Ummsc. v. Waldt

983 A.2d 112

411 Md. 207

UNIVERSITY OF MARYLAND MEDICAL SYSTEM CORPORATION, et al. v. Rebecca Marie WALDT, et al.

No. 130 September Term, 2008.

Court of Appeals of Maryland.

November 10, 2009.

Reconsideration Denied December 9, 2009.;

Neal M. Brown (Lisa J. Russell of Waranch & Brown, LLC, Lutherville, MD), on brief, for Petitioners/Cross-Respondents.

Amicus Curiae The Medical and Chirugical Faculty of Maryland, Inc. t/a The Maryland State Medical Society: Stephen H. Johnson, Esquire, General Counsel, Baltimore, MD Joseph A. Schwartz, III, Esquire, Pamela Metz Kasemeyer, Esquire, J. Steven Wise, Esquire, Schwartz, Metz & Wise, P.A., Baltimore, MD, for Petitioners/Cross-Respondents.

Andrew G. Slutkin (Jamison G. White of Silverman, Thompson, Slutkin & White, LLC, Baltimore, MD), on brief, for Respondent/Cross-Petitioners.

Brief Amicus Curiae of the Maryland Ass'n for Justice: David M. Kopstein, Esquire, Kopstein & Perilman, Seabrook, MD, for Respondent/Cross-Petitioners.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, JOHN C. ELDRIDGE, (Retired, Specially Assigned) and IRMA S. RAKER, (Retired, Specially Assigned), JJ.

GREENE, Judge.

This case arises from a medical malpractice claim filed by Respondents, Rebecca Marie Waldt and her husband, Roy Waldt ("Waldts"), in the Circuit Court for Baltimore City. In December of 2002, Mrs. Waldt underwent a procedure to treat an aneurysm in her brain. The procedure caused bleeding in Mrs. Waldt's brain, resulting in a stroke and extensive physical and mental impairment. The Waldts argue that Petitioners, Dr. Gregg Zoarski and the University of Maryland Medical System's ("UMMS"), care and treatment of Mrs. Waldt did not conform to the proper standard of care and the medical providers did not properly obtain Mrs. Waldt's informed consent before performing the procedure.

At trial, the Waldts called Dr. Gerard Debrun as an expert witness, offering his expert testimony as to the standard of care and on the issue of informed consent. The trial judge excluded Dr. Debrun's testimony as to the standard of care on the grounds that Dr. Debrun did not meet the minimum requirements for an expert witness as set forth by Md.Code (1974, 2006 Repl. Vol.), § 3-2A-04(b)(4) of the Courts & Judicial Proceedings Article ("the 20 Percent Rule").¹ Dr. Debrun was also prevented from giving expert testimony on the informed consent claim because the trial court determined that the witness did not have sufficient experience with the specific procedure to be qualified as an expert. At the conclusion of the Waldts' case in chief, UMMS and Dr. Zoarski moved for summary judgment on both counts. The Waldts conceded that no evidence of negligence was presented and the court granted judgment in favor of UMMS and Dr. Zoarski. After hearing arguments concerning the informed consent claim, the court ruled that, without expert testimony on the informed consent claim, there was no question for the jury, and thus granted judgment for UMMS and Dr. Zoarski.

The Waldts appealed to the Court of Special Appeals, which overturned the trial court's ruling as to the medical negligence claim and upheld the trial court on the informed consent claim. Waldt v. UMMS, 181 Md.App. 217, 254, 267-68, 956 A.2d 223, 244-45, 252 (2008). The intermediate appellate court held that Dr. Debrun did not dedicate more than 20 percent of his professional activities to activities directly involving testimony, and he was therefore qualified to testify as to the standard of care pursuant to the 20 Percent Rule. The Court of Special Appeals stated: "[A] legally correct application of the 20 Percent Rule should have led the court to conclude that Dr. Debrun was not disqualified from giving standard of care expert testimony." Waldt, 181 Md.App. at 245, 956 A.2d at 239. We granted certiorari to determine whether the Court of Special Appeals properly interpreted the 20 Percent Rule and whether the court properly affirmed the trial court's ruling to exclude Dr. Debrun as an expert on informed consent. We reverse the judgment of the Court of Special Appeals in regard to its interpretation of the 20 Percent Rule and affirm with respect to the informed consent determination.

FACTS AND PROCEDURE

We adopt, in part, the facts as set forth by the Court of Special Appeals in Waldt:

In the Circuit Court for Baltimore City, Rebecca Marie Waldt and her husband, Roy Waldt, sued Gregg Zoarski, M.D., and the University of Maryland Medical System ("UMMS") for medical malpractice. Using a device called the "Neuroform Microdelivery Stent System" ("neuroform stent"), Dr. Zoarski, the Chief of Interventional Radiology at UMMS, had performed a procedure to treat an aneurysm in a blood vessel in Mrs. Waldt's brain. During the procedure, an artery was perforated, which caused bleeding into the brain and a stroke. The stroke left Mrs. Waldt with significant physical and mental deficits.

