Waldt v. University of Maryland Medical System Corp.

DEBORAH S. EYLER, J. In the Circuit Court for Baltimore City, Rebecca Marie Waldt and her husband, Roy Waldt, sued Gregg Zoarski, M.D., and the University of Maryland Medical System (“UMMS”) for medical malpractice. Using a device called the “Neuroform Microdelivery Stent System” (“neuroform stent”), Dr. Zoarski, the Chief of Interventional Radiology at UMMS, had performed a procedure to treat an aneurysm in a blood vessel in Mrs. Waldt’s brain. During the procedure, an artery was perforated, which caused bleeding into the brain and a stroke. The stroke left Mrs. Waldt with significant physical and mental deficits.

In their complaint, the Waldts alleged two types of negligence: 1) ordinary medical negligence, ie., failure by Dr. Zoarski to adhere to the standard of care in the actual performance of the procedure; and 2) informed consent negligence, ie., failure by Dr. Zoarski to obtain the patient’s informed consent to the procedure. The Waldts’ sole claim against UMMS was for vicarious liability for the alleged malpractice of Dr. Zoarski. The case went to trial beginning on November 30, 2006. Ultimately, at the close of the Waldts’ case, on December 21, ²²⁴ 2006, the court granted judgment in favor of UMMS and Dr. Zoarski on both counts.

The Waldts noted this appeal, raising seven questions for review, which we have reordered, consolidated, and reworded: I. Did the trial court err in ruling that Gerard Debrun, M.D., the Waldts’ expert witness, could not testify on the issue of whether Dr. Zoarski breached the standard of care in treating Mrs. Waldt?

II

Did the trial court err in ruling that Dr. Debrun could not testify as an expert witness on the medical issues that were part of the Waldts’ informed consent claim?

III

Did the trial court err by granting judgment in favor of UMMS and Dr. Zoarski at the end of the Waldts’ informed consent case?

IV

Did the trial court err by ruling inadmissible certain documentary evidence? For the following reasons, we answer “Yes” to the first question and “No” to the second and third questions. Our disposition makes it unnecessary to address the fourth question. Accordingly, we shall affirm the judgment in favor of the appellees on the informed consent claim, reverse the judgment in favor of the appellees on the ordinary negligence claim, and remand the case to the circuit court for further proceedings on that claim.

FACTS AND PROCEEDINGS In August 2002, Mrs. Waldt, then 52, went to see her primary care physician, Amy Jones, M.D., because for four months she had been experiencing headaches that were not improving with medication. Dr. Jones ordered an MRI of Mrs. Waldt’s head, which revealed an unruptured intracranial “right paraopthalmic brain aneurysm.” An aneurysm is a weak spot on a blood vessel that produces a bubble-like bulge, which can rupture. In Mrs. Waldt’s case, the bubble had not yet burst. Mrs. Waldt had some knowledge of brain aneurysms because both her mother and aunt had died of them. ²²⁵ Dr. Jones referred Mrs. Waldt to Dennis Winters, M.D., a local neurosurgeon.

Dr. Winters reviewed the MRI and arranged for a cerebral angiogram, a procedure that uses dye to mark the blood vessels in the brain so they can be seen and evaluated. The angiogram confirmed the presence of the aneurysm in Mrs. Waldt’s middle cerebral artery (“MCA”), near its junction with the opthalmic artery. The area is deep inside the brain, at its base, on the right side, near the optic nerve and behind the eyes. The angiogram showed the aneurysm to be 8 millimeters in size with a wide “neck,” that is, the point on the artery at which the bubble protrudes.

Due to the size and location of the aneurysm, Dr. Winters referred Mrs. Waldt to Francois Aldrich, M.D., a neurosurgeon at UMMS. Dr. Aldrich specializes in repairing damaged blood vessels in the brain by “open brain surgery,” ie., surgery that involves the temporary removal of a section of the skull (a “craniotomy”) to gain access to the damaged vessel in the brain. The aneurysm is repaired by the surgical placement of titanium “clips” across the weakened area of the vessel, closing it off. The procedure is called surgical “clipping.” On October 18, 2002, the Waldts met with Dr. Aldrich, at UMMS.

He reviewed the various test results with them and discussed three treatment avenues. The first was to do nothing except to monitor the status of the aneurysm. The second was to perform open brain surgery with surgical clipping. The last avenue, which is the one that was taken, was a non-surgical procedure known as endovascular coiling (“coiling”).

Coiling procedures are performed by interventional radiologists. The radiologist inserts a catheter in a large blood vessel in the patient’s groin, into which he threads a “stent” and a guide wire through other blood vessels until they reach the aneurysm site. The stent is a hollow tube made of metal mesh, that serves as a scaffold. Using the guide wire, the radiologist moves the stent into place against the neck of the aneurysm.

Then another catheter, containing tiny metal coils ²²⁶ of various sizes, in the shape of pig tails, is inserted and deposited in the stented area. Again using the guide 'wire, the radiologist moves the metal coils, one by one, from inside the stent to inside the aneurysm sac. In doing so, he or she guides each coil through one of the mesh openings in the stent, into the sac. When the coils are in place in. the sac, the catheter and guide wire are withdrawn.

