Frankel v. Deane (Md. 8/25/2022), https://www.mdcourts.gov/data/opinions/coa/2022/43a21.pdf, illustrates the legal issue that is the title of this post. It also illustrates what is technically a legal issue (a trial court’s abuse of discretion in excluding expert medical testimony), but is actually a practical issue that every trial lawyer has to deal with sooner or later, even multiple times in the course of a long career: the nightmare trial judge. I will discuss the legal issue first.
This litigation arose from the extraction of the plaintiff’s upper and lower wisdom teeth by the defendant oral surgeon. When the plaintiff awoke from surgery, she was in pain and couldn’t feel her tongue. The defendant assured her that the condition would improve once the anesthesia wore off, but that did not happen. The defendant’s notes from a follow-up visit one week postop documented the plaintiff’s complaints of pain, paresthesia, and tingling on the front third of both sides of her tongue. The plaintiff denied reporting any improvement in her immediate postop condition (complete numbness of the tongue) and recalled being told “to give it more time to heal.”
The plaintiff didn’t want another follow-up visit with the defendant because she could not feel her tongue, yet he told her that she was “okay” and assured her that in time the problem would resolve. Consequently, when there was still no improvement in her symptoms 3 months postop, she called the defendant’s office and scheduled an appointment with a different oral surgeon employed there, Dr. Kim (who is also a defendant in the lawsuit). Here I need to quote the court’s summary of that visit:
What transpired at Ms. Deane’s appointment with Dr. Kim is in dispute. Dr. Kim’s progress notes state that Ms. Deane complained that her tongue was numb but also stated that she was “getting better and still tingling,” that her “whole tongue [was] not numb anymore,” and that “[n]ow only [the] right anterior tongue is numb.” The notes also reflect that Dr. Kim…conducted some neurosensory tests, stating, “right anterior 2/3 with mild pain perception, direction, and soft touch sensation intact.” Dr. Kim diagnosed a “likely neuropraxia injury”[fn 1] and noted that referral to a neurologist might be necessary, but that he recommended “observation for now”…. Ms. Deane maintains that, contrary to Dr. Kim’s notes, she told him that her tongue was numb on both sides of the front of the tongue, that it was difficult to talk and eat, and that she was experiencing pain, throbbing, and tingling. She recalled that Dr. Kim poked her tongue with something, but did not recall him mentioning the possible need to see a nerve specialist.
About 2 years postop, the plaintiff consulted a lawyer, who referred her to oral surgeon Dr. Richard Kramer for evaluation. After conducting a series of neurosensory tests, he reported that “[t]he injury here is likely a bilateral neurotmesis” – that is, complete transection of the lingual nerves on both sides of the mouth, where they run near the lower wisdom teeth. He also opined that, in light of the time between the surgery and his evaluation, the injury was permanent.
In the lawsuit, the plaintiff designated two expert witnesses: Dr. Kramer, to testify on the nature and extent of her injury; and another oral surgeon, Dr. Armond Kotikian, to testify on standard of care and causation. Dr. Kotikian was designated to testify that that the lingual nerve injuries “likely occurred while [each lower wisdom tooth] was being sectioned and the bur traversed the lingual plate”; that either of two well-known protective measures would have prevented the nerve injuries; and that failure to take either precautionary step was a deviation from the standard of care and caused the plaintiff’s injuries.
Of note, when Drs. Kramer and Kotikian were deposed, they explained why they believed the plaintiff’s assertion that her symptoms never improved and did not believe the defendants’ notes to the contrary. For example,
Dr. Kotikian explained that he was skeptical about the notes from Drs. Frankel and Kim because it was not possible that Ms. Deane had an improvement in sensation, given that Dr. Kramer’s tests found that she exhibited symptoms of total nerve severance, and that nerves do not degenerate over time; if anything, they improve. As to whether Ms. Deane could have been lying to Dr. Kramer in response to the tests he performed, Dr. Kotikian expressed doubt, stating: “when we do these examinations, we’re actually poking and prodding, so if they’re not feeling anything, it’s very obvious because if we stick a needle in there, they’ll jump if they have sensation.”
The defendants moved for summary judgment, which the trial court granted. The plaintiff appealed, intermediate appellate court reversed the trial court’s judgment, and the Maryland Court of Appeals affirmed the intermediate court’s decision.[fn 2]
In their memorandum in support of the motion for summary judgment, the defendants
argued that there was “no direct or physical evidence of injury or medical circumstances sufficient to allow an expert opinion ‘inference’ that surgical negligence occurred in this matter.” Relying on this Court’s opinion in Meda v. Brown, 318 Md. 418 (1990), they contended that inferences of negligence and causation require “sufficient direct and physical evidence,”… and that the “entire alleged ‘inference’ that negligence occurred is itself based on an invalid and/or speculative ‘inference’ that a specific injury – [namely, bilateral transection of the lingual nerves] – happened.”
