Circuit Court for Baltimore City Case No. 24-C-16-002826
Graeff, Arthur, Harrell, Glenn T., Jr. (Senior Judge,
Specially Assigned), JJ.
case concerns the defense of non-party negligence to a claim
of medical malpractice. See generally Copsey v.
Park, 453 Md. 141, 156-57 (2017) (holding that a
defendant healthcare provider could introduce evidence of a
non-party's medical negligence to prove "that he was
not negligent and that if he were negligent, the negligent
omissions of the other three subsequent treating physicians
were intervening and superseding causes of the harm to the
patient"); Martinez ex rel. Fielding v. Johns
Hopkins Hosp., 212 Md.App. 634, 661-66 (2013) (holding
that a defendant healthcare provider was entitled to
introduce evidence of a non-party's medical negligence to
prove that the defendant was not negligent and that the
non-party's negligence was the sole cause of the
case specifically concerns whether a circuit court erred in
submitting the issue of non-party negligence to the jury when
the defendants did not produce an expert to opine, to a
reasonable degree of medical probability, that a non-party
healthcare provider had breached the standard of care. We
hold that the court erred in submitting the issue of
non-party negligence to the jury, because the defendants did
not generate a triable question of fact on that subject.
August 2011 Martin Reiss was diagnosed with renal cell
carcinoma and an enlarged lymph node near the diseased
kidney. Julio Davalos, M.D., a urological surgeon from
Chesapeake Urology Associates, surgically removed Mr.
Reiss's kidney, but did not remove the enlarged lymph
node, as he had originally planned to do. The evidence
suggests that Dr. Davalos opted not to remove the lymph node
because of its proximity to the inferior vena cava, "a
large blood vessel responsible for transporting deoxygenated
blood from the lower extremities and abdomen back to the
right atrium of the heart." William D. Tucker &
Bracken Burns, Inferior Vena Cava, National Center
for Biotechnology Information (Apr. 3, 2019),
the surgery, Mr. Reiss came under the care of Russell DeLuca,
M.D., an oncologist. Dr. DeLuca assumed that the enlarged
lymph node was cancerous, but he believed that it could not
be "resected" (i.e., removed) because of its
proximity to the inferior vena cava. To treat the enlarged
lymph node, Dr. DeLuca prescribed Sutent, a chemotherapy
drug, in September 2011. When the node began to shrink in
reaction to Sutent, Dr. DeLuca knew that it was cancerous.
course of treating Mr. Reiss, Dr. DeLuca ordered periodic CT
scans of the area near the enlarged lymph node. A few months
after the surgery, on December 2, 2011, appellee Victor
Bracey, M.D., a radiologist with appellee American Radiology
Services, interpreted one of those CT scans and compared it
to a CT scan from September 9, 2011. Dr. Bracey noted the new
scan showed no "lymphadenopathy" or disease of the
lymph node, because it measured only .8 centimeters. (It had
previously measured 2.4 centimeters.) In his report, Dr.
Bracey noted that the scan was "suboptimally
evaluated," by which he meant that it was difficult to
interpret the scan because of the lack of intravenous or
"IV" contrast - an injection of dye that enhances
the clarity of the CT images.
2012 and 2014, Dr. Bracey interpreted three additional CT
scans of Mr. Reiss's lymph node, each time noting that
there was no lymphadenopathy. On each occasion, Dr. Bracey
observed that the scan was "suboptimally evaluated"
because of the lack of IV contrast.
Sung Kee Ahn, M.D., of American Radiology interpreted one CT
scan without IV contrast on March 21, 2012. Like Dr. Bracey,
Dr. Sung Kee Ahn reported no lymphadenopathy.
September 9, 2015, Elizabeth Kim, M.D., a radiologist,
interpreted a CT scan without contrast. Dr. Kim's
findings alerted Dr. DeLuca that, although Dr. Bracey and Dr.
Sung Kee Ahn had not reported lymphadenopathy from 2011
through 2014, there was an enlarged "soft tissue
density" in the vicinity of the lymph node. Dr. Kim
wrote that the "soft tissue density," which could
indicate an enlarged or diseased lymph node, was
"somewhat inseparable from the inferior vena cava."
She added that the "soft tissue density" had
"increased in size" since December 2, 2011, when
Dr. Bracey reviewed an earlier CT scan.
Dr. Kim reported her findings in 2015, a biopsy of Mr.
Reiss's lymph node confirmed that it was cancerous.
Additional studies suggested that because of the proximity of
the enlarged node to the inferior vena cava, surgical removal
of the node was not an option.
10, 2016, Mr. Reiss filed a medical malpractice claim. As
defendants, he named: Dr. Davalos, the surgeon who removed
cancerous kidney, but not the lymph node, in 2011; Dr.
Davalos's medical practice, Chesapeake Urology; Dr.
