Medical malpractice – “Empty chair” defense fails without expert testimony that the non-party physician was negligent and caused the plaintiff’s injuries.

I’ve previously written about the surprising (to me) number of reported cases in which “the plaintiff failed to provide an adequate expert opinion on causation during discovery, resulting in summary judgment for the defendant.”  See https://www.videntpartners.com/blog/2020/product-liability-defendant-wins-summary-judgment-because-plaintiff%E2%80%99s-expert-offered-no and previous blog posts cited therein.  And I’ve expressed my puzzlement as to how this could happen, tentatively concluding that “the cases were unwinnable, and either the expert or the plaintiff’s attorney (or both) dropped the ball, or there was a miscommunication between them.” Id.

Today I have a case in which the shoe is on the other foot, so to speak.  In American Radiology Services v. Reiss, https://www.mdcourts.gov/data/opinions/coa/2020/50a19.pdf (Md. 8/24/20), it was the defendants who failed to provide essential expert testimony in support of their contention that “the negligence of a non-party physician was a cause of the plaintiff’s injuries.”  (As the court explained in a footnote, in case some trial lawyer reading the opinion might not know, “The trial strategy of assigning blame to an individual who is not a party to the case is often referred to as the ‘empty chair’ defense.”)

The facts of the case and its procedural history in the trial court and the intermediate appellate court are complex, and I don’t want to lengthen this post unnecessarily with a detailed summary.  Suffice to say, the plaintiff sued three radiologists, claiming that they had negligently failed to notify his oncologist that a cancerous lymph node, thought to be in remission, was getting larger over a 4-year period.  In addition to denying liability, the radiologists alleged in their discovery responses that the plaintiff’s urologist (who had removed the plaintiff’s cancerous kidney but left the lymph node in because he thought it was too close to the inferior vena cava) and oncologists (who agreed with that assessment and treated the lymph node with chemotherapy only) were negligent and had caused the plaintiff’s injuries.

Despite their assertions of negligence by the non-party providers, the Defendants did not specifically identify experts to render opinions on these matters.  Instead, during discovery, Defendants included a pro forma statement advising that they reserved the right to rely on the opinions of Plaintiff’s experts.  Plaintiff filed a motion in limine to preclude the Defendants from arguing or presenting evidence of non-party negligence by the other physicians who treated [him], including eliciting expert testimony from the Plaintiff’s experts….Prior to trial, the judge ruled that…the Defendants…would be permitted to reference “claims and contentions against parties and non-parties when we’re talking about evidence that has evidentiary value.”  Although the trial judge determined that arguments and evidence of negligence by non-parties were relevant and admissible…the Defendants would not be permitted to elicit opinions from the Plaintiff’s expert witnesses concerning negligence of non-party physicians due to a lack of appropriate disclosure.  (Footnotes and citations omitted.)

Amazingly, the defendants did not argue on appeal that the trial judge had erred in prohibiting them from eliciting opinions from the plaintiff’s experts concerning the alleged negligence of the non-party physicians.  Consequently, they were reduced to arguing that they were not required to present expert testimony, either by calling their own experts or through cross-examination of the plaintiff’s experts:

Despite the absence of expert testimony, the radiologists contend that they established a sufficient factual predicate for the jury to conclude that the non-party physicians breached their respective standards of care.  Specifically, the radiologists point to several arguably critical comments made by the Plaintiff’s experts…concerning the care rendered by the non-party physicians.  In its opinion, the [intermediate appellate court] meticulously parsed through those comments and concluded that they fell short of the requisite evidentiary threshold – that is, expert testimony to a reasonable degree of medical probability that the breach caused the Plaintiff’s injuries.  Our independent review of the testimony leads us to the same conclusion.  (Citation omitted.)

In addition, the defendants argued that that they were not required to present expert testimony because their claim of non-party malpractice was not raised as an affirmative defense, but “merely” as an alternative theory of causation.  I confess that I don’t understand the logic of that argument, and the court gave it short shrift:

An affirmative defense is one which directly or impliedly concedes the [plaintiff’s] basic position…but which asserts that notwithstanding that concession the [plaintiff] is not entitled to prevail because he is precluded for some other reason….We agree with the [intermediate appellate court] that expert testimony is required to establish non-party medical negligence, without regard to whether a defendant is raising the non-party medical negligence as an affirmative defense or in connection with a general denial of liability….[T]he need for expert testimony to enable a lay jury to decide complex medical issues is not obviated simply because the defense is “I was not negligent, but someone else was negligent and caused the injury,” rather than “I was negligent, but someone else was negligent after me and caused the injury.”  (Emphasis in original; citations and other internal quotation marks omitted.)

The above is the briefest possible summary of the court’s 37-page opinion, which contains a detailed analysis of the facts and a complete review of the applicable case law and is well worth reading.  Here’s the bottom line (if you’ll pardon the cliché):  Whether you’re representing a plaintiff or a defendant, if you want to get a claim of medical negligence to a jury, you must introduce expert opinion testimony of deviation from the standard of care and causation.  Malpractice defense attorneys don’t contact Vident Partners exclusively to provide experts to support the defense; sometimes they contact us when they’re contemplating the possibility of an empty chair defense or even third-partying in someone the plaintiff hasn’t sued.  They know they’ll need expert opinion testimony if they decide to go down either of those roads, and they know we’ll provide them with the right expert for whatever purpose they may require.

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