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Maryland Court of Special Appeals finds that Trial Court did not err is permitting Board-Certified Vascular Surgeon to testify against a Board-Certified Orthopedic Surgeon

DeMuth v. Strong
No. 195 (Md. App. June 6, 2012)
by Wayne Heavener, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

In DeMuth v. Strong, Judge Deborah S. Eyler of the intermediate appellate court for the state of Maryland found that a trial court did not err in permitting Plaintiff’s medical expert, a board-certified vascular surgeon, testify as to the standard of care and causation in a medical malpractice suit against a board-certified orthopedic surgeon. The Court of Special Appeals rejected the argument on appeal that the trial court violated MD. CODE ANN., CTS. & JUD. PROC. § 3-2A-02(c)(2)(ii)1B and 2 (2012), which requires that a plaintiff’s expert in a medical malpractice case be board-certified in “the same or a related specialty” as the defendant physician. In reaching its conclusion, the Court held that the board certifications of vascular and orthopedic surgery overlapped such that the specialties related, given the facts in this case.

In 2007, Brian Charles DeMuth, M.D., a board-certified orthopedic surgeon, performed two (2) total knee replacements on Plaintiff Walter William Strong. While the replacement of Mr. Strong’s right knee passed without incident, Mr. Strong’s right knee suffered complications. Mr. Strong began experiencing tingling and numbness in his left foot immediately after the surgery, which is a sign of lessened blood flow to the lower leg. Though Dr. DeMuth’s post-operative observations of Mr. Strong did not show signs of a lessened blood flow, Dr. DeMuth neither performed an “ankle brachial index” nor Doppler ultrasound as part of his examination. When Mr. Strong continued to suffer complications, Dr. DeMuth diagnosed Mr. Strong with neuropraxia. Six (6) days later, Dr. DeMuth performed a Doppler examination for the first time, and re-diagnosed Mr. Strong with severe “compartment syndrome” in Mr. Strong’s lower leg. In an effort to prevent muscle death, Dr. DeMuth attempted to restore blood flow to Mr. Strong’s lower leg by performing a fasciotomy. When the fasciotomy failed, vascular surgeons at Upper Chesapeake Medical Center attempted to perform an embolectomy, which failed as well. Mr. Strong’s knee had to be amputated above the left knee.

On August 7, 2009, Mr. Strong sued Dr. DeMuth for medical malpractice. At trial, Mr. Strong called a board-certified vascular surgeon, Jason Johanning, M.D., to testify that Dr. DeMuth’s alleged departure from the appropriate standard of care caused Mr. Strong’s injuries. Dr. DeMuth filed a Motion in Limine to exclude Dr. Johanning’s testimony as violating of MD. CODE ANN., CTS. & JUD. PROC. § 3-2A-02(c)(2)(ii)1B and 2 (2012), which require plaintiff’s expert medical witnesses be board-certified in “the same or a related specialty” as the defendant in a medical malpractice suit. Dr. DeMuth renewed his objection at trial, and the Court permitted Dr. Johanning to testify. The jury returned a verdict for Mr. Strong, and Dr. DeMuth filed Motions for Judgment Notwithstanding the Verdict and for a New Trial. Dr. DeMuth’s motions were denied, and he appealed to the Court of Special Appeals.

On appeal, Dr. DeMuth argued that permitting a board-certified vascular surgeon to testify as to the standard of care in Mr. Strong’s case violated sections § 3-2A-02(c)(2)(ii)1B and 2 of the Courts of Judicial Proceedings Article. In particular, Dr. DeMuth argued that board certifications of vascular and orthopedic surgery were not “the same or related” because the two specialties were regulated by two separate boards. In a matter of statutory interpretation, the Court of Special Appeals disagreed with Dr. DeMuth’s interpretation of the law. Rather, the Court found that, in the context of Mr. Strong’s malpractice allegations, the specialties of orthopedic surgery and vascular surgery overlapped, such that the two (2) specialties were sufficiently “related” under Section 3-2A-02(c)(2)(ii)1B.

The Court made sure to highlight that the specialties did not satisfy the “related specialty” inquiry simply because they were both surgical in nature, but rather noted that Dr. Johanning was being called to testify as to postoperative care only. The Court observed that the relevant standard of care for Mr. Strong’s allegations was the proper postoperative diagnosis and treatment of possible vascular complications of orthopedic surgery, which related to both Dr. Johanning’s specialty in vascular surgery and Dr. DeMuth’s specialty in orthopedic surgery. Therefore, the Court found that the trial court did not err or abuse its discretion in permitting a board-certified vascular surgeon to testify about the standard of care applicable to Dr. DeMuth.

Additionally, the Court found that the evidence adduced at trial was sufficient such that a reasonable trier of fact could find the essential elements of Mr. Strong’s claim by a preponderance of the evidence. The Court rejected Dr. DeMuth’s argument that Mr. Strong failed to demonstrate a causal connection between Dr. DeMuth’s failure to conduct a Doppler examination and the loss of Mr. Strong’s leg. Rather, the Court noted that Mr. Strong sought damages for injuries beyond the loss of his leg, including intense pain and a failed fasciotomy. Taking the evidence in a light most favorable to Mr. Strong, the Court found that, had Dr. DeMuth adhered to the appropriate standard of care, the worsening of Mr. Strong’s condition would likely have been prevented, and Mr. Strong would not have endured the loss of his lower leg, along with the other injuries he sustained.