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The Certificate of Qualified Expert: Respondeat Superior Liability on Behalf of the Medical Provider Entity as a Result of its Agent’s Actions

August 5, 2020

The recent case of The Retina Group of Washington, Inc. v. Crosetto, No. 2385 (Md. Ct. Spec. App. Apr. 27, 2018) highlighted a major flaw in a Plaintiff’s certificate of qualified expert as it related to an agent of a medical provider entity.

By way of factual background, Mr. Crosetto was examined by Dr. Desai, a retinal surgeon who was a member of The Retina Group of Washington (“RGW”), following complaints of shade and flashes affecting his vision in his left eye. Dr. Desai diagnosed a large retinal tear in the left eye of Mr. Crosetto that needed prompt repair.  During the visit, Mr. Crosetto also presented with elevated intraocular pressure.  Dr. Desai did not prescribe pressure-lowering medication for Mr. Crosetto to take before surgery.  Dr. Desai opined that Mr. Crosetto’s elevated pressure was due to dilation drops he had been given earlier that day.  

Surgery was scheduled but due to conflicts, Dr. Desai was not able to perform the surgery.   Two days later, Dr. Sanders, also a retinal surgeon with RGW, performed the surgery. The repair was performed at the Friendship Ambulatory Care Center (“FASC”).  After the surgery was completed, Mr. Crosetto, eventually, was diagnosed as having suffered atrophy to the optic nerve of that eye.

Mr. Crosetto and his wife filed a claim in the Health Care Alternative Dispute Resolution Office for negligence and loss of consortium against RGW and Dr. Sanders.  As part of the filing, a certificate of qualified expert and report by Dr. Robert Josephberg was filed.  In the certificate and report by Dr. Josephberg he held that “the breach of one or more standards of care by Dr. Reginald Sanders caused the permanent loss of vision in Mr. Crosetto’s left eye.”  Dr. Josephberg went on to identify Dr. Warrow and Dr. Hanwell as part of the “team” of doctors caring for Mr. Crosetto, but did not state that either of them, or anyone other than Dr. Sanders, breached the standard of care.  

The Crosettos waived arbitration pursuant to the Maryland Annotated Code, filed their complaint in the Circuit Court for Montgomery County, and the case went through the discovery process.  Following the close of discovery, a Joint Pretrial Statement was filed and the Crosettos filed a supplemental certificate of qualified expert and report by Dr. Josephberg.  In both filings, Dr. Sanders was the only provider identified as breaching the standard of care.  

A little over a month before Trial, the Crosettos filed a second amended complaint alleging for the first time that agents of RGW were negligent as it related to the elevated eye pressure issue.  The second amended complaint also failed to allege that any other provider other than Dr. Sanders breached the standard of care.

In preparation for trial, the parties submitted proposed jury instructions and verdict sheets.  RGW objected to the Crosettos’ proposed verdict sheet which posed separate liability questions for Dr. Sanders and RGW. RGW argued that there was no claim of negligence on the part of any agent of RGW other than Dr. Sanders.  RGW reminded the trial court of the fact that Dr. Sanders was the only agent of RGW identified in the certificate of qualified expert as having breached the standard of care.  The Crosettos argued that RGW could be held vicariously liable for Dr. Sanders’ negligence and for the negligence of its agents other than Dr. Sanders.  The trial court ruled that the Crosettos could pursue a claim against RGW for the negligence of its agents in addition to Dr. Sanders.

At trial, Dr. Josephberg was the Crosettos’ only liability expert.  Dr. Josephberg criticized Dr. Desai for not having treated the elevated eye pressure prior to surgery.  Dr. Josephberg, however,  did not opine to a reasonable degree of medical certainty that Dr. Desai breached the standard of care. Dr. Josephberg did testify that Dr. Sanders breached the standard of care, for several reasons, including  by not treating the elevated pressure.  

At the close of the Crosettos’ case, RGW moved for judgment as it related to any claims of breach of the standard of care by Dr. Desai or any other member of RGW, other than Dr. Sanders.  The trial court denied the motion. At the close of trial, the jury returned a verdict answering “no” to the question of whether Dr. Sanders breached the standard of care and “yes” to the question whether RGW by and through any one of its agents negligently failed to follow one or more standards of care.  The jury also found that the violation of the standard of care  by the agents and employees of RGW was a proximate cause of the injury to Mr. Crosetto. RGW filed a post trial motion which was denied.

This appeal ensued.

The Court reversed the trial court and concluded:

Absent any mention of Dr. Desai, Dr. Warrow, or any agent of RGW other than Dr. Sanders in either certificate, it is clear that the Crosettos could not pursue a medical malpractice claim against RGW based on the purported negligence of Dr. Desai, Dr. Warrow, or any other such agent. It also is clear that the Crosettos’ second amended complaint could not and did not cure this deficiency. A plaintiff may not file a certificate identifying an act of medical malpractice by a health care provider, whether individually or as an agent, waive out of the HCADRO and into circuit court, and then target another health care provider as having committed malpractice, without filing a certificate as to that defendant. The Act specifically provides a vehicle by which a defendant who was not named in the arbitration proceeding may be joined, and that procedure requires that the plaintiff file a certificate identifying the new defendant and specifying the applicable standard of care and that the defendant breached it, causing the plaintiff’s injuries. CJP § 3-2A-06B(g).

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[W]e note that the allegations against RGW in this case always have been based on respondeat superior. RGW is an organization and, as such, “can act only by virtue of its agents.”

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Here, the jurors only could have guessed whether some person other than Dr. Sanders was present following surgery, whether that person was an agent of RGW, whether it would have been that person’s responsibility to monitor Mr. Crosetto, and, if so, whether that person breached the standard of care. . . .

It was the Crosettos’ burden to introduce evidence from which the jurors could have found to a reasonable degree of medical probability that an agent of RGW other than Dr. Sanders deviated from the requisite standard of care and caused Mr. Crosetto’s vision loss, and, for the aforementioned reasons, they failed to do so.