The stent remains, propping the artery open and covering the coil-filled sac. Blood coagulates around the coils, walling off the sac and thereby repairing the aneurysm. On the same day as their consultation with Dr. Aldrich, the Waldts met with Dr. Zoarski, at Dr. Aldrich’s suggestion. Dr. Zoarski agreed with Dr. Aldrich about the three treatment options.

He and Dr. Aldrich strongly recommended against the “do nothing except monitor” approach, given Mrs. Waldt’s family history. It is undisputed that the do nothing approach was not acceptable for Mrs. Waldt’s condition. During their October 18 meeting, Dr. Zoarski spent an hour discussing the coiling procedure with the Waldts. He explained how it is done and told the Waldts that, ordinarily, the stent that is used in the procedure is a cardiac stent, that is, one that is used in the blood vessels of the heart in heart surgery.

He told the Waldts that a new stent, more supple than a cardiac stent, was in the process of being developed but was not yet available for use in the United States. As a consequence of the meeting with Dr. Zoarski on October 18, Mrs. Waldt was scheduled to undergo the coiling procedure, with a cardiac stent, on November 20, 2002. Before that date, Dr. Zoarski learned that the new neuroform stent had become available for use in this country. He called the Waldts and informed them of that development.

On November 13, 2002, when the Waldts came to UMMS for the pre-procedure preparation for the cardiac stent coiling procedure, they and Dr. Zoarski again met. Dr. Zoarski told the Waldts that although the neuroform stent was available for use, he would have to receive training from Boston Scientific, the manufacturer, before he could use it. Thus, if the Waldts ²²⁷ wanted the coiling procedure to be performed using the neuroform stent, instead of the cardiac stent, the procedure date would have to be postponed. The Waldts decided in favor of that approach, and the procedure date was moved to December 19, 2002.

Dr. Zoarski in fact received training in the use of the neuroform stent at a Boston Scientific training session in Chicago on December 10, 2002. The neuroform stent coiling procedure is essentially the same as the cardiac stent coiling procedure, except that the stent that is used is made of more flexible and less rigid metal mesh. Dr. Zoarski performed the neuroform stent coiling procedure on Mrs. Waldt as rescheduled, on December 19, 2002. He inserted a catheter into a large artery in Mrs. Waldt’s groin and moved it through the other arteries into the artery in her brain in which the aneurysm was located.

(Just as in the cardiac stent coiling, contrast material inside the catheter allowed Dr. Zoarski to use radiological studies to visualize inside the blood vessels and brain.) Dr. Zoarski threaded the guide wire and the neuroform stent through the catheter; placed the neuroform stent in the artery in which the aneurysm was located; and fixed it in place so as to cover the neck of the aneurysm. When the neuroform stent was in place, he removed the guide wire and catheter. He then inserted a micro-catheter, containing the tiny metal coils, and threaded it and the guide wire through the arteries, to the location of the neuroform stent, next to the aneurysm. He began using the guide wire to move the coils, one by one, from inside the neuroform stent, through its wire mesh openings, into the aneurysm sac.

He successfully moved two coils from inside the neuroform stent to inside the aneurysm sac. The procedure went as planned until Dr. Zoarski was in the process of moving the third pigtail-shaped coil from inside the neuroform stent to inside the aneurysm sac. As he moved the third coil through the wire mesh, it became ensnared. For over two hours, Dr. Zoarski maneuvered the guide wire back ²²⁸ and forth in an effort to free the tangled coil from the mesh.

Ultimately, the coil broke. During that maneuvering period, the MCA was perforated, and blood and dye extravasated into the brain. Dr. Zoarski called for the assistance of a neurosurgeon. Dr. Aldrich responded, performed a craniotomy, and brought the bleeding under control.

The bleeding inside the brain had caused a stroke, however; and ultimately, and allegedly, the stroke caused injuries to Mrs. Waldt in the form of loss of use of her left hand, impaired cognition, loss of vision, confinement to a wheelchair, and severe depression. Throughout the ensuing litigation, the Waldts’ theory of the case was that the MCA was perforated at a location far beyond the site of the aneurysm, and the perforation was caused by Dr. 'Zoarski’s repeatedly moving the guide wire back and forth (“fishing”) through the catheter in an effort to unsnare the tangled coil. The Waldts’ theory of the case was not that the neuroform stent failed, or was defective, or was itself the reason for the perforation. Dr. Zoarski’s theory of defense was that the artery did not perforate at a site away from the aneurysm; rather, it perforated near the aneurysm, which is a known and usual risk of any coiling procedure.

Alternatively, if the artery did perforate distant from the aneurysm site, it did not perforate due to a breach of the standard of care by him or by any other health care provider involved in Mrs. Waldt’s treatment. We shall include additional facts as pertinent to our discussion of the issues. DISCUSSION I. Ordinary Medical Negligence Claim In Maryland, the procedures in medical malpractice litigation are established by the Health Claims Arbitration Act, codified at Md.Code (1976, 2006 Repl.Vol., 2007 Supp.), section 3-2A-01 et seq. of the Courts and Judicial Proceedings Article (“CJ”) (“the Act”). The Act requires that all malpractice claims against health care providers in which damages in ²²⁹ excess of the jurisdictional limit of the District Court are sought be initiated by filing a statement of claim in the Health Claims Alternative Dispute Resolution Office (“HCADRO”), formerly called the Health Claims Arbitration Office.