Bracey and Dr. Sung Kee Ahn, the radiologists who reviewed
the CT scans of his lymph node between 2011 and 2014 and
reported no lymphadenopathy; and American Radiology, the
medical practice that employed Dr. Bracey and Dr. Sung Kee
Ahn. The premise of the complaint was that the cancerous
lymph node could (and should) have been removed in or after
2011, but that it had now become inoperable, allegedly
because of the defendants' medical negligence. In brief,
Mr. Reiss alleged that Dr. Davalos breached the standard of
care by failing to remove the lymph node in 2011 and that
Drs. Bracey and Sung Kee Ahn breached the standard of care by
failing to alert Dr. DeLuca to the alleged growth of the
diseased lymph node when it could still be safely removed.
trial, Mr. Reiss dismissed his claims against Dr. Davalos and
Chesapeake Urology. Hence, at trial, the sole defendants were
Dr. Bracey, Dr. Sung Kee Ahn, and American Radiology. We
shall refer to those parties, collectively, as "the
radiologists argued that their interpretations of Mr.
Reiss's non-contrast CT scans were reasonable,
appropriate, and within the standard of care. They contended
that the CT scans did not show lymphadenopathy, because the
lymph node was less than one centimeter in size when they
viewed it; that they accurately reported that the lymph node
was not abnormally enlarged; and that they warned Dr. DeLuca
that the non-contrast CT scan was suboptimal and therefore
more difficult for them to review.
trial, Mr. Reiss called Paul Collier, M.D., an expert
vascular surgeon, to establish that Mr. Reiss's lymph
node could have been safely removed or resected at any time
before 2015. Similarly, the radiologists' expert vascular
surgeon, Dr. James Black, testified that the lymph node
"could have been" removed in 2011. In fact, Dr.
Black testified that, even as of the date of trial in the
summer of 2017, he could safely remove the lymph node.
Reiss also called Barry Singer, M.D., an expert oncologist,
to establish that Mr. Reiss's probability of survival
would have been significantly enhanced had the lymph node
been removed between 2011 and 2014, before it became (in his
words) "presumably unresectable." In Dr.
Singer's opinion, the "available treatment
realities" for Mr. Reiss's cancerous lymph node
would have been to remove the node between 2011 and 2014,
because, he said, "you always want to remove cancer from
the body." Had a biopsy shown that the cancer had
returned between 2011 and 2014, the
"preferred treatment course,"
according to Dr. Singer, would have been to "remove the
lymph node." Dr. Singer testified, to a reasonable
degree of medical probability, that, had a biopsy been
performed on the lymph node before 2015, it would have shown
renal cell cancer. Dr. Singer also testified, to a reasonable
degree of probability, that, had the lymph node been removed
between 2011 and 2014, it is more likely than not that Mr.
Reiss would have been cured. On cross-examination, Dr. Singer
testified that, at the time of the original diagnosis in
2011, all of Mr. Reiss's doctors knew that the lymph node
was probably cancerous and that a reasonable oncologist would
have known that the node probably contained cancer.
Reiss also called Dr. DeLuca, one of his treating
oncologists, as a fact witness, to establish that the reports
from Dr. Bracey and Dr. Sung Kee Ahn had led him to believe
that the cancer in Mr. Reiss's lymph node was in
remission. Dr. DeLuca testified that he discontinued
chemotherapy and simply monitored Mr. Reiss's condition
because he believed that the cancer was in remission. When
asked why he did not order a biopsy of the lymph node after
being told that it had shrunken in size, Dr. DeLuca responded
with a question: "What was I going to biopsy?" Had
he been informed that the lymph node was allegedly increasing
in size, Dr. DeLuca said that he would have offered some
"alternative treatment," such as another
chemotherapy drug, and would have consulted with a surgeon.
cross-examination, Dr. DeLuca testified that, after Mr.
Reiss's surgery in 2011, he initially assumed that
because the lymph node was enlarged, it contained cancer.
When the lymph node shrunk in response to the chemotherapy
drug, Sutent, Dr. DeLuca was "confident" that the
node contained cancer, but he admitted that Sutent does not
cure cancer. Dr. DeLuca also admitted that he did not refer
Mr. Reiss's case to the tumor board of medical
professionals to discuss whether surgery was an option. On
both direct and cross-examination, Dr. DeLuca said that he
had operated under the assumption that the lymph node was not
resectable, because the surgeon, Dr. Davalos, had told him
cross-examination, Dr. DeLuca also testified about his
decision to order scans without IV contrast. The doctor
explained that he ordered scans without contrast in order to
avoid potential long-term toxicities to Mr. Reiss's one
remaining kidney. He acknowledged that it is more difficult
to see a patient's vasculature in a CT scan without IV
contrast than in a scan with IV contrast.
jury heard the testimony of a number of other physicians,
including the deposition testimony of Dr. Eugene Ahn, Mr.
Reiss's current treating oncologist. In response to
questioning by counsel for the radiologists, Dr. Eugene Ahn
testified that, when he began treating Mr. Reiss in October
2015, he prescribed Opdivo, a chemotherapy drug, to treat his
renal cell carcinoma, but did not refer him for surgery to
resect the lymph node. Dr. Eugene Ahn explained that his
colleague, a general surgeon, had informed him that surgery
would not be in Mr. Reiss's best interest, because there
was no discernible plane of denotation between the lymph node
and the inferior vena cava. The doctor explained that, in his
judgment, the risk of surgery was too high in relation to any
expected improvement in Mr. Reiss's overall likelihood of
course of the trial, no expert witness testified, to a
reasonable degree of medical probability, that the standard
of care required the urological surgeon, Dr. Davalos, to
remove the enlarged lymph node when he removed Mr.
