Wadsworth v. Sharma

Scott Wadsworth, et al. v. Poornima Sharma, et al., No. 40, September Term, 2021. Opinion by Getty, C.J. WRONGFUL DEATH — LOSS OF CHANCE DOCTRINE — CAUSATION The Court of Appeals held that a party who brings a wrongful death action under Md. Code (1974, 2020 Repl. Vol.), Courts and Judicial Proceedings Article § 3-902(a) as the result of alleged medical malpractice bears the burden of proving that the alleged malpractice proximately caused the decedent’s death. Circuit Court for Baltimore County Case No. 03-C-18-003707 Argued: February 8, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 40 September Term, 2021 SCOTT WADSWORTH, ET AL. v. POORNIMA SHARMA, ET AL. *Getty, C.J. *McDonald, Watts, Hotten, Booth, Biran, Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned) JJ.

Opinion by Getty, C.J. Watts and Harrell, JJ., dissent. Filed: July 15, 2022 *Getty, C.J., and McDonald, J., now Senior Pursuant to the Maryland Uniform Electronic Legal Materials Judges, participated in the hearing and Act (§§ 10-1601 et seq. of the State Government Article) this conference of this case while active members of document is authentic. this Court. After being recalled pursuant to Md. 2023-01-17 16:30-05:00 Const., Art. IV, § 3A, they also participated in the decision and adoption of this opinion. Gregory Hilton, Clerk At common law, a personal action died with the person.

Therefore, the moment a person passed away, any cause of action that person could maintain against another could no longer be brought. This common law rule left family members of decedents without recourse for injuries suffered during the decedent’s lifetime. To remedy that consequence, state legislatures adopted their own version of a wrongful death statute, often modeled after the Lord Campbell’s Act—England’s statute modifying the common law rule. In pertinent part, Maryland’s Wrongful Death Act, first enacted in 1852, provides that “[a]n action may be maintained against a person whose wrongful act causes the death of another.” Md. Code (1974, 2020 Repl.

Vol.), Courts and Judicial Proceedings Article (“CJ”) § 3-902(a). Generally, spouses, parents, and children of the decedent may bring wrongful death claims. CJ § 3-904(a)(1). In wrongful death claims, plaintiffs face the challenge to demonstrate that the defendant proximately caused the decedent’s death.

Therefore, in an attempt to balance perceived inequities that occur under traditional causation principles, some jurisdictions have adopted the loss of chance doctrine. In the medical malpractice context, the loss of chance doctrine allows the plaintiff to recover if the plaintiff can prove that the defendant’s negligence caused the loss of chance of a better outcome, including survival. Other jurisdictions, including Maryland, have rejected the doctrine in favor of maintaining well-settled proximate causation principles, thus leaving to the state legislature the decision of whether to alter the proximate causation standard. In this case, we revisit the loss of chance doctrine.

Consistent with the plain language and legislative history of CJ § 3-902(a) and our prior decisions, we hold that the Circuit Court for Baltimore County and the Court of Special Appeals correctly decided Mr. Wadsworth’s wrongful death claim because he pleaded a loss of chance case, which is not recognized in Maryland. Accordingly, for the reasons explained below, we affirm the Court of Special Appeals. BACKGROUND In 2006, doctors diagnosed Stephanie Wadsworth with Stage IIIC1 breast cancer in her left breast. Treatment for Ms. Wadsworth’s diagnosis included a left mastectomy, chemotherapy, and radiation therapy.

Following these treatments, Ms. Wadsworth underwent a series of follow-up PET/CT scans on August 22, 2006, July 18, 2007, and August 28, 2008. Each scan was negative for metastatic disease. Over four years later, Ms. Wadsworth underwent a new round of diagnostic testing ordered on March 15, 2013 by her oncologist, Poornima Sharma, M.D. This round of 1 Breast cancer staging allows medical professionals to “communicate how far the disease has progressed.” National Breast Cancer Foundation, Stages, https://www.nationalbreastcancer.org/breast-cancer-staging/ [https://perma.cc/7XB5- KL67]. Breast cancer is identified as Stage III when the “the breast cancer has extended to beyond the immediate region of the tumor and may have invaded nearby lymph nodes and muscles, but has not spread to distant organs.” National Breast Cancer Foundation, Inc., Stage 3 (III) A, B, and C Breast Cancer Overview, https://www.nationalbreastcancer.org/breast-cancer-stage-3 [https://perma.cc/V53J- DZ69].

