In what circumstances can a physician be found liable for wrongful death for failing to diagnose a condition earlier than it was diagnosed?

§ 3-902. Liability notwithstanding death

(a) An action may be maintained against a person whose wrongful act causes the death of another.

(b) If the death of a person was caused by a wrongful act, neglect, or default of a vessel, an action in rem may be maintained against the vessel.

(c) If a person whose wrongful act caused the death of another, dies before an action under this section is commenced, the action may be maintained against his personal representative.

[525 A.2d 649] Having these well-established legal principles in view, we now proceed to a consideration of the facts in proof, bearing in mind that the onus is on the plaintiff to show affirmatively all the elements of the right to recover. It was necessary for the plaintiff in this case to prove (1) the death of Miss Brady; (2), the negligence of the defendant, and (3), that such negligence was the cause of Miss Brady's death" (emphasis in the original).

85 Md. at 641-42, 37 A. at 264.

The applicability of the above Maryland rule to cases of negligence causing death grounded upon medical malpractice

Page 548

is equally well settled. In State, Use of Janney v. Housekeeper, 70 Md. 162, 16 A. 382 (1889), we said:

"It was the duty of the professional men to exercise ordinary care and skill, and this being a duty imposed by law, it will be presumed that the operation was carefully and skillfully performed in the absence of proof to the contrary. As all persons are presumed to have duly performed any duty imposed on them, negligence cannot be presumed, but must be affirmatively proved. Best on Presump. 68; R.R. Co. v. Chappell, 21 Fla. 175.

This principle is especially applicable in suits against physicians and surgeons for injuries sustained by reason of alleged unskillful and careless treatment. The burden of proof is on the plaintiff to show a want of proper knowledge and skill. Leighton v. Sargent, 31 N.H. 119; Baird v. Morford, 29 Ia. 531.

The court below committed no error in determining that it was incumbent on the plaintiff to prove affirmatively that the operation was performed without the consent of the patient, and also that her death was caused by unskillful and careless treatment of the physicians. Nor did the court commit any error in granting the defendants' second prayer, which enunciates the proposition that if death was caused by tubercular meningitis or other disease not produced by the operation, the defendants are not liable."

70 Md. at 171, 16 A. at 384.

The continuing applicability of the rule imposing the burden of proof upon the plaintiff in medical malpractice cases, is shown by Johns Hopkins Hospital v. Genda, 255 Md. 616, 621-22, 258 A.2d 595, 598-99 (1969).

"The Court in Housekeeper also approved the following prayer submitted by the defendant:

'That the degree of care and skill to be exercised by physicians and surgeons in the performance of an operation is not the highest degree of care and skill known to the profession but that reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients; and the burden of

Page 549

proof is on the plaintiffs in this case to establish by preponderating evidence a want of such ordinary care and skill in the performance of the operation and attendance upon the said Matilda C. Janney' (emphasis supplied)....

See also State, Use of Solomon v. Fishel, 228 Md. 189, 203, 179 A.2d 349 (1962); State, Use of Shockey v. Washington Sanitarium, 223 Md. 554, 558, 165 A.2d 764 (1960); Bettigole v. Diener, 210 Md. 537, 124 A.2d 265 (1956); State, Use of Kalives v. Baltimore etc. Hospital, 177 Md. 517, 526, 10 A.2d 612 (1940); Fink v. Steele, 166 Md. 354, 171 A. 49 (1934); Angulo v. Hallar, 137 Md. 227, 232, 233, 112 A. 179 (1920); Miller v. Leib, 109 Md. 414, 426, 72 A. 466 (1909); Dashiell v. Griffith, 84 Md. 363, 380-81, 35 A. 1094 (1896). See also Riley v. U.S., 248 F.Supp. 95, 97 (D.Md.1965).

