THE RETINA GROUP OF WASHINGTON, P.C.
GUSTAVO CROSETTO, ET UX.
Circuit Court for Montgomery County Case No. 409869-V
Woodward, C.J., Eyler, Deborah S., Fader, JJ.
DEBORAH S., J.
Health Care Alternative Dispute Resolution Office
("HCADRO"), Gustavo and Cristina Crosetto filed
suit for medical malpractice against Reginald Sanders, M.D.,
and The Retina Group of Washington, P.C. ("RGW"),
in which Dr. Sanders has an ownership interest. The complaint
alleged that at the relevant time Dr. Sanders was acting as
an agent of RGW and within the scope of the agency. After the
Crosettos filed a certificate of qualified expert attesting
that Dr. Sanders deviated from the requisite standard of care
in treating Mr. Crosetto, causing the alleged injury, they
unilaterally waived arbitration, pursuing their claims
against Dr. Sanders and RGW in the Circuit Court for
trial, RGW objected to a proposed verdict sheet that would
permit separate verdicts to be returned as to it and Dr.
Sanders. RGW argued that any liability it might have would be
coextensive with that of Dr. Sanders, because the
Crosettos' certificate of qualified expert only
identified Dr. Sanders, and no other agent of RGW, as having
breached the standard of care. The court overruled RGW's
case went to trial before a jury. RGW moved for judgment,
which the court denied. The jury returned a verdict in favor
of Dr. Sanders but against RGW for the medical negligence of
"any one of [RGW's] agents (excluding Defendant [Dr.
Sanders])." RGW moved for judgment notwithstanding the
verdict ("JNOV") on the ground that the Crosettos
did not identify, before or during trial, any agent of RGW
who deviated from the standard of care, other than Dr.
Sanders. The court denied the motion.
noted this appeal, presenting two questions, which we have
rephrased as follows:
I. Did the trial court err by allowing the Crosettos to
pursue a claim against RGW for the medical negligence of any
agent other than Dr. Sanders?
II. Was there legally sufficient evidence to support the
jury's verdict that an agent of RGW, other than Dr.
Sanders, was negligent?
We find error as to both issues and shall reverse the
judgment against RGW.
December 2, 2014, Mr. Crosetto went to his ophthalmologist,
Amy Green-Simms, M.D., complaining of "shade" and
"flashes" affecting the vision in his left eye. Dr.
Green-Simms referred Mr. Crosetto to RGW, where, that same
day, he met with Vinay Desai, M.D., an ophthalmologist who
specializes in retinal disease. Dr. Desai diagnosed Mr.
Crosetto with a "giant retinal tear" in the left
eye and told him that the tear needed to be surgically
the December 2, 2014 examination, the intraocular pressure
("IOP") in Mr. Crosetto's left eye was
determined to be 28 mmHg by Tono-Pen and 29 mmHg by
slit-lamp. The normal range for IOP is between 10 and 22
mmHg. Dr. Desai did not prescribe pressure-lowering
medication for Mr. Crosetto to take before surgery. In Dr.
Desai's view, Mr. Crosetto's IOP was temporarily
elevated due to the dilation drops he had been given earlier
Dr. Desai's schedule did not permit him to perform the
surgery, he contacted Dr. Sanders, a vitreoretinal surgeon
with RGW, who agreed to do so. Dr. Desai transmitted his
documentation of Mr. Crosetto's December 2, 2014 office
visit to Dr. Sanders the same day. Dr. Sanders operated on
Mr. Crosetto two days later, on December 4, 2014, at the
Friendship Ambulatory Surgery Center ("FASC").
David Warrow, M.D., a retina fellow with RGW, was present and
observed. Dr. Sanders first saw Mr. Crosetto on the morning
of the surgery. He did not measure Mr. Crosetto's IOP at
surgery was performed in two phases. First, Dr. Sanders
attached a scleral buckle to Mr. Crosetto's left eye and
sutured the tear in the retina. Next, Dr. Sanders performed a
vitrectomy to replace the vitreous humor in the eye with a
gas bubble that would hold the retina in place, giving it
time to heal. Specifically, Dr. Sanders filled Mr.
Crosetto's eye with a 20% C3F8 gas tamponade. C3F8 gas at
a 20% concentration expands post-operatively before
dissipating over time.
the surgery, the IOP in Mr. Crosetto's left eye was
controlled mechanically. At the end of the procedure, Dr.
Sanders administered Diamox, which lowers fluid production in
the eye and therefore lowers the IOP. Before closing up, Dr.