Stage III breast cancer is separated into three groups: Stage IIIA, Stage IIIB, and Stage IIIC. Id. Designation as Stage IIIA, B, or C depends on the “size of the tumor and whether cancer has spread to the lymph nodes and surrounding tissue.” Id. Stage IIIC breast cancer includes any of the following three descriptions: (1) “[n]o tumor or a tumor of any size [and] [c]ancer has spread to 10+ lymph nodes”; (2) “[n]o tumor or a tumor of any size [and] [c]ancer has spread to lymph nodes near collar bone;” or (3) “[n]o tumor or a tumor of any size [and] [c]ancer has spread to lymph nodes near underarm or breastbone[.]” Id. 2 testing included laboratory studies, a mammogram, and a PET/CT scan.

Ms. Wadsworth produced an abnormal PET/CT scan on April 1, 2013, depicting a new and potentially cancerous lesion on her clavicle. Dr. Sharma reviewed the scan but did not report the results to Ms. Wadsworth or conduct further testing.2 Three years after her abnormal scan, Ms. Wadsworth fell and injured her right shoulder. Ms. Wadsworth went to the hospital for her shoulder injury, and a bone scan depicted a malignant bone lesion on her right clavicle. On March 8, 2016, Ms. Wadsworth underwent an open biopsy, which showed that the lesion was “metastatic adenocarcinoma compatible with a breast primary”—i.e., Ms. Wadsworth’s left breast cancer metastasized to her clavicle.

Ms. Wadsworth continued treatment but passed away on June 10, 2017. Ms. Wadsworth’s survivors were her husband, Scott Wadsworth, their children, Elizabeth and Matthew Wadsworth, and her father, Joseph Eline, Jr. Her husband, Mr. Wadsworth, filed a survival action and wrongful death action in the Circuit Court for Baltimore County against Dr. Sharma, University of Maryland Oncology Associates, P.A. (“UMOA”), 2 Laurence D. Goldstein, M.D. also interpreted the scan and concluded that Ms. Wadsworth experienced arthritic change. At the motion for summary judgment hearing, Dr. Sharma’s attorney argued that “Dr. Sharma . . . met with another radiologist . . . and decided . . . not to do anything at that point because the radiologist did not . . . think this was metastatic breast cancer” but recommended Ms. Wadsworth “come back in [four] months for a follow-up.” The complaint also clarifies that Dr. Sharma “or someone from her office, received and reviewed the abnormal April 1, 2013, PET/CT imaging results[.]” 3 University of Maryland Community Medical Group, Inc. (“UMCMG”), and others.3 Ms. Wadsworth’s father and children joined the wrongful death action.

Dr. Sharma, UMOA, and UMCMG filed a motion for summary judgment arguing that the loss of chance doctrine, the legal theory upon which Mr. Wadsworth’s lawsuit is based, is not recognized in Maryland. On October 7, 2019, the circuit court held a hearing regarding the motion for summary judgment, as well as other motions not pertinent to this appeal. Depositions from Dr. James J. Stark and Dr. Andrew M. Schneider were referenced at the hearing. Dr. Schneider stated that “there is no cure once you have metastasis” and that “the average person like [Ms. Wadsworth] would have lived . . . an additional [eighty] months” from the date of the abnormal scan.

Dr. Stark did not offer an opinion on whether treating Ms. Wadsworth sooner would have cured her breast cancer. In response to a question of whether metastatic breast cancer is a “death sentence[,]” Dr. Stark answered, “[y]es. I mean, no one today survives metastatic breast cancer, with the possible exception of oligometastatic disease[.][4]” 3 Mr. Wadsworth also sued Dr. Goldstein and Advanced Radiology, P.A. The record suggests that Advanced Radiology, P.A. was voluntarily dismissed without prejudice, but the record is unclear regarding how Dr. Goldstein is no longer a party to the lawsuit. In proceedings before the Circuit Court for Baltimore County, UMCMG, in addition to joining Dr. Sharma and UMOA’s motion for summary judgment, filed a separate motion for summary judgment.

