Streaker v. Boushehri , 230 Md. App. 101 ( 2016 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1391
September Term, 2015
_________________________
KAREN STREAKER
v.
KRISTINA BOUSHEHRI, ET AL.
_________________________
Berger,
Nazarian,
Beachley,
JJ.
_________________________
Opinion by Nazarian, J.
_________________________
Filed: September 28, 2016
This medical malpractice appeal presents questions about the burden of proof under
Courts & Judicial Proceedings Article § 3-2A-04(b)(4), known colloquially as the Twenty
Percent Rule. After finding that Karen Streaker’s expert witness failed to satisfy this rule,
which disqualifies expert witnesses who devote annually more than twenty percent of their
professional activities to activities that directly involve testimony in personal injury claims,
the Circuit Court for Howard County granted summary judgment against her and in favor
of Kristina Boushehri and Capital Women’s Care, LLC (“CWC”). On appeal, Ms. Streaker
contends that the trial court erred when it included certain of Dr. Borow’s activities in the
numerator of the Twenty Percent Rule calculation. We affirm.
I. BACKGROUND
On October 31, 2013, Ms. Streaker filed a complaint against Ms. Boushehri, a
Certified Nurse Midwife, and CWC, her practice, alleging negligence and breach of
contract. She filed first in the Circuit Court for Prince George’s County, and the case was
transferred to the Circuit Court for Howard County. The complaint stemmed from injuries
Ms. Streaker alleged that she suffered while under their care from November 2009 to June
2010. The details of Ms. Streaker’s medical claims aren’t central to the issues on appeal;
it will suffice for present purposes that Ms. Streaker alleged that Ms. Boushehri’s care not
only failed to resolve her symptoms and discomfort, but caused her to suffer complications
that landed her in the hospital, required her to undergo surgery, and caused ongoing kidney
disease.
As required by Maryland’s Health Care Malpractice Claims Act (the “Act”), Ms.
Streaker designated a medical expert, Lawrence S. Borow, M.D., to certify that Ms.
Boushehri and CWC had departed from the relevant standards of care and that the
departures proximately caused Ms. Streaker’s personal injuries and damages. In August
2013, Ms. Streaker filed a Certificate of Qualified Expert from Dr. Borow in which he
attested that he did not devote more than twenty percent of his professional time to
activities that directly involve testimony in personal injury claims. In response, the
defendants served discovery, including discovery relating to Dr. Borow’s professional
activities. Dr. Borow produced some materials, but declined to produce others. The
defendants eventually filed a motion to compel financial records that the court granted,
albeit a week before trial and the day before Dr. Borow’s scheduled de bene esse
deposition.
The videotaped de bene esse deposition of Dr. Borow took place on May 27, 2015.
In addition to the discovery mentioned above, the defendants also had subpoenaed Dr.
Borow’s office calendar and a list of his prior testimony, but Dr. Borow moved (in
Pennsylvania, where he lives) to quash it, and the deposition went forward without those
materials. Dr. Borow testified during the direct examination portion of the deposition that
he spent approximately fifteen percent of his professional time on work that directly
involves testimony in personal injury actions. On cross, the defense challenged his
calculation, contending that Dr. Borow had mis allotted time spent preparing for
depositions as work not directly related to testimony. They complained as well that Dr.
Borow’s records were incomplete and that he had failed to reveal or itemize work he had
performed as an expert witness.
2
Before trial, Ms. Boushehri and CWC moved in limine to exclude Dr. Borow’s
testimony because he failed to satisfy the Twenty Percent Rule. On June 2, 2015, the trial
court heard argument, recessed, then granted the motion from the bench. The court
reviewed the two major cases applying the Twenty Percent Rule, Witte v. Azarian, 369
Md. 518 (2002), and Waldt v. University. of Maryland Medical System. Corp., 411 Md.
