Lawrence v. Univ. of Md. Med. Ctr.

1

CATRINA LAWRENCE v. UNIVERSITY OF MARYLAND MEDICAL CENTER

No. 1503-21

Court of Special Appeals of Maryland

September 14, 2022

Circuit Court for Baltimore City Case No. 24-C-20-002817

Wells C.J., Graeff, Eyler, Deborah S. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

WELLS C.J.

Appellant Catrina Lawrence filed suit against appellees, University of Maryland Obstetrical and Gynecological Associates, P.A. ("University of Maryland"), on behalf of her daughter Courtni Lawrence, after Courtni suffered permanent brain injury shortly after birth. The circuit court excluded the testimony of Lawrence's causation expert, Dr. Bohman for lacking a sufficient factual basis under Maryland Rule 5-702. Following the exclusion, the circuit court granted summary judgment in favor of University of Maryland. Lawrence filed this timely appeal. She asks whether she presented the circuit court with "sufficient evidence to create a jury question on the issue of whether [University of Maryland's] breach of the standard of care caused her injuries." For the reasons we explain, we conclude that she did not. Consequently, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 11, 2011, Ahmet A. Baschat, M.D., a maternal fetal medicine specialist, saw Appellant Catrina Lawrence ("Lawrence") who was 35 4/7 weeks pregnant with Courtni Lawrence ("Courtni")^[1] at the Center for Advanced Fetal Care, the trade name of Appellee University of Maryland Obstetrical and Gynecological Associates, P.A. Although Dr. Baschat did not personally examine Lawrence, Dr. Baschat reviewed and prepared a report based on the ultrasound examinations of Lawrence and the fetus. The ultrasound examined a biophysical profile ("BPP") and a Doppler assessment of blood flow in the uterine and umbilical arteries.

A BPP is a non-invasive test which assesses, via ultrasound, four components of fetal well-being: fetal movement, fetal tone, amniotic fluid volume, and fetal breathing effort. Each of the four components is scored either 0 (abnormal) or 2 (normal). The accumulated scores yield a total BPP score ranging from 0/8 to 8/8. An 8/8 is a normal BPP, and a strong indicator that fetal oxygen levels and acid base are normal, and that the fetal brain is well-perfused. The Doppler assessment measures blood flow in both the umbilical and uterine arteries which transport blood to the fetus through the placenta. While Ms. Lawrence's BPP was scored 8/8, her fetal Dopplers were abnormal. The BPP did not include a fetal non-stress test ("NST") at the appointment on November 11, 2011.

Dr. Baschat interpreted the results and recommended once weekly BPPs with NSTs for the remainder of her pregnancy along with a follow-up Doppler assessment to be performed every two weeks. However, at 11:30 p.m. on November 17, 2011, the University of Maryland Medical Center admitted Lawrence for labor and delivery. A decision was made to deliver the baby by cesarean section based on fetal intolerance of labor, and Courtni was born at 12:35 p.m. on November 18, 2011. Courtni required resuscitation at birth, "including stimulation, suctioning, oxygen, continuous positive airway pressure and positive pressure ventilation." Courtni was eventually admitted to the neonatal intensive care unit and then Mt. Washington Pediatric Hospital for various types of treatment.

On December 7, 2011, a head ultrasound was ordered to assess her feeding difficulties. An ultrasound and MRI revealed encephalomalacia and gliosis in Courtni's right lateral frontal and parietal lobes as well as cortical laminar necrosis, leaving her with permanent brain injury.

On June 25, 2020, Lawrence filed a complaint against University of Maryland, alleging medical negligence by Dr. Baschat for failing to order that Lawrence and the fetus be evaluated twice weekly rather than weekly intervals. Lawrence's single expert witness, Van Reid Bohman, M.D., testified that had Lawrence been seen and evaluated on November 14 or 15, 2011 based on twice weekly evaluations, Dr. Baschat would have seen some sign to cause him to admit her for continuous monitoring, avoiding the brain injury that occurred during labor.

On August 16, 2021, University of Maryland moved for summary judgment and to preclude the causation testimony of Dr. Bohman. After a series of replies, the circuit court held a hearing and ultimately granted summary judgment for University of Maryland based on its findings that: 1) Lawrence had not introduced evidence from which a reasonable juror could conclude that if Dr. Baschat had examined her on November 14 or 15, 2011, he would have seen symptoms or results that would have caused a reasonable fetal maternal medical specialist to urge continuous monitoring; 2) Dr. Bohman's testimony did not provide a basis for this conclusion by a reasonable juror that rises above the level of conjecture by hindsight; 3) Dr. Bohman's testimony lacked a sufficient factual or medical foundation; and 4) Dr. Bohman failed to provide a basis to support the necessary conclusion that continuous fetal monitoring inevitably would have led to an earlier delivery. Lawrence filed this timely appeal.

