Wantz v. Afzal

EYLER, JAMES R., J. Patricia Wantz, appellant, appeals from a judgment entered by the Circuit Court for Frederick County in favor of Rizwana Afzal and Donelson & Carnell, M.D., P.A. (collectively referred to as “appellees”). 1 This case arose following the death of ⁶⁷⁸ appellant’s mother, Evelyn Reynolds, caused by a staph infection developed at the site of spinal fusion surgery. Thereafter, appellant filed wrongful death and survival actions against the doctors, their related medical practices, and the hospital believed to be responsible for Ms. Reynolds’s death, alleging that each was negligent in her care. Before trial commenced, appellees filed several motions challenging the admissibility of testimony by three expert witnesses designated by appellant.

Appellees asserted that none of the witnesses were qualified to express an opinion on issues of causation. Finding that all three of the expert witnesses were either unqualified or lacked a sufficient factual basis, or both, to offer expert testimony under Maryland Rule 5-702, the trial court granted appellees’ motions. Thereafter, the court, recognizing that expert testimony on the issue of causation was necessary to survive a motion for judgment, and that appellant had no experts to testify on the issue of causation, granted appellees’ motion for judgment. Appellant filed a timely appeal, challenging the court’s exclusion of her experts.

After review, we conclude that the trial court abused its discretion in precluding appellant’s witnesses from offering expert testimony, on the ground the witnesses lacked qualifications and a factual basis and, therefore, reverse the judgment and remand for further proceedings. Factual and Procedural Background There was no evidentiary proceeding in circuit court. The motion papers were supported by the de bene esse deposition of one of the experts and discovery depositions of the other two experts, however, and additional materials were made part of the record at the hearing on the motions. The materials included curriculum vitae.

The substantive “facts” are taken from pleadings, depositions, and argument of counsel. On March 6, 2007, Evelyn Reynolds was taken by ambulance to the Emergency Department of Frederick Memorial ⁶⁷⁹ Hospital after she had fallen and injured her back. Ms. Reynolds, seventy-seven years old at the time of her fall, was suffering from osteopenia, a condition involving low bone mineral density, and ankylosing spondylitis, also known as “bamboo spine,” which is a type of arthritis that affects the joints in the spine and pelvis. Ms. Reynolds was subsequently admitted to the hospital under the care of Hirenkumar (Hiren) Shah, M.D., an internist and professional partner of Mrs. Reynolds’s primary care provider, Hemen Shah, M.D., in the practice of Donelson & Carnell, M.D., P.A. Later that evening, Dr. Hiren Shah ordered a STAT CT pyelogram, which was read by Rizwana Afzal, M.D., a radiologist, as showing a small thoracoabdominal bleed.

These results were reported to both Drs. Shah, along with Dr. Afzal’s recommendation to both that a dedicated contrast-enhanced CT of the chest be performed. Shortly thereafter, pursuant to Dr. Afzal’s recommendation, Dr. Hiren Shah ordered a CT angiogram of the chest. This test, which was also interpreted by Dr. Afzal, showed a fracture of the T10 vertebra and a possible fracture of the T9 vertebra with associated hematoma and malalignment.

The parties disagree as to whether the results of the CT angio-gram were ever reported to Dr. Hiren Shah. Dr. Afzal, while testifying at a deposition, insisted that she verbally reported the fractures over the phone to Dr. Shah. She also testified that during that phone conversation, she discussed with Dr. Shah the importance of keeping Ms. Reynolds immobilized, to prevent her condition from worsening, and to perform an MRI. Conversely, Dr. Shah testified that he did not recall having this conversation with Dr. Afzal.

In any event, following the chest CT, neither Dr. Hiren Shah nor Dr. Hemen Shah ordered an MRI, or ordered that Ms. Reynolds be immobilized. The parties agree that between that time and March 9, 2007, Ms. Reynolds reported, at the very least, some back pain when she moved. In the early hours of March 9, 2007, Ms. Reynolds told the nurses that she had no feeling in her feet or legs. An ensuing MRI confirmed ⁶⁸⁰ that her condition had worsened.

As a result, Ms. Reynolds was transferred to the University of Maryland Medical Center to undergo immediate spinal fusion surgery from T8 to L2. She never regained motor function below her waist. On April 3, 2007, Ms. Reynolds developed an enterococcus and staphylococcal infection at her surgical site. Responsive surgery ultimately proved to be unsuccessful, and Ms. Reynolds died on July 30, 2007, as a result of the staph infection she developed in her spine.