In Kalives, supra, this Court stated:

'Before the equitable plaintiffs can recover against any of the defendants, it must be shown by affirmative evidence that they were either unskilled or negligent in their respective capacities, and that such want of skill or care resulted in the death of Mr. Kalives. If either of the above elements is lacking in the proof, [525 A.2d 650] then no case for the consideration of the jury has been presented....' "

The rule of law governing the burden of proof in medical malpractice cases was reiterated in Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020 (1983). In that case, involving survival and wrongful death actions, the late Judge Davidson, speaking for this Court, said:

"In Maryland, recovery of damages based on future consequences of an injury may be had only if such consequences are reasonably probable or reasonably certain. Such damages cannot be recovered if future consequences are 'mere possibilities.' Probability exists when there is more evidence in favor of a proposition than against it (a greater than 50% chance that a future consequence will occur). Mere possibility exists when the

Page 550

evidence is anything less. Davidson v. Miller, 276 Md. 54, 62, 344 A.2d 422, 427-28 (1975)."

296 Md. at 666, 464 A.2d at 1026.

We decline to accept appellees' suggestion that such careful and analytical jurists as Judges Sobeloff and Barnes intended the quoted language in Hicks, supra, to alter, without discussion, the rule of law governing the burden of proof so anciently formed and so uniformly applied in wrongful death cases under the Maryland statute.

Indeed, the circuit court for the Fourth Circuit itself has rejected such interpretation of those words. In Clark v. United States, 402 F.2d 950 (4th Cir.1968) that court said: "Certainly Hicks laid down no new rule of law with respect

Page 553

to either negligence or proximate cause...." Id. at 953 n. 4. That same court in Waffen v. U.S. Dept. of Health & Human Services, 799 F.2d 911, 915 (4th Cir.1986) said:

"The general principles which ordinarily govern in negligence cases also apply to medical malpractice claims under Maryland law. A prima facie case of medical malpractice must consist of evidence which (1) establishes the applicable standard of care, (2) demonstrates that this standard has been violated, and (3) develops a causal relationship between the violation and the harm complained of. Fitzgerald v. Manning, 679 F.2d 341, 346 (4th Cir.1982). As in any other case founded upon negligent conduct, the burden of proof in a medical malpractice claim rests upon the plaintiff. Shilkret v. Annapolis Emergency Hospital Ass'n, 276 Md. 187, 349 A.2d 245, 247 (1975); Paige v. Manuzak, 57 Md.App. 621, 471 A.2d 758, 766-67 (1984)." ⁷

We perceive no new ground having been plowed by Hicks or Thomas, both supra. Judge Sobeloff's philosophical paragraph in Hicks, quoted supra and cited in Thomas, created neither a new tort nor an additional basis for determination of damages in an existing tort. Whether it will prove to be an augury of a burgeoning new tort or introduce a new factor for consideration of damages in tort cases producing injury or death are issues for another day

Page 554

in another cause. We do not reach those issues. This is so because it is crystal clear that determination of such questions is impermissible in an action for wrongful death under the Maryland statute.

The Maryland statute is in derogation of the common law and as such, should be strictly construed. McKeon v. State, Use of Conrad, 211 Md. 437, 443, 127 A.2d 635, 638 (1956) and cases cited therein. In plain, unambiguous language, the statute provided a cause of action unknown to the common law for the benefit of described beneficiaries "against a person whose wrongful act caused the death of another " (emphasis added). In such circumstances, there is no room for judicial interpretation. Trimper v. Porter-Hayden, 305 Md. 31, 36, 501 A.2d 446, 449 (1985).

The commencement date for the determination of damages allowable to primary beneficiaries under the statute (both pecuniary and for solatium) is the date of the death of their decedent. No damages for injuries and losses sustained by their decedent prior to his death are provided for in the statute.