Sanders used his finger to measure Mr. Crosetto's IOP and
noted that it was "normal." At the conclusion of
the surgery, Mr. Crosetto's left eye was bandaged and
patched, which was routine. The surgery was completed at
10:15 a.m. After spending 45 minutes in the recovery room,
Mr. Crosetto was discharged to home, at 11:00 a.m. At that
time, he "was still feeling a lot of pressure in [his]
eye." Between the end of surgery and Mr. Crosetto's
release, Dr. Sanders did not check Mr. Crosetto's IOP.
next day, December 5, 2014, Mr. Crosetto attended a follow-up
appointment with Dr. Desai. Mr. Crosetto reported that he
could not see out of his left eye. Dr. Desai told him that it
was normal not to regain vision so soon after the operation
and that the gas bubble was affecting his vision but would
"disintegrate in four to six weeks." Dr. Desai
measured Mr. Crosetto's IOP, which was 38 mmHg. He was
not concerned about the increase in IOP because a significant
increase in pressure would have been accompanied by
uncontrollable pain, and Mr. Crosetto had been able to manage
his pain with Tylenol.
December 6, 2014, Mr. Crosetto returned to RGW and met with
Dr. Warrow. He still could not see out of his left eye and
was continuing to feel pressure. Dr. Warrow measured Mr.
Crosetto's IOP and obtained a reading of 32 mmHg. Dr.
Warrow prescribed Diamox to help control the IOP.
December 10, 2014, Mr. Crosetto went to a follow-up
appointment with Dr. Desai. At that time, the IOP in his left
eye was 20 mmHg. Mr. Crosetto reported that he still could
not see out of his left eye. Dr. Desai reassured him that he
was "doing well" and that the surgery had been
successful. He told Mr. Crosetto that he would regain his
vision after the gas bubble dissipated.
Crosetto's next follow-up visit was on January 23, 2015,
with Dr. Desai. Mr. Crosetto told Dr. Desai that he only
could detect light out of his left eye. Dr. Desai referred
him to Martin Kolsky, M.D., a neuro-ophthalmologist. Dr.
Kolsky diagnosed Mr. Crosetto with an atrophic optic nerve.
Dr. Kolsky ruled out causes such as a hemorrhage, mass, or
stroke, and concluded that the nerve atrophy may have
resulted from ischemia, i.e., loss of blood flow to
the optic nerve. Mr. Crosetto never regained vision in his
September 4, 2015, in the HCADRO, Mr. Crosetto and his wife
filed a complaint against Dr. Sanders and RGW for medical
negligence and loss of consortium. They alleged that Dr.
Sanders was acting as RGW's agent at the relevant times.
According to the complaint,
the Defendants breach[ed] one or more applicable standards of
medical care . . . by . . . failing to prescribe and
administer a safe dosage of a gas tamponade C3F8 that was
safely under the 20% level [and by failing to] properly and
timely monitor Mr. Crosetto's eye pressure before,
during and after the Surgery . . . .
Crosettos identified FASC and alleged that Susan Hanwell,
M.D., an agent of FASC, served as the anesthesiologist during
the operation. They also alleged that "the Defendants
employed various medical providers and medical staff at its
place of business to provide medical treatment to Mr.
Crosetto" and "[t]he Defendants were all acting
within the scope of their respective employment when they
rendered medical care . . . ."
complaint was accompanied by a certificate of qualified
expert and report by Robert Josephberg, M.D., an
ophthalmologist who specializes in retinal disease. In his
certificate and report, Dr. Josephberg opined that 20% C3F8
gas expands in the eye and "elevate[s] pressure to act
as a 'tourniquet' that severely limits the blood
supply to the eye." He asserted that Dr. Sanders
breached the standard of care by administering a 20% C3F8 gas
tamponade to Mr. Crosetto and by failing to monitor Mr.
Crosetto's IOP before and after surgery. He asserted that
"the breach of one or more standards of care by Dr.
Reginald Sanders caused the permanent loss of vision in Mr.
Crosetto's left eye." Dr. Josephberg identified Dr.
Warrow and Dr. Hanwell as part of the "team" of
doctors caring for Mr. Crosetto, but did not state that
either of them, or anyone other than Dr. Sanders, breached
the standard of care.
September 22, 2015, the Crosettos unilaterally waived
arbitration in the HCADRO pursuant to Md. Code (1974, 2013
Repl. Vol.), section 3-2A-06B of the Courts and Judicial
Proceedings Article ("CJP"), and on September 28,
2015, they filed their complaint in the Circuit Court for
Montgomery County. They filed an amended complaint on July 7,
2016. That complaint removed all references to FASC and Dr.
closed on August 15, 2016. On August 23, 2016, the parties
filed a Joint Pretrial Statement. Under "Nature of the
Case, " counsel for the Crosettos wrote:
The Plaintiffs, as husband and wife, bring this medical
malpractice claim in four counts alleging, inter
alia, simply that the Defendant retina surgeon breached
the standard of care by neglecting to review and/or consider
the patient's pre-existing medical conditions that made
him vulnerable to the Defendant surgeon's use of an
excessive and dangerous level of a 20% gas/air tamponade
perfluoropropane (C3F8) that expanded to up to four times
it's [sic] volume. These negligent acts allegedly caused
suffocation of the Plaintiff's central retinal artery to
his left eye's optic nerve resulting in permanent loss of
another section of the Joint Pretrial Statement entitled
"Claims and/or Defenses, " counsel for the
Crosettos referred only to allegedly negligent acts and
omissions by the "surgeon Defendant, " clearly
referring to Dr. Sanders.