See CJ § 3-2A-02(a); McCready Memorial Hosp. v. Hauser, 330 Md. 497, 512 , 624 A.2d 1249 (1993). The Waldts filed their statement of claim in the HCADRO on August 1, 2005. It named UMMS as the sole health care provider. Pursuant to CJ section 3-2A-04(b)(l)(i), they also filed a certificate of qualified expert, signed by James Gerard Debrun, M.D., an interventional neuroradiologist.

In the certificate, Dr. Debrun attested among other things that UMMS, through the actions and omissions of Dr. Zoarski, breached the standard of care in performing the coiling procedure on Mrs. Waldt, proximately causing her to suffer a stroke and consequent injuries. On August 3, the Waldts unilaterally waived arbitration, as permitted by CJ section 3-2A-06B. Thereafter, on September 27, 2005, in the Circuit Court for Baltimore City, they filed their complaint. It too identified UMMS as the sole defendant.

Three weeks before trial, the Waldts amended their complaint to name Dr. Zoarski as a defendant as well. In count 1, the Waldts alleged that Dr. Zoarski (and in turn UMMS) failed to exercise reasonable care in their care and treatment of Mrs. Waldt. The gravamen of this ordinary medical negligence claim (in contrast to their informed consent negligence claim) was that Dr. Zoarski breached the standard of care in the way he performed the coiling procedure, thereby perforating Mrs. Waldt’s MCA at a point distant from the site of the aneurysm and causing her injuries. Specifically, the Waldts alleged that Dr. Zoarski “negligently used extensive manipulation and excessive force to retrieve the stuck coil, causing a severe perforation of the artery resulting in a massive bleed in Mrs. Waldt’s brain.” In the course of discovery, the Waldts identified Dr. Debrun as their expert witness.

Dr. Debrun was educated in France and practiced interventional neuroradiology for 45 years before retiring in July of 2001. He has held many positions in ²³⁰ that field, including: Chief of Neuroradiology at the University Hospital of Paris, Director of Neuroradiology at the University of London in Canada, Chairman of the Department of Radiology at Massachusetts General Hospital, Visiting Professor at Harvard Medical School, and Director of Interventional Neuroradiology at The Johns Hopkins Hospital in Baltimore. Dr. Debrun has lectured extensively and written hundreds of articles on the subject of neuroradiology. He has in the past performed over 30 coiling procedures to treat wide-neck aneurysms.

Between 10 and 15 of those aneurysms were similar in size to Mrs. Waldt’s aneurysm. Because Dr. Debrun’s retirement preceded the market release of the neuroform stent, he never performed a coiling procedure using that stent. Dr. Debrun read Mrs. Waldt’s medical records, including Dr. Zoarski’s notes about the coiling procedure; reviewed the angiograms taken at various intervals during the procedure; and read literature about the neuroform stent system, published by its manufacturer, Boston Scientific. In a discovery deposition, Dr. Debrun opined that Dr. Zoarski breached the standard of care when he performed the coiling procedure by, inter alia, using the guide wire to “fish” for the stuck third coil, and in doing so perforating the MCA at a site away from the aneurysm.

He explained that the perforation was caused by Dr. Zoarski’s manipulation of the guide wire, and not by the stent itself, because (1) an angiogram taken during the procedure shows the stent and the coils perfectly deployed and in place, (2) the, location of the bleed (as shown in an angiogram) was too distant from the aneurysm to have been caused by the stent, and (3) Dr. Zoarski’s own notes, made at the time of the event, reflect his belief that the perforation occurred away from the site of aneurysm. A. Did the Trial Court Err By Excluding Dr. Debrun’s Standard of Care Testimony from Trial for Noncompliance with the “20 Percent Rule”? Under CJ section 3-2A-04(b), in a medical malpractice action other than one based solely on informed consent, each ²³¹ party must file a certificate of qualified expert (sometimes referred to as a certificate of merit). That subsection sets forth the proper and necessary elements for a valid certificate.

In an ordinary medical negligence claim, the claimant/plaintiff s certifying expert must “attest[ ] to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury.” CJ § 3-2A-04(b)(l)(i)l. 1 For a certificate of qualified expert to pass muster under the Act, the certifying expert “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 “20 Percent Rule,” as it is commonly called, has been a requirement for a valid certificate of qualified expert ever since the certificates first became required, in 1986. 1986 Md. Laws Chap. 640 § 1. More recently, effective January 11, 2005, the same 20 Percent Rule has been made a prerequisite for expert witness testimony offered in a medical malpractice hearing or trial. In a December 2004 Special Session of the General Assembly, a bill was enacted that amended CJ section 3-2A-04(b)(4) to provide: Unless the sole issue in the claim is lack of informed consent ...: A health care provider who attests in a certificate of a qualified expert or who testifies in relation to a proceeding before the arbitration panel or a court concerning compliance with or departure from standards of care may not devote annually more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims. ²³² (Emphasis added.) 2005 Md. Laws Spec.