In UMCMG’s independent motion for summary judgment, UMCMG argued that it did not employ Dr. Sharma on April 1, 2013. Mr. Wadsworth did not oppose UMCMG’s motion for summary judgment, and the circuit court granted the motion at the hearing on October 7, 2019. 4 Oligometastatic breast cancer is a “more treatable type of ‘limited’ metastatic cancer” where the “cancer has only spread to either one or a few sites in [the] body.” UChicago Medicine, Understanding Metastatic Cancer and Oligometastatic Cancer, https://www.uchicagomedicine.org/cancer/types-treatments/limited-metastatic-cancer- 4 Relying on depositions from Dr. Stark and Dr. Schneider explaining the severity of metastatic breast cancer, the circuit court identified that, “[i]t is without dispute that the proximate cause and the actual, sole cause of [Ms. Wadsworth’s] death was the metastatic . . . breast cancer.” Without evidence disputing that Ms. Wadsworth’s metastatic breast cancer caused her death, the circuit court granted the motion for summary judgment, finding that “this is really a loss of chance cause of action, which does not exist in . . . Maryland.” Mr. Wadsworth appealed the grant of summary judgment to the Court of Special Appeals. The Court of Special Appeals held that Mr. Wadsworth could not show that Dr. Sharma’s conduct caused Ms. Wadsworth’s death because the evidence presented to the circuit court did not show that Ms. Wadsworth’s likelihood of survival was greater than fifty percent absent Dr. Sharma’s alleged negligence—i.e., Mr. Wadsworth could not meet his burden of proving that Dr. Sharma’s alleged negligence more likely than not caused Ms. Wadsworth’s death.

The intermediate appellate court held that, “[t]he motions [court] had no choice but to grant summary judgment in favor of the defendants . . . as to the wrongful death claim.” Wadsworth v. Sharma, 251 Md. App. 159 , 183 (2021). Mr. Wadsworth petitioned for a writ of certiorari, which we granted on October 12, 2021. Wadsworth v. Sharma, 476 Md. 264 (2021). Mr. Wadsworth’s petition for writ of certiorari requested that we answer whether “Maryland’s Wrongful Death Statute, program/understanding-metastatic-cancer-and-oligometastatic-cancer [https://perma.cc/BPH2-MC7R].

The record does not suggest that Ms. Wadsworth’s metastatic breast cancer fit into the “possible exception of oligometastatic disease.” 5 specifically, § 3-902(a) of the Courts and Judicial Proceedings Article, permit[s] wrongful death beneficiaries to recover from a health care provider where the actions of the health care provider shortened the terminally ill decedent’s life?” In essence, the question presented invites this Court to review its decisions in Weimer v. Hetrick and Fennell v. Southern Maryland Hospital Center, Inc.—two cases setting Maryland’s foundation for the loss of chance doctrine in wrongful death and survival claims. Precisely, we consider whether the loss of chance doctrine applies to Mr. Wadsworth’s wrongful death claim. STANDARD OF REVIEW Granting a motion for summary judgment is proper when “the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(f). Whether a trial court properly granted a motion for summary judgment is subject to de novo review.

Chateau Foghorn LP v. Hosford, 455 Md. 462, 482 (2017) (citations omitted). In reviewing a grant of summary judgment, we independently review the record in the light most favorable to the nonmoving party and construe reasonable inferences against the moving party. Id. DISCUSSION A. Parties’ Contentions CJ § 3-902(a) states that “[a]n action may be maintained against a person whose wrongful act causes the death of another.” Mr. Wadsworth encourages this Court to strictly adhere to the plain language of CJ § 3-902(a), particularly with respect to the use of the word “causes[.]” Mr. Wadsworth cites to the Oxford English Dictionary’s definition of 6 “cause” that states, “that which produces an effect; that which gives rise to an action, phenomenon, or condition.” Mr. Wadsworth argues that Dr. Sharma’s decision to not follow up with Ms. Wadsworth after her abnormal scan “g[ave] rise to” Ms. Wadsworth’s June 10, 2017 death.

According to Mr. Wadsworth, had Dr. Sharma started treating Ms. Wadsworth immediately after she produced the abnormal scan, she would have lived an additional two and a half years. Mr. Wadsworth acknowledges that Maryland jurisprudence has clarified “cause” as it relates to negligence but contends that he needed to prove that Ms. Wadsworth “would not have died on June 10, 2017 but for [Dr. Sharma’s] negligent failure to inform her of the abnormal PET/CT scan results, and thereafter, to order timely and appropriate follow-up testing and life-prolonging treatment and care.” Mr. Wadsworth also argues that this Court’s prior decision concerning loss of chance in Weimer v. Hetrick is inapplicable. 309 Md. 536 (1987). He asserts that the loss of chance doctrine does not apply because he seeks to recover for a concrete time— approximately two and a half years—not for Ms. Wadsworth’s natural life expectancy. Dr. Sharma argues that Mr. Wadsworth fails to accurately address our decision in Weimer, which directly resolves the wrongful death claim.

