University of Maryland Medical System Corp. v. Waldt

RAKER, Judge,

dissenting, joined ELDRIDGE, J.

I respectfully dissent. Few people favor a “professional expert witness.” I certainly do not. In my view, however, Dr. Debrun is not a professional expert witness and does not fall into the category of witnesses precluded from testifying in medical malpractice cases by the Maryland 20 percent rule. I agree with the well-reasoned opinion of the Court of Special Appeals in which the court held that the activities testified to by Dr. Debrun are not “professional activities that ‘directly involve testimony in personal injury cases,’ ” and therefore, he was not precluded from testifying as an expert witnesses under Md.Code (1976, 2006 Repl. Vol., 2008 Supp.), Courts and Judicial Proceedings Article, § 3-2A-04(b)(4). See Waldt v. UMMS, 181 Md.App. 217, 254, 956 A.2d 223, 244-45 (2008). I disagree, however, with the Court of Special Appeals’ and the majority’s holding with regard to the informed consent issue.

I.

The critical phrase in C.J. § 3-2A-04(b)(4) is that an expert “may not devote annually more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims.” Both the Court of Special Appeals and the majority opinion agree that the term “the expert’s professional activities” is ambiguous. See Waldt, 181 Md.App. at 241, 956 A.2d at 237. The majority defines the phrase as an activity which “must contribute to or advance the profession to which the individual belongs or involve the individual’s active participation in that profession,” drawing a distinction between “the hours spent furthering one’s profession versus the hours spent on personal or leisurely pursuits.” Maj. op. at 226, 983 A.2d at 123.

*243The Court of Special Appeals interprets “professional activities” under § 3-2A-04(b)(4) as simply a “general term for those activities that relate to the health care profession of the expert witness.” Waldt, 181 Md.App. at 243, 956 A.2d at 238. The Court of Special Appeals followed the command set out in Witte v. Azarian, 369 Md. 518, 801 A.2d 160 (2002), in which this Court stated that the statutory language limiting expert witnesses had to be read narrowly, so as to avoid creating an unreasonable impediment to the pursuit, or defense of a common law right of action for medical negligence. Id. at 533-34, 801 A.2d at 169-70. Witte set out the following factors to be considered in making the 20 percent rule determination:

“A more reasonable approach, we think, is to regard the statute as including only (1) the time the doctor spends in, or traveling to or from, court or deposition for the purpose of testifying, waiting to testify, or observing events in preparation for testifying, (2) the time spent assisting an attorney or other member of a litigation team in developing or responding to interrogatories and other forms of discovery, (3) the time spent in reviewing notes and other materials, preparing reports and conferring with attorneys, insurance adjustors, other members of a litigation team, the patient, or others after being informed that the doctor will likely be called upon to sign an affidavit or otherwise testify, and (4) the time spent on any similar activity that has a clear and direct relationship to testimony to be given by the doctor or the doctor’s preparation to give testimony.”

369 Md. at 535-36, 801 A.2d at 171. The Court of Special Appeals held that Dr. Debrun’s activities did not fall within the Witte proscribed activities and that “[bjecause Dr. Debrun had been in active practice within five years of the time of the allegedly negligent act or omission (December 2002), he was qualified, at least temporally, to testify as an expert witness for the Waldts.” Waldt, 181 Md.App. at 245, 956 A.2d at 239.

According to the majority, Dr. Debrun did not satisfy the 20 percent rule because most of his activities did not qualify as “professional activities” and, of those that did, more than 20 *244percent were directly related to his work as an expert witness. Maj. op. at 281, 983 A.2d at 126. The majority’s interpretation of “professional activities” is not supported by ordinary principles of statutory construction nor by case law in other jurisdictions that have considered similar issues. The majority’s construction is a bald interpretation, with no support whatsoever.

The majority’s definition of professional activities confuses, rather than clarifies, the meaning of “professional activities.” No guidelines are provided to establish what qualifies as “contributing to or advancing” a profession and, by itself, the phrase is impossible to understand. Many professionals do not seem to contribute to or advance the profession to which they belong. For example, tax professionals routinely concentrate on applying settled principles of taxation and family physicians apply settled principles of medicine to diagnose a common cold. Under the majority’s theory, does the application of settled principles “advance” a profession or maintain the status quo? The majority’s definition also does not explain at what point in time courts should assess whether a professional activity has “contributed to or advanced” a profession. Since- this phrase is inherently results oriented, determining whether an activity contributes to or advances a profession can often only be made after enough time has passed to assess the impact of the activity. If an activity, originally characterized by a court of law as not contributing to or advancing a profession, is later found to do so, would the court be required to review its initial determination? Lower courts are left in the dark after reading the majority’s opinion.

