Lack of board certification may not be used against physicians on trial for medical malpractice, a Maryland appellate court has held in overturning a jury’s verdict that a Bel Air vascular surgeon’s negligence caused a patient’s paraplegia.
The decision by the Court of Special Appeals overturned a $2.8 million verdict to Victoria Little and ordered a new civil trial in her suit against defendant Dr. Roger Schneider.
Schneider’s two co-defendants — his partner Dr. Mark Gonze and their practice, Vascular Surgery Associates LLC — settled with Little after trial for an undisclosed amount and did not join Schneider’s appeal.
In its 3-0 holding, the appellate court said the trial judge had wrongfully permitted Little’s counsel to mention Schneider’s lack of board certification in an effort to undermine his credibility at trial.
“Whether a physician is board certified or not has no relevance as to whether a physician was negligent in a particular case,” Judge Stuart R. Berger wrote for the Court of Special Appeals. “It has no bearing on whether Schneider breached the standard of care in his treatment of Little, and should not have been admitted.”
The appellate court rejected Little’s claim that Schneider’s own lawyer had “opened the door” to his lack of board certification by puffing him up for the jury with a list of his professional accomplishments, such as serving on a medical board and treating indigent patients.
“Schneider did not inject an issue into the case by engaging in ‘puffing’; rather, he provided typical background information,” Berger wrote.
The appeals court also faulted the trial judge for barring Schneider from introducing into evidence a pre-surgery CT scan that purportedly showed Little’s aorta to be about 15 millimeters in diameter.
That information was critical to Schneider’s defense strategy, which was to counter Little’s claim that her massive bleeding was caused by a graft that was too big for her aorta, which her medical experts claimed was 7 mm in diameter.
“The [CT] scan could have conclusively established the size of the aorta, and therefore, established whether there was or was not a size mismatch between the aorta and the graft,” Berger wrote.
The trial judge, Harford County Circuit Judge Stephen M. Waldron, had excluded the CT scan because Schneider had not made it available to Little’s attorneys during the pre-trial discovery process. But the Court of Special Appeals said Schneider did not violate discovery rules because he “reasonably believed” Little was provided the CT scan — as Schneider was — by the Upper Chesapeake Medical Center, where she was treated.
Ward B. Coe III, Schneider’s appellate counsel, said the trial was infected by “completely irrelevant evidence” regarding board certification, while relevant CT scan evidence that “could have been very helpful” to the doctor was excluded.
The Court of Special Appeals decision “gives good guidance for trial courts” on the admissibility of professional qualifications and medical evidence and will help Schneider if the case again goes to trial, Coe said.
“We think it would be a leveler playing field this time around, and we think he has a very good chance,” said Coe, of Gallagher Evelius & Jones LLP in Baltimore.
Little’s appellate counsel, James D. Cardea, said in a statement that he is “extremely disappointed” with the appellate court’s decision.
“At this point, pending further discussions with my client, I am contemplating filing a petition with the Court of Appeals,” added Cardea, of Schochor, Federico and Staton PA in Baltimore.
Massive blood loss
Little was admitted to the medical center on July 16, 2007, for aortabifemoral bypass surgery. The procedure involves connecting the aorta to the femoral artery by suturing on a graft in order to bypass a blocked portion of the aorta.
According to trial testimony, Little lost nearly her entire blood supply — 10 times the normal loss of blood — during the procedure. The massive blood loss caused permanent injury to her spinal cord and paralysis from the waist down, according to the lawsuit, which Little filed Sept. 11, 2008, in Harford County Circuit Court.
As defendants, she named Schneider, Gonze and Vascular Surgery Associates, as well as Dr. Michael Eves and Northern Chesapeake Anesthesia Associates. The jury found only Schneider, Gonze and Vascular Surgery Associates liable and awarded Little $3.5 million in damages.
The award included $2 million in future medical expenses, $224,398 in past medical expenses and $1.3 million for pain and suffering. The pain and suffering damages were reduced to $650,000 under Maryland’s statutory cap for non-economic damages in medical malpractice cases, for a total award of $2,874,398.
WHAT THE COURT HELD
Schneider v. Little, CSA No. 1346, Sept. Term 2010. Reported. Opinion by Berger, J. Argued May 8, 2012. Filed June 1, 2012.
Did the trial judge err in permitting defendant physician’s lack of board certification to be admitted at malpractice trial? Did the judge err in excluding CT scan from being introduced at trial?
Yes to both; the physician’s lack of board certification was irrelevant to his treatment of the patient, but the CT scan was relevant to the physician’s defense that his treatment did not violate the standard of care.
Ward B. Coe III for appellant; James D. Cardea for appellee.
RecordFax # 12-0601-03 (28 pages).