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David A. Barnes, et al. v. Greater Baltimore Medical Center

March 21, 2013


The opinion of the court was delivered by: Zarnoch, J.


Woodward, Zarnoch, Kenney, James A., III (Retired, Specially Assigned), JJ.

Opinion by Zarnoch, J.


In this appeal, we are confronted with another twist in the interpretation of the certificate requirement of the Healthcare Malpractice Claims Act ("HCMCA" or "the Act"), Maryland Code (1974, 2006 Rep. Vol., 2012 Supp.), Courts and Judicial Proceedings Article ("CJP"), §§ 3-2A-01-10. In the Circuit Court for Baltimore County, appellee/cross-appellant Greater Baltimore Medical Center ("GBMC")*fn1 moved to dismiss appellants'/cross- appellees', David A. Barnes and Laura A. Barnes, medical malpractice claim for failure to file a proper certificate of qualified expert.*fn2 GBMC argued that the expert report did not explain the expert's opinions as required by the Act. This motion came not early in the proceedings, but on the eve of a second trial, when the expert had already testified at the first trial.*fn3 The circuit court denied the motion. For reasons to be explained more fully, we affirm the court's ruling and conclude that GBMC's possession of the expert's mistrial testimony before the second trial cured any lack of detail in the expert report.

This case took another turn in the second trial after the jury found in favor of appellants, when the circuit court granted the motion for judgment notwithstanding the verdict ("JNOV") of GBMC and appellees Dr. Jose V. Rustia, and Charles Emergency Physicians, P.A. ("CEP"). Previously, appellees had moved for judgment as a matter of law at the close of the Barneses' case and at the close of all evidence.

The court denied these motions and the jury found in favor of the Barneses and awarded damages of $1,123,000. In granting the JNOV motion, the court found that the Barneses did not provide legally sufficient evidence of causation. The Barneses appeal this ruling. On this issue, we conclude that the Barneses did produce sufficient evidence for the jury verdict and the circuit court erred in granting the JNOV. We will therefore reverse the court's ruling and order reinstatement of the jury verdict.

As a final issue, GBMC appeals the denial of its motion for judgment, arguing that the Barneses did not produce sufficient evidence for the case to even proceed to the jury. For reasons that follow, we reject GBMC's contentions.


David Barnes went to see his primary care physician, Dr. Allen Halle, on January 26, 2005, because he was experiencing weakness in his right hand grip, numbness, and tingling in his right arm. Dr. Halle was concerned that Mr. Barnes was having a transient ischemic attack (mini-stroke) or was in the beginning phases of a stroke. He called Mrs. Barnes and told her that her husband needed to go to the hospital immediately. Mrs. Barnes picked up her husband and drove him to GBMC. Dr. Halle also gave Mrs. Barnes a note that she was to give to the registration desk upon arrival. The note stated that Dr. Halle wanted Mr. Barnes to have a "stroke work up."

Mr. Barnes arrived at GBMC around 5:20 p.m. He first saw the "quick look nurse," Candance Starstrom, who determines where the patients should be routed and which patients should be seen by the triage nurse. The triage nurse performs a more thorough assessment. The Barneses told Nurse Starstrom that his primary care physician sent Mr. Barnes to the emergency room. Nurse Starstrom also read Dr. Halle's note. On the hospital assessment form, there is a space to indicate the priority of a patient's condition, one being the most serious and four being the least. Nurse Starstrom circled that Mr. Barnes' condition was a priority number one. Nurse Starstrom testified that priority number one "represents a potentially life threatening situation and should be automatically routed to the main emergency department." She also wrote on the form that Mr. Barnes "had a weak right grip, tingling in the right hand, a numb right side, and that he had been seen by his primary care doctor and directed to the GBMC emergency room." She then attached Dr. Halle's note to the front of the form.

Mr. Barnes was sent to the triage nurse, Carol Stopa, at 5:49 p.m. Nurse Stopa testified that she did not see Dr. Halle's note. The Barneses argued that Nurse Stopa changed the priority from one to four on the form, and crossed out the word "side" and changed it to "hand" so it said "numb right hand" instead of "numb right side." Although she did not remember the incident, Nurse Stopa testified that the signature on the form was probably hers and some of the writing was hers. Nurse Stopa sent Mr. Barnes to the urgent care department (for less serious conditions), not the emergency department.