Dr. Sharma notes that the parties agree that Ms. Wadsworth’s survival rate was less than fifty percent once her breast cancer metastasized. Because Ms. Wadsworth’s survival rate did not exceed fifty percent absent Dr. Sharma’s alleged negligence, Mr. Wadsworth could not prove that Dr. Sharma’s alleged negligence proximately caused Ms. Wadsworth’s death. Dr. Sharma states that Mr. Wadsworth’s argument that Weimer is inapplicable is a collateral attack on our prior loss 7 of chance decisions, especially considering Mr. Wadsworth’s position in the prior proceedings in the circuit court and Court of Special Appeals. In the Court of Special Appeals, Mr. Wadsworth directly argued that Maryland should adopt loss of chance recovery in wrongful death claims.

Further, Dr. Sharma maintains that any changes to the Wrongful Death Act in Maryland are best resolved by legislation in the General Assembly. For the following reasons, we hold that Mr. Wadsworth’s wrongful death claim against Dr. Sharma is a loss of chance case, which is not recognized in Maryland. Therefore, we affirm the Court of Special Appeals regarding Mr. Wadsworth’s wrongful death claim. B. Courts and Judicial Proceedings Article § 3-902(a) 1.

The History of the Wrongful Death Act In 1852, the General Assembly enacted the Maryland Wrongful Death Act to abrogate the common law principle that a personal action died with the person. Parker v. Hamilton, 453 Md. 127, 134 (2017); Stewart v. United Elec. Light & Power Co., 104 Md. 332 , 333–34 (1906). At common law, “if an injury were done either to the person or property of another for which damages only could be recovered in satisfaction, the action died with the person to whom or by whom[] the wrong was done.” Stewart, 104 Md. at 333–34 (emphasis omitted).

Maryland’s Wrongful Death Act is based on England’s Fatal Accidents Act of 1846, which is also known as the Lord Campbell’s Act. The Lord Campbell’s Act provided that § 1. [W]hensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect[,] or default is such as would (if death had not ensued), have entitled the party injured to maintain an action, and 8 recover damages in respect thereof, then, and in every such case, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances, as amount in law to felony. § 2. [E]very such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by, and in the name of, the executive, or administrator, of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury, resulting from such death, to the parties respectively for whom, and for whose benefit, such action shall be brought[;] and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, in such shares as the jury, by their verdict, shall find and direct. Fatal Accidents Act 1846, 9 & 10 Vict. c. 93 (Eng.). Every state has a similar statute, often based upon the Lord Campbell’s Act, remedying the common law rule.

Parker, 453 Md. at 135 . As enacted in 1852, the Maryland Wrongful Death Act “strongly resembl[ed]” the Lord Campbell’s Act. Mummert v. Alizadeh, 435 Md. 207, 215 (2013). In pertinent part, the 1852 enactment provided [t]hat whensoever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued,) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

Md. Code (1879), Art. 67 § 1; 1852 Md. Laws, ch. 299. 9 The Wrongful Death Act remained “virtually unchanged” from its enactment until 1974. Mummert, 435 Md. at 215 . In 1974, as part of Maryland’s code revision,5 the General Assembly repealed Article 67 and reenacted the Wrongful Death Act as Title 3, Subtitle 9 of the Courts and Judicial Proceedings Article. CJ § 3-902(a) provides that “[a]n action may be maintained against a person whose wrongful act causes the death of another.” “The 197[4] changes to the statute were made for style and organization purposes, not to alter the meaning of the statute, as is the usual goal of [c]ode revision.” Mummert, 435 Md. at 216 (citations omitted).

Other than code revision in 1974, the Wrongful Death Act has only been changed by three bills in which the General Assembly extended the time limitation to bring a wrongful death claim. 1950 Md. Laws, ch. 89; 1959 Md. Laws, ch. 751; 1971 Md. Laws, ch. 784; see also Mummert, 435 Md. at 216 (citing Waddell v. Kirkpatrick, rev’d on other grounds, 331 Md. 52 , 56 n.4 (1993)) (“The original limitation in the 1852 enactment was twelve months, but it was extended later to eighteen months, then to two years, and eventually to three years to bring it ‘in uniformity with that of other negligence actions.’”). 5 “As we have noted in the past, ‘[c]ode revision is a periodic process by which statutory law is re-organized and restated with the goal of making it more accessible and understandable to those who must abide by it.’” United Bank v. Buckingham, 472 Md. 407 , 427 n.6 (2021) (quoting Nationwide Mut. Ins. Co. v. Shilling, 468 Md. 239 , 251 n.9 (2020)). “Maryland [c]ode [r]evision began in 1970 as a long-term project to create a modern comprehensive code when Governor Marvin Mandel appointed the Commission to Revise the Annotated Code. This formal revision of the statutory law for the General Assembly was coordinated by the Department of Legislative Services.