Sess. Chap. 5, § 1. During the same Special Session, the General Assembly enacted what is now CJ section 3-2A-02(c)(2): (c) Establishing liability of health care provider; qualifications of persons testifying. H: if: # H: H: (2)(i) This paragraph applies to a claim or action filed on or after January 1,2005. [2] (ii) 1.

In addition to any other qualifications, a health care provider who attests in a certificate of qualified expert or testifies in relation to a proceeding before a panel or court concerning a defendant’s compliance with or departure from standards of care: A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action____ 2005 Md. Laws Spec. Sess. Chap. 5, § 1 (emphasis added). 3 In the case at bar, Dr. Debrun attested in his certificate of qualified expert that he does not devote annually more than 20 ²³³ percent of his professional activities to activities that directly involve testimony in personal injury claims. However, on December 1, 2006, the first day of trial testimony, Dr. Zoarski and UMMS moved to preclude Dr. Debrun from testifying on the ground that he does devote annually more than 20 percent of his professional activities to activities that directly involve testimony in personal injury claims.

The Waldts opposed the motion. Outside of the presence of the jury, Dr. Debrun was examined by counsel, and by the court, about facts relevant to the 20 Percent Rule. Dr. Debrun testified that he retired in July of 2001, and has not directly participated in patient care since then. He earns on average $30,000 per year from serving as an expert witness in medical malpractice cases.

In most such cases, he is an expert witness for the plaintiff. Ordinarily, he participates as an expert witness in three or four medical malpractice cases a year. He estimates that he spends less than 50 hours per year in that endeavor. He participates in a given medical malpractice case by reviewing it and having his deposition taken.

He rarely testifies in court (or before a panel) because most of the cases settle before trial. In the case at bar, Dr. Debrun had been paid $23,028. Dr. Debrun’s only significant source of income other than the money he earns as an expert witness is his pension. Dr. Debrun further testified that, in 2004 and 2005, he devoted an average of 559 hours per year to “professional activities” unrelated to his service as an expert witness in medical malpractice cases.

These activities fall into five categories: • Performing peer review of submitted articles for Surgical Neurology, a medical journal: 192 hours per year (16 hours per month); • Reading the International Journal for Interventional Neuroradiology and Neurological Surgery Journal: 240 hours per year (20 hours per month); • Observing colleagues performing various procedures: 96 hours per year (8 hours per month); ²³⁴ • Discussing ongoing patient medical cases with physicians: 16 hours per year (1.33 hours per month); • Attending international conferences in the field of interventional radiology: 15 hours per year (approximately 1.33 hour per month). 4 When pressed on cross-examination about the nature of these activities and how they relate, if at all, to his expert witness activities, Dr. Debrun testified as follows: Q. What is the last conference you attended, Doctor? A. Three years ago. Q. Three years ago. What was it for?

A. It was four or five years ago. Q. What was it on, what was it about? What was the subject of the conference? A. Whether there is any — it was an international meeting about everything in interventional neuroradiology.

Q. So by interventional— A. Interventional treatment within one week. Q. Okay. And the information that you obtained from that conference will you be using that here in court to base any of your opinions on? A. Yes, I could.

Q. Well, what else would you base your opinions on? A. When I see what my colleagues are doing, I listen to their improvement in the technique and their — I keep that for me and when I testify in a case, I remember what I heard and what is done today so I think I can see what they are doing. ²³⁵ Q. Now, Dr. Debrun, when you read articles on neuroradiology, you may use that information you get to testify in court; is that correct? A. Yes. Q. And when you do peer review journals, some of the information in that peer review journal that you are reviewing you may use to testify in court; is that correct?

A. Yes. Shortly thereafter, Dr. Debrun stated that he spent 30% of his time working on medical malpractice cases; he quickly corrected himself to say, “less than 20 percent.” On re-direct, counsel for the Waldts attempted to clarify these answers: Q. Why do you [Dr. Debrun] do these [activities like reading journals and observing procedures]? A. Because I am interested to know what people are doing today. Q. Are there times when, by coincidence, something that you read about or hear about or learn about with respect to your professional activities, the five things that we went through, are there sometimes when coincidentally something relates to a case that you may work on at some point?

A. Of course. After his testimony on this point was completed, Dr. Debrun stepped outside the courtroom and counsel for the parties presented argument as to whether the doctor properly could testify under the 20 Percent Rule, ie., whether, at that time, Dr. Debrun was “devot[ing| annually more than 20 percent of [his] professional activities to activities that directly involve testimony in personal injury claims.” Thereafter, the trial judge, commenting that she had read and considered Witte v. Azarian, 369 Md. 518 , 801 A.2d 160 (2002), granted the motion to exclude, ruling as follows: [T]he witness has indicated and has testified that he is retired. He has not seen any patients since July 2001. That ²³⁶ he spends most of his time reading journals, writing journals, peer review, observing other colleagues performing other procedures and going to conferences and meetings.

He is also indicating that the one meeting per year that he goes to does not have to do with his practice of medicine or with any patients. The journals that he reads do not have to do with his patients, however they do have to do with his previous practice of medicine. He has also indicated that approximately he earns about $30,000 per year from testifying in court albeit he has already earned, well, in this case alone, which he did not include in that $30,000, $23,028. He has also indicated he has read at least one journal or article in preparation for this case.

