Opinion
Civ. No. L-97-3393.
July 1999.
MEMORANDUM
This medical malpractice case was assigned to me for a jury trial, with the consent of the parties. 28 U.S.C. § 636(c); Local Rule 301. The case was tried with commendable skill and professionalism by counsel during the week of June 21, 1999. The defendants made motions pursuant to Fed.R.Civ.P. 50(a) at the close of the plaintiff's case, and again at the close of evidence. Both motions were denied. The case went to the jury late in the afternoon of June 25th. Within a short time, a note was received from the foreperson of the jury advising that the jury was unable to reach a unanimous verdict. Because the jury had deliberated for only a short time, the case was recessed for the weekend, and resumed on Monday, June 28, 1999. Again, within a short time, a note was received from the foreperson of the jury advising that the jury was unable to reach a unanimous verdict. At that time, an Allen instruction was given to the jury, and they returned to their deliberation. Shortly thereafter, a third note was received from the jury advising that they still could not reach a unanimous verdict, and were not likely to do so with additional deliberations. A mistrial was then declared. Defendants filed a timely motion pursuant to Rule 50(b)(2)(B), renewing the same grounds asserted in their Rule 50(a) motions. In essence, they argue that the evidence was deficient as a matter of law to establish a prima facie case of malpractice against the defendants, because there was insufficient evidence to support a decision by a reasonable jury that the defendants had violated the standard of care in their treatment of the plaintiff. For the reasons explained below, the defendants' motion is granted.
Allen v. United States, 164 U.S. 492 (1896); United States v. Sawyers, 423 F.2d 1335 (4th Cir. 1970); United States v. Burgos, 55 F.3d 933 (4th Cir. 1995).
The motion has been fully briefed, Paper nos. 31, 33, and 34, and is ripe for resolution. Counsel did not provide, or request time to provide, transcripts of any portions of the trial testimony. The tape recordings of the testimony made by the court reporter were, unfortunately, unintelligible. Accordingly, the facts summarized in this memorandum and order are based on my trial notes as well as my recollection of the testimony.
BACKGROUND
On August 4, 1992 defendant Doctors Lowe and Buhrer, both board certified plastic surgeons, performed brachioplasty surgery on the plaintiff, Ms. Leonard. Ms. Leonard, a dental hygienist, had lost a substantial amount of weight, leaving loose folds of skin hanging from both of her arms, running from the shoulder to the elbow. She was concerned that this skin would interfere with her ability to care for her patients, and requested that it be removed. The procedure, colloquially referred to as an "arm lift," involved making an incision on the underside of each arm, from just above the elbow to the beginning of the armpit, and removing subcutaneous fat, and excess skin, resulting in a "tightening" of the skin around the arms following the surgery. The procedure was done under general anesthesia in the defendants' office. Dr. Lowe worked on one of the plaintiff's arms, Dr. Buhrer, on the other. Ms. Leonard asserts that following the surgery, and as a result of it, she developed bilateral lymphedema, a permanent, incurable condition of the lymph system, characterized by pain, swelling, infections, fever, and abscesses. Ms. Leonard repeatedly sought treatment for this condition from a plethora of doctors in several states, and claimed that as a result of her injuries she was permanently disabled and completely unable to work and lead a normal life.
Affecting both of her arms.
Dr. James Salander, one of plaintiff's many treating physicians, testified at trial that the lymphatic system is a circulatory system parallel to, and at least as extensive as, the venous system which moves blood throughout the body. The lymph system consists of a complex system of channels or vessels running throughout the entire body. Within this system, lymph fluid circulates, passing through lymph nodes which are located at many places within the body. Lymph nodes act as filters for the lymph fluid. The primary functions of the lymph system is to combat infection and tumors.
Among the many doctors who testified at trial were Doctors Freedman, Gold, Weintraub, Walder, Salander, Manson, and Kinzer, each of whom had at one time treated Ms. Leonard. There was substantial disagreement among these doctors as to whether Ms. Leonard had lymphedema, or if so, to what degree, and whether her many other medical problems, including obesity, diabetes, and cervical spine problems caused or contributed to her complaints. More than one of these doctors testified that she may have had a personality disorder or other mental condition which influenced the accuracy of her description of symptoms.
At trial, Doctors Lowe and Buhrer testified that they properly performed the brachioplasty on Ms. Leonard, and that in doing so, they never went far enough below the surface of the skin to damage the lymph vessels or nodes. Each emphatically denied invading the axilla, or armpit area, within which lymph nodes are located. Further, they testified that their incisions did not drop below the elbow, and therefore did not affect lymph nodes located in that area. Although the defendants admitted that they failed to prepare a post-operative report describing the surgery, they testified that, based on their personal observation of the operation, they had followed proper procedures in the actual performance of the brachioplasty.
