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Judge Peter Krauser (File)

Stent lawsuit summary judgment upheld on appeal

A trial judge’s decision to grant summary judgment in a lawsuit against former doctor Mark Midei, whose license was revoked in 2011 for implanting unnecessary stents, was upheld on appeal Tuesday because the plaintiff did not prove fraud in the 2004 incident to toll the statute of limitations.

“They’re pretty happy,” defense attorney Andrew Levy said of his clients, Midei and Midatlantic Cardiovascular Associates P.A. “They felt pretty strongly about this issue.”

Jan Crystal underwent a cardiac catheterization in 2004, performed by Midei, during which a stent was placed to address stenosis, a narrowing of his left anterior descending coronary artery, according to the Court of Special Appeals’ decision written by Chief Judge Peter B. Krauser on behalf of a three-judge panel.

When Crystal filed a complaint in 2011, he claimed medical malpractice as well as fraud, which had concealed the wrongdoing and tolled the five-year statute of limitations, according to the opinion. An expert witness for Crystal testified in a deposition that the degree of stenosis was much lower than what Midei had represented prior to the procedure.

Crystal claimed Midei, who was involved in two class-action lawsuits alleging unnecessary stent procedures at St. Joseph Medical Center that settled for $37 million in 2014, intentionally misrepresented the degree of stenosis in Crystal’s artery to induce him to agree to the procedure.

“It was my belief that the facts and circumstances of this case were certainly sufficient to infer fraud,” said Crystal’s attorney, Adam Spence of Spence Brierley P.C. in Towson.

To prove fraud, according to Krausner, the plaintiff must show the false representation was made knowingly or recklessly; negligence does not satisfy the requirement.

“Crystal has provided no evidence that Dr. Midei knew his assessment of stenosis … was incorrect,” Krausner wrote.

The disparity between Midei’s assessment and the expert testimony offered by Crystal “suggests, at most, that Dr. Midei may have been negligent, perhaps even grossly negligent, in his diagnosis,” Krauser continued.

Spence said it is rare for a defendant accused of fraud to admit to it, so facts and circumstances are used to prove the elements.

“I think that it’s certainly easy to infer the fraud and it’s inappropriate not to have submitted it to the jury,” he said.

Levy, of Brown, Goldstein & Levy LLP in Baltimore, said disagreement among experts is insufficient grounds for an inference of fraud because, as he argued, potentially every case is a fraud case because experts almost always disagree.

“This record was really remarkable in terms of the lack of anything other than a disagreement between the experts,” he said.

At trial, Spence said he would have called Midei as a witness and questioned him regarding the necessity of the procedure, which would have opened the door to questions about past investigations.

“It was part of our case in chief, frankly,” he said.

Spence said he had not yet read the opinion but would discuss it, and the possibility of a petition for certiorari to the Court of Appeals, with his client.

The case is Jan Crystal v. Midatlantic Cardiovascular Associates P.A. et al., No. 1687, Sept. Term 2014.