In a June 6th opinion in the case of Brian C. DeMuth, et al. v. Walter William Strong, the Maryland Court of Special Appeals found that a vascular surgeon could testify as an expert that an orthopedic surgeon had breached the standard of care in his treatment of the plaintiff and that the breach had caused plaintiff’s injuries. The case involved a vascular complication post-operatively.

In the Circuit Court for Cecil County Md., Walter William Strong, the appellee, sued Brian Charles DeMuth, M.D., and Brian C. DeMuth, M.D., P.A., (collectively, “Dr.DeMuth”), the appellant, for medical malpractice. Dr. DeMuth is a board certified orthopedic surgeon. The case was tried before a jury for four days. Over objection, Mr. Strong called a board certified vascular surgeon as an expert witness; that expert testified that Dr. DeMuth had breached the standard of care in his treatment of Mr. Strong and that the breach had caused Mr. Strong’s injuries. The jury deliberated for 35 minutes and returned a verdict in favor of Mr. Strong for $1,682,751.93.

DeMuth appealed, contending that when the lower court allowed Dr. Johanning, a vascular surgeon with no expertise in orthopedic surgery, to testify as an expert witness for the defense it violated provisions of the Maryland Health Care Malpractice Act (“the Act”). 

In 2005, upon experiencing pain in his knees due to arthritis, Mr. Strong became a patient of Dr. DeMuth, a board certified orthopedic surgeon. Mr. Strong was then 65, had diabetes and a history of heart disease, and was a heavy smoker. Otherwise, he was in good health and led an active life.

Mr. Strong was eventually needed total knee replacements for both knees. In November 2007, at Harford Memorial Hospital, Dr. DeMuth performed total knee replacement surgery on Mr. Strong’s right knee. The operation was a success and Mr. Strong recovered well. On Thursday, February 14, 2008, also at Harford Memorial Hospital, Dr. DeMuth performed total knee replacement surgery on Mr. Strong’s left knee. He experienced significant postoperative complications which led to the lawsuit.

Immediately after the surgery, Strong complained of feelings of numbness and tingling in his left foot. Dr. DeMuth examined him and concluded that the sensations either were from the anesthesia not having completely worn off or because Strong had experienced an injury to the peroneal nerve known as “neuropraxia.” Neuropraxia is not a serious condition, as it usually resolves quickly on its own without any residual effects. Also, neuropraxia is not a vascular condition.

Dr. DeMuth’s postoperative examination of Strong did not show any signs of a lessening of blood flow to the left leg, and he did not perform any additional studies.  Also, Dr. DeMuth did not consult a vascular surgeon. The next morning, Strong was examined by a physician’s assistant for Dr. DeMuth. During that examination, Mr. Strong could not move the toes of his left foot or bend his toes upward. Nursing notes later that day documented that Mr. Strong was experiencing decreased sensation in his left foot and that the pulse in his left foot was “very weak.” 

In the middle of the night on Saturday, February 16, the nurse tending to Mr. Strong noted that he not only had numbness and lack of sensation of the left foot but also the foot was cool to the touch. Between 12:30 a.m. and 4:00 a.m., the nurse left a message with Dr. DeMuth’s answering service reporting that Mr. Strong was experiencing coolness and continuing numbness in his left foot. At 8:00 a.m. that same day, Strong could not move his left foot at all and had lost all sensation in it. The foot appeared swollen and the toes were cold. Dr. DeMuth concluded, as he had before, that Strong was experiencing neuropraxia.

A nursing examination at 1:00 a.m. on Sunday, February 17, revealed that Mr. Strong’s left foot was cool and numb, that he could not move it, and that his pedal pulses were weak. Also, Mr. Strong’s left calf was tight and bruised. He was not experiencing pain, but previously he had been put on pain medication. The condition of his leg continued to get worse over the next 36 hours and on Tuesday  the 19th, for the first time, Dr. DeMuth performed a Doppler examination, which revealed no pedal pulses in Mr. Strong’s left leg or foot. DeMuth ordered additional tests and consulted with a vascular surgeon. After doing so, he diagnosed Mr. Strong with “compartment syndrome” of the left calf. That syndrome is characterized by swelling of the tissue casings covering the leg muscles which severely impedes blood flow in the extremity. If not treated quickly and successfully, it causes muscle death, nerve injury, and other serious complications, potentially requiring amputation of the limb.

At around 3:00 p.m. that day (February 19), Dr. DeMuth performed a fasciotomy on Mr. Strong’s left leg. The goal of that operative procedure is to restore blood flow to the leg.  Unfortunately, the fasciotomy failed to restore blood flow and Strong was transferred to the Upper Chesapeake Medical Center, where vascular surgeons performed an embolectomy, a procedure to remove a blood clot, in a last-ditch effort to save the leg. When that failed, Mr. Strong’s left leg was amputated above the knee. 

On August 7, 2009, Mr. Strong filed suit for medical negligence against Dr. DeMuth. During discovery, Mr. Strong identified two expert witnesses: Michael Baumgaertner, M.D., a board certified orthopedic surgeon, and Jason Johanning, M.D., a board certified vascular surgeon. Their depositions were taken before trial.