Code [r]evision was completed in 2016 with the enactment by the General Assembly of the Alcoholic Beverages Article.” Id. (quoting Nationwide Mut. Ins. Co., 468 Md. at 251 n.9). 10 2.

Statutory Interpretation Statutes in derogation of the common law, including Maryland’s Wrongful Death Act, must be strictly construed. Weimer, 309 Md. at 554 ; McKeon v. State, Use of Conrad, 211 Md. 437, 443 (1956). This Court’s “chief objective is to ascertain the General Assembly’s purpose and intent when it enacted the statute.” Moore v. RealPage Util. Mgmt., Inc., 476 Md. 501, 510 (2021) (quoting Berry v. Queen, 469 Md. 674, 687 (2020)).

It is well settled that “[w]e assume that the legislature’s intent is expressed in the statutory language and thus our statutory interpretation focuses primarily on the language of the statute to determine the purpose and intent of the General Assembly.” Id. (citations omitted). When interpreting statutes, we first look to the “plain meaning of the language of the statute, reading the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.” Moore, 476 Md. at 510 (quoting Berry, 469 Md. at 687 ). Further, we aim to avoid constructions that are illogical, unreasonable, or inconsistent with common sense.

United Bank v. Buckingham, 472 Md. 407, 424 (2021). Applying these principles, we turn to the language of CJ § 3-902(a). Section 3-902(a) states that “[a]n action may be maintained against a person whose wrongful act causes the death of another.” We previously determined that the language of CJ § 3-902(a) is unambiguous, leaving no room for judicial interpretation. Weimer, 309 Md. at 554 .

Prior caselaw expanding upon the legal meaning of causation provides necessary context to our reading of CJ § 3-902(a). 11 Mr. Wadsworth erroneously relies on the common understanding of “causes” despite this Court’s prior decisions elaborating on the legal meaning of cause. Consistently, we have recognized the requirement that plaintiffs prove by a preponderance of the evidence that the defendant directly and proximately caused the plaintiff’s injury. See Henley v. Prince George’s Cty., 305 Md. 320, 333 (1986); Peterson v. Underwood, 258 Md. 9, 17 (1970). To satisfy proximate cause, the wrongful act or omission must be “(1) a cause in fact, and (2) a legally cognizable cause” of the injury.

Pittway Corp. v. Collins, 409 Md. 218, 243 (2009) (citing Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 156 (1994)). We require a legally cognizable cause because we acknowledge that there is often more than one cause to any effect. Therefore, proximate causation ensures that a defendant is not liable when the plaintiff’s evidence provides “two or more equally likely causes of the injury, for only one of which [the] defendant is responsible.” Peterson, 258 Md. at 17 .

As illustrated fully below, we have consistently decided to keep traditional causation principles intact in wrongful death and survival claims. See Weimer, 309 Md. at 554 ; Fennell v. S. Md. Hosp. Ctr., Inc., 320 Md. 776, 794 (1990). Therefore, reading CJ § 3-902(a) consistently with the legal meaning of cause, it is clear that the plaintiff bears the burden of proving by a preponderance of the evidence that the alleged wrongful act or omission proximately caused the decedent’s death.

After reviewing the plain language of the statute, it is “the modern tendency of this Court . . . to continue the analysis of the statute beyond the plain meaning” of the statutory language and look to the legislative history. In re: S.K., 466 Md. 31 , 50 (2019). Reviewing 12 the legislative history serves as a confirmatory process to ensure that “our plain language interpretation of the statute is consistent with the legislature’s intent.” Moore, 476 Md. at 514 (citing In re: S.K., 466 Md. at 50). On three occasions, the General Assembly lengthened the time frame in which a party could bring a wrongful death claim.

Initially, the statute provided that any wrongful death action must “be commenced within twelve calendar months after the death of the deceased person.” 1852 Md. Laws, ch. 299. In 1950, the General Assembly lengthened the time frame from twelve months to eighteen months. 1950 Md. Laws, ch. 89. Then, in 1959, the General Assembly extended the eighteen-month time frame to two years. 1959 Md. Laws, ch. 751. Finally, in 1971, the General Assembly extended the time frame to bring a claim from two years to three years. 1971 Md. Laws, ch. 784.

