Livingstone v. Greater Washington

978 A.2d 852

187 Md. App. 346

Herbert LIVINGSTONE, et al. v. GREATER WASHINGTON ANESTHESIOLOGY & PAIN CONSULTANTS, P.C., et. al.

No. 2079, September Term, 2007.

Court of Special Appeals of Maryland.

August 27, 2009.

Barry J. Nace (Christopher T. Nace, Paulson & Nace on the brief), Washington D.C., for appellant.

Michael E. von Diezelski & Benjamin S. Vaughan (Adelman, Sheff & Smith, LLC on the brief, of Annapolis), and (Kenneth Armstrong, Armstrong, Donohue, Ceppos & Vaughan, Chtd. on the brief, of Rockville), for appellee.

Panel: HOLLANDER, MATRICCIANI, GRAEFF, JJ.

GRAEFF, J.

This matter arises from a wrongful death action filed by appellants, Herbert Livingstone, individually and as administrator and personal representative of the estate of his deceased wife, Tracy Orr ("Dr.Orr"), who died on November 12, 2002, three days after giving birth to twin boys by a pre-term Cesarean section.¹ The complaint alleged medical negligence by appellees Richard S. Margolis, M.D. and Stephen D. Martin, M.D. in their care and treatment of Dr. Orr in the days just prior to and during the delivery of the twins.²

After an eight day trial, the Honorable Terrence J. McGann presiding, the jury returned a verdict in favor of appellees. The jury found that neither Dr. Margolis nor Dr. Martin committed a breach of the standard of care when providing treatment to Dr. Orr. Accordingly, the circuit court entered judgment in favor of appellees.

Appellants appealed and present five questions for our review, which we have rephrased slightly:

1. Did the trial court fail to properly instruct the jury on causation?

2. Did the trial court err in admitting evidence regarding an "amniotic fluid embolism?"

3. Did the trial court err in excluding evidence regarding Dr. Martin's handling of the "Code?"

4. Did the trial court err in denying appellants' request to add an additional expert witness two months after the deadline for designating expert witnesses, but prior to the commencement of discovery regarding experts?

5. Did the trial court err in permitting the jury to begin deliberations at approximately 7:00 p.m. on a Friday evening after two weeks of evidence in a medical malpractice trial?

Appellees Dr. Martin and Greater Washington Anesthesiology filed a cross-appeal, which presents one issue:

Did the trial court err by failing to grant appellees' motion to dismiss because plaintiffs' Certificates of Merit failed to attest to a departure from the standards of care that proximately caused the decedent's death?

For the reasons that follow, we shall affirm the judgment of the circuit court. Accordingly, we will not address the issue raised by appellees in their cross appeal.

Factual And Procedural Background

On November 6, 2002, Dr. Orr was admitted to Shady Grove Adventist Hospital. Dr. Orr was 43 years old and approximately 27 weeks pregnant with twins. She had preeclampsia³ and gestational diabetes, and she was experiencing pre-term labor. On November 9, 2002, her membranes ruptured (her "water broke"). Upon the recommendation of her physicians, Dr. Orr consented to and underwent a Cesarean section attended by, among others, Dr. Margolis, an obstetrician, and Dr. Martin, an anesthesiologist. The delivery of the first twin occurred at approximately 6:54 p.m., and the second twin was delivered at about 6:56 p.m. Very soon after the second twin's delivery, it was noted that Dr. Orr was unresponsive and subsequently in cardiac arrest. A "code" was called by the nurses present, and resuscitative measures were undertaken.⁴ Unfortunately, Dr. Orr suffered brain injury. On November 11, 2002, life support was withdrawn, and on November 12, 2002, Dr. Orr died. The twins survived.

On November 4, 2005, nearly three years after Dr. Orr's death, appellants filed a claim with the Health Care Alternative Dispute Resolution Office of Maryland ("HCADRO"), in accordance with the Health Care Malpractice Claims statute, Md.Code (2002), §§ 3-2A-01 to -10 of the Courts & Judicial Proceedings Article ("CJP"). In their claim, appellants alleged that appellees failed to adhere to the required standards of care in their treatment of Dr. Orr, and that those failures were the proximate cause of her death. Specifically, the appellants alleged that the appellees "failed to adhere to the required standard of care" by their "failure to properly and carefully: 1. assess and monitor [Dr.] Orr's condition prior to surgery, 2. treat [Dr.] Orr prior to surgery, and 3. monitor [Dr.] Orr's progress during her cesarean section surgery ..."

