We will have a lot of new expert witness battles now that we have moved away from Frye-Reed and joined the rest of the nation using a Daubert standard for experts. This Calvert County dental malpractice opinion is the latest in what will be a long battle.
Facts of Deane v. Southern Maryland Oral and Maxillofacial Surgery, P.A.
In Deane v. Southern Maryland Oral and Maxillofacial Surgery, P.A., a patient filed a malpractice claim against an oral and maxillofacial surgery practice and a dentist. She later sued the subsequent treating dentist as well.
Her lawsuit alleged she suffered a permanent loss of feeling in her tongue as a result of the dentist having severed lingual nerves in her jaw during the process of extracting her wisdom teeth. This is an incredibly common injury in dental malpractice claims. We used to track every Maryland medical malpractice case and the biggest surprise was how many of these nerve injury cases were filed in Maryland Health Claims.
The defendants filed separate motions for summary judgment, claiming that the patient failed to produce sufficient admissible expert opinion testimony regarding breaches in the standard of care and causation of injury. The defendants also argued that the expert opinion theories of liability were inadmissible as they were not permissible inferences of medical negligence under the facts and pursuant to Maryland law. The defendants requested that the court conduct a Frye-Reed hearing based on the arguments raised because this was before we adopted Daubert.
The defendants submitted their Bench Memorandum Regarding Admissibility of Expert Opinion Evidence and provided the expert testimony transcripts and several scientific literature sources as a basis for expert opinion evidence preclusion. The court heard arguments and directed the defendants to submit an additional Reply Memorandum Regarding the Admissibility of Expert Opinion Evidence.
The patient filed an amended complaint to add the second dentist as a defendant. All three defendants filed answers to the amended complaint and timely filed a reply memorandum regarding the admissibility of expert opinion evidence. The trial court granted summary judgment in favor of the defendants.
Issues on Appeal
On appeal, the patient raised three questions: 1) Whether an expert’s opinion regarding a plaintiff’s diagnosis, based on a widely accepted neurosensory test, is unreliable merely because he did not review the medical notes from the plaintiff’s prior visits to oral surgeons; 2) Whether an expert’s opinion regarding the cause of a plaintiff’s injury, based on a reliable diagnosis, the plaintiff’s testimony regarding her current condition, and an inference derived from the expert’s review of relevant medical literature and his own experience in avoiding the specific injury suffered by the plaintiff, is admissible; and 3) Whether a court can sua sponte dismiss a plaintiff’s claims based on contributory negligence where there is a question of fact concerning a patient’s failure to return to a dentist for a recommended follow-up, and where a defendant does not raise the issue in its motion for summary judgment.
The defendants attempted to restate the patient’s questions as follows:
- Was the patient’s expert opinion evidence regarding causation of a purported bilateral lingual nerve “severing” injury inadmissible pursuant to the requirements of Maryland Rule 5-702, and when applying the Daubert standard?
- Was the patient’s expert opinion evidence regarding “inferred” breaches in the standard of medical/surgical care and causation of a purported nerve injury admissible pursuant to the requirements of Maryland Rule 5-702, and when applying the Daubert standard?
- Did the circuit court appropriately grant summary judgment in favor of the defendants on the issue of admissibility of the patient’s expert opinion evidence needed for a prima facie case of medical negligence, or was summary judgment necessarily based on an erroneous finding of contributory negligence?.
Maryland Appellate Court’s Holding
This case really hinged on the third requirement of Rule 5-702, known as the “sufficient factual basis.” The focus was the alleged deficiencies in the expert opinions. This Rule 5-702 requirement necessitates that an expert opinion be founded on an adequate supply of data. The Maryland Supreme Court has clarified that an expert’s factual basis can arise from various sources, including first-hand knowledge, testimony of others, and hypothetical questions. An expert opinion that lacks sufficient data is considered mere speculation or conjecture.
In this case, the motions judge in Calvert County concluded that the expert opinions presented were inadmissible due to alleged deficiencies in the factual basis of the opinions. The judge determined that the opinions were based on inadequate data and, therefore, were mere speculation or conjecture.
The problem the appellate court had with this ruling is that there is no precedent that supports the notion that an expert’s opinion regarding injury is legally inadmissible when records of the treating physicians are not reviewed in a medical malpractice case.
You can cross examine the expert on his failure to do all that is necessary for form an opinion and that is the best possible cross you can do of an expert. But Maryland courts have consistently found that the failure to consider various pieces of data available, such as treatment records, goes to the weight assigned to the expert’s testimony by the fact finder, rather than to its admissibility.
The Negligence Inference
The Calvert County judge also concluded that one of the expert’s opinions was inadmissible because he relied on another expert’s opinion and allegedly drew impermissible inferences of negligence. Negligence may be established by the proof of circumstances from which its existence may be inferred.
But expert witness testimony is required for a jury to draw an inference of negligence in a medical malpractice case. However, the court found that the motions judge erred in interpreting the holding of a previous case to say that inferences of negligence may only be drawn when the alleged injury would not happen in the absence of medical negligence. In fact, expert testimony must be adduced in order to prove negligence through inference.
Surprisingly, the judge ruled that the plaintiff’s failure to attend a follow-up appointment constituted contributory negligence as a matter of law. You can see a decision like this at the close of the plaintiff’s evidence in some cases.
But contributory negligence is normally reserved for the jury, and it is only when the minds of reasonable persons cannot differ that the court is justified in deciding the question of contributory negligence as a matter of law.
That is a tough call to make at this stage of the litigation, particular over a missed follow-up. As you would expect, the court also found that the trial judge erred as a matter of law when he granted summary judgment in this case on contributory negligence as well.
Maryland Supreme Court Holding
Following the decision of the CSA, the defendants’ appeal to the Maryland Supreme Court. In a focused and very critical opinion, a majority of the Court essentially agreed with the CSA and ruled that the trial court had improperly granted the defendants’ motion for summary judgment.
The Court held that the trial judge was wrong in two key respects. First, the Court held that instead of simply applying the law to the assumed facts, the trial judge based his summary judgment on improper factual determinations that should have been questions for the jury to decide.
Specifically, the Court noted that the conflicting evidence in the case “teed up a classic credibility contest for the jury – not the court – to resolve. By taking those factual issues away from the jury, the circuit court erred.”
Second, the majority found that the trial court made a critical error by interpreting the facts and evidence in a light more favorable to the defendants. One of the classic rules for ruling on a summary judgment motion is that the trial court is supposed to interpret all facts in the light most favorable to the plaintiff, not the defendants. The Court ultimately remanded the case back down to the Circuit Court for Calvert County, with instructions to have a new judge assigned to the case.
Judge Shirley M. Watts filed a dissenting opinion. Although Judge Watts agreed that the trial court improperly granted summary judgment, she disagreed with the majority’s decision to remand the case for a new Daubert/Rochkind analysis. In Judge Watts’ view, the case should have been remanded for a new trial because the issues presented did not even trigger a Daubert analysis.