Court Orders New Trial for Breast Cancer Patient in Maryland Medical Malpractice Suit

In a July 25, 2019 opinion, the Court of Special Appeals of Maryland revisited a medical negligence case for the second time on appeal.  The plaintiff had filed a Maryland medical malpractice lawsuit against her doctors, alleging that they failed to timely biopsy and diagnose a mass on her right breast.  The plaintiff claimed that that as a result of their negligence, she underwent a bilateral mastectomy instead of a less-invasive lumpectomy and suffered painful and permanent injuries.

After a trial, the jury awarded the plaintiff past medical expenses in the amount of $35,000 and $150,000 in non-economic damages.  The defendants appealed, arguing the trial court had erred by allowing the plaintiff to testify about her distress regarding her fear of death.  In the first appeal, the court agreed, finding that the plaintiff’s chance of survival was at least 88 percent and that the testimony would have an obvious effect on the jury.  The judgment was reversed, and the case was remanded for a new trial.

The trial court, however, ordered that the new trial be limited to non-economic damages only.  The defendants then filed a motion to preclude the plaintiff’s expert from testifying as to whether the plaintiff needed a mastectomy on her right breast due to the alleged delay in diagnosis, and as to the plaintiff’s left breast mastectomy, since it was not medically necessary.  After the motion was granted, the defendants moved for summary judgment based on the plaintiff’s lack of any causation expert, which was also granted.  The plaintiff then filed the current appeal.

As an initial matter, the appeals court held that the trial court erred by limiting the scope of the re-trial, instead of conducting an entirely new trial.  Accordingly, the court reversed the judgment once again for a new trial on all issues.  The court then went on to address the remaining arguments on appeal, i.e., the decision to preclude the testimony of the plaintiff’s expert.

Under Maryland law, expert testimony is permitted if the court determines that the testimony will assist the jury in understanding the evidence or determining a fact in issue.  To make that determination, the court considers three factors: (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education; (2) the appropriateness of the expert testimony on that particular subject; and (3) whether a sufficient factual basis exists to support the expert testimony.

The appeals court concluded that the plaintiff’s expert was qualified to testify, as he had over 40 years of experience in treating patients with breast cancer and was involved in thousands of breast cancer cases.  The court also held that the plaintiff should be allowed to argue that the delay in cancer diagnosis was a proximate cause of her left breast mastectomy, as it was performed to visually match her right breast mastectomy.  As such, the court ruled that the plaintiff was allowed to present such evidence in a new trial.