Pursuant to CJP § 3-2A-04(b), a claim filed with the HCADRO must include a certificate of qualified expert attesting that the health care provider departed from standards of care and that such departure was the proximate cause of the alleged injury. In this case, appellants filed two certificates. The first certificate was by Kris Sperry, M.D., a Board Certified Pathologist, who stated:

It is my opinion that [Dr.] Orr died due to irreversible brain damage and associated failure of other organ systems, all of which were caused by hypoxia and severe acidosis. It is also my opinion that she did not sustain an amniotic fluid embolus during the cesarean section she underwent to deliver her twin sons, and that an amniotic fluid embolus played no role in causing the hypoxia and acidosis that culminated in her death.

The second certificate of merit was by Dr. Stephanie Mann, a Board Certified Obstetrician-Gynecologist. Dr. Mann stated:

It is my opinion from reviewing [Dr. Orr's] records that the Health Care Providers each of them, violated the standard of care.... It is my belief that these physicians violated the appropriate standard of care in numerous ways, including failing to recognize the pulmonary problem that [Dr. Orr] was suffering from and not treating her appropriately under the circumstances.

Dr. Mann's certificate did not attest that any breach of the standard of care caused Ms. Orr's death.

On May 7, 2007, the HCADRO Director issued an Order finding that appellants had satisfied the requirements of § 3-32A-01 by filing a valid Certificate of Qualified Expert and an appropriate accompanying report. It further ordered that the certificates of merit were "sufficiently detailed such that they are recognized by this Body as appropriate Reports of Attesting Experts."

Appellants subsequently filed a complaint in the circuit court under the Wrongful Death Act of Maryland, Md. Code (2002), CJP §§ 3-901-904. In their complaint, appellants alleged that Dr. Margolis and Dr. Martin failed to properly and carefully: "1. Assess and monitor [Dr.] Orr's condition prior to surgery"; "2. Treat [Dr.] Orr prior to surgery"; and "3. Monitor [Dr.] Orr's progress during her cesarean section surgery."

On May 22, 2006, the circuit court issued a Scheduling Order, which required, among other things, that appellants identify their expert witnesses by November 8, 2006. On that date, appellants filed their "expert witness designation," which named the following three liability experts: Stephanie Mann, M.D., "offered as an expert in the area of obstetrics and gynecology, standard of care, causation, and damages"; Jeffrey Cocozzo, M.D., "offered as an expert in the area of [anesthesiology], standard of care, causation, and damages";⁵ and Kris Sperry, M.D., "offered as an expert in the area of forensics, causation, and damages."

On January 19, 2007, appellants filed a "Motion for Leave to Add Expert Witness," seeking permission to add a second anesthesiologist. The circuit court denied appellants' motion, as well as appellants' Motion for Reconsideration.

On February 15, 2007, appellees filed a motion to dismiss on the grounds that the Certificates of Qualified Expert filed by Dr. Mann and Dr. Sperry were deficient in that they failed to attest that appellees violated the standard of care in their treatment of Dr. Orr and that any such violations were the proximate cause of Dr. Orr's death. The circuit court denied this motion.

Appellees filed a motion in limine to exclude any evidence or testimony by appellant's expert, Dr. Cocozzo, that Dr. Martin violated the standard of care in handling the code to resuscitate Dr. Orr. Appellees argued that the claims alleged against Dr. Martin involved his conduct prior to the calling of the code, and that no expert had opined that Dr. Martin had violated the standard of care in his handling of the code or that the handling of the code caused Dr. Orr's death. Subsequent to the filing of this motion, and less than two weeks before the scheduled trial date, Dr. Cocozzo filed an errata sheet that purported to clarify some of his deposition testimony related to this issue. As discussed in more detail, infra, the trial court granted appellees' motion to strike the errata sheet filed by Dr. Cocozzo, and it granted appellees' motion in limine.

The trial began on September 4, 2007. In their appellate brief, appellants summarize the evidence they presented as follows:

Mr. Livingstone claimed that on November 6, 2002 (three days prior to her admission to the delivery room) Tracy Orr had developed pulmonary edema in addition to pre-eclampsia and gestational diabetes. Pulmonary edema is a life threatening condition and in this case was not recognized as such and was not properly treated by Appellees Drs. Margolis and Martin. Mr. Livingstone alleged at trial that the Appellees' failure to properly treat Dr. Orr's pulmonary edema was a substantial factor of her death.

Mr. Livingstone also alleged that upon Dr. Orr's admission to the delivery room with a severely compromised respiratory system the Appellees did not properly monitor Tracy Orr, such that she developed an even worse respiratory condition eventually resulting in a respiratory arrest. This respiratory arrest, according to Mr. Livingstone, led to a cardiac arrest in the operating room during the delivery of Dillon and Ryan Livingstone. Both the...