He does not keep a calendar nor an electronic device with regards to his appointments or where he has to be or what he has to do. He says he knows where he has to be and he writes it down on a piece of paper, and he is aware of where he is supposed to be at the time he is supposed to be there. At these seminars or conferences, he has not presented any papers since — he said since retiring.... He has gone to these conferences on the interventional neuroradiological conferences____But he doesn’t use any of the information that he receives at these conference for testifying in court on behalf of plaintiffs.

He doesn’t use any of the information that he receives from reading the journals. He doesn’t use any of the information or knowledge that he receives from his colleagues in Paris when he talks to them or tries to keep up on what is going on. He just does it just to be informed on what is going on in his field. The Court finds that to be absolutely amazing.

And one of the questions that was asked of the witness, the Court can’t recall at this moment the exact question, but the witness’ response was, quote, when I was working or after I retired. ²³⁷ The witness has no license to practice medicine in the United States. This is neither here nor there but he only has his license he says in Paris so he can write prescriptions for his family members. He has no patients, he has no privileges. He is not paid for any medical treatment he provides.

He is not paid for any opinions that he gets from colleagues or gives to colleagues about what they do. At this time, the Court finds that the expert devotes more than 20 percent of his professional activities to the [sic] involving testimony or testifying in personal injury cases. Accordingly, the court prohibited Dr. Debrun from giving standard of care testimony at trial. On appeal, the Waldts challenge the trial court’s exclusion of Dr. Debrun’s standard of care testimony under the 20 Percent Rule.

They argue that the court incorrectly interpreted the meaning of “professional activities,” as used in CJ section 3-2A-04(b)(4). Specifically, it declined to count as “professional” the five non-litigation (as explained infra in Witte) activities that Dr. Debrun engages in (peer review commenting, reading medical journals, observing procedures performed by other physicians, consulting with colleagues, and attending conferences), upon an improper finding that they were not “professional” activities because the doctor was no longer practicing medicine or seeing patients in any capacity. In the trial judge’s words, those activities “do[ ] not have to do with [Dr. Debrun’s] practice of medicine or with any patients.” Dr. Zoarski and UMMS counter that the court’s interpretation of the phrase “professional activities” as used in CJ section 3-2A-04(b)(4) was legally correct and in accordance with the analysis of the Court of Appeals in Witte v. Azarian, supra. They argue that the activities Dr. Debrun testified about “were not professional activities as they were not related to his practice of medicine or treatment of patients.” They further complain that the activities he described in his testimony had a “ ‘clear and direct relationship to the testimony to ²³⁸ be given by the doctor [in personal injury cases.]’ ” (Quoting Witte, supra, 369 Md. at 536 , 801 A.2d 160 .) The primary question before the Court in Witte v. Azarian was what kind of activities “directly involve testimony in personal injury claims,” within the meaning of CJ section 3-2A-04(b)(4), so as to constitute the numerator in the 20 Percent Rule.

(The events in that case took place before the December 2004 Special Session, and therefore at a time when the 20 Percent Rule was relevant only to an expert’s qualification to sign a certificate of merit, and not to his or her qualification to testify at a trial or hearing.) Mr. Azarian sued Dr. Witte, alleging that the doctor had committed malpractice when operating on his broken ankle. The Azarians filed a certificate of merit signed by Dr. Lawrence Honick, an orthopedist, in which he attested, inter alia, that “less than 20% of his professional activities were devoted annually to activities that directly involved testimony in personal injury claims.” Witte, supra, 369 Md. at 521 , 801 A.2d 160 . Dr. Honick had at one time performed surgery but had given up doing so. He still maintained a full-time office-based practice.

Most of his time was devoted to performing medical examinations of plaintiffs in worker’s compensation and personal injury tort cases, at the requests of lawyers. About 60% of his patients came from referrals from lawyers, and about 90% of his patients had “some sort of litigation involved in addition to their medical claims.” Id. at 522 , 801 A.2d 160 (quotation omitted). About half of the referred patients were seen by him for an evaluation, but not for treatment. Most of his patients’ litigation did not result in trials, and therefore in any trial testimony on his part.

During his 30 year career, he had attended between 300 and 400 depositions. At trial, defense counsel moved to strike Dr. Honick’s certificate of merit on the ground that the evidence about his practice did not support his attestation that he did not devote more than 20% of his professional activities to activities directly involving testimony in personal injury claims. The trial court granted the motion, upon a finding that the 20 Percent ²³⁹ Rule in CJ section 3-2A-04(b)(4) includes activities that lead to, or could lead to, testimony in personal injury claims, such as medical examinations performed on injured people in the course of litigation. The court then granted a renewed motion for summary judgment in favor of Dr. Witte.

This Court reversed. The Court of Appeals granted certiorari and affirmed our decision. Id. at 525 , 801 A.2d 160 . It reasoned that the operative statutory phrase at issue (“activities that directly involve testimony in personal injury claims”), was ambiguous, as its meaning could not be ascertained from its plain language, and that, in light of the legislative history of the Act as amended, including the amendments establishing the certificate of qualified expert requirement, that language had to be read narrowly, so as to avoid “creating] an unreasonable impediment to the pursuit, or defense, of a common law right of action” for medical negligence.

