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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 195 September Term, 2011

BRIAN C. DeMUTH, ET AL. v. WALTER WILLIAM STRONG

Eyler, Deborah S., Zarnoch, Berger, JJ.

Opinion by Eyler, Deborah S., J.

Filed: June 6, 2012

This medical malpractice case calls upon us to determine the meaning of a certain prerequisite a health care provider expert must satisfy to sign a certificate of qualified expert or to testify about the standard of care, as set forth in Md. Code (1974, 2006 Repl. Vol.), section 3-2A-02(c)(2)(ii)1B of the Courts and Judicial Proceedings Article ("CJP"), which is part of the Maryland Health Care Malpractice Act ("the Act").1 The prerequisite, enacted in 2005 as part of emergency legislation regarding medical malpractice claims, states that, when a defendant health care provider is board certified in a specialty, an expert witness attesting that the defendant deviated from (or complied with) the standard of care must be board certified in the same or a "related specialty," with certain exceptions. It is the meaning of "related specialty" that is the primary question before us. In the Circuit Court for Cecil County, Walter William Strong, the appellee, sued Brian Charles DeMuth, M.D., and Brian C. DeMuth, M.D., P.A., trading as Chesapeake Sports and Orthopedics (collectively, "Dr. DeMuth"), the appellant, for medical malpractice. Dr. DeMuth is a board certified orthopedic surgeon. The case was tried to 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

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The Act is codified at CJP sections 3-2A-01, et seq.

for $1,682,751.93.2 Dr. DeMuth timely filed motions for judgment notwithstanding the verdict and for new trial ("post-trial motions"), which were denied. He then noted the instant appeal. Dr. DeMuth poses three questions for review, which we have consolidated, reordered, and reworded: I. Did the trial court rule contrary to the Act by allowing a board certified vascular surgeon to testify about the standard of care applicable to a board certified orthopedic surgeon? Did the trial court err by denying Dr. DeMuth's motion for partial summary judgment, a requested jury instruction, and post-trial motions?

II.

Finding no error, we shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS In 2005, upon experiencing pain in his knees due to arthritis, Mr. Strong became a patient of Dr. DeMuth, who, as noted above, is 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. Ultimately, a decision was reached for Mr. Strong to have 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,

The verdict was comprised of $650,000 in non-economic damages; $177,751.93 in past medical expenses; and $855,000 in future medical expenses. 2

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Dr. DeMuth performed total knee replacement surgery on Mr. Strong's left knee. That surgery did not result in a positive outcome and the care rendered, or not rendered, in the postoperative period for that surgery is at the heart of this case. Immediately after the February 14, 2008 surgery, Mr. Strong complained of feelings of numbness and tingling in his left foot. Dr. DeMuth examined Mr. Strong and concluded that the sensations either were from the anesthesia not having completely worn off or because Mr. 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. Two to three percent of people who undergo total knee replacement surgery experience neuropraxia. Also, neuropraxia is not a vascular condition, that is, one related to blood flow. Dr. DeMuth's postoperative examination of Mr. Strong did not show any signs of a lessening of blood flow to the left leg, such as decreased pedal pulses (i.e., pulses in the foot). Dr. DeMuth did not perform, as part of the examination, an "ankle brachial index" test ("ABI"), in which the blood pressure in the arm and the ankle are compared, or a Doppler ultrasound examination. Each is a tool used to assess the likelihood that there has been a vascular complication of surgery. Also, Dr. DeMuth did not consult a vascular surgeon. The next morning, Friday, February 15, Mr. Strong was examined by Malcolm Hughes, 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 3

the pulse in his left foot was "very weak." That afternoon, Dr. DeMuth and Mr. Hughes discussed Mr. Hughes's examination of that morning and Dr. DeMuth reviewed Mr. Strong's medical records remotely, by computer, which was his usual practice. By then, the effects of the anesthesia could not have been an issue. Dr. DeMuth's diagnosis was that Mr. Strong was experiencing neuropraxia. A nursing note from the afternoon of that same day (Friday, February 15) documents that Mr. Strong was complaining of numbness and decreased sensation to his left lower extremity, and that the pedal pulses were very weak. Later that night, another nurse wrote a note stating that Mr. Strong was continuing to have numbness of the left foot and that he could not move it. 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, and that he was completely unable to move that foot. At 8:00 a.m. that same day, Mr. Hughes examined Mr. Strong. He found that Mr. Strong could not move his left foot at all and had lost all sensation in it. Also, the foot appeared swollen and the toes were cold. Mr. Hughes called Dr. DeMuth, who asked him to perform his examination once again with Dr. DeMuth on the telephone line. Mr. Hughes's examination did not change. Dr. DeMuth concluded, as he had before, that Mr. Strong was experiencing neuropraxia. A nursing note later that day stated that Mr. Strong had bruising 4