Mr. Barnes then saw Dr. Rustia, the emergency medicine physician who was on duty in the urgent care center. Dr. Rustia testified that he did not see Dr. Halle's note, and if he had, he would have walked Mr. Barnes over to the main emergency department to have the stroke work up. Dr. Rustia ordered a wrist x-ray, diagnosed Mr. Barnes with carpel tunnel syndrome, gave him pain medication, prescribed an anti-inflammatory medication, and told him to follow up with a hand surgeon.

As Mr. Barnes was leaving at around 6:20 p.m., Nurse Starstrom saw him in the parking lot and felt that he had not been there long enough to have a stroke work up. She looked at Mr. Barnes' assessment form and saw that he did not receive the work up. She told the charge nurse, Lori Hart, and Nurse Hart called Dr. Halle, who instructed her to call Mr. Barnes and have him return to the emergency room. She left a message on the Barneses' answering machine at 6:40 p.m. The Barneses live thirty to forty minutes from GBMC and returned to the hospital around 8:30 p.m.

Upon returning, Mr. Barnes received at least a partial stroke work up. The nurses started him on an IV, drew blood, conducted blood tests, ordered a CAT scan of the brain, and performed an electrocardiogram. Dr. Elias Abras was the emergency room physician who examined Mr. Barnes. He ruled out a hemorrhagic stroke based on the CAT scan. After a few other tests, Dr. Abras concluded that Mr. Barnes needed to be admitted because he "needed more evaluation" and that the evaluation "ha[d] to be done by the attending physician." Since Mr. Barnes had medical insurance through Kaiser Permanente, Dr. Abras testified that he needed a Kaiser hospitalist to admit Mr. Barnes.*fn4 The only Kaiser hospitalist on duty that evening was Dr. Vikesh Singh. Dr. Abras called Dr. Singh and asked him to come evaluate and admit Mr. Barnes. Dr. Singh said he would come as soon as possible. Dr. Abras continued to call Dr. Singh for several hours, but Dr. Singh never arrived. Tired of waiting, Mr. Barnes wanted to go home. Dr. Abras claimed to have told Mr. Barnes that "he had a mini-stroke and it was important for him to follow up with Dr. Halle in the morning to complete the evaluation." Mrs. Barnes said "I was never told a diagnosis."*fn5 Dr. Abras discharged Mr. Barnes around 1:00 a.m. on January 27.

The next day, Mrs. Barnes went to work. Mr. Barnes called Dr. Halle and told him about the previous day's events. Dr. Halle planned for Mr. Barnes to see a neurologist on January 31, and he planned for Mr. Barnes to have an MRI, a doppler study of his neck, and an echocardiogram within one week. But when Mrs. Barnes came home, Mr. Barnes was sitting in a recliner with his back to her. She asked about the doctor. He pointed to a piece of paper on her vanity. Mrs. Barnes looked at the note on vanity, but it was nothing but scribbles. So then she walked around so she could see Mr. Barnes and asked if he was okay. But he did not look okay: "[h]is mouth was all crooked." At that point Mrs. Barnes' cousin drove the Barneses to GBMC. Mr. Barnes had suffered a stroke.

The Barneses waived arbitration under CJP § 3-2A-06(B) and filed suit in the Circuit Court for Baltimore County against GBMC, Dr. Rustia, and CEP.*fn6 The Barneses filed a certificate of qualified expert and expert report, as required by CJP § 3-2A-04. Dr. Kenneth Larsen signed the certificate and report. He was later deposed. After several motions and additional discovery, a trial began on February 2, 2010 and Dr. Larsen fully testified at this trial. After four days of trial, the circuit court had to declare an administrative mistrial because of a massive snow storm.

The second trial was set to begin in March 2011. The defendants filed several more motions based on the events of the first trial, including one to prohibit Dr. Larsen from testifying regarding proximate cause. The day before the second trial started, GBMC moved to dismiss the case for failure to file a proper certificate of qualified expert. GBMC argued that the report was insufficient because case law required that the report describe the standard of care, how the specific defendants violated the standard of care, and how the violation proximately caused the plaintiff's injuries. After a discussion of the case law, the circuit court denied the motion to dismiss, finding that GBMC was too late in filing the motion.