Id. at 533 , 801 A.2d 160 . From the legislative history, the Court determined: It seems abundantly clear to us that an activity cannot “directly involve testimony” unless there is, in fact testimony — “[ejvidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.” BLACK’S LAW DICTIONARY 1485 (7th ed.1999). Even when the expert is called upon to testify, however, not everything that he or she does in the matter can be said to “directly involve” that testimony. We reject as factually unsupportable the notion that every medical examination conducted by a doctor upon referral by an attorney or insurance carrier directly involves testimony that may ultimately be given by the doctor....

A more reasonable approach, we think, is to regard the statute as including only (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 tim,e spent in reviewing notes and other materials, preparing reports, and conferring with attorneys, in ²⁴⁰ surance 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 (if) 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. 369 Md. at 535-36 , 801 A.2d 160 (emphasis added). On that basis, the Court held that the trial court had erred in ruling that more than 20 percent of Dr. Honick’s professional activities were devoted to activities “directly involving] testimony in personal injury claims.” Id. at 536 , 801 A.2d 160 . Dr. Zoarski maintains, as he did below, that, given that Dr. Debrun is retired and therefore has no patients, the information he gains from the five professional activities he described (peer review commenting, reading medical journals, observing procedures performed by other physicians, consulting with colleagues, and attending conferences) necessarily becomes a part of his general knowledge in the field of interventional radiology, which in turn necessarily becomes the basis, in part, for the opinions he forms in his capacity as an expert witness in medical malpractice cases. For that reason, the activities “directly involve testimony in personal injury cases.” We disagree.

The holding in Witte narrowly circumscribed those professional activities that “directly .involve testimony in personal injury cases,” and it is clear that the activities testified to by Dr. Debrun are not within the limited scope of that phrase. The activities are not any of those specifically enumerated in items (1) through (3) of the Court’s analysis in Witte , nor do they fall within the Court’s item (4), “time spent on any similar activity,” i.e., litigation-oriented activity uthat has a clear and direct relationship to testimony to be given by the doctor or the doctor’s preparation to give testimony.” Id. at 536, 801 A.2d 160 (emphasis added). To the extent the trial court found that the five activities Dr. Debrun testified about in fact are activities that “directly involve testimony in personal injury cases,” that finding was premised upon a legally incorrect reading of CJ section 3-2A- ²⁴¹ 04(b)(4), and therefore was clearly erroneous. The record does not make entirely clear, however, whether the court ruled on the basis of that finding or ruled that the five general activities described by Dr. Debrun are not “professional activities” at all, and therefore cannot be counted as part of the denominator for the 20 Percent Rule.

If the latter was the court’s ruling, it too was legally incorrect. Again, for our purposes, the critical phrase in CJ section 3-2A-04(b)(4) is that the expert “may not devote annually more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims.” (Emphasis added.) The meaning of the words “the expert’s professional activities” is a matter of statutory construction that we review de novo. Maryland-National Capital Park and Planning Comm’n v. Anderson, 395 Md. 172, 181 , 909 A.2d 694 (2006); Moore v. State, 388 Md. 446, 452 , 879 A.2d 1111 (2005). Just as the Witte Court concluded that the plain meaning of the phrase “activities that directly involve testimony in personal injury claims,” as used in CJ section 3-2A-04(b)(4), cannot be discerned from a simple reading of the statutory language, we conclude that the phrase “the expert’s professional activities” in the same statute is likewise ambiguous.

Neither that particular statute nor any definition section in the Act explains what “professional activities” are. Accordingly, we must turn to the principles of statutory construction to aid our analysis: If the true legislative intent cannot readily be determined from the statutory language alone ... we may, and often must, resort to other recognized indicia — among other things, the structure of the statute, including its title; how the statute relates to other laws; the legislative history, including the derivation of the statute, comments and explanations regarding it by authoritative sources during the legislative process, and amendments proposed or added to it; the general purpose behind the statute; and the relative rationality and legal effect of various competing constructions. ²⁴² Witte, 369 Md. at 526 , 801 A.2d 160 (citing Beyer v. Morgan State Univ., 369 Md. 335, 349-50 , 800 A.2d 707 (2002) and Liverpool v. Baltimore Diamond Exchange, Inc., 369 Md. 304, 317-19 , 799 A.2d 1264 (2002)). See also Ishola v. State, 404 Md. 155, 160 , 945 A.2d 1273 (2008); Stoddard v. State, 395 Md. 653, 662 , 911 A.2d 1245 (2006). The Witte Court discussed at length the medical malpractice insurance crisis of the 1970’s that led to the enactment of the Health Claims Arbitration Act in 1976, and the reasons why the General Assembly thought that the changes in medical malpractice law brought about by the Act would help solve that crisis.

