and that such a departure from the standard of care was the proximate cause of the plaintiff's injuries." Carroll , 400 Md. at 172 , 929 A.2d 19 . The certifying expert's attached report must "explain how or why the physician failed ... to meet the standard of care and include some details supporting the certificate of qualified expert." Walzer , 395 Md. at 583 , 911 A.2d 427 . In Carroll , the plaintiff underwent a mastectomy after which a catheter was inserted in her chest for the administration of chemotherapy.

The catheter was to be removed two months after she completed chemotherapy. It was not removed until nearly a year after that and, as a result, the plaintiff developed deep vein thrombosis and chronic venous stasis. The plaintiff brought suit for medical malpractice against her oncologist and the surgeon who inserted the catheter, alleging that they "fail[ed] to communicate the need to have the catheter removed in a timely manner." Carroll , 400 Md. at 173 , 929 A.2d 19 . Her certificate of qualified expert was a letter by a doctor referencing five health care providers, including the two named defendants and two unidentified physicians, and stating generally that " 'there was no clear communication to the patient[.]' " Id. at 197 , 929 A.2d 19 .

The circuit court dismissed the action for failure to file a proper certificate of qualified expert. ¹⁶⁸ The Court of Appeals affirmed. It held that the certificate was deficient because it "failed to state with sufficient specificity which physician or physicians breached the standard of care and which physician or physicians were allegedly responsible for [the plaintiff's] injuries." Id. (emphasis omitted). It also "failed to state what the standard of care was or how [the defendants] departed from it." Id.

The Court explained: Maryland law requires that the [c]ertificate mention explicitly the name of the licensed professional who allegedly breached the standard of care.... We believe that this requirement is consistent ⁸⁸⁴ with the General Assembly's intent to avoid non-meritorious claims. Moreover, it is reasonable because the [c]ertificate would be rendered useless without an identification of the alleged negligent parties. When a [c]ertificate does not identify, with some specificity, the person whose actions should be evaluated, it would be impossible for the opposing party, the HCADRO, and the courts to evaluate whether a physician, or a particular physician out of several, breached the standard of care.

Id. at 196 , 929 A.2d 19 (citations omitted). Three years later, in Kearney , the Court of Appeals held that a certificate of qualified expert is deficient when it "fails to state the applicable standard of care and how the defendant allegedly departed from that standard of care ...." 416 Md. at 649 -50 , 7 A.3d 593 . In that case, the plaintiffs sued a physician for failing to perform a timely biopsy of a mole, which turned out to be a melanoma. The complaint was accompanied by a certificate that stated, in relevant part, " '[i]t is my opinion