STANDARD OF REVIEW

The parties disagree on the applicable standard of review. Lawrence asserts that because she is appealing a grant of summary judgment-a question of law-our review should be non-deferential. University of Maryland counters that because the trial court's decision to exclude Dr. Bohman's testimony underlies its grant of summary judgment, the corresponding abuse of discretion standard controls. Although University of Maryland is correct that "[w]hen the basis of an expert's opinion is challenged pursuant to Maryland Rule 5-702^[2], the [standard of] review is abuse of discretion," Rochkind v. Stevenson, 471 Md. 1, 10 (2020),^[3] our Court of Appeals has addressed the more nuanced situation of the present case, where the exclusion of expert testimony forms the sole basis of a grant of summary judgment:

[W]here a circuit court grants a summary judgment motion on the grounds that the plaintiff's expert lacks a sufficient factual basis of admissible facts and the admissible evidence (if any) is insufficient independently to prove causation, the circuit court is making a decision on the admissibility of the expert's testimony as part of its summary judgment decision and, thus, is making a legal decision. Such a decision is reviewed on appeal without deference, as the grant of all summary judgment motions are.

Hamilton v. Kirson, 439 Md. 501, 521 n.11 (2014); see also Frankel v. Deane, No. 43, slip op. (Aug. 25, 2022) (reviewing a trial court's granting of summary judgment de novo despite the trial court's decision being partially based on excluding an expert under Md. Rule 5-702); Giant Food, Inc. v. Booker, 152 Md.App. 166, 176-78 (2003) (reviewing the denial of a motion for judgment and a motion for judgment notwithstanding the verdict without deference, even though the reasoning for the trial judge's decision was based upon the admissibility of the expert testimony due to an allegedly sufficient factual basis for concluding that accidental exposure to Freon caused the plaintiff's asthma). We therefore conclude that the appropriate standard of review is de novo.

Summary judgment is appropriate when a plaintiff in a complex medical malpractice case lacks admissible expert causation testimony to support her prima facie case of negligence. Adventist Healthcare, Inc. v. Mattingly, 244 Md.App. 259, 283 (2020). Therefore, we will make our own determination as to whether the circuit court properly excluded Dr. Bohman's causation testimony, thus leaving Lawrence without any causation evidence necessary to prove medical negligence.

DISCUSSION

Dr Bohman's Medical Causation Opinions Lacked A Sufficient Factual Basis Under Md. Rule 5-702(3), And Thus Exclusion Of His Testimony Was Proper And Grant Of Summary Judgment In Favor Of University Of Maryland Was Legally Correct.

A. Parties' Contentions

Lawrence frames the issue as whether the circuit court's judgment should be reversed because that court erroneously usurped the jury's task of determining whether Dr. Baschat's breach of care caused Courtni's permanent injuries. Lawrence submits that the jury should have decided whether 1) Dr. Baschat's failure to order twice-weekly BPP violated the standard of care; and 2) Dr. Baschat would have seen evidence from a BPP that would have caused a reasonable fetal-maternal specialist to admit Lawrence for continuous fetal monitoring leading to an earlier delivery. Lawrence further argues that Dr. Bohman's expert testimony has a sufficient factual basis to create a jury question on whether Courtni could have avoided permanent brain injuries had Dr. Baschat not breached the standard of care.

University of Maryland contends that the trial court's decision to exclude Dr. Bohman's causation testimony should be affirmed because Dr. Bohman was unable to provide anything beyond conjecture as to which BPP abnormalities he would have expected to see on an earlier follow-up test, why he would have seen them, and why these abnormalities would have triggered a swifter delivery. In short, because Dr. Bohman lacked a factual basis for his conclusion that an interim BPP would have caused earlier delivery, his causation testimony failed to meet the admissibility criteria for expert testimony set forth in Md. Rule 5-702.

B. Analysis

At the outset, we note that the exclusion of Dr. Bohman's testimony is the issue on appeal-not standard of care, as Lawrence's brief to this Court suggests. The trial court granted summary judgment for University of Maryland after excluding Lawrence's sole causation evidence-testimony by Dr. Bohman. The circuit court excluded Dr....