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Court of Appeals Reissues Waldt Decision Essentially Unchanged

The Court of Appeals of Maryland has reissued its decision in University of Maryland Medical System v. Waldt, which was recalled several weeks ago after it was initially issued. In a cursory review of the reissued opinion, it appears that Chief Judge Bell has now joined the majority on the issue of whether a retired physician who was designated as plaintiffs' expert was properly prohibited from testifying because his involvement in litigation-related matters exceeded the 20% ceiling established by Maryland statutory law.

The majorityheld that the neuroradiology expert's endeavors in matters such as reading medical periodicals, observing surgeries, and consulting with other physicians could not be considered "professional activities" as defined by the statute and, therefore, his litigation-related activities when compared against his legitimate "professional activities" were higher than allowed by law. Chief Judge Bell, who originally dissented as to this portion of the decision,has now joined the majority, changing the decision from 4-3 to 5-2 on this issue.

The Waldt opinion remains a disappointment for medical malpractice attorneys representing plaintiffs. The disqualified expertwas nationally renowned in the area of neuroradiology. His disqualification occurred in part due to his retirement from the active practice of medicine in 2001. He was, however, extremely knowledgeable despite his retirement and despite having never performed the coiling procedure at issue.

The reissued opinion highlighted the expert's credentials as follows: "Dr. Debrun was educated in France and practiced inteventional neuroradiology for 45 years before retiring in July of 2001. He has held many positions in that field, including Chief of Neuroradiology at the University Hospital of Paris,Director of Neuroradiology at the University of London in Canada, Chairman of the Department of Radiology at Massachusetts General Hospital, Visiting Professor at Harvard Medical School, and Director of Interventional Neuroradiology at The Johns Hopkins Hospital in Baltimore. Dr. Debrun has lectured extensively and written hundreds of articles on the subject of neuroradiology. He has in the past performed over 30 coiling procedures to treat wide-neck aneurysms. Between 10 and 15 of those aneurysms were similar in size to Mrs. Waldt''s aneurysm. Because Dr. Debrun's retirement preceded the market release of the neuroform stent, he never performed a coiling procedure using that stent."

As stated in an earlier blog on the case, very few physicianswould have ever performed the subject procedure since it was contraindicated and not otherwise approved by the Food and Drug Administration. The trial court's rationale precluding the testimony of Dr. Debrun on the issue of whether proper informed consent was given, although not "clearly erroneous" in the appellate court's view, was in some respects, in this author's opinion, unjustified despite his lack of experience with the particular coiling procedure at issue.

The attorneys at Belsky, Weinberg & Horowitz are experienced medical malpractice attorneys who are keenly aware of the hurdles that must be cleared in order to obtain justice for our clients. Those hurdles continue to be erected by decisions like Waldt. We understand the odds and the burdens that come with handling malpractice claims successfully. Wefight to protect the rights of all clients and other individuals injured at the hands of negligent medical providers. Please contact us if you wish to discuss a particular case or issue with one of our attorneys.

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