Ms. Leonard called Dr. Bruce Freedman, a board certified plastic surgeon, as her standard of care expert. He testified that he conducted a physical examination of Ms. Leonard in January, 1996, and reviewed some, but not all, of the thousands of pages of medical records pertaining to her. He expressed the opinion that Ms. Leonard suffered from bilateral upper extremity lymphedema which was caused by the August 4, 1992 surgery. He further testified that Doctors Lowe and Buhrer deviated from the standard of care in performing the surgery, because, in his view, a brachioplasty, properly done, would not result in the patient developing lymphedema. Dr. Freedman, who had limited experience performing brachioplasties, acknowledged that lymphedema was not a likely result of a brachioplasty, so much so that as part of the informed consent procedure, plastic surgeons — including himself before he became acquainted with Ms. Leonard's case — did not even warn patients that it was a possible adverse result of such surgery. Dr. Freedman theorized that Doctors Lowe and Buhrer invaded the axillary space of both of Ms. Leonard's arms during the surgery, damaging the lymph nodes located there in the process. While he acknowledged that any time surgery is done — even when the standard of care is complied with — some damage to the lymphatic system can occur, he nonetheless theorized that the defendants were negligent because the surgery resulted in an unexpected, bad result. Thus, according to Dr. Freedman, the fact that Ms. Leonard developed lymphedema following surgery meant that Doctors Lowe and Buhrer each had been negligent. Dr. Freedman's opinion that the defendants violated the standard of care was based on his training and experience as a plastic surgeon. He referred to no learned treatises, studies or similar materials to support his opinion that the development of lymphedema in a patient following surgery is sufficient to support a determination that the surgery was negligently performed.
Dr. Freedman also testified that it was a violation of the standard of care for Doctors Lowe and Buhrer not to have prepared a post-operative surgical note, which the defendants did not deny. However, there is no causal connection between the failure to prepare a post-operative record and the injuries the plaintiff claims to have suffered by the performance of the surgery itself. Therefore, the failure to prepare a post-operative report, taken alone, would not be sufficient evidence to enable a jury reasonably to find in favor of the plaintiff.
Among the many doctors who testified at trial was Dr. James Salander, a vascular surgeon who once treated Ms. Leonard. He testified that the lymphatic system is so pervasive that any surgical invasion into the body can affect it. Similarly, Dr. Paul Manson, the head of plastic surgery at Johns Hopkins University, and another former treating physician of Ms. Leonard, testified that lymphedema can result from a properly performed surgical procedure, and — in fact — one of his patients had developed lymphedema following leg surgery.
DISCUSSION
Fed.R.Civ.P. 50(b)(2)(B) provides that if a court does not grant a motion for judgment as a matter of law ("JAML") at the close of all the evidence, a party may renew its request for JAML by filing a motion within ten days after entry of a judgment, after which the court may, if no verdict was returned by the jury, order a new trial or direct entry of judgment as a matter of law. The standard for granting a Rule 50(b) motion is the same as for granting a motion for JAML before the case is submitted to the jury, pursuant to Rule 50(a). Wheelahan v. G.D. Searle, No. 86-1598, 1987 WL 267679, at * 2 (4th Cir. 1987); Marder v. G.D. Searle, 630 F. Supp. 1087, 1088 (D. Md. 1986). The mere fact that the trial judge denied the Rule 50(a) motions during trial does not prohibit the granting of post trial motions seeking the same relief, pursuant to Rule 50(b). PPM Am., Inc. v. Marriott Corp., 875 F. Supp. 289, 295 (D. Md. 1995).
In ruling on a Rule 50(b) motion, a court must consider the record as a whole, viewing the evidence presented in the light most favorable to the party against whom the motion is made. Id. at 293. A JAML should be entered if insufficient evidence was presented to support a verdict for the non-moving party, and the court should grant a motion in favor of the defendant if the plaintiff failed to produce substantial evidence to support his or her claim. Id. In evaluating the evidence which was introduced at trial, speculative or conjectural inferences are not sufficient to support a verdict in favor of the party opposing the JAML motion, and more than a "scintilla" of evidence is required. Id. Further, an issue may be removed from the jury if evidence establishes a "mere possibility," but not a probability, of proof to support the non-moving party's case. Id.; see also Wheelahan, 1987 WL 267679, at *2 (in ruling on a Rule 50(b) motion, the court must determine whether the evidence taken in the light most favorable to the non-moving party is sufficient to support the motion); Marder, 630 F. Supp at 1089 (purely conjectural and speculative questions should not go to the jury); Havird Oil Co. v. Marathon Oil Co., 149 F.3d 283, 289 (4th Cir. 1998) (in ruling on a Rule 50(b) motion, court must determine whether there is substantial evidence in the record upon which the jury could find for the non-moving party; where the non-moving party has the ultimate burden of proof and fails to produce sufficient evidence to support its cause of action, the JAML motion should be granted).