Dr. Johanning testified that he became board certified in vascular surgery by training for five years in general surgery and then training in vascular surgery. He explained that, during his training in general surgery, and later as a consultant to orthopedic surgeons, he became familiar with the postoperative management of orthopedic surgical patients and the standards of care for postoperative management of orthopedic surgical patients. He further testified that, due to the “anatomical location and the components of the leg,” “there is a lot of overlap” between what vascular and orthopedic surgeons do to diagnose “postoperative extremity trauma.” Dr. Johanning was accepted by the court as an expert witness in vascular surgery and in the postoperative vascular management of patients.

Dr. Johanning also testified that Dr. DeMuth deviated from the standard of care multiple times between February 14 and February 16 by not evaluating the blood flow to Mr. Strong’s left foot. He also said had DeMuth taken the proper steps to have blood flow evaluated on the morning of February 15, the lack of blood flow to Mr. Strong’s left foot would have been clearly identified as a serious problem, and one that required treatment by a vascular surgeon; that a vascular surgeon would have been brought in; and that the vascular surgeon would have treated Mr. Strong so that his leg would have been saved “without any significant deficits.” Dr. Johanning further testified that, had Dr. DeMuth complied with the standard of care on the morning of February 16, Mr. Strong’s left foot would have recovered because “the foot is more resistant to ischemia.”

Dr. DeMuth contends the trial court ruled in violation of CJP section 3–2A–02(c)(2)(ii) 1B and 2 by permitting Dr. Johanning to testify that he departed from the standard of care in his treatment of Mr. Strong. Before trial, DeMuth filed a motion in limine seeking to preclude Dr. Johanning from opining about the standard of care. The court reserved on the motion, and DeMuth renewed it when Dr. Johanning took the stand. The court denied the motion but granted Dr. DeMuth a continuing objection to Dr. Johanning’s testimony.

Dr. DeMuth’s contention was based upon CJP section 3–2A–02(c), which concerns the expert witness testimony necessary to prove liability of a defendant health care provider in a malpractice case that depends upon proof of a breach of the standard of care. Subsection (c) reads [with emphasis added]:

(1) In any action for damages filed under [the Act], the health care provider is not liable for the payment of damages unless it is established that the care given by the health care provider is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

(2)(i) This paragraph applies to a claim or action filed on or after January 1, 2005.

(ii)1. In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert or testifies in relation to a proceeding before a panel or court concerning a defendant’s compliance with or departure from standards of care:

A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and

B. Except as provided in subsubparagraph 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant. 2. Subsubparagraph 1B of this subparagraph does not apply if:

A. The defendant was providing care or treatment to the plaintiff unrelated to the area in which the defendant is board certified; or

B. The health care provider taught medicine in the defendant’s specialty or a related field of health care.

Dr. DeMuth’s argument focused on subsubparagraphs (c)(2)(ii)1B and 2, which pertain to board certification. Under those provisions, if the defendant is board certified in a specialty, then to be qualified to testify that the defendant departed from (or adhered to) the standard of care an expert witness also must be board certified “in the same or a related specialty.”  DeMuth maintained that Dr. Johanning’s board certification in vascular surgery is not a board certification in the same specialty (orthopedic surgery) or in a “related specialty” and that neither of the exceptions from the board certification requirement (as set forth in subsubparagraphs (c)(2)(ii)2A and B) were satisfied. Therefore, Dr. Johanning was not qualified to render standard of care opinions at trial, and should have been precluded from doing so.

The appeals court based its decision that Dr. Johanning WAS qualified to testify based on its interpretation of the word “related” in the phrase “related specialty”. The court said:

The purpose of the Act, to cull out non-meritorious medical malpractice cases, would not be advanced by the very narrow construction of the word “related”proposed by Dr. DeMuth: that board certification specialties cannot be “related” if they are regulated by different boards, require different training regimens, or concern different aspects of human anatomy or physiology. As Mr. Strong points out, those all are necessary characteristics of distinct health care specialties, but they do not foreclose the conclusion that specialties, or fields of health care, may be related.

We conclude, however, that in the context of the malpractice allegations in this case, the specialties of orthopedic surgery and vascular surgery overlap, so that the board certification specialties are “related” within the meaning of CJP section 3-2A-02(c)(2)(ii)1B. In the case at bar, Dr. Johanning was not called to testify as an expert in orthopedic surgery; rather, he was called to testify as “an expert in vascular surgery, including postoperative management of orthopedic surgical patients.” (Emphasis added.) In other words, Dr. Johanning did not give and was not being asked to give standard of care testimony about the performance of the knee replacement surgery itself. Rather, his opinions focused solely on the postoperative care and treatment of patients who have undergone that surgery.
In his testimony, Dr. Johanning explained how the specialties of orthopedic surgery and vascular surgery are related in the postoperative period of care for orthopedic patients.

Read the full decision below: