In most Maryland medical malpractice cases, the negligence of a physician must be established by the testimony of an expert witness. A rare exception to the general rule requiring expert testimony is made only when such medical negligence is obvious and within the common knowledge of an ordinary person. In an August 24, 2020 case, the Court of Appeals of Maryland considered whether expert testimony was also required to establish the medical negligence of a non-party physician. The defendant in the case raised the issue of a non-party physician’s medical negligence as part of his defense.
The plaintiff in the case was diagnosed with a kidney tumor and enlarged lymph node in August 2011. The defendant surgically removed the plaintiff’s kidney, but did not remove the lymph node as planned because of its proximity to a vital blood vessel. Following surgery, the plaintiff was treated by an oncologist, who ordered periodic CT scans of the lymph node. In 2015, a biopsy was performed, which indicated that the lymph node was cancerous and had increased in size, rendering it inoperable.
The plaintiff brought medical malpractice claims against multiple physicians involved in his treatment, with the exception of his oncologist. The plaintiff alleged that, had the defendants either removed the lymph node in the 2011 surgery, or alerted his oncologist that the lymph node was increasing in size, it could have been safely removed earlier. At trial, the court permitted the jury to consider the issue raised by the defendants of the oncologist’s alleged medical negligence, although no expert testimony was presented to support the defendants’ assertions. The jury returned a verdict in favor of the defendants, and the plaintiffs appealed.
In Maryland, expert testimony is required to establish medical negligence and causation when such matters are outside the common knowledge of jurors. On appeal, the court confirmed that a defendant in a medical malpractice case may generally introduce evidence of a non-party’s medical negligence to prove that the defendant was not negligent, or to prove that the non-party’s acts or omissions were a superseding cause of the injury. The deeper issue concerned the level of evidence needed to put forth the question of non-party medical negligence to a jury.
The Court of Appeals held that, to the extent that a defendant raises non-party medical negligence as part of its defense, the defendant must produce expert testimony necessary to establish such medical negligence, either with its own witness or through cross-examination of the plaintiff’s expert, unless it is within the common knowledge of the jury. In the instant case, the appeals court found that the evidence of non-party negligence was not sufficient to put the question to a jury, and reversed and remanded the matter for further proceedings.
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