Streaker v. Boushehri

Nazarian, J. This medical malpractice appeal presents questions about the burden of proof under Courts & Judicial Proceedings Article § 3-2A-04(b)(4), known colloquially as the Twenty Percent Rule. After finding that Karen Streaker’s expert ¹⁰⁵ witness failed to satisfy this rule, which disqualifies expert witnesses who devote annually more than twenty percent of their professional activities to activities that directly involve testimony in personal injury claims, the Circuit Court for Howard County granted summary judgment against her and in favor of Kristina Boushehri and Capital Women’s Care, LLC (“CWC”). On appeal, Ms. Streaker contends that the trial court erred when it included certain of Dr. Borow’s activities in the numerator of the Twenty Percent Rule calculation. We affirm.

I. BACKGROUND On October 31, 2013, Ms. Streaker filed a complaint against Ms. Boushehri, a Certified Nurse Midwife, and CWC, her practice, -alleging negligence and breach of contract. She filed first in the Circuit Court for Prince George’s County, and the case was transferred to the Circuit Court for Howard County. The complaint stemmed from injuries Ms. Streaker alleged that she suffered while under their care from November 2009 to June 2010. The details of Ms. Streaker’s medical claims aren’t central to the issues on appeal; it will suffice for present purposes that Ms. Streaker alleged that Ms. Boushehri’s care not only failed to resolve her symptoms and discomfort, but caused her to suffer complications that landed her in the hospital, required her to undergo surgery, and caused ongoing kidney disease.

As required by Maryland’s Health Care Malpractice Claims Act (the “Act”), Ms. Streaker designated a medical expert, Lawrence S. Borow, M.D., to certify that Ms. Boushehri and CWC had departed from the relevant standards of care and that the departures proximately caused Ms. Streaker’s personal injuries and damages. In August 2013, Ms. Streaker filed a Certificate of Qualified Expert from Dr. Borow in which he attested that he did not devote more than twenty percent of his professional time to activities that directly involve testimony in personal injury claims. In response, the defendants served discovery, including discovery relating to Dr. Borow’s professional activities. Dr. Borow produced some materials, ¹⁰⁶ but declined to produce others.

The defendants eventually filed a motion to compel financial records that the court granted, albeit a week before trial and the day before Dr. Borow’s scheduled de bene esse deposition. The videotaped de bene esse deposition of Dr. Borow took place on May 27, 2015. In addition to the discovery mentioned above, the defendants also had subpoenaed Dr. Bo-row’s office calendar and a list of his prior testimony, but Dr. Borow moved (in Pennsylvania, where he lives) to quash it, and the deposition went forward without those materials. Dr. Borow testified during the direct examination portion of the deposition that he spent approximately fifteen percent of his professional time on work that directly involves testimony in personal injury actions.

On cross, the defense challenged his calculation, contending that Dr. Borow had misallotted time spent preparing for depositions as work not directly related to testimony, They complained as well that Dr. Borow’s records were incomplete and that he had failed to reveal or itemize work he had performed as an expert witness. Before trial, Ms. Boushehri and CWC moved in limine to exclude Dr. Borow’s testimony because he failed to satisfy the Twenty Percent Rule. On June 2, 2015, the trial court heard argument, recessed, then granted the motion from the bench. The court reviewed the two major cases applying the Twenty Percent Rule, Witte v. Azarian, 369 Md. 518 , 801 A.2d 160 (2002), and University of Maryland Medical System.

Corp. v. Waldt, 411 Md. 207 , 983 A.2d 112 (2009), reviewed the evidence and testimony, and attempted to calculate the percentage of time that Dr. Borow devoted to activities that directly involve testimony in personal injury claims. But after placing the burden of proof of the motion on the defendant, the court struggled to make the calculation from the documents and information Dr. Borow had produced (or, more to the point, the documents and information he hadn’t produced): So the reason why the Court read that testimony—which the Court finds important—is because I think it really relates and connects to the issues that we have before the Court of whether or not the twenty percent of the expert ¹⁰⁷ professional activities—were more than twenty percent. We know, based on the one case, that twenty point six percent and the slightest amount over twenty percent would, in fact, prohibit and preclude the witness from testifying. And the Court has considered the arguments presented by both the plaintiff as well as the defendants in their calculations.