During trial, one of the plaintiff's other experts, Dr. Marion Lamonte, testified regarding the breach of the standard of care and proximate cause. GBMC and Dr. Rustia believe that Dr. Lamonte's proximate cause testimony did not include that Dr. Rustia should have admitted Mr. Barnes to the hospital. But during Dr. Lamonte's direct testimony, the Barneses' attorney asked "[a]nd had Dr. Rustia thought of a TIA [transient ischemic attack], what would the standard of care require Dr. Rustia to do?" GBMC's attorney objected. After a bench conference, Dr. Lamonte testified "[h]e could have moved the patient to the main emergency department immediately and contacted the physician in charge of the main emergency department for acute work up and treatment or he could have called Admission himself, right then, and got the patient admitted." GBMC's attorney objected and the testimony was stricken. Later, at a bench conference, the judge said, "[Dr. Lamonte] never opined that Dr. Rustia should have admitted the patient."

The Barneses feel that Dr. Lamonte did end up testifying that GBMC and Dr. Rustia breached the standard of care in not admitting Mr. Barnes the evening of January 26. Dr. Lamonte testified, without objection, that "every hospital had a policy regarding admission of acute neurologic emergencies" because "the evaluation, management, [and] treatment cannot be performed on an outpatient basis." She said "everybody would have put him in a hospital." She also testified on cross examination, without objection:

Q: All right and it's likely, under the protocol, if Dr. Rustia had seen the note, the protocol would have been to send the patient to the emergency department, the main emergency department correct?

A: Yeah, or just admit him. He probably would have done that.

The Barneses further believe that Dr. Lamonte testified that if Mr. Barnes had been admitted to GBMC, his stroke would have been prevented. She opined that bed rest, oxygen, and IV fluids would have prevented Mr. Barnes' stroke or delayed it until the appropriate studies could be done and surgery initiated. She further testified that Mr. Barnes would have received an endarterectomy if he would have been admitted, and this would have prevented the stroke.*fn7 Dr. Lamonte opined that "it was most likely more than fifty percent his stroke would have been prevented" if he had been admitted to the hospital. She said the "normal sequence of events" for a patient with Mr. Barnes' symptoms "is to get a patient's head flat first, to give them intravenous fluids, to increase the volume that will go to their brain and to give them oxygen."

At the close of the Barneses' case in chief, the defendants moved for judgment as a matter of law on causation grounds. They argued that there was no evidence establishing that if Dr. Rustia had sent Mr. Barnes to the main emergency room the first time he went to the hospital, Mr. Barnes would have been admitted for the additional treatment or undergone the testing that was necessary to prevent his stroke. The circuit court denied the motion. The court said "there is no specific testimony . . . from Dr. Lamonte saying two or three hours earlier presentation or admission to the hospital would have made a difference" but, "at this junction, I feel there is sufficient evidence there in looking at the case in a light most favorable to the Plaintiff on the causation issue to allow it to go forward . . . ."

The defendants renewed the motion for judgment at the close of evidence on the same grounds and the court again denied the motion. The jury found in favor of the Barneses and against GBMC, Dr. Rustia, and CEP in the amount of $1,123,000, consisting of $200,000 for loss of household services, $73,000 for future medical expenses, $750,000 in non-economic damages, and $50,000 for loss of consortium. The jury did not find Dr. Abras negligent.

GBMC and Dr. Rustia moved for a post-trial JNOV. The circuit court granted the motion, finding insufficient evidence of causation. The court stated, "this Court looks at whether Dr. Lamonte has a nexus between the violations of the standard of care as it relates to Nurse Stopa and Dr. Rustia and whether or not the ultimate stroke that Mr. Barnes clearly suffered on January the 27th was proven, preventable." The court concluded,

[Dr. Lamonte's] testimony on causation lacked foundation, did not provide legally sufficient testimony for the jury to find that as a result of the violation of the standard of care by Nurse Stopa and Dr. Rustia, that Mr. Barnes had a stroke and that if the had complied with the standard of care, that his stroke was preventable.

The Barneses timely appealed the grant of the JNOV, and GBMC timely appealed the denial of its motion for judgment at the close of the evidence and its motion to dismiss for failure to file a proper certificate of qualified expert.


We are presented with three questions on appeal (one from appellants, the Barneses, and two from appellee GMBC), which we have reordered and recast as follows:*fn8

1. Did the circuit court err in denying GBMC's motion to dismiss for failure to file a legally sufficient report from a qualified expert?

2. Did the circuit court err in granting appellees' motion for judgment notwithstanding the verdict based on ...

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