When patients bring a medical malpractice lawsuit, it’s not always clear who should be named on it.
A patient suffering a stroke during surgery, for instance, may name the surgeon or he may blame other providers who cleared him for surgery in the first place. Since preoperative clearance is often jointly performed by multiple parties, culpable parties may include the patient’s primary care provider, anesthesiologist, and any other party who gave a stamp of approval before the patient was wheeled into surgery.
A lawsuit that neglects to include one of the involved parties may leave the door open for the “empty chair defense.”
The empty chair defense
The empty chair defense is a strategy in which the defendant or defendants seek to place the blame, in whole or in part, on an involved party who is not named in the lawsuit. For example, the plaintiff in the scenario above may sue the surgeon and cardiologist who signed off on the procedure but neglect to name the anesthesiologist who “cleared” the patient to undergo anesthesia. The defense may then make a case that anesthesia played a role in the patient’s stroke complications and that the anesthesiologist was negligent in signing off on the procedure. If the trier of fact ultimately apportions liability to the “empty chair” as a non-party at fault, the plaintiff may face a defense verdict or reduction in the jury’s award. In situations where a plaintiff’s verdict was harmed by an “empty chair” that their attorney failed to name, the aggrieved plaintiff may raise a claim of legal malpractice against their own counsel.
Why is the chair empty?
A chair may be empty for a number of reasons. The missing party’s potential exposure may have been overlooked, the party may have been dismissed from the lawsuit for procedural reasons, or the plaintiff may have reached a settlement with the party before trial. Each of these situations creates logistical hurdles and threats that must be addressed proactively.
American Radiology Services v. Reiss
In August 2020, the Maryland Court of Appeals created a higher standard for defendants who use the empty chair defense. In American Radiology Services, LLC, et al v. Martin Reiss, the Court held that expert testimony is required to establish that a non-party physician was negligent and caused injury to the plaintiff. “To establish medical negligence, it is necessary to determine whether a physician breached a duty of care, and whether the breach caused the plaintiff’s injury,” the decision read. “Under our jurisprudence, expert testimony is required to establish medical negligence and causation when such matters are outside the common knowledge of jurors. To the extent that a defendant elects to raise non-party medical negligence as part of its defense, the defendant has the burden to produce admissible evidence to allow a jury to make a finding on that issue.”
Case history
In 2011, Martin Reiss was diagnosed with a kidney tumor and an adjacent enlarged lymph node. Dr. Julio Davalos, a urologist, surgically removed the cancerous kidney but did not remove the lymph node, even though it was believed to be cancerous, because of its proximity to the inferior vena cava. Reiss was subsequently treated by Dr. Russell DeLuca, an oncologist, who concurred with Dr. Davalos’ decision. Reiss’ lymph node shrunk in response to chemotherapy, confirming it was cancerous. Between 2011 and 2015, Dr. DeLuca ordered periodic follow-up CT scans of the lymph node and the surrounding area, and they were interpreted by radiologists Dr. Victor Bracey and Dr. Sun Kee Ahn, who found no sign of abnormal enlargement, although Dr. Bracey noted that the scans were “suboptimally evaluated” because they were performed without intravenous contrast dye which enhances clarity. In September 2015, radiologist Dr. Elizabeth Kim interpreted a non-contrast CT scan and found “soft tissue density” in the vicinity of the lymph node, which could indicate an enlarged or diseased lymph node. Dr. Kim noted that the “soft tissue density” was “somewhat inseparable from the inferior vena cava” and had “increased in size” when compared to a 2011 scan. A biopsy confirmed the lymph node was cancerous, and Dr. DeLuca advised Reiss that it was inoperable. Reiss sought a second opinion, but oncologist Dr. Eugene Ahn agreed with Dr. DeLuca.
Reiss filed a medical malpractice action against Dr. Davalos and his practice and Dr. Bracey and Dr. Ahn and their employer, American Radiologists LLC. Reiss alleged that the cancerous lymph node could and should have been removed in 2011 but had become inoperable because of the defendants’ negligence. Reiss alleged that Dr. Davalos breached the standard of care by failing to remove the lymph node when he removed the kidney. He further alleged that Dr. Bracey and Dr. Sun Kee Ahn breached the standard of care by failing to alert the oncologist of the alleged growth of the diseased lymph node when it could have been safely removed. But Reiss dismissed his claims against Dr. Davalos and his urology practice prior to trial, leaving the radiologists as the sole defendants.
At trial, the radiologists testified that they did not breach the standard of care because the CT scans did not show an abnormally enlarged lymph node and that they warned Dr. DeLuca that the non-contrast CT scan was more difficult to review.
Further, the radiologists argued that Reiss’ injuries were caused by the conduct of the non-party physicians, Dr. Davalos, Dr. DeLuca, and Dr. Eugene Ahn. They pointed out that Dr. Davalos failed to remove the lymph node, that the two oncologists failed to consult a vascular surgeon concerning whether it could be removed, and that Dr. DeLuca failed to biopsy the lymph node.
But despite their assertions, the radiologists did not call expert witnesses to give opinions related to the standard of care or that any breach by the non-party physicians caused injury to Reiss. For instance, there was no expert testimony, to a reasonable degree of medical probability, that the standard of care required the urologist, Dr. Davalos, to remove the enlarged lymph node when he removed the kidney, or that the oncologists should have ordered a biopsy or referred Reiss to a surgeon to remove the lymph node.
The verdict
The jurors returned a verdict of more than $4.8 million in economic damages, but based on their answers on the verdict sheet, they had not followed instructions properly. The court advised the jurors that since they had found that the defendants had not breached the standard of care, it was unnecessary to consider the subsequent parts, including the damages portion and a question about whether the non-party physicians’ “negligent act or acts” had been a “substantial factor” in causing Reiss’s injuries, to which they had answered yes. Mr. Reiss’s counsel stated the jury’s affirmative response to this question “is probably why” they responded no to the questions about the defendants’ breach.
After further deliberating, the jury returned another verdict finding that the defendants had not breached the standard of care, and no damages were awarded. Reiss moved for a new trial on the basis of the verdict sheet. The court denied his motion, and he appealed. The Court of Special Appeals reversed the judgment of the lower court and remanded the case for a new trial, a decision that was upheld by the Court of Appeals when the radiologists appealed.
“The radiologists could not generate a defense of non-party medical negligence without suitable expert testimony, to a reasonable degree of medical probability, that the non-party breached the standard of care,” the intermediate appellate court found. Because the radiologists presented no such testimony, the court concluded that the circuit court had erred in submitting the question of non-party medical negligence to the jury. Further, the Court of Special Appeals found that the inclusion of the question on the verdict sheet was prejudicial.