Reiss's cancerous kidney in 2011. Nor did any expert
witness testify, to a reasonable degree of medical
probability, that the standard of care required the
oncologists, Dr. DeLuca and Dr. Eugene Ahn, to refer Mr.
Reiss to a surgeon to remove the potentially cancerous lymph
node or to order a biopsy of the lymph node.
closing argument, the radiologists argued, among other
things, that Mr. Reiss's injuries resulted from the
conduct of the non-party physicians (Dr. Davalos, Dr. DeLuca,
and Dr. Eugene Ahn), and not from any acts or omissions by
the radiologists themselves. They pointed out that Dr.
Davalos had decided not to remove the lymph node when he
removed Mr. Reiss's kidney in 2011. They also pointed out
that, although Dr. DeLuca had assumed that the lymph node was
cancerous, he failed to consult a vascular surgeon about
whether it could be removed and failed to order a biopsy. The
radiologists observed that when Mr. Reiss came under the care
of Dr. Eugene Ahn, his second oncologist, the doctor did not
refer Mr. Reiss to a vascular surgeon even though the lymph
node had increased in size since 2011. Finally, the
radiologists pointed to Mr. Reiss's expert oncologist,
Dr. Singer, who opined that had a biopsy done at any time
between 2011 and 2014, it would have shown cancer in the
end of trial, the court and the parties discussed a verdict
sheet. One issue in the discussions was whether the verdict
sheet should ask whether the non-party physicians (Drs.
Davalos, DeLuca, or Eugene Ahn) had breached the standard of
care and whether any such breach was a substantial factor in
causing Mr. Reiss's injury. Over Mr. Reiss's
objection, the court included such a question.
total, the verdict sheet contained seven questions. Questions
1 through 4 asked whether the radiologists, Dr. Bracey and
Dr. Sung Kee Ahn, had breached the standard of care and
whether their breach, if any, was a cause of Mr. Reiss's
injury. The verdict sheet instructed the jurors to stop and
summon the clerk if they found that neither of the
radiologists had breached the standard of care or if they
found that the breach, if any, was not a cause of Mr.
5, which the jurors were instructed to answer only if they
found that one or both of the radiologists were otherwise
liable, asked whether Mr. Reiss was contributorily negligent.
If the jurors found that Mr. Reiss was contributorily
negligent, the verdict sheet instructed them to stop and
summon the clerk. If they found that he was not
contributorily negligent, the verdict sheet instructed them
to proceed to Question 6.
focus of this appeal is Question 6, which the jurors were
instructed to answer only if they had found that one or both
of the radiologists breached the standard of care, that the
breach (or breaches) was (or were) a cause of Mr. Reiss's
injury, and that Mr. Reiss was not contributorily negligent.
Question 6 asked whether "a negligent act or acts"
by the non-party physicians, Dr. Davalos, Dr. DeLuca, or Dr.
Eugene Ahn, had been "a substantial factor" in
causing Mr. Reiss's injuries.
of their answer to Question 6, the jurors were instructed to
proceed to Question 7, which asked them to compute Mr.
Reiss's economic and noneconomic damages.
jurors did not follow the instructions on the verdict sheet.
Although they found that neither Dr. Bracey nor Dr. Sung Kee
Ahn had breached the standard of care, they nonetheless
proceeded to determine that Mr. Reiss was not contributorily
negligent. Then they proceeded to decide that "a
negligent act or acts" by Dr. Davalos, Dr. DeLuca, or
Dr. Eugene Ahn had been "a substantial factor" in
causing Mr. Reiss's injuries. They ended by awarding Mr.
Reiss over $4.8 million in noneconomic damages even though
the actual defendants in the case had been found liable for
the jurors returned this aberrant decision, the court
instructed them that they had reached an inconsistent
verdict. The court explained that because the jurors had
found that neither Dr. Bracey nor Dr. Sung Kee Ahn had
breached the standard of care, it was unnecessary for them to
consider the remaining questions. Over Mr. Reiss's
objection, the court sent the jurors back to deliberate, with
another copy of the same verdict sheet. At that time, Mr.
Reiss's counsel commented that the court had submitted
Question 6 over his objection and that the jurors had
answered it in the affirmative, which, he said, "is
probably why" they answered the questions about the
defendants' breach in the negative.
jury deliberated further and eventually returned a second
verdict in which it found (again) that neither Dr. Bracey nor
Dr. Sung Kee Ahn breached the standard of care. This time,
however, the jury followed the instructions and answered no
additional questions, including the question about the
"negligent act or acts" by Mr. Reiss's other
physicians and the amount of damages.
Reiss moved for a new trial, complaining principally about
the verdict sheet. The court denied his motion, and he took
this timely appeal.
Reiss presents one question for review: "Did the trial
judge err in including in the verdict form a question asking
whether the negligent acts of non-party physicians harmed the
Plaintiff where there had been no expert testimony that those
non-party physicians ...