On June 9, 2008, appellant, as Ms. Reynolds’s surviving child, filed wrongful death and survival actions, individually and as personal representative of Ms. Reynolds’s estate, against Dr. Hiren Shah, Donelson & Carnell, M.D., P.A. (for the actions of both Drs. Shah), Dr. Afzal, Emergency Physician Associates, P.A. (“E.P.A.”), and Frederick Memorial Hospital.

Following discovery, E.P.A. and Frederick Memorial Hospital were dismissed from the case. Prior to trial, the remaining parties entered into a stipulation whereby Dr. Hiren Shah was dismissed as a defendant and Donelson & Carnell, M.D., P.A. agreed that it would be vicariously hable for both Drs. Shah and its employees acting within the scope of their employment at the time of the events, if the jury were to find that either Dr. Shah was negligent. The events giving rise to this appeal occurred shortly before trial, when appellees moved to strike or preclude the testimony of three of appellant’s expert witnesses.

The experts were Karl Manders, M.D., a board-certified neurosurgeon; Jeffrey Gaber, M.D., a board-certified internist and geriatric medicine specialist; and Gregg Zoarski, M.D., a board-certified radiologist. The first motion sought to strike a de bene esse deposition of Dr. Manders. In pertinent part, Dr. Manders opined that immobilizing Mrs. Reynolds on March 6 would likely have prevented paralysis, and that without paralysis and the concomitant neurological deficit, the spinal fusion, through bracing or surgery, would likely have been successful. After reviewing Dr. Manders’s deposition, the court granted appel- ⁶⁸¹ lees’ motion to strike, finding that he was not qualified and lacked a sufficient factual basis to provide this opinion.

Additionally, appellees moved in limine to preclude Dr. Gaber and Dr. Zoarski from offering expert testimony on causation. Based on a discovery deposition and proffers by counsel, it appears Dr. Gaber was expected to opine that paralysis was a likely cause of Ms. Reynolds’s inability to heal following her spinal fusion surgery and, thus, a likely cause of the staph infection that ultimately caused her death. Based on a discovery deposition and proffers, it appears that Dr. Zoarski was expected to opine that the lack of immobilization following the second CT scan was a likely cause of paralysis. The court granted appellees’ motions, finding that, with respect to Dr. Gaber, he was unqualified and/or lacked a sufficient factual basis to offer the opinion for which he was proffered.

With respect to Dr. Zoarski, the court found that he “eviscerate[d]” his own qualifications when he admitted that “[h]ow she’s mobilized [sic] and the specifics of how that is done is not within my expertise.” Immediately following the court’s ruling on appellees’ last motion to exclude testimony, appellees moved for judgment pursuant to Maryland Rule 2-519. Ultimately, having stricken or precluded the testimony of each of appellant’s designated expert witnesses regarding the issue of causation, the trial court granted appellees’ motion. This appeal followed. Additional facts will be incorporated as necessary to complete our discussion.

Questions Presented Appellant presents the following issues for our review: 1) Whether the trial court erred when it determined that Karl Manders, M.D., a board-certified neurosurgeon, was unqualified and lacked a sufficient factual basis to render opinions regarding the cause of Mrs. Reynolds’ paralysis and her likelihood of recovery? 2) Whether the trial court erred when it determined that Jeffrey Gaber, M.D., a board-certified physician specializing ⁶⁸² in internal and geriatric medicine, was unqualified or lacked a sufficient factual basis to opine on the cause of Mrs. Reynolds’s paralysis and ultimate death? 3) Whether the trial court erred when it determined that Gregg Zoarski, M.D., a board-certified neuro- and interven-tional radiologist, was unqualified to testify that immobilization would have prevented Mrs. Reynolds’ paralysis? Standard of Review For our purposes, it is well-settled that “the determination by the trial court of the experiential qualifications of a witness will only be disturbed on appeal if there has been a clear showing of abuse of the trial court’s discretion.” Rollins v. State, 392 Md. 455, 500 , 897 A.2d 821 (2006) (internal quotations and citations omitted). Indeed, the Court of Appeals has “often stated that the admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal.” Bryant v. State, 393 Md. 196, 203 , 900 A.2d 227 (2006) (internal quotations omitted). “An appellate court will only reverse upon finding that the trial judge’s determination was both manifestly wrong and substantially injurious.” Brown v. Contemporary OB/GYN Assocs., 143 Md.App. 199, 252 , 794 A.2d 669 (2002) (citations omitted); see also Pepper v. Johns Hopkins Hosp., 111 Md. App. 49, 76 , 680 A.2d 532 (1996) (“The trial court’s determination is reversible if it is founded on an error of law or some serious mistake, or if the trial court clearly abused its discretion.”) (internal quotations omitted). Discussion As stated above, our review is limited to whether appellants’ three experts are qualified and have a sufficient factual basis to opine on causation issues.