In their complaint, the Waldts alleged two types of negligence: 1) ordinary negligence, i.e., failure by Dr. Zoarski to adhere to the standard of care in the actual performance of the procedure; and 2) informed consent negligence, i.e., failure by Dr. Zoarski to obtain the patient's informed consent to the procedure. The Waldts' sole claim against UMMS was for vicarious liability for the alleged malpractice of Dr. Zoarski.

* * * *

In the course of discovery, the Waldts identified Dr. [James Gerard] Debrun as their expert witness. Dr. Debrun was educated in France and practiced interventional neuroradiology for 45 years before retiring in July of 2001. He has held many positions in that field, including: Chief of Neuroradiology at the University Hospital of Paris, Director of Neuroradiology at the University of London in Canada, Chairman of the Department of Radiology at Massachusetts General Hospital, Visiting Professor at Harvard Medical School, and Director of Interventional Neuroradiology at The Johns Hopkins Hospital in Baltimore. Dr. Debrun has lectured extensively and written hundreds of articles on the subject of neuroradiology. He has in the past performed over 30 coiling procedures to treat wide-neck aneurysms. Between 10 and 15 of those aneurysms were similar in size to Mrs. Waldt's aneurysm. Because Dr. Debrun's retirement preceded the market release of the neuroform stent, he never performed a coiling procedure using that stent.

Dr. Debrun read Mrs. Waldt's medical records, including Dr. Zoarski's notes about the coiling procedures; reviewed the angiograms taken at various intervals during the procedure; and read literature about the neuroform stent system, published by its manufacturer, Boston Scientific. In a discovery deposition, Dr. Debrun opined that Dr. Zoarski breached the standard of care when he performed the coiling procedure by, inter alia, using the guide wire to "fish" for the stuck third coil, and in doing so perforating the [middle cerebral artery] at a site away from the aneurysm. He explained that the perforation was caused by Dr. Zoarski's manipulation of the guide wire, and not by the stent itself, because (1) an angiogram taken during the procedure shows the stent and the coils perfectly deployed and in place, (2) the location of the bleed (as shown in an angiogram) was too distant from the aneurysm to have been caused by the stent, and (3) Dr. Zoarski's own notes, made at the time of the event, reflect his belief that the perforation occurred away from the site of the aneurysm.

Waldt, 181 Md.App. at 223, 229-30, 956 A.2d at 226, 230.

Section 3-2A-04(b)(4) of the Courts & Judicial Proceedings Article establishes a minimum requirement for an expert witness to testify to the standard of care in a medical malpractice case: the expert must not devote annually more than 20 percent of his or her professional activities to activities directly involving testimony in personal injury cases. Dr. Debrun attested that he satisfied the 20 percent requirement. At trial, however, Dr. Zoarski and UMMS moved to preclude Dr. Debrun as a witness, arguing that he devoted more than 20 percent of his professional activities to testifying in personal injury cases. Dr. Debrun was extensively questioned about his professional activities by counsel for both parties and the trial judge. The Court of Special Appeals summarized his testimony as follows Dr. Debrun testified that he retired in July of 2001, and has not directly participated in patient care since then. He earns on average $30,000 per year from serving as an expert witness in medical malpractice cases. In most such cases, he is an expert witness for the plaintiff. Ordinarily, he participates as an expert witness in three or four medical malpractice cases a year. He estimates that he spends less than 50 hours per year in that endeavor. He participates in a given medical malpractice case by reviewing it and having his deposition taken. He rarely testifies in court (or before a panel) because most of the cases settle before trial. In the case at bar, Dr. Debrun had been paid $23,028. Dr. Debrun's only significant source of income other than the money he earns as an expert witness is his pension.

Dr. Debrun further testified that, in 2004 and 2005, he devoted an average of 559 hours per year to "professional activities" unrelated to his service as an expert witness in medical malpractice cases. These activities fall into five categories:

• Performing peer review of submitted articles for Surgical Neurology, a medical journal: 192 hours per year (16 hours per month);

• Reading the International Journal for Interventional Neuroradiology and Neurological Surgery Journal: 240 hours per year (20 hours per month);

• Observing colleagues performing various procedures: 96 hours per year (8 hours per month);

• Discussing ongoing patient medical cases with physicians: 16 hours per year (1.33 hours per month);

• Attending international conferences in the field of interventional radiology: 15 hours per...