Last week, the Maryland Court of Special Appeals issued its opinion in Hinebaugh v. Garrett County Memorial Hospital. This case is a cautionary tale for medical malpractice lawyers and other Maryland lawyers who think they can handle malpractice cases.
Maryland, like many states, creates a lot of hoops that plaintiffs need to jump through in order to bring medical malpractice cases. A lot of these requirements are ticky tacky details. But the big thing is a report and certificate of merit from a doctor who agrees there is a breach of the standard of care – the doctor did something a prudent doctor wouldn’t – and that the breach caused an injury.
Hinebaugh v. Garrett County Memorial Hospital
In Hinebaugh v. Garrett County Memorial Hospital, the Court of Special Appeals of Maryland shed some light on this issue of the details required for a certification for expert witnesses in medical malpractice cases. Here, the plaintiff injured his left cheek and jaw after getting hit in the face while in jail. Dr. Miller, a family medicine doctor in Garrett County, examined him and ordered simple X-rays of his facial bones. The X-rays were later evaluated by Dr. Miller and two radiologists, Drs. Benjamin and Lambert. The report prepared by the doctors indicated no abnormalities. However, the plaintiff was still in pain and returned to see Dr. Miller again several days later. This time, Dr. Miller did not prescribe any additional treatment or order any more tests.
Ten days later, the plaintiff was released from jail. He went to the emergency room and was seen by Dr. Coughlin, who was also a family medicine doctor. The plaintiff complained about numbness and pain in his left cheek and jaw. Dr. Coughlin reviewed the man’s chart and simple X-rays and ordered a CT scan, which revealed several facial fractures. The plaintiff subsequently filed suit against defendants Dr. Miller, Dr. Benjamin, and Dr. Lambert, alleging that the three physicians breached the standard of care by failing to timely perform a CT scan and timely diagnose and treat his condition.
In most instances, the Court and Judicial Proceedings Article (“CJP”) of the Maryland Health Care Malpractice Claims Act (“Act”) requires the plaintiff in a medical malpractice case to file a “certificate of a qualified expert” who can “attest to departure from the standard of care, and that the departure from standards of care is the proximate cause of the alleged injury.” The certificate must be accompanied by a report from the expert. The relevant section of the CJP, Section 3-2A-02(c), reads:
(ii) 1. In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert or testifies in relation to a proceeding before a panel or court concerning a defendant’s compliance with or departure from standards of care:
A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and
B. Except as provided in subsubparagraph 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant.
2. Subsubparagraph 1B of this subparagraph does not apply if:
A. The defendant was providing care or treatment to the plaintiff unrelated to the area in which the defendant is board certified; or
B. The health care provider taught medicine in the defendant’s specialty or a related field of health care.
In this case, the plaintiff took on Dr. Mitcherling as his qualified expert and filed a Certificate and report by the doctor. The Certificate stated: (1) Dr. Mitcherling was licensed as a doctor of dental surgery, specializing in oral and maxillofacial surgery (“OMS”); (2) Dr. Mitcherling had experience teaching in the same specialty or related field of health care as the defendants; (3) the defendants had breached the standard of care by failing to timely perform a CT scan and timely diagnose and treat the plaintiff’s condition.
There was no argument over (ii)(1A). Instead, the defendants contended that Dr. Mitcherling did not meet the “same or related specialty” requirement in 3-2A-02(c)(2)(ii)(1B), and as a result, was not qualified to submit a certificate or report. The doctors’ attorney argued that the patient’s certifying expert is not qualified to render an opinion against Appellees because he is not board-certified in the same or a related specialty as defendant doctors. The logic of their argument is hard to ignore. The specialty of oral and maxillofacial surgery is a far cry from family medicine and radiology.