In 1986, the legislature further amended the Act, to include a certificate of qualified expert requirement, in part based upon recommendations made by a 1985 task force convened to study whether the insurance crisis was continuing and, if so, what changes could be made to the Act to further ameliorate the crisis. As proposed, in Senate Bill 559, an expert only would be qualified to sign a certificate if he or she did not receive 50 percent or more income from testimony and other activities related to personal injury claims. That language was amended to become the 20 Percent Rule, that is, that to qualify, a certifying expert cannot devote more than 20 percent of his or her professional activities to activities directly involving testimony in personal injury claims. As the Witte Court explained, the legislative history of the 1986 amendments to the Act suggests that the General Assembly was of two minds in imposing such eligibility requirements upon expert witnesses signing certificates.

On the one hand, it wanted to exclude certain “professional witnesses” from “the pool of eligible experts” available to sign certificates of merit. On the other hand, it did not want to “shrink” the size of that pool so as to “deny the parties the ability to pursue and defend these [malpractice] claims.” Id. at 534 , 801 A.2d 160 . The legislators achieved that balance in part by language changes keying the critical numerical measurement to time, instead of income, and narrowing the activities originally described as “related to” personal injury claims to the more ²⁴³ limited world of activities “directly involving testimony in personal injury claims.” Id. at 535 , 801 A.2d 160 . Beyond the legislative intent as gleaned by the Court in Witte , nothing in the legislative history of the Act, through the 1986 amendments, sheds light on the meaning of the phrase “professional activities” as the denominator for the 20 Percent Rule.

Obviously, given that “activities directly involving testimony in personal injury claims” is the subset of activities addressed by the numerator in the 20 Percent Rule, those activities are included in the meaning of the phrase “professional activities.” It is equally obvious, for the same reason, that “professional activities” encompass activities that are more far-reaching than those on which the certificate-signing (and now testifying) restriction is based. A reference to “profession” in CJ section 3-2A-02, which establishes what must be proven to impose liability upon a health care provider, is more specifically described as “the same health care profession” as the health care provider/defendant who has been sued. CJ § 3-2A-02(c)(l) (“In any action for damages [for medical malpractice], the health care provider is not liable ... unless it is established that the care given by the health care provider is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.”). “Professional activities,” as used in the 20 Percent Rule would seem to be a general term for those activities that relate to the health care profession of the expert witness who is signing a certifícate of merit or testifying at a hearing or trial. This language does not distinguish the “professional activities” of a retired or nonpracticing health care provider expert from those of one who is not retired or non-practicing and does not qualify “professional activities” so that they must relate to patient care and treatment.

The December 2004 Special Session amendments to the Act addressed the issues of what kind and how much experience ²⁴⁴ an expert witness must have to be qualified to sign a certificate of merit or to testify “in relation to a proceeding before a panel or court concerning a defendant’s compliance with or departure from standards of care.” CJ § 3-2A-02(c)(2)(ii). As relevant to our interpretation of the phrase “professional activities” in the 20 Percent Rule, the amendments require a certifying or testifying expert witness to have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, “within 5 years of the date of the alleged act or omission giving rise to the cause of action .... ” CJ § 3-2A-02(c)(2)(ii)l.A. (emphasis added). A retired or non-practicing expert witness, ie., one without an existing clinical, teaching-based, or consulting practice, remains qualified to certify or testify about a negligent act alleged to have been committed or omitted not more than five years before he (or she) retired or ceased practicing.

The 2004 Special Session amendments thus contemplated that some expert witnesses will be qualified to certify or testify based upon their experience in their field even though they no longer are in active practice in that field. As drafted and enacted, those amendments did mot include language drawing a distinction between the “professional activities” of an actively practicing health care provider expert witness and the “professional activities” of a retired or non-practicing health care provider expert witness. Accordingly, this further confirms the legislature’s intention that the phrase “professional activities” should have the same meaning with reference to a qualified practicing expert witness as it has with reference to a qualified retired/non-practicing expert witness. The trial court’s ruling excluding Dr. Debrun from testifying under the 20 Percent Rule was premised upon a contrary principle: that an expert witness health care provider who is not in active practice does not engage in “professional activi ²⁴⁵ ties” — ie., that to engage in any professional activity in a health care field, an expert witness at least must be practicing in that field.

Because Dr. Debrun had been in active practice within five years of the time of the allegedly negligent act or omission (December 2002), he was qualified, at least temporally, to testify as an expert witness for the Waldts. It did not matter that his “professional activities” did not include active treatment of patients. The dictionary definition of “professional” is “of, relating to, or characteristic of a profession.” Merriam-Webster’s Collegiate Dictionary 991 (11th ed.2003). The five areas of activities Dr. Debrun described in his testimony — -reading and peer editing of medical journals, consulting with colleagues about their ongoing cases, observing colleagues performing procedures, and attending medical conferences — all were related to interventional radiology, his profession, and as we have explained were not activities directly involved in testimony in personal injury cases, as that phrase was interpreted in Witte .

