BY ERIKA BUTLER, email@example.com
8:00 PM EDT, June 19, 2012
A judgment in a medical malpractice case against a prominent Harford County physician has been sent back to the local court to be re-tried.
In May 2010, a Harford County Circuit Court jury returned a verdict against Dr. Roger Schneider and Dr. Mark Gonze and Vascular Surgery Associates LLC and awarded Victoria Little, of the 1200 block of Annhurst Court in Belcamp, damages of $2,874,398 (reduced from $3,557,398). The suit stemmed from a surgical procedure Little had done in July 2007 that has left Little paralyzed from the waist down.
She sued Schneider, Gonze and Vascular Surgery Associates as well as Dr. Michael Eves and Northern Chesapeake Anesthesia Associates, for whom the jury returned a verdict in favor of, saying her surgery was done improperly and she suffered from unexpected complications.
Schneider, who is chairman of the board of directors of Upper Chesapeake Health, which operates Harford's two hospitals, Upper Chesapeake Medical Center in Bel Air and Harford Memorial Hospital in Havre de Grace, appealed the Harford County jury's finding to the Maryland Court of Special Appeals; Gonze and Vascular Surgery Associates did not. The circuit court case was tried before Harford Judge Stephen Waldron.
Schneider appealed the jury's decision on four issues: that the circuit court was wrong to prohibit a 2007 CAT scan as evidence; that the circuit court was wrong to allow Schneider's lack of board certification as evidence; that the circuit court "abused its discretion" by allowing an expert witness, Dr. Thomas Dodds, to testify on the issue of cause; and that the circuit court was wrong to conclude Little and her lawyers met the burden of proving cause based on Dodds' testimony.
In a decision issued June 1 and written by Judge Stuart R. Berger, the appellate court's three-judge panel determined that the CAT scan could have played a key role in the jury's finding and that Schneider's lack of board certification should not have been allowed to be discussed.
The panel ruled, however, that Dodds could testify as an expert witness and he could rule on the cause of Little's incapacitating injuries.
In the opinion, presented to a panel that also included Judge Albert J. Matricciani Jr. and James R. Eyler, Berger writes that because of the nature of the suit filed by Little, in which she claims the wrong size graft was used in an axillobifemoral bypass, a procedure to repair a blocked aorta, the CAT scan that could have accurately determined the size of Little's aorta, hence if the graft size chosen was proper, should have been admitted as evidence.
"The CAT scan was clearly relevant," Berger wrote.
Little's lawyers argued that because it was not discussed during the discovery phase of the case and because it was not provided to Little and her lawyers until two weeks before the trial began, the CAT scan should not be allowed as evidence. Schneider and his team countered that the scan was on one of two CDs given to Little's lawyers during the discovery phase and that even if didn't get them then, her lawyers got a copy two weeks before the trial started but waited to raise the issue until after her expert witnesses had completed their testimony.
As for Schneider's lack of board certification, which Schneider filed a motion before the trial began to be excluded as evidence, the information was permitted once the trial began. During pre-trial motions, Waldron said Schneider's lawyers would engage in "puffing" of Schneider and that Little's lawyers would want to "smudge up [Schneider's] halo a little bit." He said Little could not discuss Schneider's lack of certification, but the issue could be revisited during the trial.
When it came up again, after Schneider's background – including his efforts to build Upper Chesapeake Medical Center - was reviewed by his lawyer, Little's lawyers asked Waldron to reconsider his opinion on Schneider's lack of certification. Waldron subsequently reversed his opinion and allowed the certification issue to be brought before the jury.
During closing arguments, Little's lawyer said, according to the appellate decision: "Every physician who testified in this case was board certified except for Schneider." And Schneider's opinions "regarding the importance of board certification served to diminish his credibility."
Schneider argued that when he completed his medical training, vascular surgery was part of general surgery and not a specialty. He had been board certified in general surgery but his certification lapsed because he only practiced vascular surgery and not general surgery. After Schneider began practicing as a vascular surgeon, a separate board certification for vascular surgery was created, but Schneider never sought to obtain it, according to the case records.
The appellate panel determined, however, that Schneider's lack of board certification was not relevant to this case.
Both of those errors by the circuit court — not including the CAT scan as evidence and allowing the certification issue as evidence — could have had an effect on the jury's verdict, the appellate judges wrote. As a result, the Court of Special Appeals reversed the circuit court jury's decision and remanded the case back to the circuit court for a new trial.