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Filling the Empty Chair

October 16, 2020

By Robert S. Morter

In American Radiology Services, LLC v. Martin Reiss, a medical malpractice case recently decided by the Maryland Court of Appeals, the Court reiterated that a defendant wishing to point to the negligence of non-parties must elicit admissible evidence via expert testimony in order to generate a jury question on that issue. 2020 Md. LEXIS 376 (August 24, 2020).    The Court explained that a defendant need not necessarily rely upon one of his/her experts, but rather may elicit expert standard of care opinion testimony through cross-examination of the plaintiff’s expert witness.

American Radiology Services involved allegations that the Defendant urologic oncologist was negligent in failing to remove a suspect peri-renal lymph node during surgery to remove the adjacent cancerous kidney, and that the defendant radiologists subsequently failed to alert the urologic oncologist to an alleged interval increase in the size of the node.  Prior to trial, the Plaintiff had voluntarily dismissed the Co-Defendant urologic oncologist, thereby making the urologic oncologist a non-party.  At trial, it was the Defendant radiologists’ contention that, but for the urologic oncologist’s negligence in failing to remove the lymph node, the Plaintiff would have been cured, thus negating causation as to any alleged breaches in the standard of care as to the Defendant radiologists’ actions or failures to act.

Relying upon and further clarifying two recent decisions addressing the admission of evidence of non-party negligence in medical malpractice actions, Martinez ex rel. Fielding v. Johns Hopkins Hospital, 212 Md. App. 634 (2013) and Copsey v. Park, 453 Md. 141 (2017), the Court provided the defense bar with a cogent and unified primer on how to fill the empty chair at trial if there are facts and expert opinions supporting an argument for non-party negligence.

Beginning with the well-known premise that expert testimony is required to assist the trier of fact in virtually all medical malpractice actions, the Court went on to hold that expert testimony is required to establish non-party negligence without regard to whether a defendant asserts it as the basis for an affirmative defense or in support of a general denial of liability:

We hold that where a defendant elects to pursue a defense that includes non-party medical negligence, the defendant must produce the requisite expert testimony necessary to establish medical negligence and causation, unless the non-party’s medical negligence is so obvious that ordinary laypersons can determine that it was a breach of the standard of care. We are not holding or requiring that the defendant must call his or her own expert to generate the issue to prove that a non-party physician or “the empty chair” was the negligent person. Consistent with our jurisprudence on the issue, assuming discovery rules are satisfied, the defendant may elicit expert standard of care testimony through cross-examination of plaintiff’s expert, or may call an expert of his or her own, but the defendant is not required to call an expert of his or her own.

In many multi-defendant cases where plaintiffs settle with less than all of the defendant health care providers and then proceed to trial against the remainder, defense counsel are commonly subjected to pre-trial motions in limine to exclude any reference to or opinions about the dismissed defendants’ negligence.  Despite the holdings in Martinez and Copsey, courts are often persuaded by plaintiffs’ point of view.  However, so long as defense counsel has either designated the appropriate expert to address the care rendered by the non-party provider, or intends to elicit the necessary testimony through cross-examination of the plaintiff’s expert at trial, the trial court must permit the defense the opportunity to present evidence of non-party negligence.  In cases involving defendants in multiple medical specialties, the most prudent course of action would be to retain experts in those specialties so as to insure the availability of the appropriate expert at the time of trial given the high likelihood that a plaintiff would not ultimately call an expert that would support the empty chair defense at the time of trial.