The enlargement of the statute requested by the appellees for recognition of a new tort or for consideration of a new measure of damages "cannot be accomplished in the guise of statutory construction." Trimper v. Porter-Hayden, supra, 305 Md. at 36, 501 A.2d at 449. The respective charge to the jury in Thomas, supra, and in the subject case, while couched in different words, both recognize the legal principle that a plaintiff beneficiary in an action under the wrongful death statute must show by a preponderance of the evidence that the conduct of a defendant was negligent and that such negligence was a proximate cause of the death of the decedent. ⁸

In wrongful death claims, plaintiffs face the challenge to demonstrate that the defendant proximately caused the decedent's death. Therefore, in an attempt to balance perceived inequities that occur under traditional

[278 A.3d 1273]

causation principles, some jurisdictions have adopted the loss of chance doctrine. In the medical malpractice context, the loss of chance doctrine allows the plaintiff to recover if the plaintiff can prove that the defendant's negligence caused the loss of chance of a better outcome, including survival. Other jurisdictions, including Maryland, have rejected the doctrine in favor of maintaining well-settled proximate causation principles, thus leaving to the state legislature the decision of whether to alter the proximate causation standard.

Applying these principles, we turn to the language of CJ § 3-902(a). Section 3-902(a) states that "[a]n action may be

[479 Md. 621]

maintained against a person whose wrongful act causes the death of another." We previously determined that the language of CJ § 3-902(a) is unambiguous, leaving no room for judicial interpretation. Weimer, 309 Md. at 554, 525 A.2d 643. Prior caselaw expanding upon the legal meaning of causation provides necessary context to our reading of CJ § 3-902(a).

Mr. Wadsworth erroneously relies on the common understanding of "causes" despite this Court's prior decisions elaborating on the legal meaning of cause. Consistently, we have recognized the requirement that plaintiffs prove by a preponderance of the evidence that the defendant directly and proximately caused the plaintiff's injury. See Henley v. Prince George's Cty., 305 Md. 320, 333, 503 A.2d 1333 (1986); Peterson v. Underwood, 258 Md. 9, 17, 264 A.2d 851 (1970). To satisfy proximate cause, the wrongful act or omission must be "(1) a cause in fact, and (2) a legally cognizable cause" of the injury. Pittway Corp. v. Collins, 409 Md. 218, 243, 973 A.2d 771 (2009) (citing Hartford Ins. Co. v. Manor Inn, Inc., 335 Md. 135, 156, 642 A.2d 219 (1994)). We require a legally cognizable cause because we acknowledge that there is often more than one cause to any effect. Therefore, proximate causation ensures that a defendant is not liable when the plaintiff's evidence provides "two or more equally likely causes of the injury, for only one of which [the] defendant is responsible." Peterson, 258 Md. at 17, 264 A.2d 851.

As illustrated fully below, we have consistently decided to keep traditional causation principles intact in wrongful death and survival claims. See Weimer, 309 Md. at 554, 525 A.2d 643; Fennell v. S. Md. Hosp. Ctr., Inc., 320 Md. 776, 794, 580 A.2d 206 (1990). Therefore, reading CJ § 3-902(a) consistently with the legal meaning of cause, it is clear that the plaintiff bears the burden of proving by a preponderance of the evidence that the alleged wrongful act or omission proximately caused the decedent's death.

The loss of chance doctrine permits recovery for the loss of chance resulting from a defendant's alleged wrongful or negligent conduct. In the context of medical malpractice, "the loss of chance doctrine permits a claimant to recover where a physician's breach of the standard of care ... caused the loss of a statistical chance of survival or of a better outcome." Tory A. Weigand, Lost Chances, Felt Necessities, and the Tale of Two Cities, 43 Suffolk U. L. Rev. 327, 349 (2010). Other loss of chance theories include recovery for "loss of chance of a

[479 Md. 624]

positive or more desirable medical outcome, loss of chance of avoiding some physical injury or disease, or a loss of chance to survive." Fennell, 320 Md. at 781, 580 A.2d 206.

This Court has consistently rejected the loss of chance doctrine in deference to the General Assembly as the better forum to make policy determinations regarding the wrongful death statute. This Court's prior decisions in Weimer v. Hetrick and Fennell v. Southern Maryland Hospital Center, Inc. serve as the foundation of our review of loss of chance cases in Maryland.

Here, the undisputed facts demonstrate that Ms. Wadsworth's metastatic breast cancer caused her death. Depositions from Dr. Stark and Dr. Schneider revealed that once breast cancer metastasizes, "there is no cure" and "no one ... survives metastatic breast cancer [.]" Neither party presented

[479 Md. 632]

experts to opine that Ms. Wadsworth's likelihood of survival, absent Dr. Sharma's alleged negligence, exceeded fifty percent or that she would have survived if Dr. Sharma started treating her on the date that she produced the abnormal scan. According to the undisputed opinions from Dr. Stark and Dr. Schneider, Ms. Wadsworth did not have a greater than fifty percent chance of survival, absent Dr. Sharma's alleged negligence.

Without evidence to dispute that Ms. Wadsworth had a greater than fifty percent chance of survival, Mr. Wadsworth, as

[278 A.3d 1285]

a matter of law, cannot meet his burden to prove by a preponderance of the evidence that Dr. Sharma's alleged negligence caused Ms. Wadsworth's death. Therefore, Dr. Sharma correctly asserts that our decisions in Weimer and Fennell control.

In comparing Weimer and Fennell to the case before us, it is clear that Mr. Wadsworth pleaded a loss of chance case, which is not recognized in Maryland under the Wrongful Death Act. In Weimer and Fennell, both decedents did not possess a greater than fifty percent chance of survival, absent the alleged negligence. In Weimer, Ms. Hetrick opted for an emergency caesarean section with knowledge that her premature infant had a poor chance of survival. 309 Md. at 539, 525 A.2d 643. Although one expert testified that the infant decedent could have survived with proper resuscitation efforts, the autopsy revealed that the infant's death resulted from "eclampsia plus general anesthesia [that] led to fetal anoxia." Id. at 540, 525 A.2d 643. Likewise, in Fennell, an expert testified that, even with immediate and appropriate treatment for meningitis, the decedent had a forty percent chance of survival. 320 Md. at 780, 580 A.2d 206. In both Weimer and Fennell, this Court disposed of the cases through the decision to maintain the preponderance of the evidence standard in wrongful death and survival claims.

In essence, the decedents in Weimer and Fennell, absent the alleged negligence, did not possess greater than a fifty percent chance of survival. Because the plaintiffs could not

[479 Md. 633]

meet their burden to prove by a preponderance of the evidence that the alleged negligence caused the decedents’ deaths, this Court held in favor of the defendants for claims premised upon the loss of chance doctrine. Under the doctrine of stare decisis, we hold that Mr. Wadsworth's wrongful death claim cannot proceed because the loss of chance doctrine is not recognized in Maryland.

Therefore, the circuit court correctly determined that Mr. Wadsworth's case is a loss of chance case, which is not recognized in Maryland. Finding that "[i]t is without dispute that the proximate cause and the actual, sole cause of [Ms. Wadsworth's] death was the metastatic ... breast cancer [,]" the circuit court correctly granted Dr. Sharma's motion for summary judgment because Mr. Wadsworth could not meet his burden of proof as a matter of law. Additionally, the Court of Special Appeals correctly affirmed the circuit court's decision relating to the wrongful death claim.

CONCLUSION

For the foregoing reasons, we hold that Mr. Wadsworth pleaded a loss of chance case, which is not recognized in Maryland. Consistent with the plain language and legislative history of CJ § 3-902(a), principles of stare decisis, and our decisions in Weimer and Fennell, we hold that the plaintiff in a wrongful death claim bears the burden of proving, by a preponderance of the evidence, that the defendant's negligence proximately caused the decedent's death. Accordingly, we affirm the Court of Special Appeals regarding Mr. Wadsworth's wrongful death claim.

Because we determine that the Circuit Court incorrectly struck the affidavits of Drs. Shmookler and Hutchins, we hold that the Court erroneously entered summary judgment on the basis that the Marcantonios failed to establish sufficient evidence of proximate cause.¹⁶ Proximate cause involves a determination of causation in fact, which is "concerned with the . . . fundamental . . . inquiry of whether a defendant's conduct actually produced an injury." Peterson v. Underwood, 258 Md. 9, 16-17, 264 A.2d 851, 855 (1970). A plaintiff

[959 A.2d 776]

produces proof of causation legally sufficient to overcome summary judgment when the plaintiff shows that it is more probable than not that the defendant's negligence caused the alleged injury. Id. Taking into consideration the affidavits of Drs. Hutchins and Shmookler, the evidence of this case, when viewed in a light most favorable to the Marcantonios, raises genuine issues of material fact regarding causation.

In addition, we agree with the Marcantonios and with the Court of Special Appeals and conclude that this case does not involve the issue of "loss of chance" as that doctrine is defined by Maryland law. "Loss of chance" of survival refers to "decreasing the chance of survival as a result of negligent treatment where the likelihood of recovery from the preexisting disease or injury, prior to any alleged negligent treatment, was improbable, i.e., 50% or less." Fennell v. Southern Maryland Hosp., 320 Md. 776, 781, 580 A.2d 206, 208 (1990). On the basis of the record before us, the evidence indicates that Ms. Schaefer had an alleged 80 percent chance of survival prior to The Medical Providers' alleged negligence. Because Ms. Schaefer's alleged chance of survival exceeded 50 percent, the loss of chance doctrine is inapplicable to the Marcantonios' claims.¹⁷

Moreover, this Court declines the Marcantonios' invitation to revisit our decision in Weimer v. Hetrick, 309 Md. 536, 525 A.2d 643 (1987), where we held that Maryland does not recognize the loss of chance doctrine in claims brought under the Maryland wrongful death statute, as codified under Md. Code (1974, 2006 Repl. Vol.), § 3-902(a) and 3-904(a) of the Courts & Judicial Proceedings Article. In Weimer, we concluded that the Maryland wrongful death statute requires a plaintiff seeking to recover damages under the statute to prove, by a preponderance of the evidence, that the defendant's negligence proximately caused the decedent's death. 309 Md. at 554, 525 A.2d at 652. Accordingly, we held that wrongful death claims where the defendant's alleged negligence deprived the plaintiff of less than a (50 percent) probable chance of survival are not compensable under Maryland law.

We are not persuaded that this is the proper case to reconsider our decision in Weimer. Specifically, the Marcantonios did not argue in the trial court or the Court of Special Appeals that Maryland law should be changed to allow recovery for loss of chance in wrongful death claims. In addition, the facts as alleged do not support a loss of chance claim. Therefore, the issue is not properly before the Court.¹⁸

But while the judge engaged in a proximate cause analysis, we conclude that his focus was misdirected. The judge, concentrating on one part of Dr. Pushkas’ testimony, found that even if it was presumed that Dr. Minkin was negligent, patients like Ms. Burton had a 66% chance of survival after diagnosis. The judge analyzed proximate cause in terms of the likelihood that Ms. Burton would die from cancer versus whether the healthcare providers’ negligence proximately caused her death. As will be discussed in the next section of this opinion, the judge should have focused on whether the totality of the evidence was sufficient for the jury to find that Dr. Minkin's supposed failure to diagnose Ms. Burton's cancer was a proximate cause of her death.

F. Proximate Cause

The Burtons’ claim of medical malpractice is predicated on the familiar elements of negligence: duty, breach, causation, and harm. Univ. of Md. Med. Sys. Corp. v. Gholston, 203 Md. App. 321, 330, 37 A.3d 1074 (2012). "To prove causation, the [Burton's] had to establish that but for the negligence of the defendant[s], the injury would not have occurred." Id. at 481, 63 A.3d 620.

"Proximate cause," means that a plaintiff must prove with reasonable certainty, or that it is "more likely than not," that a defendant's negligence was a cause the plaintiff's injury. See, Maryland Pattern Jury Instruction-Civil 1:14 ("In order to prove something by a preponderance of the evidence, a party

[248 Md.App. 534]

must prove it is more likely so than not so.") In Weimer, the Court of Appeals reiterated that reasonable "[p]robability exists when there is more evidence in favor of a proposition than against it (a greater than 50% chance that a future consequence will occur)." Weimer, 309 Md. at 549-50, 525 A.2d 643 (quoting Pierce v. Johns–Manville Sales Corp., 296 Md. 656, 666, 464 A.2d 1020 (1983) ) (emphasis omitted). "Mere possibility exists when the evidence is anything less." Id. (quoting Davidson v. Miller, 276 Md. 54, 62, 344 A.2d 422 (1975) ).

In a negligence case, a plaintiff has two burdens: First, the threshold inquiry is whether a defendant's conduct produced an injury, or causation-in-fact. Troxel v. Iguana Cantina, LLC, 201 Md. App. 476, 504, 29 A.3d 1038 (2011); Restatement (Second) of Torts § 431 (1965). The second being the burden of production, showing that as a matter of law a defendant's conduct caused a legally cognizable injury.

This part of the causation analysis requires us to consider whether the actual harm to a litigant falls within a general field of danger that the actor should have anticipated or expected. Legal causation is a policy-oriented doctrine designed to be a method for limiting liability after cause-in-fact has been

[242 A.3d 254]

established. The question of legal causation most often involves a determination of whether the injuries were a foreseeable result of the negligent conduct.

Troxel, 201 Md. App. at 504, 29 A.3d 1038 (quoting Pittway Corp. v. Collins, 409 Md. 218, 245-46, 973 A.2d 771 (2009) ). Together, the two burdens establish tort liability.

Additionally, we have noted that "because of the complex nature of medical malpractice cases, expert testimony is normally required to establish breach of the standard of care and causation." Jacobs v. Flynn, 131 Md. App. 342, 354, 749 A.2d 174 (2000). The Court of Appeals has explained that "[e]xpert witnesses play a pivotal role in medical malpractice actions." Rodriguez v. Clarke, 400 Md. 39, 71, 926 A.2d 736 (2007). But expert witness testimony is no less important than other evidence presented in the case.

[248 Md.App. 535]

Jacobs, 131 Md. App. at 355, 749 A.2d 174. Our focus on appeal is whether, based on the entire record, a reasonable jury could have found that Dr. Minkin's negligence was a proximate cause of Ms. Burton's death. Id.

Here, as we have discussed, the trial court granted the healthcare providers’ motion for JNOV based on what it perceived as insufficient evidence of causation. We, therefore, discuss what type of evidence would be sufficient to prove causation, keeping in mind that our task is to determine whether based on the entire record, could a reasonable juror have found that the Burtons had proven causation. Id.

G. Causation Evidence

The healthcare providers train their sights on Dr. Pushkas. They claim he failed to establish that there was a greater than 50% chance Dr. Minkin's negligence caused Ms. Burton's death. They base their argument on the following portions of Dr. Pushkas’ testimony:

• In May 2012, when Ms. Burton complained of a lump in right breast, if she been diagnosed after that examination, it would have revealed she had Stage I-B breast cancer, based on the 1.6-millimeter size of the mass.

• In Dr. Pushkas’ opinion, with Stage I-B breast cancer, Ms. Burton had an 80% chance of survival within 5 years, if the cancer had been caught in May 2012.

• When she was finally diagnosed with cancer, in August 2013, Dr. Pushkas opined that Ms. Burton was at Stage III-A.⁹

• A diagnosed triple negative Stage III-A patient like Ms. Burton had a 66% chance of survival over 5 years, Dr. Pushkas opined. "That is correct, yes. That's not differentiating, however, between triple-negative and not triple-negative

[248 Md.App. 536]

cancers. This is all comers ." (emphasis supplied).