207 (2009), reviewed the evidence and testimony, and attempted to calculate the
percentage of time that Dr. Borow devoted to activities that directly involve testimony in
personal injury claims. But after placing the burden of proof of the motion on the
defendant, the court struggled to make the calculation from the documents and
information Dr. Borow had produced (or, more to the point, the documents and
information he hadn’t produced):
So the reason why the Court read that testimony—which the
Court finds important—is because I think it really relates and
connects to the issues that we have before the Court of whether
or not the twenty percent of the expert professional activities –
were more than twenty percent. We know, based on the one
case, that twenty point six percent and the slightest amount
over twenty percent would, in fact, prohibit and preclude the
witness from testifying.
And the Court has considered the arguments presented by both
the plaintiff as well as the defendants in their calculations. But
the Court finds that the defendants’–what I would call version
or analysis—is much more accurate of the testimony that’s
been, in fact, presented concerning the doctor’s activities.
So clearly based on—and I’m only going to use 2014, which is
what—let me also back up. Because one of the questions is,
who has the burden. Because in reading 3-2A-04 it just says
that that is the prohibition, no more than twenty percent. It
doesn’t really say who has the burden. I know in the
defendant[s’] memo the defendant says that the plaintiff has
3
the burden. But if—it is the Court’s opinion that the defendant
would have the burden to challenge that and to present
sufficient information to this Court to make that decision. So
I don’t find that it is the plaintiff’s burden, I do find it is the
defendant’s burden.
The other issue that this Court is considering is that based on
the witness’s testimony that he clearly knows—meaning the
doctor—about the twenty percent rule, he has testified
numerous times—the Court finds it curious that he does not
itemize or keep records to that extent. The Court also noted
that he failed to produce his calendar that was subpoenaed. The
Court also recognizes that he has used the legal system in the
state of Pennsylvania to prevent the production of it. And my
question is why? And then whether or not this Court should
draw an adverse inference from that failure. Because clearly
we have an expert witness who knows the rules of the state and
when asked to produce it for whatever reason, he has used the
legal system to prevent that. And that still is the lingering
question as to why, and should this Court draw an adverse
inference that the reason why he didn’t produce it was because
it would show he has over twenty percent. But I am not going
to go that far, I’m just going to base my decision on the
information that has been, in fact, presented.
It is clear to this Court that when you consider the factors that
I am required to under the case law, and seeing that in 2014 he
did, in fact, earn three hundred and twenty-four thousand six
hundred and two dollars from what we would call as an expert.
We know that he bills four hundred dollars an hour. And also,
we also know that one of the 10-99s was not included so I am
also questioning how many others have not been included. But
from what we do have at four hundred dollars an hour, that
comes to eight hundred eleven hours a year which is sixteen
hours per week based on the medical legal work. And when the
court makes the division it comes to thirty-three point one two
percent. That is clearly above the twenty percent rule that is
prohibited by the statute.
So, therefore, the court will grant the motion to exclude the
testimony of Dr. Borow because he is performing more than
twenty percent of his time on medical legal work which is
4
prohibited by the statute. So that is going to be the decision of
this Court concerning that issue.
The court’s decision to exclude Dr. Borow left Ms. Streaker with no expert to testify
that the defendants had breached the standard of care in her treatment, and the court
granted the defendants’ oral motion for summary judgment. Ms. Streaker filed a motion
to reconsider the exclusion of Dr. Borow’s testimony, which the court denied. This timely
appeal followed.
II. DISCUSSION
Ms. Streaker characterizes the circuit court’s decision, and its errors, as a purely
legal dispute over the range of professional activities that may be included in the numerator
for the Twenty Percent Rule calculation. She contends first that the trial court erred in
excluding Dr. Borow’s testimony when it included initial case reviews among the activities
that “directly involve testimony in personal injury claims,” and thus inflated the proportion
of his professional activities falling into that category. From there, Ms. Streaker argues
second that, “having erred in precluding Dr. Borow from testifying, the circuit court erred
in granting summary judgment” in favor of Ms. Boushehri and CWC.1 We see the case
1
Ms. Streaker’s brief phrased the Questions Presented as follows:
1) Whether the circuit court erred in precluding Dr. Borow from testifying at trial on the
basis that Dr. Borrow did not meet the requirements of the “20% Rule (MD. CTS. & JUD.