August 26, 2016, the Crosettos filed a supplemental
certificate of qualified expert and report by Dr. Josephberg,
as required by CJP section 3-2A-06D. The supplemental
certificate and report was substantively similar to the
initial certificate and report. It eliminated the prior
references to Drs. Warrow and Hanwell, however, and added a
sentence stating, somewhat cryptically, "[t]hat after
[s]urgery Dr. Sanders or RGW failed to monitor Mr. Crosetto .
. . and failed to measure the IOP and follow-up with care by
prematurely discharging him[.]" Other than Dr. Sanders,
Dr. Josephberg did not identify any agent of RGW who breached
the standard of care.
case was set for a jury trial to begin on November 28, 2016.
On October 11, 2016, the Crosettos filed a second amended
complaint. They alleged for the first time that agents of RGW
were negligent by failing to "prescrib[e] and
administer eye pressure lowering drops on and after
December 2, 2014 through [s]urgery[.]" No person other
than Dr. Sanders was alleged to have breached the standard of
November 15, 2016, the court held a hearing on preliminary
matters, including proposed jury instructions and verdict
sheets. RGW objected to a proposed verdict sheet that posed
separate liability questions for Dr. Sanders and RGW. RGW
argued that there was no claim of negligence on the part of
any agent of RGW other than Dr. Sanders. Therefore, its only
liability would be for the negligence of Dr. Sanders, if any.
Crosettos countered that RGW could be held vicariously liable
for Dr. Sanders's negligence and for the negligence of
its agents other than Dr. Sanders. Specifically:
Doctor Sanders did the surgery, and the gravamen of the case
clearly is a 20 percent versus 15 percent [concentration of
C3F8 gas]. That's why he's a defendant. [A]lso, his
employer [RGW] is a defendant because his partner, Doctor
Des[a]i, pre-op saw Mr. Crosetto and did not give him
pressure lowering [medication]. So he's an agent of the
corporation. That's not Doctor Sanders['s] conduct.
court ruled that the Crosettos could pursue a claim against
RGW for the negligence of its agents in addition to Dr.
Sanders, saying, "at this point, I think we'll ask
the jury if anybody else committed negligence[.]" The
court reasoned that that theory of negligence "was out
there and [RGW] could have explored it in
trial began as scheduled, on November 28, 2016. In opening
statement, counsel for the Crosettos said:
[W]e also contend that on December 2nd . . . Dr. Desai
who's a partner at RGW and is a defendant,  did not prescribe
pressure lowering drops. In other words, the plaintiffs
contend that if somebody has high eye blood pressure and
they're going into surgery two days later; give them
medication to lower the pressure.
Josephberg was the Crosettos' sole liability expert at
trial. He criticized Dr. Desai, stating that an IOP of 29
mmHg "should have been pre-treated [before
surgery]." He observed that "29 pressure was
definitely something that should have been treated by I'd
say 98 percent of specialists." However, he did not
offer an opinion to a reasonable degree of medical certainty
that Dr. Desai breached the standard of care by not
prescribing eye pressure-lowering medication prior to
surgery. (Nor did he opine that any such failure caused Mr.
Crosetto's optic nerve to atrophy.)
Josephberg's testimony focused on Dr. Sanders. He opined
that because a 20% C3F8 gas tamponade has expansive
qualities, it should not have been used because Mr. Crosetto
had an elevated IOP two days before surgery. He testified
that he personally would have used a 14% C3F8 gas tamponade
because the gas does not expand at that percentage. He
further stated, "if you're going to use 20 percent
you better have a good reason[, ]" and "if
you're going to put an expanding bubble in, you better
monitor it even under normal circumstances for the first five
to eight hours after the case and make sure the pressure
doesn't spike." Dr. Josephberg opined that this was
necessary "[b]ecause the maximum expansion [of 20% C3F8]
is in four to eight hours" and lack of blood flow to the
optic nerve for only 60 minutes will cause permanent damage.
He concluded that Dr. Sanders breached the standard of care
by discharging Mr. Crosetto 45 minutes after surgery instead
of monitoring him for "six to eight hours" to watch
for a spike in IOP.
counsel for the Crosettos questioned Dr. Josephberg about
whether RGW and Dr. Sanders violated the standard of care,
the following exchange occurred:
Q Do you have an opinion based upon a reasonable degree of
medical certainty, your training and clinical experience as
to whether the 20 percent gas injected by Dr. Sanders during
the December 4th surgery expanded in the eye and further
elevated his eye pressure causing an arterial occlusion or
any other defect that caused his loss of vision?
A Yes. I do.
Q And what is that opinion?
A That the 20 percent expanded and caused the damage to the
. . .
Q Doctor, do you have an opinion based upon a reasonable
degree of medical certainty as to whether RGW violated the
standard of care as to Mr. Crosetto by not ...