The trial court accepted this argument, and the defendants pressed it again on appeal. This is the legal issue I referred to in the first sentence of this note, so I turn now to the Court of Appeals’ discussion of that issue (citations omitted):
[T]he circuit court misapplied Meda. In Meda, the plaintiff sustained compression injuries to the ulnar nerve in her arm during a bilateral breast biopsy surgery. Her arm was restrained during the procedure. The jury found in favor of the plaintiff, but the judge granted judgment notwithstanding the verdict, finding that “[t]he testimony of plaintiff’s two experts…rested upon inferences and thus constituted the kind of res ipsa loquitur evidence [that is] barred….” The Court of Special Appeals reversed, holding “that the concept of res ipsa loquitur was applicable….”
We affirmed, not based on res ipsa loquitur, which we found inapplicable, but rather “because the testimony was sufficient to support the inferential conclusion of negligence drawn by the plaintiff’s experts.” Of particular note here, one of the plaintiff’s experts in Meda testified that the injury suffered by the plaintiff – a compression injury to the ulnar nerve – was a well-known risk in the medical profession, but that “the standard of care requires that the arm be positioned and secured in such a manner that nerve compression will not occur.” The plaintiff’s experts could not determine precisely how the plaintiff’s nerve was compressed, as there were several possible ways it could have happened, but both experts opined that the injury was caused by the defendants’ deviation from the standard of care in failing to protect the ulnar nerve during the procedure.
In affirming, we took note of the long-held principle that negligence “can be established by the proof of circumstances from which its existence may be inferred…. [T]he jurors were not asked to draw an inference unaided by any expert testimony. The plaintiff's experts, armed with their fund of knowledge, drew certain inferences from the circumstances…[and] base[d] their opinions on a combination of direct and circumstantial evidence.”
Ms. Deane’s theory of negligence substantially tracks the analysis permitted under Meda. In Meda, the plaintiff’s experts applied their medical expertise to infer from the circumstantial evidence that medical negligence caused the plaintiff’s injury; here, Ms. Deane’s expert, Dr. Kotikian, likewise applied his knowledge and experience to infer negligence based on Ms. Deane’s testimony about her symptoms and Dr. Kramer’s assessment that the lingual nerve was severed. Accordingly, we conclude that the circuit court mistakenly applied Meda in excluding Ms. Deane’s experts.
Note the court’s remark that res ipsa did not apply in the Meda case (or in this case). Of course, there are true medical res ipsa claims that don’t need an expert, e.g., a surgical instrument left inside a patient. But in most cases, the inference of negligence and/or causation must be, and properly can be, drawn by an expert. As the headnote to the case under discussion states, “in a medical malpractice case, if the expert cannot ascertain the precise cause of the injury, inferential reasoning is permissible to establish the elements of breach and causation, so long as each inference is supported by expert testimony.” I think this can fairly be called the medical expert witness version of res ipsa. It’s an important principle, which hopefully is well understood in most states and doesn’t need a state supreme court decision to establish it.
So, what about the other issue I mentioned in the first paragraph of this note? Technically, as I said, it’s a legal issue: When ruling on a motion for summary judgment, a trial court abuses its discretion if it resolves contested issues of fact against the non-moving party. But the trial judge in this case wasn’t simply a bit sloppy, or perhaps overworked and understaffed, or perhaps not really qualified to be a trial judge (yes, we all know it happens). This judge was a plaintiff’s nightmare – and I say that knowing full well that there are also judges who are defendant’s nightmares. His summary of his 97-page (!) memorandum order bristles with hostility to the plaintiff, he “found” multiple contested factual issues against her, and the Court of Appeals carefully identified all of his many errors.
The court wisely began its dissection of the trial court’s ruling by quoting the court’s own summary set forth at the outset of its opinion. Here’s the first sentence, just to give you the flavor of it:
[T]his Court found herein, applying Maryland’s Frye-Reed Standards, Meda v. Brown, 318 Md. 418, 428 (1990), and Maryland Rule 5-702 principles of law, that Dr. Kramer’s 2018 opined conclusion as to the possible severance in 2016 is based primarily on his examination of Plaintiff almost two years after the fact, and on the Plaintiff’s shaky, uncertain self-reporting to him then in 2018 without him having reviewed the professionally detailed notes and records of Dr. Frankel’s and Dr. Kim’s treatments and examination of Plaintiff, which this Court found met Maryland’s Frye-Reed Standards of scientific, clinical, and analytical reliability as well as to be based on such requisite methodology as required therein.
Oof. Perhaps it’s not surprising that bad judging and bad writing go together. In any event, here’s what the Court of Appeals had to say:
The court did not explain…why it subjected the notes of Ms. Deane’s treating physicians to a Frye-Reed analysis. The court also did not explain the basis on which it determined that those notes passed the Frye-Reed test, or why Dr. Kim’s sensory examination passed the Frye-Reed test but Dr. Kramer’s sensory examination did not.
The circuit court improperly took sides in a credibility contest between Drs. Frankel and Kim on one hand and Ms. Deane on the other hand…. [T]he circuit court was confronted with medical records from Drs. Frankel and Kim that were disputed in multiple material respects by their patient. The conflicting evidence on these issues teed up a classic credibility contest for the jury – not the court – to resolve….