The trial court must determine whether the evidence produced at trial was sufficient to permit a jury reasonably to return a verdict for the non-moving party, giving the benefit of every reasonable inference to the non-moving party. Sales v. Grant, 158 F.3d 768, 775 (4th Cir. 1998). However, the court may not weigh the evidence or judge the credibility of the witnesses, but must grant the Rule 50(b) motion if the only conclusion a reasonable jury could draw favors the moving party. Id.; see also De Jarnette v. Corning, 133 F.3d 293, 297 (4th Cir. 1998); Business Dev. Corp. of North Carolina v. United States, 428 F.2d 451, 453 (4th Cir. 1970) (even though resolution of inferences must be left to the jury, it is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests upon mere speculation and conjecture).
Finally, while state law governs substantive issues in a diversity case such as this, federal law governs the trial functions between the judge and jury, and whether there is sufficient evidence to create a jury issue is a matter of federal procedural law. Fitzgerald, 679 F.2d at 346; Marder, 630 F. Supp at 1088.
Where proof of a critical element in a claim depends on expert testimony, courts have not hesitated to grant a motion for a JAML if it is determined that the expert's testimony was speculative or otherwise insufficient. As this court has noted, "there must be some basis beyond mere theory and speculation" for an expert's opinion to withstand a Rule 50(b) motion. Marder, 630 F. Supp at 1093. Moreover, just because an expert's testimony was admitted at trial does not preclude the possibility of removing the case from the jury at a later stage, if it is determined that, in its totality, the evidence produced at trial is not sufficient to withstand a Rule 50(b) motion. Id. at 1094; see also PPM Am. Inc., 875 F. Supp at 295 (finding it appropriate to grant a Rule 50(b) motion following a mistrial, when the non-moving party's case "dealt with mere possibilities rather than probabilities," and where plaintiff's proof was merely theoretical). The Fourth Circuit also has acknowledged the authority of a trial court to reject expert testimony which amounts to mere "subjective opinion," declining to agree that "it is so" just because "an expert says it is so." Redman v. Brush, 111 F.3d 1174, 1179 (4th Cir. 1997); see also Wheelahan, 1987 WL 267679, at *4 (granting a Rule 50(b) motion on grounds that the opinions of the plaintiff's experts lacked a sufficiently reliable scientific basis and was therefore inadequate to meet the plaintiff's burden of proof; noting that an expert's scientific or medical opinion is sufficient to withstand a JNOV if the basic methodology employed to reach the conclusion is sound; expert opinion based on sound scientific evidence but also in part on speculation is not sufficient).
The plaintiff in a medical malpractice action bears the burden of proving that the defendant breached the applicable standard of care, and that this breach proximately caused the injuries allegedly sustained. See Weimer v. Hetrick, 309 Md. 536 (Md. 1987); Dunham v. Elder, 18 Md. App. 360 (Md.Ct.Spec.App. 1973). Unless the alleged malpractice involves one of the rare circumstances where the defendant is negligent as a matter of law, expert testimony usually is required to establish the appropriate standard of care, as well as its breach. See Johns Hopkins Hosp. v. Genda, 255 Md. 616 (Md. 1969); Suburban Hosp. Assoc. v. Hadary, 22 Md. App. 186 (Md.Ct.Spec.App. 1974). In this case, Dr. Freedman was the only witness who testified on behalf of the plaintiff to prove that Doctors Lowe and Buhrer violated the standard of care when they performed the brachioplasty surgery on the plaintiff's arms. If, under the standards described above, Dr. Freedman's testimony is insufficient to establish a breach of the standard of care, then the defendants' Rule 50(b) motion must be granted.