The court excluded all testimony on issues of causation, independent of the form and foundation for any particular question. We conclude that the experts are qualified to express opinions on causation issues as follows, but we express no opinion regarding the propriety of any particu ⁶⁸³ lar question. That is because the court did not rule on specific questions, and it was impossible to do so with respect to Drs. Gaber and Zoarski, based on discovery depositions.

Nevertheless, based on the materials in support of the motion papers and arguments and proffers of counsel, we are aware of the nature of the causation issues to be addressed. We express no opinion on standard of care issues. 1. Maryland Rule 5-702 Maryland Rule 5-702 governs the admissibility of expert testimony. It provides: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.

In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony. Md. Rule 5-702. Regarding the first requirement, concerning the witness’s qualifications to offer expert testimony, a trial court should consider whether the expert has “special knowledge of the subject on which he is to testify that he can give the jury assistance in solving a problem for which their equipment of average knowledge is inadequate.” Radman v. Harold, 279 Md. 167, 169 , 367 A.2d 472 (1977) (quoting Casualty Ins. Co. v. Messenger, 181 Md. 295, 298 , 29 A.2d 653 (1943)).

This knowledge may be derived from “observation or experience, standard books, maps of recognized authority, or any other reliable sources,” including “the experiments and reasoning of others, communicated by personal association or through books or other sources.” Id. at 169-70, 367 A.2d 472 . “[T]he mere fact that a person offered as a witness has not been personally involved in the activity about which he is to testify does not, as such, destroy his competency as an expert.” Id. at 171 , 367 A.2d 472 (allowing an internist to offer ⁶⁸⁴ an opinion regarding the performance of a hysterectomy even though he had never personally performed such a procedure). Similarly, with respect to the third requirement, 2 there is a broad range of sources capable of forming the requisite factual basis. Indeed, the Court of Appeals has stated that “[a] factual basis for expert testimony may arise from a number of sources, such as facts obtained from the expert’s first-hand knowledge, facts obtained from the testimony of others, and facts related to an expert through the use of hypothetical questions.” Sippio v. State, 350 Md. 633, 653 , 714 A.2d 864 (1998). In evaluating whether there is an adequate factual basis, the trial court operates within a wide discretionary range.

CSX Transportation, Inc. v. Miller, 159 Md.App. 123, 199 , 858 A.2d 1025 (2004). Based on appellant’s expected evidence, the causation issues can be summarized as follows: (1) had Ms. Reynolds been immobilized she would not have been paralyzed and may or may not have required spinal fusion surgery, and (2) if spinal surgery was necessary, the absence of paralysis likely would have resulted in the surgery being successful, and (3) a successful surgery likely would have prevented the onset of the ultimately fatal infection. With these in mind, we conclude that the witnesses are qualified and have, by virtue of their background and knowledge of matters pertinent to this case, a sufficient factual basis on which to opine on the issue of causation. The witnesses had substantial training and experience, over many years, and had reviewed materials pertinent to this case. 2.

Dr. Manders Appellant first challenges the court’s decision to grant appellees’ motion to strike the de bene esse deposition of Dr. Manders. Appellant argues that Dr. Manders’s fifty-years of ⁶⁸⁵ experience in neurosurgery, his occasion to treat and immobilize patients with spinal fractures, and his regular consultations with orthopedists, radiologists, and internists, rendered him qualified to testify under Rule 5-702. Appellant argues that “[t]he trial court’s conclusion that Dr. Manders was unqualified and lacked a sufficient factual basis to testify in this case was founded on the understanding that he never performed spinal fusion surgery or followed the post-operative course of patients who had undergone this surgery.” To that point, appellant contends that the court’s conclusion fails to consider the purpose for which appellant offered Dr. Manders’ testimony. According to appellant, the thrust of Dr. Manders’ testimony was that “immobilization and immediate surgery, as soon as the fractures were discovered, would have prevented Mrs. Reynolds’ paralysis ... [and] had she not been paralyzed at the time of surgery, her chances of success were good, but because she was, the fusion was unlikely to take.” Therefore, appellant argues, his inexperience with performing spinal fusion surgery or following the post-operative course of patients who had undergone such surgery does not disqualify him from offering testimony regarding the pre-operative cause of paralysis.