The circuit court also impermissibly gave petitioners the benefit of favorable inferences drawn from evidence susceptible to more than one interpretation….
The circuit court also erred in finding that the only reliable way for diagnosing the nature and extent of Ms. Deane’s injury was through exploratory surgery, which she did not have. Dr. Kramer testified…that his diagnosis of a severed lingual nerve was made possible in Ms. Deane’s case…because he examined her more than two years after the surgery…. [The defendants] did not counter Dr. Kramer’s testimony with any testimony, expert or otherwise…. Although the jury might, depending on the evidence, have a basis to conclude that exploratory surgery is necessary to diagnose the injury even after two years, the circuit court did not have the discretion to so find on summary judgment….
Similarly, Dr. Kotikian’s failure to rely on Dr. Kim’s notes about Ms. Deane’s improving condition should not have disqualified his testimony. The court acknowledged that Ms. Deane disputed that she had reported any improvement to Dr. Kim, but nevertheless granted summary judgment “principally due to her unjustified failure” to follow-up with Dr. Kim. [In a footnote after “unjustified”, the court states: “This is another example of impermissible fact-finding. The jury, not the court, should decide whether Ms. Deane’s failure to keep a follow-up appointment was ‘unjustified.’”] The court did not explain the connection of Ms. Deane’s failure to return for the follow-up appointment with the factual dispute over what Ms. Deane reported to Dr. Kim about her symptoms. As an expert, Dr. Kotikian was entitled to assume that Dr. Kramer’s examination and diagnosis were reliable. The court simply found Dr. Kim to be more credible than Dr. Kramer…. Making that credibility determination put the Court in the position of factfinder. Thus, it was clear error to exclude Dr. Kotikian’s testimony on that ground.
[Finally], the circuit found “that the conditions that Plaintiff complains of are well known complications of the procedure Plaintiff underwent and do occur in the absence of negligence by the surgeon.” Because the court concluded that the injuries allegedly suffered by Ms. Deane were known risks that could be realized without negligence on the surgeon’s part, it determined that Dr. Kotikian’s “inference of negligence” was inadmissible under Meda…. [But] Dr. Kotikian addressed that very point at his deposition when questioned by Ms. Deane’s counsel:
Q: The literature that [defense counsel] cited indicates that you can have an injury to the lingual nerve when everything is done within the standard of care…. [But] can you have a severance of the nerve and still be doing things within the standard – everything within the standard of care? Or does it have to be a breach in the standard of care to have a severance of the nerve?
A: Breach in the standard.
Q: And in Ms. Deane’s case do you believe that she suffered a severance of the lingual nerve bilaterally?
A: Yes.
The circuit court pointed to no evidence in the record that refuted this testimony, and the only expert testimony in the summary judgment record on this issue came from Dr. Kotikian. For the court to have nonetheless “found” that Ms. Deane’s alleged injuries could have occurred without negligence, it had to discount Dr. Kotikian’s testimony on that issue and impose its own interpretation of the medical literature, without the aid of any expert testimony to explain the text. Here again, Dr. Kotikian’s credibility was a matter for the jury to decide.
The court’s forceful language shows that it recognized the trial judge’s gross bias in favor of the defendants. And at the end of its opinion, having determined that further proceedings below were required (see footnote 2), the court issued what can only be seen as a reprimand: “In light of the nature and extent of the factual and credibility findings made by the trial judge that granted summary judgment, and to avoid any appearance of partiality going forward, this case should be assigned to a different judge for all further proceedings.” (Emphasis in the original.)
As I said at the outset, every litigator runs into a nightmare trial judge sooner or later, even multiple times in the course of a long career. Unfortunately, dealing with such judges is not something we do. On the other hand, when you need help finding an expert, you will find no better source than Vident Partners. Our experts cover a vast range of specialties and industries – medical (physicians and other healthcare providers in every specialty), engineering (mechanical, electrical, chemical, computer, etc.), biotechnology, oil and gas, construction, cosmetics, packaging, workplace safety, bank operations and many more. We particularly shine when it comes to locating unusual or hard-to-find experts. We would be honored to assist you
----------------------------
[fn 1] Neuropraxia is a minor injury to a peripheral nerve, axonotmesis is a more severe injury, and neurotmesis (the diagnosis arrived at by the plaintiff’s experts) is complete transection of the nerve. Neuropraxia and axonotmesis will heal by themselves over time; neurotmesis will not.
[fn 2] To be precise, while agreeing with the intermediate court that summary judgment was wrongly granted, the Court of Appeals vacated the intermediate court’s judgment and remanded the case to the trial court for further consideration of the summary judgment motion. This was supposedly necessitated by the fact that, while the appeal was pending, the court overruled its longstanding adherence to the Frye standard for the admission of expert testimony and adopted the Daubert standard. One judge dissented, saying that the defendants were not entitled to a do-over on summary judgment and the case should go straight to trial. I agree.