On the other hand, the plaintiff maintained that Dr. Mitcherling was certified in a related specialty. In addition, the plaintiff also claimed that the two exceptions in (ii)(2) applied regardless of whether Dr. Mitcherling met the requirement. The plaintiff made two arguments here: First, Dr. Miller was practicing emergency medicine, not family medicine, so exception A applied. Second, Dr. Mitcherling taught medicine in a field of health care related to family medicine and radiology, so exception B applied.
The court began by pointing out that the definition of “health care provider” in the Act is broad and includes dentists. Therefore, the fact that Dr. Mitcherling was a dentist and not a family medicine doctor or radiologist by itself did not prevent him from issuing a certificate or report. The court went on to examine the question of what “related specialty” means.
The statute does not specifically define what “related” means under the Act. The court looked at this issue in DeMuth v. Strong,
DeMuth v. Strong
In DeMuth, the patient filed a lawsuit against an orthopedic surgeon who performed a total left knee replacement surgery. After the surgery, the patient had compartment syndrome in her calf. Compartment syndrome is very painful and is caused by excessive pressure. The plaintiff ultimately needed to get a leg amputation. Plaintiff’s vascular surgeon expert testified at trial the orthopedic surgeon breached the standard of care in his postoperative treatment of the patient. The surgeon’s lawyer contended that a vascular surgeon could not render a standard of care opinion because the expert was a vascular surgeon which is not the same or related specialty to the orthopedic surgeon.
The court looked to DeMuth v. Strong as precedent, explaining that fields of health care are “related” when there is an overlap in treatment or procedures across different specialties. For example, in DeMuth, there was overlap between board-certified orthopedic surgeons and vascular surgeons in regards to the postoperative management of orthopedic patients, satisfying the “related specialty” requirement. However, the court was careful to indicate that the overlap only existed with respect to postoperative management – there would not be overlap if the standard of care issue was whether a vascular surgeon properly performed vascular surgery.
Applying DeMuth to This Case
As a result, the treatment or procedure has to fall under the specialty of both specialists, so that they should be equally knowledgeable and competent to testify about the standard of care. The procedure in question was the CT scan of the jaw – did the localized CT scan fall under the specialty of family medicine doctors and radiologists, so that these specialists had a duty to order the jaw scan if a patient walked in complaining about pain after being hit in the face? The court answered in the negative and concluded that OMS was not a related specialty to family medicine or radiology where the plaintiff’s injury was concerned. The court stated that family medicine doctors and radiologists are part of a general, frontline practice where doctors see patients for initial examination and testing of the entire body, whereas OMS is a highly specialized field. When it comes to facial fractures, OMS dentists are on higher ground in terms of education, training, and experience. Although Dr. Mitcherling testified that OMS doctors would order a CT scan if such a patient appeared, he did not mention what procedures family medicine doctors or radiologists would take, nor did he indicate that the simple X-rays were inadequate.
The court then went on to reject the plaintiff’s argument that the two exceptions to the “same or related specialty” requirement applied. First, the court concluded that the treatment offered was within the “first-contact care” of family medicine and not emergency medicine. In addition, the court also indicated that there was nothing in Dr. Mitcherling’s affidavit that said he had ever taught medicine in the specialty of family medicine or radiology. Consequently, neither exception was relevant.
Finally, the plaintiff made one last point that the circuit court should not have ruled on the Certificate because discovery had not been conducted yet. The court of appeals disagreed, clarifying that the opportunity to conduct discovery on the basis of a Certificate does not mean that discovery has to be conducted before a court can inspect the validity of the Certificate. In this case, the plaintiff had plenty of information about the defendant even without discovery.
The court’s decision offers insight into standards that a qualified expert must meet in order to testify in a Maryland medical malpractice case. Barring any exceptions, it is important that the expert is certified in the “same or related” specialty as the defendant physicians – otherwise, they will not be allowed to issue a certificate or report.
The take-home message is that if you are unsure if it is a related specialty, proceed as though it is not.
You can find the opinion in Hinebaugh v. Garrett County Memorial Hospital here.