to his calf. 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 medications both intravenously and by mouth. The records do not indicate that Mr. Hughes examined Mr. Strong that morning. That afternoon (Sunday, February 17) Dr. DeMuth came to the hospital and examined Mr. Strong. Dr. DeMuth noted improved sensation on the bottom of Mr. Strong's left foot. He saw that Mr. Strong's left calf was swollen. He did not perform any vascular tests, such as an ABI or a Doppler examination, or obtain a consult from a vascular surgeon. He continued with the diagnosis of neuropraxia, which he thought was resolving. He scheduled Mr. Strong to be discharged from the hospital on February 19. On Monday, February 18, Mr. Hughes examined Mr. Strong and found that his left foot was pale in color, cold, immobile, had limited sensation, and exhibited a weak pulse. Nursing notes from that day reveal that Mr. Strong's left calf remained bruised and tight, cool to the touch, and pale, and that he had weak pedal pulses. Mr. Hughes reported his findings to Dr. DeMuth, who continued to believe that Mr. Strong had neuropraxia, and ordered physical therapy for him. That same day (February 18) when Mr. Strong attempted physical therapy, he was unable to walk more than eight feet and said he was experiencing pain in his left calf at a level of "ten out of ten," despite still being on pain medication. This was reported to Dr. 5

DeMuth. On Tuesday, February 19, in the early morning hours, Mr. Strong told the nurses treating him that the pain in his left calf was even worse than before. The nurses noted that and that there was additional swelling in Mr. Strong's left calf. (Mr. Strong was still on pain medication.) During the early afternoon of that day, Dr. DeMuth came to the hospital and examined Mr. Strong. He could not find any pulse in Mr. Strong's left foot. At that point, Mr. Strong was reporting pain in his calf at a level of "twelve out of ten," notwithstanding pain medication. For the first time, Dr. DeMuth performed a Doppler examination, which revealed no pedal pulses in Mr. Strong's left leg or foot. Dr. DeMuth ordered an ABI and other 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. If not treated successfully, it can cause muscle death, nerve injury, and other serious complications. 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. The operation involves cutting the casing of tissue that surrounds the compartments of the muscles in the leg that have become swollen. Unfortunately, the fasciotomy failed to restore blood flow to Mr. Strong's left leg. Thereafter, Mr. Strong was transferred to the Upper Chesapeake Medical Center, where vascular surgeons performed an embolectomy, i.e., a procedure to remove a blood clot, in a last ditch effort to save Mr. Strong's left leg. When that procedure also was not successful, Mr. Strong's left leg was amputated above the knee. 6

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. At trial, Mr. Strong called Dr. Baumgaertner as an expert witness on the standard of care and Dr. Johanning as an expert witness on the standard of care and causation. Both experts also testified about damages. Dr. Baumgaertner is on the faculty of the Yale University School of Medicine and as of the time of trial was performing about 250 to 400 surgeries a year, including total knee replacement surgeries. He was accepted by the court as an expert in orthopedic surgery and orthopedic postoperative management. He opined that Dr. DeMuth had breached the standard of care several times between February 14 and 17, 2008, by failing to reconsider his diagnosis of nerve injury (neuropraxia) in the face of physical evidence contradicting that diagnosis, failing to order an ABI, failing to order a Doppler examination, and failing to obtain a consult from a vascular surgeon. Dr. Baumgaertner testified that the symptoms that Mr. Strong was showing were inconsistent with a nerve injury and instead were signs that he was experiencing progressive ischemia, i.e., restriction of the blood supply to the tissues of his left foot and leg, thus causing a shortage of oxygen and other nutrients needed to keep the tissues alive. According to Dr. Baumgaertner, if Dr. DeMuth had taken any of the steps required by the standard of care, the vascular injury that Mr. Strong was experiencing would have been diagnosed and treated in a timely manner. 7

