Judicial Advocacy

Court should overturn ruling that burdens physicians’ defense

Tanya Albert Henry , Contributing News Writer

If a Maryland Court of Special Appeals decision isn’t overturned, it will be more burdensome and more expensive for the state’s physicians to defend themselves against medical negligence claims if they want to present potential alternative reasons for a plaintiff’s injuries.

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The AMA Litigation Center is the strongest voice for America's medical profession in legal proceedings across the country.

The court created a higher standard for defendants by ruling that physicians who want to present the idea that other physicians not named in the lawsuit could have been responsible for the injury at issue must meet certain evidentiary standards to establish liability against those physicians. Those would include breach of a standard of care, causation and expert testimony.

It’s a ruling that needs to be reversed because “a physician must be able to point to evidence at trial of potential alternative causes to an injury ….without engaging in the burden and expense of mini-trials with respect to each potential alternative cause,” the Litigation Center of the American Medical Association and State Medical Societies and Maryland State Medical Society (MedChi) tell the Court of Appeals of Maryland in an amicus brief they jointly filed in the case that those judges are now considering, American Radiology Service LLC et al. v. Martin Reiss.

“The goal of Maryland’s civil justice system in these cases is to subject the physicians at trial to liability only when they have wrongfully caused the plaintiff’s injuries. Here, only two of the potential five physician defendants were at trial. For the trial to be fair, these physicians must be able to present the jury with a full-throated defense that includes other explanations for the alleged misdiagnosis,” the brief states.

Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.

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Martin Reiss filed a medical negligence lawsuit alleging that radiologists Victor Bracey, MD, and Sung Kee Ahn, MD, did not detect the growth of his cancerous lymph node soon enough. He did not name his oncologists in the lawsuit.

A jury found that Drs. Bracey and Ahn did not breach the standards of care. But despite the verdict sheet instructing them not to answer further questions if they came to that conclusion, the jury initially answered the remaining questions and found that negligent acts of physicians not named in the lawsuit were a substantial cause of Reiss’s injury and that the patient sustained about $4.86 million in damages.

The trial judge explained to the jurors that they were not allowed to consider the remaining questions if they found the radiologists did not breach the standard of care and the judge sent jurors back to deliberate with a blank verdict sheet. When the jury returned, it said Drs. Bracey and Ahn did not breach the standard of care. They left the other questions blank.

The Court of Special Appeals overturned the verdict, saying the radiologists didn’t present enough facts for the jury to determine whether physicians not named in the lawsuit could have been negligent in not diagnosing the cancer earlier. It also ruled that presenting the question about nonparty physicians on the verdict sheet was prejudicial.

The radiologists are now asking the Court of Appeals of Maryland to overturn that ruling and uphold the jury’s verdict. The AMA Litigation Center agrees that should happen.

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In addition to telling the court that asking a jury its views on other potential causes of a patient’s harm doesn’t stop them from fairly determining the other defendant’s liability, the AMA Litigation Center brief also explains that there are many reasons why a jury may not see all of the physicians responsible for a patient’s care before them in court. For example, some physicians may settle before trial or patients may not want to name others who are still providing care.

Further, for those physicians in the courtroom to have a fair trial, the court must let them point out “facts admitted and elicited at trial” suggesting alternative causes for alleged negligence without meeting “unnecessary” and “inappropriate” standards for proving a medical negligence case against each non-party physician.

The AMA Litigation Center brief tells the Appeals court that “in the case at bar, defendants have no burden of persuasion: they are neither seeking to establish liability on those non-party physicians nor asserting the non-party physicians are superseding causes of plaintiff’s misdiagnosis.”