In response, appellees observe that Dr. Manders testified that he had never performed the fusion aspect of spinal surgeries, had not practiced in several years, and could not recall an experience with a patient like the decedent. Appel-lees also argue that Dr. Manders admitted that he lacked the knowledge regarding “what impact, if any, the failure to immobilize had on Ms. Reynolds’s outcome.” Therefore, according to appellees, he was unqualified to offer expert testimony on the issue of causation. Maryland law has long-recognized that a proposed medical expert “need not be a specialist in order to be competent to testify on medical matters,” and qualify under Rule 5-702. Ungar v. Handelsman, 325 Md. 135, 146 , 599 A.2d 1159 (1992) (internal quotations omitted).

Indeed, in Radman v. Harold, the Court of Appeals distinctly rejected such a principle. 279 Md. at 169 , 367 A.2d 472 . In that case, the plaintiff attempted ⁶⁸⁶ to qualify an internist, who lacked specialty in gynecology and surgery, as an expert in order to establish that the defendant physician failed to perform a hysterectomy according to the appropriate standard of care. Id. at 167 , 367 A.2d 472 . The Court of Appeals, having determined that the trial court applied an erroneous legal standard in excluding the expert’s testimony, stated: In light of the fact that we have never treated expert medical testimony any differently than other types of expert testimony, we perceive no reason why a person who has acquired sufficient knowledge in an area should be disqualified as a medical expert merely because he is not a specialist or merely because he has never personally performed a particular procedure.

Id. at 171 , 367 A.2d 472 (emphasis in original). As a result, the Court concluded that the trial court abused its discretion in excluding the internist’s testimony on the basis that he was an internal medicine specialist and not a gynecologist or surgeon. Id. at 176 , 367 A.2d 472 . Cf.

Air Lift, Ltd. v. Bd. of Co. Comm’rs, 262 Md. 368, 402 , 278 A.2d 244 (1971) (holding that “an experienced law enforcement officer who had never been personally involved in policing a rock festival or concert could nonetheless qualify as an expert -witness and testify with respect to the security problems associated with such events”); Rotwein v. Bogart, 227 Md. 434, 437 , 177 A.2d 258 (1962) (“A law professor may be an expert on trial procedure even though he has never tried a case. There are many expert astronauts who have yet to make a space flight.”). In Wolfinger v. Frey, the Court of Appeals dealt directly with the admissibility of expert testimony on the issue of causation. 223 Md. 184 , 162 A.2d 745 (1960). In that case, the plaintiff sought to prove that a car accident “caused her cystitis and trigonitis to flare up, resulting in some pyelitis and a twenty per cent [sic] disability as a result of her chronic pyelits.” Id. at 187 , 162 A.2d 745 .

Responding to the defendant’s argument that a general practitioner was unqualified to testify that the plaintiffs condition was exacerbated by the ⁶⁸⁷ kidney injury sustained as a result of the collision, the Court concluded: Because of the importance in this case of Dr. Bring’s testimony, we may observe that we see no validity to a contention that unless he were a specialist in the medical field involved he could not testify to his opinion, basing it upon a case history and his examination of the injured person. Id. at 189-90 , 162 A.2d 745 ; see also Samsun Corp. v. Bennett, 154 Md.App. 59 , 838 A.2d 381 (2003) (concluding that orthopedist, despite lack of specialty in the pertinent medical field, was qualified to offer expert testimony concerning the cause of plaintiffs erectile dysfunction following slip and fall accident). In the case sub judice, while ruling on appellees’ motion to strike Dr. Manders’s testimony, the trial court reasoned: As I understand then, also then, ultimately the issue is paralysis. The point, the significance of the paralysis in Ms. Reynolds’ case is, and I’ll say it for purp, lack of better term, the argument of the, the position I should say, of the plaintiff is that had Ms. Reynolds not suffered from paralysis she then could have been up and around after surgery, which eventually was necessary.

Uh, and that would accelerated, greatly enhanced was the term the plaintiff used properly, greatly enhanced her recovery because the, her spine would have fused more rapidly then it, then, uh, then it would if she’s immobilized, that is she doesn’t have the weight of, of the spine to assist in the fusion after the surgery was done. Dr. Manders has followed post operatively, and I’ll accept for purposes of my decision many patients who have had dorsal spine surgery, he has followed them and he’s been involved in that surgery because it’s a very, anything involving the back is very sensitive because the spinal cord runs through the vertebra, uh, and we all know how significant the spinal cord is, and in