Here, the lack of any recent legislation, aside from extending the time frame which plaintiffs can bring a claim, does not contradict our reading of CJ § 3-902(a). In 1987, this Court declined to judicially adopt the loss of chance doctrine in Weimer v. Hetrick. We have also reaffirmed our view that the loss of chance doctrine is not recognized in Maryland. See Marcantonio v. Moen, 406 Md. 395, 416 (2008); Fennell, 320 Md. at 794 .

We presume that the General Assembly is “aware of this Court’s interpretation of its enactments and, if such interpretation is not legislatively overturned, to have acquiesced in that interpretation.” Williams v. State, 292 Md. 201, 210 (1981); see also Bellard v. State, 452 Md. 467, 494 (2017). In thirty-five years, the General Assembly has not passed legislation modifying our decision to reject the loss of chance doctrine. This inaction supports a conclusion that the General Assembly has acquiesced to our holdings in Weimer 13 and the subsequent decisions that reaffirmed Weimer. See Howling v. State, 478 Md. 472, 504 (2022) (“By declining to add a requirement of knowledge of prohibited status over the course of several decades, the General Assembly has acquiesced in Maryland appellate courts’ interpretation of [the relevant statute].”); Lawrence v. State, 475 Md. 384, 422 (2021) (determining that “it is apparent that the General Assembly has acquiesced to our holding” in Lee v. State, 311 Md. 642 (1988), which interpreted statutory language that the General Assembly had not amended in the thirty-three years between Lee and Lawrence); Stachowski v. State, 416 Md. 276 , 293–94 (2010) (“The General Assembly has acquiesced in this Court’s interpretation of [the relevant statute] for thirty-five years since the Jourdan case was decided in 1975.”).

It is this Court’s practice to defer to the General Assembly decisions that “plainly involve[] major policy considerations.” Coleman v. Soccer Ass’n of Columbia, 432 Md. 679, 690 (2013) (quoting Harrison v. Montgomery Cty. Bd. of Educ., 295 Md. 442, 462 (1983)). The General Assembly is best equipped to identify, consider, and reconcile competing policy interests associated with the decision of whether to adopt the loss of chance doctrine. Therefore, any changes to the Wrongful Death Act are best suited to the legislative process in the General Assembly and not from this Court “in the guise of statutory construction.” Weimer, 309 Md. at 554 .

C. This Court’s Prior Decisions Regarding the Loss of Chance Doctrine The loss of chance doctrine permits recovery for the loss of chance resulting from a defendant’s alleged wrongful or negligent conduct. In the context of medical malpractice, “the loss of chance doctrine permits a claimant to recover where a physician’s breach of 14 the standard of care . . . caused the loss of a statistical chance of survival or of a better outcome.” Tory A. Weigand, Lost Chances, Felt Necessities, and the Tale of Two Cities, 43 Suffolk U. L. Rev. 327 , 349 (2010). Other loss of chance theories include recovery for “loss of chance of a positive or more desirable medical outcome, loss of chance of avoiding some physical injury or disease, or a loss of chance to survive.” Fennell, 320 Md. at 781 . This Court has consistently rejected the loss of chance doctrine in deference to the General Assembly as the better forum to make policy determinations regarding the wrongful death statute.

This Court’s prior decisions in Weimer v. Hetrick and Fennell v. Southern Maryland Hospital Center, Inc. serve as the foundation of our review of loss of chance cases in Maryland. 1. Weimer v. Hetrick In Weimer v. Hetrick, Jody Ann Hetrick and Michael Cary Hetrick brought a wrongful death action against the medical providers involved in delivering Jason Michael Hetrick, the Hetricks’ deceased infant son. 309 Md. at 538–39. On September 2, 1978, Ms. Hetrick, who was pregnant at the time, arrived at Anne Arundel General Hospital and, at the service of Dr. Thomas R. Moeser, received a diagnosis of “severe gastroenteritis versus cholecystitis.” Id. at 539. Ms. Hetrick’s condition worsened, and on September 9, 1978, she underwent an exploratory laparotomy.

Id. The exploratory laparotomy showed that Ms. Hetrick’s gallbladder appeared normal. Id. However, she displayed a “great deal” of edema of the liver, leading her medical providers to believe she was “very early severe pre-eclamptic.” Id.