PROC. CODE § 3-2A-04(B)(4)) when the circuit court failed to follow the holding of Witte
v. Azarian, 369 Md. 518, 801 A.2d 160 (2002) that an initial case review is not an activity
“that directly involve[s] testimony in personal injury claims”?
5
differently. This was not a case in which the circuit court simply plugged the wrong value
into a straightforward equation. Instead, the court was left to reverse-engineer Dr. Borow’s
activities from a messy and hotly disputed record, and we agree that the Doctor failed the
Twenty Percent Rule even though the court opted (erroneously, as we explain) not to hold
Ms. Streaker to the burden of proof.
A. The Trial Court Correctly Excluded Dr. Borow’s Testimony.
At the beginning of a medical malpractice action,2 a plaintiff must file a certificate
of qualified expert in which the claimant must attest that the defendant(s) departed from
standards of care and that the departure(s) proximately caused the alleged injury. Md. Code
(1973, 2013 Repl. Vol.), § 3-2A-04(b)(1)(i) of the Courts & Judicial Proceedings Article
(“CJ”).3 The term “qualified” in that phrase does not refer to the certifying expert’s
education or experience or expertise—that notion of qualification is (still) measured by
Maryland Rule 5-702 and the law interpreting and applying that rule, and also by CJ § 3-
2A-02(c). It refers instead to an additional statutory threshold that applies only to certifying
and standard of care experts in medical malpractice cases: “qualified” experts “may not
2) Whether, having erred in precluding Dr. Borow from testifying, the circuit court erred
in granting summary judgment in favor of the defendants?
2
A certificate of qualified expert is not required for claims in which the sole issue is a lack
of informed consent. Id.
3
This affidavit requirement applies to both sides: a defendant must counter a plaintiff’s
affidavit with one from a qualified expert of her own attesting to compliance with the
standard of care or that the departure was not the proximate cause of the plaintiff’s injury.
If the defendant fails to do so, the court may find in favor of the plaintiff on liability for
that reason. CJ § 3-2A-04(b)(2)(i).
6
devote annually more than 20 percent of the expert’s professional activities to activities
that directly involve testimony in personal injury claims.” CJ § 3-2A-04(b)(4). This
limitation is known in common parlance as the “Twenty Percent Rule.”
The Twenty Percent Rule requires the court to “perform a mathematical equation:
[it] must identify those activities that ‘directly involve testimony in personal injury claims’
(the numerator) and then divide it by those activities that comprise the body of
‘professional activities’ in general (the denominator).” Waldt, 411 Md. at 222. The
activities that “directly involve testimony” in personal injury claims, and thus make up the
numerator, are: “(1) the time the doctor spends in, or traveling to or from, court or
deposition for the purpose of testifying, waiting to testify, or observing events in
preparation for testifying, (2) the time spent assisting an attorney or other member of a
litigation team in developing or responding to interrogatories and other forms of discovery,
(3) the time spent in reviewing notes and other materials, preparing reports, and conferring
with attorneys, insurance adjusters, other members of a litigation team, the patient, or
others after being informed that the doctor will likely be called upon to sign an affidavit or
otherwise testify, and (4) the time spent on any similar activity that has a clear and direct
relationship to testimony to be given by the doctor or the doctor’s preparation to give
testimony.” Witte, 369 Md. at 535-36. Professional activities, the activities that comprise
the denominator, are activities that “contribute to or advance the profession to which the
individual belongs or involve the individual’s active participation in that profession.”
Waldt, 411 Md. at 226. And in defining the expert’s total universe of professional
activities, “a distinction must be drawn between the hours spent furthering one’s profession
7
versus the hours spent on personal or leisurely pursuits.” Id. Experts need not necessarily
still be seeing patients, but they must be engaged professionally, and actively so:
Though active clinical practice is not required, the doctor must
still engage in professional activities other than testifying in
court. