E-Alert Case Updates

Trial Court Abuses Discretion By Excluding Medical Experts In Wrongful Death Case

Wantz v. Afzal
No. 2300 (Md. Ct. Spec. App. 2011)
By Colleen K. O’Brien, Law Clerk
Semmes, Bowen & Semmes (www.semmes.com)

The Court of Special Appeals this week held that a trial court abused its discretion in excluding three medical experts in a medical malpractice case. In the case, the decedent had a spinal fusion surgery resulting in a staph infection, and Plaintiff proffered experts to testify regarding causation. The trial court excluded the experts as unqualified under MD. R. 5-702.

The experts consisted of: 1) a board-certified neurosurgeon (Dr. Manders); 2) a board-certified internist and geriatric medicine specialist (Dr. Gaber); and, 3) a board-certified radiologist (Dr. Zoarski).

The neurosurgeon (Dr. Manders) was proffered to testify that immobilizing the decedent would have made the surgery successful. The Defendant challenged the expert on grounds that he had never performed a spinal fusion surgery, which was the subject of the lawsuit. But to the Court, where the expert had over fifty years of experience in neuroscience and spinal conditions, and had performed other spinal surgeries, he possessed the requisite skill and education to testify. It was of no moment that he had failed to perform the particular procedure at issue.

The internist and geriatric medicine specialist (Dr. Gaber) was expected to opine that paralysis was a likely cause of the patient’s inability to heal following her spinal fusion surgery, and thus, likely caused the staph infection. The Defendant challenged Dr. Gaber on grounds that he would defer to a neurosurgeon or spine surgeon on matters relating to the post-operative care of spinal fusion patients. Yet to the Court, the fact that another professional might have another opinion or better opinion did not disqualify the witness from expressing his opinion on the matter.

The radiologist (Dr. Zoarski) was expected to opine that the lack of immobilization was a likely cause of paralysis. To the trial court, when the radiologist admitted that the specifics of mobilization were outside his expertise, he “eviscerated” his own qualifications. To the appellate court, the particular deposition excerpt relied on by the trial court only demonstrated that the expert was not qualified to give a standard of care opinion, but that he was qualified to provide an opinion on causation.

The Court of Special Appeals reversed the judgment in favor of the Defendant and remanded the case back to the trial court for further proceedings.