Without performing a cholecystectomy, doctors closed Ms. Hetrick’s incision. Id. 15 Within twelve hours, Ms. Hetrick’s medical providers determined that they could not control her severe pre-eclampsia and determined that Ms. Hetrick’s pregnancy could not continue. Weimer, 309 Md. at 539 . Ms. Hetrick agreed to deliver her baby via caesarean section with knowledge that a 32-week gestation infant may have a poor chance of survival.

Id. Dr. Moeser and Dr. John S. Harris delivered the baby, who weighed three pounds, six ounces. Id. Dr. Stanley R. Weimer did not participate in the delivery but attempted to resuscitate the baby in the operating room after the delivery.

Id. Dr. Weimer did not succeed in resuscitation efforts, and the baby died. Id. In August 1982, the Hetricks filed a malpractice claim, pursuant to the Health Care Malpractice Claims Act with the Health Claims Arbitration Office.

Weimer, 309 Md. at 538 . They alleged that Dr. Weimer, Dr. Moeser, Dr. Harris, St. Agnes Hospital, and Anne Arundel General Hospital were negligent in their son’s treatment. Id. A hearing occurred before an arbitration panel, and the panel found no liability on behalf of the healthcare providers.

However, although Dr. Moeser settled the claims against him prior to the hearing, the arbitration panel found liability on his behalf. Id. at 539 . The Hetricks rejected the arbitration decision and filed suit against Dr. Weimer, Dr. Harris, and Anne Arundel General Hospital in the Circuit Court for Anne Arundel County. Weimer, 309 Md. at 539 .

Dr. Harris settled with the Hetricks prior to trial. Id. The Hetricks moved forward with a trial against Anne Arundel General Hospital and Dr. Weimer. Id.

After the Hetricks concluded presenting evidence, Anne Arundel General Hospital successfully moved for a directed verdict. Id. Trial for the survival claim and wrongful death claim against Dr. Weimer continued. Id. 16 Dr. Kenneth L. Harkavy, a physician and neonatologist, testified that Dr. Weimer’s medical services did not comply with the required standard of care.

Weimer, 309 Md. at 539 . Dr. Harkavy concluded that the baby would have had an eighty to ninety percent likelihood of survival had Dr. Weimer performed adequate resuscitation. Id. at 540 . An opposing expert, Dr. Judith Gieske, concluded that Dr. Weimer met the standard of care and did not cause the baby’s death.

Id. at 541 . An autopsy showed that “it would seem most probable that a combination of eclampsia plus general anesthesia led to fetal anoxia and the pathologic changes observed.” Id. at 540 . The circuit court instructed the jury, in pertinent part, as follows: Now plaintiffs need only prove the most likely cause of the baby’s death in addition to everything else that I’ve said. The plaintiffs are not required to negate or exclude every other possible cause.

However, if there are two or more causes, either of which could have resulted in the baby’s death, one of which for which the pediatrician is responsible, and the others for which he is not, then the plaintiffs have to prove by evidence more likely . . . than not that the acts for which the pediatrician is responsible in fact caused the baby’s death. Now there I’ve used that phrase by evidence more likely . . . than not. Take the example in this case, and it is strictly an example, and I don’t mean to infer that these are the facts. Again, I’m only doing this to clarify what I’ve just said.

You have to decide what the facts are. But if you should find that Dr. Weimer was responsible for the lack of oxygen and that was 50% of the cause of the death and if you feel that the prematurity was 50% of the cause of death, then that’s the standoff again. We got two causes of action. There are two possible causes of death that are both equal.

If that’s the case, the plaintiff hasn’t done what the law requires[,] and you must find in favor of the doctor. The plaintiff has to show that the act for which the doctor is responsible for is better than 50%, 51%. That’s better. 17 Weimer, 309 Md. at 542–43. Counsel for the Hetricks objected to the jury instruction and stated that the instructions “failed to give . . . the instruction on Thomas v. Corso[6] to the effect that all that the plaintiff[s] need to prove is that the actions of Dr. Weimer took away a substantial possibility that the baby would have survived with appropriate resuscitation.” Id. at 543 .

Counsel for the Hetricks continued: I object to giving the instruction that [counsel for Dr. Weimer] asked for . . . and with your example where you said 50% prematurity, 50% lack of appropriate resuscitation, I don’t think that that is the burden [that is] upon the plaintiff. I think all that the burden—all that the plaintiff need[ed to] prove is that [the] failure to properly resuscitate took away a substantial possibility that this child would have survived. So in this specific case, as in Thomas v. Corso, even though we have offered evidence as to probability, we need only prove substantial possibility which was less than 50%. Id.