Also as we have explained, those activities did not become ones directly involving testimony in personal injury cases merely because Dr. Debrun was retired; such a construction would run contrary to the legislature’s intention to allow certain retired or non-practicing medical professionals to testify in malpractice cases. (If that were the case, a retired or non-practicing health care provider always would be devoting more than 20 percent of his or her “professional activities” directly to testifying in personal injury cases.) The evidence adduced before the court on the appellees’ motion in limine showed that Dr. Debrun devoted no more than 50 hours per year to professional activities related to testifying in personal injury cases, and that he devoted 559 hours per year to other professional activities. Assuming that the court credited those first level facts, and we see nothing to suggest that it did not, then a legally correct application of the 20 Percent Rule should have led the court to conclude that Dr. Debrun was not disqualified from giving standard of care expert testimony. ²⁴⁶ B. Did the Trial Court Err in its Pre-Trial Ruling Excluding Dr. Debrun’s Standard of Care Opinion as Improper Evidence of “Negligence Per Se”? In a civil case, a judgment will be reversed upon a finding of error by the trial court only if the error was prejudicial.

Flores v. Bell, 398 Md. 27, 33 , 919 A.2d 716 (2007); Crane v. Dunn, 382 Md. 83, 92 , 854 A.2d 1180 (2004). Given our decision on the 20 Percent Rule issue, this next issue now takes on importance in the context of prejudice. Before the trial court generally precluded Dr. Debrun’s standard of care testimony under the 20 Percent Rule, it had granted a motion in limine precluding Dr. Debrun from testifying that a puncture of an artery during a coiling procedure always is a breach of the standard of care by the treating interventional radiologist. The court made plain that it was “excluding] Dr. Debrun’s opinion that if you perforate an artery it’s per se negligence or per se in violation of the standard of care.

That’s what’s excluded.” 5 The Waldts ²⁴⁷ contend this ruling was legally incorrect and therefore, the court’s error in precluding Dr. Debrun from testifying under the 20 Percent Rule was prejudicial (ie., but for the error, Dr. Debrun would have been able to give admissible standard of care testimony to support the ordinary negligence claim). Dr. Zoarski and UMMS respond that the trial court properly precluded Dr. Debrun from giving a “negligence per se ” opinion. Therefore, even if the court’s ruling on the 20 Percent Rule issue was in error (which we have held it was), the error was not prejudicial, because Dr. Debrun’s standard of care opinion still would not have been admissible in evidence, and the Waldts could not prove the standard of care element of their ordinary malpractice claim without expert opinion testimony. (Dr. Debrun was the only expert witness the Waldts had identified on that topic.) The basis for the appellees’ “negligence per se ” motion in limine was the following deposition testimony of Dr. Debrun: Q: Is every complication that results in a rupture of a vessel a breach in the standard of care?

A. If there is no pathology on this vessel, if you are treating something else and it is a complication, what type of complication the patient has, clinical complication, it is a breach of standard of care.... It is below the standard of care to perforate a vessel when you are working with a guide wire into the branches of the brain. The vessel, there is no reason to perforate the vessel. If you perforate the vessel, if it happens to anyone, it is a breach of the standard of care, of course.

It is not perforating the aneurysm. You can perforate the aneurysm with a wire with a coil because ²⁴⁸ the aneurysm is a known fragile structure with a weak wall----But outside the aneurysm, when you are advancing the guide wire into the intracerebral circulation, it is a breach of standard of care if you perforate a vessel during any of these maneuvers. Q. Has it ever happened to you? A. Yes Q. Did you breach the standard of care when it happened to you?

A. Yes Q. How many times did you breach the standard of care? A. [Once] Q. When that happened to you, were you acting carefully? A. I thought I was. Q. How is it, Doctor, that you could have perforated the vessel if you were acting carefully?

A. Because things happen even if you are careful. An interventionalist is always careful with whatever he does. Q. Even if you are as careful as you can be, you can still perforate the vessel like you did? A. It could happen, but you have to realize your mistake and tell it.

Dr. Debrun went on to distinguish between the standard of care relative to perforating an aneurysm and the standard of care relative to perforating an artery beyond the aneurysm: And when [a doctor perforates the aneurysm itself causing it to rupture], it is a percentage associated with the procedure, with the disease. Even if you are very careful and very well experienced, this will occur to you one day or the other. It can happen to me. But in this scenario, I don’t blame myself.

I give you the tape----[My analysis for the standard of care in perforating the artery away from the aneurysm] is different. You have, on one side, you have a normal artery with a normal wall with no pathology. On ²⁴⁹ the other side, you have an aneurysm with a weak wall there is pathology. So these are not the same.

Dr. Debrun further testified that, when he was in practice, he would not inform his patients about to undergo coiling procedures of the risk of perforating the artery away from the aneurysm, because that risk is not a risk of the procedure itself: Q. Can [complications] happen in the absence of negligence? A.... I consider one hundred percent if I perforate a vessel which is not the artery where the aneurysm is which means that I have done a mistake by manipulating my wire and that I have perforated an artery. There is no reason to expect that I will perforate this vessel which is far away from the aneurysm, so I don’t even mention this possibility to my patient, but, yes, I tell the patient there is a risk of rupture of the aneurysm and it is three or four percent risk.

Q. Is it below the standard of care if [perforating an artery away from the aneurysm with a guide wire] happens to a reasonable endovascular surgeon? A. [M]any endovascular surgeons perforate the vessel with a wire which is not near the aneurysm, away from the aneurysm, doing manipulation with the wire, it’s below the standard of care for me. A reasonably well trained endovascular inteiventionalist cannot accept to perforate an