But the Court finds that the defendants’—what I would call version or analysis—is much more accurate of the testimony that’s been, in fact, presented concerning the doctor’s activities. So clearly based on—and I’m only going to use 2014, which is what—let me also back up. Because one of the questions is, who has the burden. Because in reading 3-2A-04 it just says that that is the prohibition, no more than twenty percent.

It doesn’t really say who has the burden. I know in the defendant[s’] memo the defendant says that the plaintiff has the burden. But if—it is the Court’s opinion that the defendant would have the burden to challenge that and to present sufficient information to this Court to make that decision. So I don’t find that it is the plaintiffs burden, I do find it is the defendant’s burden.

The other issue that this Court is considering is that based on the witness’s testimony that he clearly knows—meaning the doctor—about the twenty percent rule, he has testified numerous times—the Court finds it curious that he does not itemize or keep records to that extent. The Court also noted that he failed to produce his calendar that was subpoenaed. The Court also recognizes that he has used the legal system in the state of Pennsylvania to prevent the production of it. And my question is why?

And then whether or not this Court should draw an adverse inference from that failure. Because clearly we have an expert witness who knows the rules of the state and when asked to produce it for whatever reason, he has used the legal system to prevent that. And that still is the lingering question as to why, and should this Court draw an adverse inference that the reason why he didn’t produce it was because it would show he has over twenty percent. But I am not going to go that far, I’m just ¹⁰⁸ going to base my decision on the information that has been, in fact, presented.

It is clear to this Court that when you consider the factors that I am required to under the case law, and seeing that in 2014 he did, in fact, earn three hundred and twenty-four thousand six hundred and two dollars from what we would call as an expert. We know that he bills four hundred dollars an hour. And also, we also know that one of the 10-99s was not included so I am also questioning how many others have not been included. But from what we do have at four hundred dollars an hour, that comes to eight hundred eleven hours a year which is sixteen hours per week based on the medical legal work.

And when the court makes the division it comes to thirty-three point one two percent. That is clearly above the twenty percent rule that is prohibited by the statute. So, therefore, the court will grant the motion to exclude the testimony of Dr. Borow because he is performing more than twenty percent of his time on medical legal work which is prohibited by the statute. So that is going to be the decision of this Court concerning that issue.

The court’s decision to exclude Dr. Borow left Ms. Streaker with no expert to testify that the defendants had breached the standard of care in her treatment, and the court granted the defendants’ oral motion for summary judgment. Ms. Streaker filed a motion to reconsider the exclusion of Dr. Borow’s testimony, which the court denied. This timely appeal followed.

II

DISCUSSION Ms. Streaker characterizes the circuit court’s decision, and its errors, as a purely legal dispute over the range of professional activities that may be included in the numerator for the Twenty Percent Rule calculation. She contends first that the trial court erred in excluding Dr. Borow’s testimony when it included initial case reviews among the activities that “directly involve testimony in personal injury claims,” and thus inflated ¹⁰⁹ the proportion of his professional activities falling into that category. From there, Ms. Streaker argues second that, “having erred in precluding Dr. Borow from testifying, the circuit court erred in granting summary judgment” in favor of Ms. Boushehri and CWC. 1 We see the case differently. This was not a case in which the circuit court simply plugged the wrong value into a straightforward equation.