The second part of the majority’s definition of professional activities — activities which involve a professional’s “active participation” — does nothing to clear up the ambiguity. The majority explains that “active participation” is characterized by “action rather than by contemplation or speculation.” Maj. op. at 226, 983 A.2d at 123. A whole range of professions, however, from designers and architects to philosophers, mathematicians and medical practitioners, spend time contemplating or speculating on various methodologies, problem solving techniques or available resources to achieve professional ob*245jectives. Not all of this time spent on such contemplation leads to a contribution or advancement in the professional’s respective field. Yet, no one would dispute that such time is necessary to achieve professional objectives. Would the majority have us exclude these activities from consideration under the 20 percent rule? The standard set forth by the majority today leaves the lower courts on their own to craft an articulate standard to apply to the meaning of “professional activities.”

Factually, no more than 20 percent of Dr. Debrun’s professional activities “directly involved testimony in personal injury claims.” “Professional activities” are not expressly defined in § 3-2A-04(b)(4) or in any definition section in the Act. As this Court noted in Witte, the Legislature chose only to limit the extent of professional activities “directly involving testimony in personal injury claims” but did not interfere with or otherwise limit the scope of other categories of professional activities. Witte, 369 Md. at 535, 801 A.2d at 170. Webster’s Third New International Dictionary defines “professional” as “of, relating to, or characteristic of a profession or calling.” Webster’s Third New International Dictionary (1961). Based on the statute’s legislative history and the plain meaning of “professional,” professional activities are those activities that arise out of one’s vocation or calling.

In determining that “professional activities” must contribute to or advance the profession to which an individual belongs or involve the individual’s active participation in the profession, the majority does not reference the legislative intent of § 3-2A-04(b)(4) or its legislative history, nor does it rely on any Maryland case law that defines “professional activities.” Furthermore, the three cases referred to by the majority from other states in support of its construction of “professional activities” are not concerned with the definition of this phrase.1 *246Our sister states which have considered similar issues have emphasized that “professional activities” encompass a wide range of activities. For example, in Quintana v. United Blood Servs., Div. of Blood Sys., Inc., 811 P.2d 424, 430 (Colo.Ct.App.1991), the Colorado Court of Appeals considered the nature of “professional activities.” The court noted as follows:

“It is generally accepted that professions possess a number of defining characteristics in common, the first and foremost of which is individual autonomy and responsibility. Professionals are usually granted the right to determine the details of how their work will be performed. Moreover, they rely on peers to judge the quality of their work and behavior as professionals. Closely related, and a reflection of the profession’s right to determine its own conduct, is that professions generally compose and practice under codes of ethics which define rules of proper behavior.
Other characteristics of a profession include long formal training, undertaken in formalized institutions which are established to transmit the specialized knowledge of the profession and formal recognition of expertise through licensure and certification.
It is precisely these characteristics of professional activity which have long led the courts to grant the medical profession and other professions a ‘preferred position’ in which the *247accepted or customary practices of similarly trained and situated professionals are generally taken as conclusive evidence of the professional standard of care.”

Id. (internal citations omitted). In Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979, 984 (3d Cir.1988), the United States Court of Appeals for the Third Circuit defined a professional act as “one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill....”

At trial, Dr. Debrun testified that he engaged in the following activities: testifying as an expert witness, peer review of medical journals, reading journals, observing procedures during grand rounds, discussing patients with former colleagues, and attending medical educational conferences. The majority’s contention that these are not “professional activities” because they “do not actively contribute to the development or advancement of the field or involve Dr. Debrun’s active participation in the field,” Maj. op. at 230, 983 A.2d at 126, fails the test of common sense and leads to an absurd result. Dr. Debrun’s activities demonstrate active participation in the field of interventional neuroradiology and were not undertaken for personal gratification or as a leisurely pursuit, as the majority contends. Under the majority’s theory, are activities that arise out of one’s own vocation but do not satisfy the high threshold of “contributing to the development of the field or involving the individual’s active participation in the profession” considered “non-professional?” That appears to be the conclusion the majority would have us reach. The standard embraced by the majority would appear to exclude any physician who has retired from the clinical practice of medicine and does not teach medicine. Dr. Debrun’s participation in peer review, clinical rounds and physician consultations satisfy the definition of “professional activities.” Peer review of medical journals, reading journals, observing medical procedures, discussing patients with former colleagues, and attending conferences do not directly involve testimony in personal injury claims.

Applying this Court’s holding in Witte to this case, Judge Deborah Eyler, writing for the panel, stated as follows:

*248“The holding in Witte narrowly circumscribed those professional activities that ‘directly involve testimony in personal injury cases,’ and it is clear that the activities testified to by Dr. Debrun are not within the limited scope of that phrase. The activities are not any of those specifically enumerated in items (1) through (3) of the Court’s analysis in Witte, nor do they fall within the Court’s item (4), ‘time spent on any similar activity,’ ie., litigation-oriented activity ‘that has a clear and direct relationship to testimony to be given by the doctor or the doctor’s preparation to give testimony.’ [Witte, 369 Md. at 536, 801 A.2d at 171] (emphasis added). To the extent the trial court found that the five activities Dr. Debrun testified about in fact are activities that ‘directly involve testimony in personal injury cases,’ that finding was premised upon a legally incorrect reading of CJ section 3-2A-04(b)(4), and therefore was clearly erroneous. The record does not make entirely clear, however, whether the court ruled on the basis of that finding or ruled that the five general activities described by Dr. Debrun are not ‘professional activities’ at all, and therefore cannot be counted as part of the denominator for the 20 Percent Rule. If the latter was the court’s ruling, it too was legally incorrect.
A retired or non-practicing expert witness, ie., one without an existing clinical, teaching-based, or consulting practice, remains qualified to certify or testify about a negligent act alleged to have been committed or omitted not more than five years before he (or she) retired or ceased practicing. The 2004 Special Session amendments thus contemplated that some expert witnesses will be qualified to certify or testify based upon their experience in their field even though they no longer are in active practice in that field. As drafted and enacted, those amendments did not include language drawing a distinction between the ‘professional activities’ of an actively practicing health care provider expert witness and the ‘professional activities’ of a retired or non-practicing health care provider expert witness. Accordingly, this further confirms the legislature’s intention that *249the phrase ‘professional activities’ should have the same meaning with reference to a qualified practicing expert witness as it has with reference to a qualified retired/nonpracticing expert witness.
The trial court’s ruling excluding Dr. Debrun from testifying under the 20 Percent Rule was premised upon a contrary principle: that an expert witness health care provider who is not in active practice does not engage in ‘professional activities’ — ie., that to engage in any professional activity in a health care field, an expert witness at least must be practicing in that field. Because Dr. Debrun had been in active practice within five years of the time of the allegedly negligent act or omission (December 2002), he was qualified, at least temporally, to testify as an expert witness for the Waldts. It did not matter that his ‘professional activities’ did not include active treatment of patients.
The dictionary definition of ‘professional’ is ‘of, relating to, or characteristic of a profession.’ Merrlam-Webster’s Collegiate Dictionary 991 (11th ed. 2003). The five areas of activities Dr. Debrun described in his testimony — reading and peer editing of medical journals, consulting with colleagues about their ongoing cases, observing colleagues performing procedures, and attending medical conferences — all were related to interventional radiology, his profession, and as we have explained were not activities directly involved in testimony in personal injury cases, as that phrase was interpreted in Witte. Also as we have explained, those activities did not become ones directly involving testimony in personal injury cases merely because Dr. Debrun was retired; such a construction would run contrary to the legislature’s intention to allow certain retired or nonpracticing medical professionals to testify in malpractice cases. (If that were the case, a retired or non-practicing health care provider always would be devoting more than 20 percent of his or her ‘professional activities’ directly to testifying in personal injury cases.)
The evidence adduced before the court on the appellees’ motion in limine showed that Dr. Debrun devoted no more *250than 50 hours per year to professional activities related to testifying in personal injury cases, and that he devoted 559 hours per year to other professional activities. Assuming that the court credited those first level facts, and we see nothing to suggest that it did not, then a legally correct application of the 20 Percent Rule should have led the court to conclude that Dr. Debrun was not disqualified from giving standard of care expert testimony.”

Waldt, 181 Md.App. at 240-41, 244-46, 956 A.2d at 236-39.

I would hold that the application of the 20 percent rule by the Court of Special Appeals was correct.

II.

I disagree also with the majority’s holding with respect to the issue of informed consent. I disagree with the majority’s holding that “no testimony was proffered concerning the material risks of the procedure that would make our a prima facie case for informed consent.” Maj. op. at 236, 983 A.2d at 129.

In my view, the Waldts sufficiently proffered that their expert would testify that Dr. Zoarski failed to inform Ms. Waldt that the Neuroform stent had only been approved by the FDA in limited circumstances when the patient’s aneurysm is not amenable to surgical clipping. This knowledge concerning the limited extent of FDA approval of this stent is material to the issue of Ms. Waldt’s informed consent, and an issue which should have been presented to the jury. In this regard, I agree with the reasoning in Judge Adkins’s substantive discussion on the issue in Part II of her dissent.

Accordingly, I would reverse the judgment of the Court of Special Appeals, remand the case to that court with directions to reverse the judgment of the Circuit Court and to order a new trial on all issues.

Judge ELDRIDGE joins this dissenting opinion.

. All three of the cases referenced by the majority consider only very specific uses of an expert witness’s "professional time.” In Dawson v. Prager, 276 Kan. 373, 76 P.3d 1036, 1038 (2003), the statute at issue, Kansas Statute § 60-3412, required an expert witness in a medical malpractice action to devote at least 50% of his "professional time within the two-year period preceding the incident giving rise to the *246action ... to actual clinical practice in the same profession in which the defendant is licensed.” Similarly, the statute in Cornett v. Watauga Surgical Group, P.A., 669 S.E.2d 805, 807-08 (N.C.Ct.App.2008), makes no mention of "professional activities,” instead requiring that an expert witness offering testimony in a medical malpractice case must have devoted a majority of his or her "professional time" to "[t]he active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered,” or to "[t]he instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered.” Finally, in Goldstein v. Kean, 10 Ohio App.3d 255, 461 N.E.2d 1350, 1352 (1983), the statute at issue required an expert witness testifying in a medical malpractice suit to devote "three-fourths of his professional time to the active clinical practice in his field of licensure, or to its instruction in an accredited university.”