Reduced to its essentials, Dr. Freedman's conclusion that the defendants were negligent is based on the fact that lymphedema is not an expected result of a brachioplasty, and the fact that the plaintiff developed it following the surgery convinces him that the defendants had to have been negligent. While it is established law in Maryland that "the mere fact that an unsuccessful result follows medical treatment is not itself evidence of negligence", Kennelly v. Burgess, 337 Md. 562, 571 (Md. 1995), the plaintiff correctly notes that an expert witness may use the unsuccessful result as the basis for his opinion that there was negligence. Id. at 575; Luckey v. Kan, 115 Md. App. 1, 4-5 (Md.Ct.Spec.App. 1997). However, whether the expert's opinion that negligence occurred because of a bad result following treatment has sufficient weight to withstand a Rule 50(b) motion is a matter of federal, not state, law. Fitzgerald, 679 F.2d at 346, Marder, 630 F. Supp at 1088. Thus, my task is to determine whether Dr. Freedman's opinion that the defendants violated the standard of care is sufficiently probative to establish that the defendants' alleged negligence was probable, not merely possible,see PPM Am. Inc., 875 F. Supp. at 295, and that his conclusions are solidly based, not simply the product of theory or speculation. Marder, 630 F. Supp. at 1093. In other words, it is not enough for a jury reasonably to conclude that the defendants were negligent, merely because Dr. Freedman says they were.Redman, 111 F.3d at 1179. In this regard, the process of evaluating Dr. Freedman's trial testimony for purposes of Rule 50(b) is not that different from a trial court's role in determining, under Fed.R.Evid. 104(a), 702 and 703, whether the expert should be permitted to testify in the first place. Thus, I am guided by the discussions of the United States Supreme Court inDaubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999), which explain how to evaluate expert testimony. For reasons which I will now discuss, I conclude that, taken as a whole, Dr. Freedman's opinion that Doctors Lowe and Buhrer were negligent is speculative, not supported by a sufficient factual basis, and at best, establishes that the defendants possibly were negligent, not that their negligence was probable.
As noted above, there was conflicting evidence at trial as to whether the plaintiff has lymphedema. However, there was sufficient evidence to support the conclusion that she does, and so, for the purposes of this motion, I am required to assume that the plaintiff does have lymphedema as a result of the surgery performed by the defendants.
First, Dr. Freedman examined the plaintiff more than four years following her surgery, after she had sought extensive treatment in several states for her complaints. He relied on the plaintiff's explanation of her medical history, and did not review all of the available medical records, numbering in the thousands, which shed light on whether her description of her symptoms was fully credible. As noted above, had he done so, he would have learned that there was contradictory evidence regarding the plaintiff's true condition, which should have warned him to proceed cautiously in taking her described symptoms at face value. Further, although Dr. Freedman believed that the defendants may have removed or otherwise damaged axillary lymph nodes, he did not test this hypothesis by ordering a MRI examination, which had been recommended by one of the plaintiff's treating physicians following a lymphoscintigram which appeared to be normal. Defendants' reply memorandum, Paper no. 34 at p. 1. As noted by the Supreme Court in Daubert and Kumho Tire, whether an expert's conclusion can be independently tested is an important factor in evaluating its reliability. Daubert, 509 U.S. at 593; Kuhmo Tire, 119 S.Ct. at 1175.
A diagnostic test to determine if a patient has lymphedema.
Further, Dr. Freedman's opinion that a patient cannot develop lymphedema following a properly performed procedure was not shown to have been a generally accepted theory within the medical community. Indeed, at trial, Doctor Manson, the chief of plastic surgery at Johns Hopkins University — who briefly treated the plaintiff — testified that lymphedema could result from a properly performed surgery. This opinion was consistent with that of Dr. Salander — who also briefly treated the plaintiff — that any surgical procedure could result in injury to the lymphatic system. Thus, the plaintiff did not establish that Dr. Freedman's opinion that lymphedema could not follow a properly performed surgical procedure was a generally accepted one within the medical community, another of the analytical factors identified inDaubert, 509 U.S. at 594 and Kumho Tire, 119 S.Ct. at 1175.
Similarly, Dr. Freedman identified no peer review studies or learned treatises which would support his views that if a patient develops lymphedema following surgery, negligence must have taken place. This factor, also identified in Daubert, 509 U.S. at 593 and Kumho Tire, 119 S.Ct. at 1175, further undermines the validity of Dr. Freedman's opinion. This, combined with the inherent improbability that both Dr. Lowe and Dr. Buhrer, operating independently on separate arms, committed the identical negligence at the same time, underscores the speculative nature of Dr. Freedman's opinion. Taken as a whole, evaluation of all of the above factors convinces me that Dr. Freedman's opinions were the stuff of theory and possibility, not probability, and so subjective and speculative that a jury reasonably could not find that the defendants deviated from the appropriate standard of care. The plaintiff, therefore, failed to establish an essential element of her claim, and the defendants' motion for a judgment as a matter of law must be granted.
Accordingly, it is this ___ day of July, 1999 ORDERED that the defendants' motion for judgment as a matter of law is GRANTED, and judgment is entered in favor of the defendants.
A separate order shall issue.
O R D E R
For the reasons stated in the foregoing Memorandum Opinion of even date, it is this ___ day of July, 1999, by the United States District Court for the District of Maryland, ORDERED:
1. That defendants' Motion for Judgment as a Matter of Law made pursuant to Fed.R.Civ.P. 50(b)(2)(B) is hereby GRANTED;
2. That judgment is hereby entered in favor of the defendants;
3. That the Clerk of the Court is directed to CLOSE this case;
4. That the Clerk of the Court is directed to mail a copy of this Memorandum and Order to counsel of record.