Ultimately, the jury returned verdicts in favor of Dr. Weimer for both claims. Id. The Hetricks appealed the verdicts to the Court of Special Appeals, which held in part that the circuit court erroneously instructed the jury as to causation. Hetrick v. Weimer, 67 Md. App. 522, 541 (1986).

Relying on Hicks v. United States and Thomas v. Corso, the Court of Special Appeals determined that the circuit court erroneously instructed the jury 6 In Thomas v. Corso, a driver hit the decedent, who was standing on the side of the road clearing ice from his car. 265 Md. 84, 87 (1972). The decedent arrived at the emergency room around 11:10 p.m. Id. at 88 . The doctor on call ordered that the decedent be admitted to the hospital, which occurred around 11:45 p.m.

Id. The doctor did not visit the decedent until 2:30 a.m. when the resuscitative efforts failed, and the doctor pronounced the decedent dead. Id. at 90 . The decedent’s cause of death was “traumatic shock, fractured femur and pelvis.” Id. at 92 .

In rejecting the doctor’s argument that the decedent’s estate failed to prove causation, this Court quoted the “substantial possibility of survival” language in Hicks v. United States, 368 F.2d 626 (4th Cir. 1966). Id. at 102. We concluded that the evidence presented was “sufficient to justify a jury finding of a substantial possibility of survival which was destroyed by the failure of [the doctor] to examine, diagnose and treat [the decedent] at any time after [the decedent] arrived at the Emergency Room[.]” Id. 18 on causation because the instructions “imposed an improper burden upon [the Hetricks].” Id. Specifically, the intermediate appellate court applied the language stating, “if there was any substantial possibility of survival and the defendant has destroyed it, [the defendant] is answerable.” Id. at 540.

The Court of Special Appeals held that the proper burden of proof required the Hetricks to show that Dr. Weimer’s negligence “deprived the patient of a substantial possibility of survival.” Id. at 543 (emphasis in original). Dr. Weimer appealed the Court of Special Appeals’ decision to this Court. Regarding the wrongful death causation instruction, this Court reversed the Court of Special Appeals’ decision that the circuit court erroneously instructed the jury. Weimer, 309 Md. at 555 .

After summarizing well-settled proximate causation principles and determining that the holdings in Hicks and Thomas are not inconsistent with those principles, this Court “decline[d] to accept [the Hetricks’] suggestion that such careful and analytical jurists . . . intended . . . to alter, without discussion, the rule of law governing the burden of proof so anciently formed and so uniformly applied in wrongful death cases” under the Maryland Wrongful Death Act. Id. at 552 . Therefore, this Court determined that the plaintiff in a wrongful death case bears the burden to prove “by a preponderance of the evidence that the conduct of a defendant was negligent and that such negligence was a proximate cause” of the decedent’s death. Id. at 554 . 2.

Fennell v. Southern Maryland Hospital Center, Inc. Although Weimer did not directly address whether the loss of chance doctrine is recognized in survival actions, this Court considered that specific issue a few years later in Fennell v. Southern Maryland Hospital Center, Inc., 320 Md. 776 (1990). In Fennell, the 19 decedent, Cora Fennell went to the Emergency Room at Southern Maryland Hospital Center, Inc. (“SMHC”) after waking up with a severe headache in the early morning of July 14, 1981. Id. at 778 . Doctors feared Ms. Fennell was experiencing a neurosurgical emergency and ordered that Ms. Fennell receive a CT scan to view a possible intracranial bleed.

Id. Records indicate that a CT scan was performed around 3:30 a.m. on July 14, 1981. Id. at 779 . Dr. Ronald Uscinski admitted Ms. Fennell to SMHC at 4:00 a.m. and then to the Intensive Care Unit around 5:00 a.m.

Id. Ms. Fennell arrested at 7:40 a.m. She was then put on life support until the early morning of July 15, 1981 when she arrested for a second time and was pronounced dead. Fennell, 320 Md. at 779 .

Records show that no doctors from SMHC, including Dr. Uscinski, visited Ms. Fennell between 4:00 a.m. and 7:40 a.m. when she arrested for the first time. Id. The CT scan ruled out intracranial bleed but suggested signs of inflammation. Id.

Ms. Fennell’s autopsy later revealed that she suffered from meningitis, a symptom of which is swelling of the brain,