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Reiss v. American Radiology Services, LLC

Court of Special Appeals of Maryland

June 26, 2019

MARTIN REISS
v.
AMERICAN RADIOLOGY SERVICES, LLC, ET AL.

          Circuit Court for Baltimore City Case No. 24-C-16-002826

          Graeff, Arthur, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.

          OPINION

          ARTHUR, J.

         This 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 plaintiff's injuries).

         This 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.

         Background

         In 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), https://www.ncbi.nlm.nih.gov/books/ NBK482353/.

         After 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.

         In the 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.

         Between 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.

         Appellee 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.

         On 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.

         After 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.

         On May 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.

         Before 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."

         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.

         At 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.

         Mr. 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.

         Mr. 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.

         On 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 so.

         On 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.

         The 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 survival.

         In the 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.[1]

         During 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 lymph node.[2]

         At 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.

         In 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. Reiss's injury.

         Question 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.

         The 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.

         Regardless 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.[3]

         The 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 nothing.[4]

         After 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.

         The 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.[5]

         Mr. Reiss moved for a new trial, complaining principally about the verdict sheet. The court denied his motion, and he took this timely appeal.

         Question Presented

         Mr. 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 ...


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