Dr. Baumgaertner further testified that the compartment syndrome, which first started to develop in Mr. Strong on February 17, and became full blown by February 19, was: Beyond any reasonable doubt with all medical probability . . . nothing other than the final -- the getting to the end of the road of ischemic muscle. It is not the cause. It is the result of a prolonged, progressive worsening loss of blood flow into the muscle. Dr. Baumgaertner opined that when compartment syndrome develops a fasciotomy must be performed to release the pressure that is building up in the swollen area. 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, he became familiar with the postoperative management of orthopedic surgical patients; also, during his training in vascular surgery and later as a consultant to orthopedic surgeons for patients before and after total knee replacement surgeries, he became familiar with 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." He stated that he was familiar with the standard of care applicable to orthopedic surgeons in the postoperative management of total knee replacement patients. Dr. Johanning was accepted by the court as an expert witness in vascular surgery and in the postoperative vascular management of patients. Dr. Johanning 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

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left foot. He also testified that, had Dr. 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. Johanning went on to opine that, "around the evening of the 18th or 19th . . . essentially the blood flow to the whole lower leg [was] lost." He testified that, due to the progressive loss of arterial blood supply to Mr. Strong's left leg, by approximately 8:00 p.m. on the night of February 16, 2008, Mr. Strong's left foot was no longer salvageable. He further opined that, probably starting in the evening of February 16, due to the continued untreated ischemia to the left leg, Mr. Strong started to develop compartment syndrome, which became full blown by February 19. Dr. Johanning summarized that, in his opinion, Mr. Strong experienced "a progression of thrombosis [i.e., clotting] of what we call the outflow. In other words, the vessels . . . in the foot and in the calf had clotted off, which caused the swelling of the muscles in the leg, which caused the compartment syndrome." Dr. Johanning explained that the severe restriction of blood flow began in Mr. Strong's left foot and moved up into his left leg, culminating in the compartment syndrome, which is an extremely painful condition. The 9

continuing breaches of the standard of care by Dr. DeMuth after that time caused Mr. Strong additional harm because the blockage of arterial blood flow to Mr. Strong's lower left leg continued to progress up the leg -- from the toes to the calf -- causing the calf to swell, "marked pain," and the compartment syndrome. We shall include additional facts in our discussion of the issues.

DISCUSSION
I. Dr. DeMuth contends the trial court ruled in violation of CJP section 3-2A02(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, Dr. 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 Dr. 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 is 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: (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 10

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 focuses 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." (Emphasis added.)3 Dr. DeMuth maintains that Dr. Johanning's board

certification in vascular surgery is not a board certification in the same specialty (orthopedic

Dr. DeMuth concedes that, as a vascular surgeon, Dr. Johanning performed consultations relating to the clinical practice of orthopedic surgery, as he regularly consulted with orthopedic surgeons about the proper treatment of their postoperative patients for vascular problems; therefore, subsubparagraph (c)(2)(ii)1A was satisfied. 11

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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.4 On the "related specialty"issue, Dr. DeMuth argues that, if orthopedic and vascular surgery are related specialties, then "all surgical specialties are related." He points out that the certification process for orthopedic surgery and vascular surgery are regulated by different specialty boards, and that certification in each specialty requires a different training regimen. As Dr. DeMuth puts it, "the two specialties deal with completely different anatomical systems -- bones and blood." Mr. Strong responds that, under the interpretation of the phrase "related specialty" advanced by Dr. DeMuth, "to be `related' is actually to be the same," which is not reasonable, as subsubparagraph (c)(2)(ii)1B requires the expert witness to be board certified in "the same or a related specialty." (Emphasis added.) Mr. Strong maintains that the mere fact that recognized specialties are regulated by different boards is not significant; it shows

Dr. DeMuth's argument seems to be that not only was it error by the court to allow Dr. Johanning to testify about the standard of care but also it was prejudicial error, in that it allowed two standard of care experts, instead of just one, to testify against him. There cannot be an argument that the court's decision to allow Dr. Johanning to testify on the standard of care provided Mr. Strong with proof of the breach of the standard of care element of the tort that he otherwise would not have been able to produce, as Dr. Baumgaertner is board certified in orthopedic surgery and also testified about departures from the standard of care. Moreover, the statute at issue does not apply to testimony regarding causation, so even if the statute were not satisfied, that would not mean that Dr. Johanning could not testify about the causation element of the tort. 12

