Published on:

Court of Special Appeals Clarifies Expert Witness Requirement in Medical Malpractice Cases

In a decision handed down by the Court of Special Appeals on June 6, 2012, Maryland’s intermediate appellate court clarified section 3-2A-02(c)(2)(ii)1B of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland, which sets forth the requirement that, if the defendant in a medical malpractice action is board certified in a specialty, any expert witnesses who testifies that the defendant violated the standard of care must be board certified in the same or a “related” specialty. A copy of the Court of Special Appeals opinion can be found here.

The case, DeMuth v. Strong, was a medical malpractice case action initially brought by Strong in the Circuit Court for Cecil County against Dr. DeMuth, a board certified orthopedic surgeon. When Strong called a board certified vascular surgeon as an expert witness to testify that Dr. DeMuth had breached the standard of care in his treatment of Strong and that the breach had caused Strong’s injuries, Dr. DeMuth objected which ultimately formed the basis of the appeal.

The medical negligence Strong complained of began with a visit to Dr. DeMuth in 2005 as a result of knee pain due to arthritis. It was ultimately determined that Strong required total knee replacements for both knees. In 2007 at Harford Memorial Hospital, Dr. DeMuth performed a successful total knee replacement surgery on Strong’s right knee and, following recovery from the first surgery, a total knee replacement surgery on Strong’s left knee. The outcome and care rendered in the period following the surgery was the issue in this case.

Immediately after left knee surgery, Strong complained of feelings of numbness and tingling in his left foot. Dr. DeMuth diagnosed Strong as suffering from “neuropraxia,” a condition that is not deemed to be serious as it is unrelated to blood flow. However, in undertaking his diagnoses, Dr. DeMuth did not perform an “ankle brachial index” test (“ABI”), in which the blood pressure in the arm and the ankle are compared, or a Doppler ultrasound examination, both of which assess whether there has been a vascular complication of surgery. Also, Dr. DeMuth did not consult a vascular surgeon. Despite nursing notes indicating a “very weak” pulse in Strong’s foot throughout the following days, as evidenced by bruising, coolness and numbness as well as Strong’s inability to move his foot, Dr. DeMuth continued to rely on his initial diagnoses and failed to perform additional tests.

Five days after his surgery, when Strong’s pain had reached a level of “twelve out of ten,” Dr. DeMuth performed a Doppler examination for the first time which revealed no pulse in Strong’s left leg or foot. After consulting with a vascular surgeon and performing an ABI, Strong was diagnosed with “compartment syndrome” and a fasciotomy was performed on Strong’s left leg in an attempt to restore the blood flow to his leg.

The procedure was unsuccessful in restoring the blood flow to Strong’s left leg and vascular surgeons attempted to perform a procedure to remove a blood clot in a last attempt to save Strong’s left leg (an “embolectomy”). That procedure was also not successful and Strong’s left leg had to be amputated above the knee.

In analyzing Strong’s use of an expert witness who was board certified in vascular surgery to testify as to Dr. DeMuth’s departure from the standard of the care, the court found that, as the expert was being called to testify as to “postoperative management of orthopedic surgical patients,” as opposed to vascular surgery, and was not being asked to give standard of care testimony about the performance of the knee replacement surgery itself, his testimony was proper.

This case highlights the importance of the ever changing landscape of statutory rules and case law concerning the use of expert witnesses in medical malpractice cases. Most cases involving catastrophic injury, including medical malpractice, wrongful death, product liability, and major collisions require expert witness testimony. As an experienced Baltimore, Maryland medical malpractice attorney, I have a great deal of experience in finding and working with expert witnesses. It is always a challenge to find the right mix of experts in a case. To see some of the cases I have handled, click here.

Contact Information