One of the elements of a Maryland medical malpractice claim requires the plaintiff to establish that the defendant’s actions fell below the standard of care of a medical professional practicing under the same circumstances. To prove this element, the plaintiff must present a qualified medical expert to testify that the defendant breached the standard of care. In an October 2, 2020 case, the Court of Special Appeals of Maryland considered whether the testimony of the plaintiff’s medical expert was precluded by the “twenty-percent rule,” which generally bars experts who spend more than twenty percent of their professional activities directly involved in testifying as exert witnesses.
The plaintiff in the case was the surviving wife of the decedent, who had died from complications following back surgery. She brought a medical malpractice lawsuit against the doctor who treated the decedent and the doctor’s practice group. The plaintiff filed a certificate of qualified expert, as provided under the Maryland Health Care Malpractice Claims Act. The certificate indicated that the plaintiff’s medical expert, an orthopedic surgeon, would testify that the defendant violated the standard of care by failing to recognize that the decedent was a high-risk patient and by not opting for alternative treatments to surgery. The certificate also contained the required statement that no more than twenty percent of the expert’s activities were related to testifying as an expert witness.
At trial, the defendant argued that the plaintiff’s expert had not produced sufficient evidence of compliance with the twenty percent rule, and moved to disqualify him. The trial court denied the motion, and the jury returned a verdict for the plaintiff in excess of $900,000. After trial, the defendant renewed its objection as to the expert. The trial court reconsidered the issue, finding that it had erred in allowing the expert to testify, and entered judgment notwithstanding the verdict in favor of the defendant. The plaintiff then appealed the ruling.