Instead, the court was left to reverse-engineer Dr. Borow’s activities from a messy and hotly disputed record, and we agree that the Doctor failed the Twenty Percent Rule even though the court opted (erroneously, as we explain) not to hold Ms. Streaker to the burden of proof. A. The Trial Court Correctly Excluded Dr. Borow’s Testimony. At the beginning of a medical malpractice action, 2 a plaintiff must file a certificate of qualified expert in which the claimant must attest that the defendant(s) departed from standards of care and that the departure(s) proximately caused the alleged injury. Md. Code (1973, 2013 Repl.

Vol.), § 3-2A-04(b)(l)(i) of the Courts & Judicial Proceedings Article (“CJ”). 3 The term ¹¹⁰ “qualified” in that phrase does not refer to the certifying expert’s education or experience or expertise—that notion of qualification is (still) measured by Maryland Rule 5-702 and the law interpreting and applying that rule, and also by CJ § 3-2A-02(c). It refers instead to an additional statutory threshold that applies only to certifying and standard of care experts in medical malpractice cases: “qualified” experts “may not devote annually more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims.” CJ § 3-2A-04(b)(4). This limitation is known in common parlance as the “Twenty Percent Rule.” The Twenty Percent Rule requires the court to “perform a mathematical equation: [it] must identify those activities that ‘directly involve testimony in personal injury claims’ (the numerator) and then divide it by those activities that comprise the body of ‘professional activities’ in general (the denominator).” Waldt, 411 Md. at 222 , 983 A.2d 112 . The activities that “directly involve testimony” in personal injury claims, and thus make up the numerator, are: “(1) the time the doctor spends in, or traveling to or from, court or deposition for the purpose of testifying, waiting to testify, or observing events in preparation for testifying, (2) the time spent assisting an attorney or other member of a litigation team in developing or responding to interrogatories and other forms of discovery, (3) the time spent in reviewing notes and other materials, preparing reports, and conferring with attorneys, insurance adjusters, other members of a litigation team, the patient, or others after being informed that the doctor will likely be called upon to sign an affidavit or otherwise testify, and (4) the time spent on any similar activity that has a clear and direct relationship to testimony to be given by the doctor or the doctor’s preparation to give testimony.” Witte, 369 Md. at 535-36 , 801 A.2d 160 .

Professional activities, the activities that comprise the denominator, are activities that “contribute to or advance the profession to which the individual belongs or involve the individual’s active participation in that profession.” Waldt, 411 Md. at 226 , 983 A.2d 112 . And in defining the ¹¹¹ expert’s total universe of professional activities, “a distinction must be drawn between the hours spent furthering one’s profession versus the hours spent on personal or leisurely pursuits.” Id. Experts need not necessarily still be seeing patients, but they must be engaged professionally, and actively so: Though active clinical practice is not required, the doctor must still engage in professional activities other than testifying in court. Such a doctor is still required to satisfy the 20 Percent Rule.

This allows a qualified doctor to continue to utilize his or her expertise, but prevents him or her from launching a second career as purely an expert witness. The primary professional activities (at least 80 percent) must still be in the medical profession that he or she is professing. Id. at 228 . 1. Ms. Streaker bore the burden of proving that Dr. Borow satisfied the Twenty Percent Rule.

We review the trial court’s decision to exclude expert testimony for abuse of discretion. Id. at 221 , 983 A.2d 112 . Before undertaking that review, though, we address Ms. Streaker’s contention that the defendants, Ms. Boushehri and CWC, bore the burden of proving that her expert, Dr. Borow, did not satisfy the Twenty Percent Rule. Under Ms. Streaker’s theory, a trial court must accept the expert’s certification that he satisfies the Twenty Percent Rule unless the defense proves otherwise—essentially, that experts are presumed qualified until proven otherwise.

As the plaintiff in this case, Ms. Streaker bears the burden of proving her claims. Cooper v. Singleton, 217 Md.App. 626, 649-50 , 94 A.3d 250 (2014) (“[T]he burden of persuasion never shifts in a medical malpractice case, and as at common law, the plaintiff must carry