Although it is well-established Maryland law that a medical negligence plaintiff must support her claim with expert testimony, the Court of Special Appeals recently issued the first Maryland appellate decision to hold that defendants have the same obligation when asserting an "empty chair" defense.Reiss v. Am. Radiology Servs., LLC, 241 Md. App. 316 (2019). The well-established “empty chair” defense asserts that a non-party’s negligence caused the alleged injury.[i] Under Reiss, those asserting the defense now must elicit "expert testimony, to a reasonable degree of medical probability, that the non-party breached the standard of care."[ii]
Although the rule announced in Reiss is relatively straightforward, the holding’s full implications remain unclear for litigants in medical negligence cases. The Court of Appeals may address these issues on February 6 at oral argument in Reiss. The court can resolve an important unanswered question: Can defendants elicit the testimony from a properly qualified plaintiff’s expert? The Court of Special Appeals’ reasoning in Reissand existing Maryland law should allow it.
I. The “Empty Chair” Defense in a Multi-Defendant Case
Medical malpractice plaintiffs often bring claims against multiple defendants and have long been required to certify expert opinions that each defendant was negligent. But trial strategy can fundamentally shift if plaintiffs settle with or voluntarily dismiss one or more defendants on the eve of trial. After a partial dismissal, plaintiffs would want to downplay the fact that their expert had certified (and presumably explained in detailed sworn deposition testimony) that the dismissed defendant was negligent and a cause of the injury at issue. The remaining defendant would naturally want to present its now-mandatory expert opinion supporting its empty-chair defense at trial from the plaintiff’s own expert(s), who has already committed to that position. It should be allowed to do so during the plaintiff’s case-in-chief when it cross-examines the expert.
II. Facts and Procedural Background of Reiss
Plaintiff Martin Reiss’s medical malpractice complaint alleged that his doctors failed to detect and treat his cancer. He named several defendants, including a urological surgeon (and his practice) who removed plaintiff’s cancerous kidney in 2011—without removing (or biopsying) a cancerous lymph node—and the radiologists (and their practice) who interpreted the subsequent CT scans looking for any signs of cancer in the lymph node.[iii] Before trial, Reiss dismissed his claims against the urological surgeon and his practice.[iv]
At trial, Reiss presented expert testimony that, if the radiologists had detected the cancer in the lymph node between 2011 and 2014 (and prompted its surgical removal), his cancer would have been cured.[v] The radiologist defendants were not allowed to elicit from the plaintiff’s surgical expert any testimony critical of the urological surgeon.[vi] Ultimately, no expert witness testified for the defense that, to a reasonable degree of medical probability, the urological surgeon or the oncologists were negligent in failing to biopsy and/or resect the lymph node. Yet, the radiologists still argued the issue of non-party negligence in closing arguments, and the verdict sheet asked whether any non-party was negligent.[vii]
After deliberations, jurors found no breach of the standard of care by the radiologist defendants, which should have ended their deliberations. But they continued answering questions on the verdict sheet and found that “a negligent act or acts” by non-party physicians had caused Reiss’s injuries and awarded him $4.8 million in damages.[viii] After the trial court informed the jury that it had reached an inconsistent verdict, the jurors deliberated again, this time finding no standard of care breach by the defendants and answering no other questions. Reiss noted his appeal.
III. Holding in Reiss
The Court of Special Appeals characterized the central issue on appeal as “whether there was any admissible evidence of non-party medical negligence in the record” to allow the question of non-party negligence to go to the jury.[ix] It noted that, in prior cases where defendants had asserted non-party negligence, they had supported that defense at trial with expert testimony that the non-party defendant had breached the standard of care. But the court found that these cases had not clearly established whether such testimony was necessary for the jury to consider the defense. Addressing that question, the court held that expert testimony was required for the defense.
It explained that the underlying logic behind requiring expert testimony, namely that “the subject matter is beyond the understanding of ordinary lay jurors,” applies no matter which party is making the argument.[x] In other words, the “subject matter [i.e., whether the standard of care was breached] does not become any more comprehensible to lay jurors merely because it is presented as a defense to a claim of malpractice, and not as the basis for a claim of malpractice.”[xi] Accordingly, the court reversed and remanded to the trial court.
IV. The Unresolved Implications of Reissfor Multi-Defendant Cases
The implications of Reissare straightforward when a defendant has evidence to support an “empty chair” defense against a provider who was never a defendant in the case. The Court of Special Appeals’ 2013 Martinez decision provides an instructive example.[xii] In Martinez, the defendant hospital asserted an “empty chair” defense to contest claims that its obstetrical staff negligently managed the plaintiff’s labor and delivery. It argued that the non-party midwife, who was never sued despite negligently treating the expectant mother before sending her to the defendant hospital, was the sole cause of injury.[xiii] After Reiss, medical malpractice defendants in a Martinez scenario should know that they need competent expert testimony to assert an “empty chair” defense.
Although not squarely addressed by the Court of Special Appeals in Reiss, in cases where a defendant has been dismissed, courts should allow defendants to rely on the opinions of the plaintiff’s own experts during cross-examination. It would satisfy Reiss—and do so efficiently. Courts recognize that “great latitude is often accorded professionals, including medical experts, who have been summoned to testify. It is not uncommon, as a courtesy to these professionals, for a court to structure the order of testimony around their schedules.”[xiv] It would be inefficient and wasteful of an expert’s (not to mention the court’s, parties’, and jury’s) time to force the expert to return to the stand several days later to give opinions that could easily be elicited in a few additional minutes of cross-examination during the plaintiff’s case.
Eliciting such testimony on cross-examination is also permissible under the Maryland Rules because it goes to the expert’s credibility. Cross examination is generally “limited to the subject matter of the direct examination and matters affecting the credibility of the witness[.]” Yet, a “cross-examiner must be given latitude to cross-examine a witness concerning any bias or interest the witness may have that would lead the witness to shade his testimony, whether consciously or not, in favor of or against a party.”[xv] The fact that the plaintiff’s expert holds opinions that another provider was negligent (or that he or she is now trying to retreat from those sworn opinions) satisfies Reiss and would also be important information for the jury in assessing the credibility of the expert’s opinions against the remaining defendant.[xvi]