That last bullet point is the crux of the controversy and is the heart of the healthcare providers’ argument. As was discussed in the previous section, if Ms. Burton had an 80% chance of survival when Dr. Minkin allegedly misdiagnosed her in 2012, but still had a 66% chance of survival even after she was diagnosed in 2013, then the healthcare providers argue the Burtons have not proven it was more likely than not that Dr. Minkin's negligence led to Ms. Burton's death. Put another way, the healthcare providers’ view of Dr. Pushkas’ testimony is: Even after she was diagnosed, the probability that a triple negative Stage III-A cancer patient like Ms.

[242 A.3d 255]

Burton would die within 5 years was 34%. "Probability exists when there is more evidence in favor of a proposition than against it (a greater than 50% chance that a future consequence will occur)." "Mere possibility exists when the evidence is anything less." Weimer, 309 Md. at 550, 525 A.2d 643; Pierce, 296 Md. at 666, 464 A.2d 1020. Dr. Pushkas established "mere possibility" that the healthcare providers’ negligence might have been a cause of Ms. Burton's death.

While Dr. Pushkas’ testimony consisted of the points just discussed, after reviewing his testimony we note that Dr. Pushkas also testified to the following:

• If a cancer at Stage I, II, or III spreads, or metastasizes, "the patient will die."

• Patients with Stage III cancers typically have a survival of 50% or less in five years.

• Ms. Burton was also a "triple negative" patient, meaning that she would not respond as well to various treatments, such as chemotherapy, radiation, or hormonal drugs due to her biological make up.

• With triple negative patients, it is "particularly important that we get to the cancer early before it gets to the point where we cannot control it anymore because our chemotherapy is not that good for triple-negative breast cancer

[248 Md.App. 537]

." "So, with any stage, triple-negative has the lowest survival."

• The failure to remove the cancer in May 2012 led to it spreading to Ms. Burton's liver, lungs, and lymph nodes by August 2013, when she went for a follow-up examination and underwent a biopsy.

• Even with her other health problems, diabetes, high-blood pressure, high cholesterol, obesity, but for the metastatic breast cancer, Ms. Burton would have lived to between 70 and 75, although she would not have been in the best of health.

The totality of Dr. Pushkas’ testimony provides more than merely conjecture or speculation that had Dr. Minkin performed a biopsy of the lump in Ms. Burton's right breast in May 2012, it would have revealed that she had cancer. The biopsy would have also revealed that she was a triple-negative patient, and thus the usual course of treatment -- chemotherapy, radiation, and hormonal drugs -- would not be as effective for her, especially if the cancer spread to other parts of her body, which it did. It may be logically inferred from that testimony that had the cancer been discovered, Ms. Burton may have survived.

While a review of the cold record of Dr. Pushkas’ testimony might seem confusing or worse, contradictory, the jury had the benefit of hearing his testimony in-person and evaluated it. They were free to believe all, part, or none of it. Edsall v. Huffaker, 159 Md. App. 337, 342, 859 A.2d 274 (2004) ("A jury is not required to accept the testimony of an expert witness."). It is correct that the healthcare providers presented expert testimony that showed Dr. Minkin could not have known that the lump in Ms. Burton's breast was cancerous on May 11, 2012. But when evaluating a motion for JNOV, conflicts in the testimony are resolved in favor of the nonmoving party, in this case, the Burtons. If the jury concluded that Dr. Minkin was correct, and a mammogram and an ultrasound were all that was reasonably required in 2012, then the expert testimony of Drs. Kaufman, Hicks, and Flukinger supported a

[248 Md.App. 538]

finding that Dr. Minkin did nothing inappropriate in his care of Ms. Burton.

[242 A.3d 256]

However, as we must assume the truth of all the Burtons’ evidence and any inferences that might be fairly drawn from it in the light most favorable to them, we conclude that the jury could have reasonably found that if Dr. Minkin had caught Ms. Burton's cancer in May 2012, she had an 80% probability of not dying from Stage I cancer. Because he did not intervene early, as he should have, the cancer developed to Stage III, spread to other parts of Ms. Burton's body, and killed her. Dr. Pushkas’ testimony and the Burton's other evidence, when viewed with the healthcare providers’ opposing evidence, produced the "slight" evidence needed to send the question of the healthcare providers’ alleged negligence to the jury. Barnes, 210 Md. App. at 480, 63 A.3d 620. Consequently, we reverse the circuit court's grant of judgment notwithstanding the verdict and reinstate the jury's award. The jury was tasked with resolving the conflicting expert opinions. It did so here in favor of the Burtons.