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that the specialties are distinct but does not establish that they are unrelated. Mr. Strong argues that Dr. Johanning's testimony at trial was sufficient to show that vascular and orthopedic surgery are related specialties for the purpose of the medical issue in this case, i.e., the "postoperative care of knee surgery patients." "The meaning of statutory text is an issue we review as a matter of law" -- i.e., de novo. Univ. of Md. Med. Sys. Corp. v. Waldt, 411 Md. 207, 222 (2009) (determining the meaning of the phrase "professional activities" as used in CJP section 3-2A-04(b)(4), often referred to as the "20 percent rule"). Last year, in a case in which the Court of Appeals was called upon to interpret a provision of the Act, the Court restated the well-established principles of statutory construction: When undertaking an exercise in statutory interpretation, as in the present case, the goal is to "ascertain and effectuate the intent of the Legislature." In attempting to discern the intent of the Legislature, courts "look first to the plain language of the statute, giving it its natural and ordinary meaning." If the language of the statute is clear and unambiguous, courts will give effect to the plain meaning of the statute and no further sleuthing of statutory interpretation is needed. If the sense of the statute is either unclear or ambiguous under the plain meaning magnifying glass, courts will look for other clues -- e.g., the construction of the statute, the relation of the statute to other laws in a legislative scheme, the legislative history, and the general purpose and intent of the statute. It is well-settled that a court must read a statute in the context of its statutory scheme, ensuring that "no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory," and that any illogical or unreasonable interpretation is avoided. Breslin v. Powell, 421 Md. 266, 286-87 (2011) (citations omitted). See also Town of Oxford v. Koste, ____ Md. App. ____, ____ Slip op. at 8 (filed April 26, 2012) (stating that issues of statutory construction can be resolved by "judicial consideration of three general factors: 13

1) text; 2) purpose; and 3) consequences"). The word "specialty" in the phrase "related specialty" in subsubparagraph (ii)1B -which, again, has only to do with board certification -- plainly means a particular area of health care for which certification by a board or boards exists. Here, orthopedic surgery and vascular surgery each are surgical specialties for which board certification exists. The less straightforward issue of statutory construction in this case is whether these specialties are "related." The word "related" is not defined in the Act. The dictionary definition of "related," in the sense in which it is used in the subsubparagraph in question, is "being connected; associated." AMERICAN HERITAGE DICTIONARY 1473 (4th ed. 2006). That simply refines the issue to what kind of connection or association must exist between one health care practice specialty for which there is board certification and another for the specialties to be "related" within the meaning of subsubparagraph (c)(2)(ii)1B. An examination of the entire text of CJP section 3-2A-02 (entitled "Exclusiveness of procedures") sheds minimal light on the meaning of "related specialty" in subsubparagraph (c)(2)(ii)1B. Subsections (a) and (b) of section 3-2A-02 establish the claims that are governed by the Act and prohibit inclusion of a specific ad damnum amount, respectively. Subsection (c)(1) addresses the nature of the breach of the standard of care testimony that is required to establish liability, i.e., that the health care provider did not adhere to "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 malpractice. This language has been present in CJP section 3-2A-02 since the inception of 14

the Act. By contrast, subsection (c)(2), with which we are concerned, addresses the qualifications an expert witness must possess to testify (or attest in a certificate of qualified expert) that the health care provider defendant breached (or complied with) the standard of care. Subsubparagraph (c)(2)(ii)1A applies to all cases in which an expert witness is certifying or testifying about a breach of the standard of care by the defendant, regardless of whether the defendant is board certified in a specialty. That subsubparagraph requires the certifying or testifying expert to have clinical, consultative, or teaching experience "in the defendant's specialty or a related field of health care." Or, if the defendant treated the plaintiff in a field of health care other than the defendant's specialty or a related field of health care, the expert must have clinical, consultative, or teaching experience in the field of health care in which the treatment was rendered. (In either situation, the expert must have had the required experience within 5 years of the date of the alleged malpractice.) The word "related" as a modifier of "field of health care" in subsubparagraph (c)(2)(ii)1A is used in the same sense (connected, associated) as the word "related" is used as a modifier of "specialty" in subsubparagraph (c)(2)(ii)1B. And the general qualifications in 1A that apply to all experts testifying about the standard of care track the specific qualifications the expert witness must have when the defendant is board certified. In the board certification subsubparagraph 1B, the expert must be board certified in the same or a related specialty, just as in the preceding, general, subsubparagraph, the expert must have experience (clinical, consultative, or teaching) in the same health care specialty as the 15

defendant or a related field of health care. Also, the exception to the board certification qualification that applies when the defendant provided care or treatment to the plaintiff unrelated to the area in which the defendant is board certified, see subsubparagraph (c)(2)(ii)2A, mirrors that part of the general qualification requirement that states that, when the defendant has treated the plaintiff in a specialty or field of health care other than the defendant's specialty or field of health care, the expert's experience must be in the specialty or field of health care in which the treatment was rendered. See CJP

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