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Streaker v. Boushehri

Court of Special Appeals of Maryland

September 28, 2016


          Berger, Nazarian, Beachley, JJ.


          NAZARIAN, J.

         This medical malpractice appeal presents questions about the burden of proof under Courts & Judicial Proceedings Article § 3-2A-04(b)(4), known colloquially as the Twenty Percent Rule. After finding that Karen Streaker's expert witness failed to satisfy this rule, which disqualifies expert witnesses who devote annually more than twenty percent of their professional activities to activities that directly involve testimony in personal injury claims, the Circuit Court for Howard County granted summary judgment against her and in favor of Kristina Boushehri and Capital Women's Care, LLC ("CWC"). On appeal, Ms. Streaker contends that the trial court erred when it included certain of Dr. Borow's activities in the numerator of the Twenty Percent Rule calculation. We affirm.

         I. BACKGROUND

         On October 31, 2013, Ms. Streaker filed a complaint against Ms. Boushehri, a Certified Nurse Midwife, and CWC, her practice, alleging negligence and breach of contract. She filed first in the Circuit Court for Prince George's County, and the case was transferred to the Circuit Court for Howard County. The complaint stemmed from injuries Ms. Streaker alleged that she suffered while under their care from November 2009 to June 2010. The details of Ms. Streaker's medical claims aren't central to the issues on appeal; it will suffice for present purposes that Ms. Streaker alleged that Ms. Boushehri's care not only failed to resolve her symptoms and discomfort, but caused her to suffer complications that landed her in the hospital, required her to undergo surgery, and caused ongoing kidney disease.

         As required by Maryland's Health Care Malpractice Claims Act (the "Act"), Ms. Streaker designated a medical expert, Lawrence S. Borow, M.D., to certify that Ms. Boushehri and CWC had departed from the relevant standards of care and that the departures proximately caused Ms. Streaker's personal injuries and damages. In August 2013, Ms. Streaker filed a Certificate of Qualified Expert from Dr. Borow in which he attested that he did not devote more than twenty percent of his professional time to activities that directly involve testimony in personal injury claims. In response, the defendants served discovery, including discovery relating to Dr. Borow's professional activities. Dr. Borow produced some materials, but declined to produce others. The defendants eventually filed a motion to compel financial records that the court granted, albeit a week before trial and the day before Dr. Borow's scheduled de bene esse deposition.

         The videotaped de bene esse deposition of Dr. Borow took place on May 27, 2015. In addition to the discovery mentioned above, the defendants also had subpoenaed Dr. Borow's office calendar and a list of his prior testimony, but Dr. Borow moved (in Pennsylvania, where he lives) to quash it, and the deposition went forward without those materials. Dr. Borow testified during the direct examination portion of the deposition that he spent approximately fifteen percent of his professional time on work that directly involves testimony in personal injury actions. On cross, the defense challenged his calculation, contending that Dr. Borow had mis allotted time spent preparing for depositions as work not directly related to testimony. They complained as well that Dr. Borow's records were incomplete and that he had failed to reveal or itemize work he had performed as an expert witness.

         Before trial, Ms. Boushehri and CWC moved in limine to exclude Dr. Borow's testimony because he failed to satisfy the Twenty Percent Rule. On June 2, 2015, the trial court heard argument, recessed, then granted the motion from the bench. The court reviewed the two major cases applying the Twenty Percent Rule, Witte v. Azarian, 369 Md. 518 (2002), and Waldt v. University. of Maryland Medical System. Corp., 411 Md. 207 (2009), reviewed the evidence and testimony, and attempted to calculate the percentage of time that Dr. Borow devoted to activities that directly involve testimony in personal injury claims. But after placing the burden of proof of the motion on the defendant, the court struggled to make the calculation from the documents and information Dr. Borow had produced (or, more to the point, the documents and information he hadn't produced):

So the reason why the Court read that testimony-which the Court finds important-is because I think it really relates and connects to the issues that we have before the Court of whether or not the twenty percent of the expert professional activities - were more than twenty percent. We know, based on the one case, that twenty point six percent and the slightest amount over twenty percent would, in fact, prohibit and preclude the witness from testifying.
And the Court has considered the arguments presented by both the plaintiff as well as the defendants in their calculations. But the Court finds that the defendants'-what I would call version or analysis-is much more accurate of the testimony that's been, in fact, presented concerning the doctor's activities.
So clearly based on-and I'm only going to use 2014, which is what-let me also back up. Because one of the questions is, who has the burden. Because in reading 3-2A-04 it just says that that is the prohibition, no more than twenty percent. It doesn't really say who has the burden. I know in the defendant[s'] memo the defendant says that the plaintiff has the burden. But if-it is the Court's opinion that the defendant would have the burden to challenge that and to present sufficient information to this Court to make that decision. So I don't find that it is the plaintiff's burden, I do find it is the defendant's burden.
The other issue that this Court is considering is that based on the witness's testimony that he clearly knows-meaning the doctor-about the twenty percent rule, he has testified numerous times-the Court finds it curious that he does not itemize or keep records to that extent. The Court also noted that he failed to produce his calendar that was subpoenaed. The Court also recognizes that he has used the legal system in the state of Pennsylvania to prevent the production of it. And my question is why? And then whether or not this Court should draw an adverse inference from that failure. Because clearly we have an expert witness who knows the rules of the state and when asked to produce it for whatever reason, he has used the legal system to prevent that. And that still is the lingering question as to why, and should this Court draw an adverse inference that the reason why he didn't produce it was because it would show he has over twenty percent. But I am not going to go that far, I'm just going to base my decision on the information that has been, in fact, presented.
It is clear to this Court that when you consider the factors that I am required to under the case law, and seeing that in 2014 he did, in fact, earn three hundred and twenty-four thousand six hundred and two dollars from what we would call as an expert. We know that he bills four hundred dollars an hour. And also, we also know that one of the 10-99s was not included so I am also questioning how many others have not been included. But from what we do have at four hundred dollars an hour, that comes to eight hundred eleven hours a year which is sixteen hours per week based on the medical legal work. And when the court makes the division it comes to thirty-three point one two percent. That is clearly above the twenty percent rule that is prohibited by the statute.
So, therefore, the court will grant the motion to exclude the testimony of Dr. Borow because he is performing more than twenty percent of his time on medical legal work which is prohibited by the statute. So that is going to be the decision of this Court concerning that issue.

         The court's decision to exclude Dr. Borow left Ms. Streaker with no expert to testify that the defendants had breached the standard of care in her treatment, and the court granted the defendants' oral motion for summary judgment. Ms. Streaker filed a motion to reconsider the exclusion of ...

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