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Charles Marcantonio, Personal Representative of The Estate of Sherri Schaefer, et al. v. Melissa Moen, M.D., et al., No.4, September Term, 2008
HEADNOTE: SUMMARY JUDGMENT--MARYLAND RULE 2-501(e), CONTRADICTORY AFFIDAVITS OR STATEMENTS--

In a wrongful death and survivorship action, Petitioners submitted affidavits from two expert witnesses who opined that the Respondents' negligence proximately caused the decedent's death. The trial court granted Respondents' motions to strike the affidavits on the basis that they materially contradicted the experts' prior deposition testimony in violation of Md. Rule 2-501(e). The affidavits were improperly stricken as they do not materially contradict the experts' prior deposition testimony within the meaning of Maryland Rule 2-501(e). Rule 2-501(e) does not define "material contradiction," and thus, we interpret the terms as they are ordinarily and popularly understood in the English language. An affidavit materially contradicts prior sworn testimony in violation of Rule 2-501(e) when it contains a statement of material fact that is significantly contradictory to, or irreconcilable with, the affiant's prior sworn statement.

In the Circuit Court for Anne Arundel County Civil

IN THE COURT OF APPEALS OF MARYLAND No. 4 September Term, 2008

CHARLES MARCANTONIO, Personal Representative of The Estate of Sherri Schaefer, et al. v. MELISSA MOEN, M.D., et al.

Bell, C.J. Harrell Battaglia Greene Eldridge, John C. (Retired, Specially Assigned) Raker, Irma S. (Retired, Specially Assigned) Wilner, Alan M. (Retired, Specially Assigned),

JJ.

Opinion by Greene, J. Harrell and Wilner, JJ., Concur.

Filed: November 5, 2008

In this case we must determine whether the Circuit Court for Anne Arundel County erred in striking the affidavits of two proposed expert witnesses pursuant to Maryland Rule 2-501(e). Because we conclude that it was error to strike the affidavits, we shall hold that the Circuit Court improperly granted summary judgment in favor of Respondents, Melissa Moen, M.D. et. al ("The Medical Providers"),1 on the basis that Petitioners, Charles Marcantonio, et al. ("Marcantonios"), failed to establish that The Medical Providers' negligence was the proximate cause of Sherri Schaefer's death.
I.

In August of 2000, Sherri Schaefer visited her gynecologist, Melissa Moen, M.D., and informed Dr. Moen that she was experiencing abnormal vaginal bleeding. It is alleged that Dr. Moen ordered a transabdominal and transvaginal pelvic ultrasound to aid her in determining the cause of the bleeding, but failed to perform an endometrial biopsy at that time.2 The ultrasound was performed on September 11, 2000, and subsequently interpreted by radiologist, Paula DeCandido, M.D. When interpreting the ultrasound, Dr. DeCandido failed to report a 1.5 centimeter mass located on Ms. Schaefer's right ovary. After the August and September, 2000 visits, Ms. Schaefer continued to experience

"The Medical Providers" refers to Respondents Melissa Moen M.D., Paula DeCandido, M.D., Anne Arundel Diagnostics, Inc., Womens OB/GYN, P.A., and Anne Arundel Medical Center, Inc. The National Cancer Institute, Dictionary of Cancer Terms, defines endometrial biopsy as "a procedure in which a sample of tissue is taken from the endometrium (inner lining of the uterus) for examination under a microscope." http://www.cancer.gov/dictionary (last visited Oct. 14, 2008). There is a dispute between the parties as to whether Dr. Moen recommended that an endometrial biopsy be performed during the August 2007 visit.
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physical problems and complained to Dr. Moen of pelvic symptoms and irregular bleeding. In April of 2001, Dr. Moen performed an endometrial biopsy of Ms. Schaefer's uterus and discovered that Ms. Schaefer had endometrial cancer. In May of 2001, after being diagnosed with cancer, Ms. Schaefer began treatment with Robert Bristow, M.D., a gynecological oncologist, at the Johns Hopkins Medical Center. Dr. Bristow operated on Ms. Schaefer in June of 2001; however, the operation did not help Ms. Schaefer survive her cancer. Dr. Bristow continued to treat Ms. Schaefer until her death on May 18, 2005. Prior to her death, Ms. Schaefer and her husband, Charles Marcantonio, filed a cause of action for medical negligence against The Medical Providers alleging that they negligently failed to diagnose and treat Ms. Schaefer's endometrial and ovarian cancer in August and September of 2000. Specifically, the complaint alleged that Dr. Moen breached the applicable standard of care by failing to perform an endometrial biopsy in August of 2000 and that Dr. DeCandido breached the standard of care by failing to report the 1.5 centimeter mass disclosed as a result of Ms. Schaefer's September 2000 ultrasound. After Ms. Schaefer's death, Charles Marcantonio amended the complaint to add wrongful death and survivorship claims against The Medical Providers. II. The depositions of two of the Marcantonios' expert witnesses, Drs. Hutchins and Shmookler, are pertinent to our review of this case. At his deposition, Dr. Hutchins testified that he believed to a reasonable degree of medical probability that Dr. Moen departed from the applicable standard of care in failing to perform an endometrial biopsy of Ms. Schaefer's
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uterus during or shortly after Ms. Schaefer's August 2000 visit. Dr. Hutchins opined that if Dr. Moen had performed the endometrial biopsy, she would have been able to properly diagnose and treat Ms. Schaefer's condition. Dr. Hutchins' exact words were as follows: My opinion is that in response to the abnormal bleeding [Dr. Moen] was required to do an endometrial biopsy as soon as is possible. The longer you wait, the more likely the patient is to suffer the consequences of the delay. And the whole time period from the 25th of August until ultimately the biopsy was done, in that whole time period, I guess we would have to say until [Dr. Moen] did it, she was in breach of the standard of care. Moreover, Dr. Hutchins indicated that had Ms. Schaefer's condition been properly diagnosed and treated in August or September of 2000, she would have had an 80 percent chance of survival. During the course of the deposition, the following exchange also occurred: Counsel: Are you going to be rendering an opinion within reasonable medical probability as to M[s]. Schaefer's cause of death? Dr. Hutchins: No. In a subsequent affidavit, Dr. Hutchins stated: This will confirm that I hold the following opinion within a reasonable degree of medical probability: Dr. Moen's failure to properly diagnose Ms. Scheaffer's [sic] condition as an early carcinoma of the uterus, and/or a precancerous lesion and/or some form of hyperplasia in August or September of 2000 and the resultant failure to begin immediate treatment were the proximate cause of Ms. Scheaffer's [sic] death. The second expert witness, Dr. Shmookler, testified at his deposition that the 1.5 centimeter mass on Ms. Schaefer's right ovary that Dr. DeCandido failed to report in

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September of 2000 was in all probability benign, yet a precursor to cancer. He went on to opine that had Ms. Schaefer's condition been properly diagnosed in September 2000, that in all medical probability, her cancer would have been curable. Later in his deposition, the following exchange occurred: Counsel for The Medical Providers: Do you have an opinion to a reasonable degree of medical probability as to what [Ms. Schaefer's] staging[3] was in July of 2001? Dr. Shmookler: No, I don't, because as I said, that's more

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