The "loss of chance" doctrine did not apply in Marcantonio because the evidence did not reveal that, prior to any alleged negligence, Ms. Schaefer's chance of survival was less than 50 percent. Id. at 415. In our view, the instant case is on all fours with Marcantonio, and we likewise conclude that the "loss of chance" doctrine does not apply here. Dr. Packer testified that when Mr. Santiago first visited Dr. Golden in February 2013, Mr. Santiago's chance of surviving oral cancer was between 70 and 80 percent, and when Mr. Santiago's cancer was finally diagnosed, his chance of surviving was greater than 50 percent but less than 55 percent. We note the striking similarity of the statistical survival percentages in Marcantonio and the instant case. We apply Marcantonio's language to the case at bar: "On the basis of the record before us, the evidence indicates that [Mr. Santiago] had an alleged [70 to 80] percent chance of survival prior to [appellees'] alleged negligence. Because [Mr. Santiago's] alleged chance of survival exceeded 50 percent, the loss of chance doctrine is inapplicable to the [appellants'] claims." Id. (emphasis added). Moreover, as in Marcantonio, appellants did not allege a loss of chance claim in their complaint, nor did they ever make a loss of chance claim at trial. Indeed, they affirmatively disavowed any such claim. Accordingly, the trial court erred when it struck appellants' survival and wrongful death claims on the basis that they were "loss of chance" claims precluded by Maryland precedent.

Having established that the court erred by relying on the "loss of chance" doctrine to dismiss appellants' claims, we next turn to whether appellants presented sufficient evidence at trial to establish causation for the survival and wrongful death claims. We begin with the wrongful death claims.

Page 14

In Marcantonio, the Court of Appeals noted that to succeed on a claim for wrongful death, the plaintiff must prove, by a preponderance of the evidence, "that the defendant's negligence proximately caused the decedent's death." Id. at 416 (citing Weimer, 309 Md. at 554). In Marcantonio, one of the plaintiff's experts opined that the "failure to properly diagnose . . . and the resultant failure to begin immediate treatment were the proximate cause of [the decedent's] death." Id. at 400. A second plaintiff's expert testified that "had Ms. Schaefer's condition been properly diagnosed . . . that in all medical probability her cancer would have been curable." Id. The Court held that this causation evidence was sufficient to survive a motion for summary judgment. Id. at 415.

Appellants likewise met their burden here. Dr. Packer testified that, had Mr. Santiago's cancer been diagnosed in February 2013, and had Mr. Santiago received surgical treatment to remove the cancer, "it's more likely than not that he would not have had a recurrence." Furthermore, in the following colloquy, Dr. Packer indicated that Mr. Santiago would have survived but-for appellees' negligence:

[Plaintiffs' trial counsel]: Do you have an opinion whether had [Mr. Santiago's] cancer been diagnosed in February of 2013 when he was a stage 1 and he'd undergone surgery, whether he then would have gone on to die within the first five years?

[Dr. Packer]: I think, I think he would not have died.

Taking this evidence in the light most favorable to appellants, they produced sufficient evidence that appellees' negligence caused Mr. Santiago's death. See Goss v. Estate of Jennings, 207 Md. App. 151, 164 (2012) (stating that "If there is 'any evidence, however slight, legally sufficient as tending to prove negligence,' then the trial judge must leave the

Page 15

weighing and evaluating of that evidence to the jury." (quoting Moore v. Myers, 161 Md. App. 349, 363 (2005))). Accordingly, appellants presented sufficient evidence that Dr. Golden's negligence proximately caused Mr. Santiago's death.