Network Firm News

Monday, January 07, 2008

The Court of Special Appeals of Maryland affirmed summary judgment obtained by Goodell, DeVries, Leech & Dann's Craig B. Merkle and Marianne DePaulo Plant in favor of their client, an obstetrician/gynecologist, in a wrongful death claim based on alleged medical malpractice. In the underlying proceedings, plaintiffs asserted that the defendant doctors failed to timely diagnose their patient's endometrial and ovarian cancer. However, during discovery depositions, plaintiffs' medical experts were unable to articulate the impact of this alleged delay in diagnosis, and conceded that even after the alleged delay the patient had a fifty to sixty percent likelihood of surviving her cancer. GDLD moved for summary judgment at the close of discovery. In opposing GDLD's motion for summary judgment, plaintiffs submitted the affidavits of two experts containing previously-undisclosed opinions on cause of death. The Circuit Court for Anne Arundel County struck the affidavits for materially contradicting the experts' prior sworn testimony, and entered summary judgment in favor of the defendants.

The Court of Special Appeals reviewed and affirmed both rulings, stating that to recover under the wrongful-death act, a plaintiff in Maryland must prove that the negligence of the defendant caused the wrongful death of another. The Court observed that none of plaintiffs' experts testified in deposition that the death was caused by the defendants, and that a causal connection could not be inferred from the testimony of these experts. The Court further held that proof that the defendants’ alleged negligence reduced the decedent’s chance of survival by twenty to thirty percent (i.e., from eighty percent to between fifty and sixty percent) did not show a ‘probability’ that the alleged negligence caused the decedent to die.

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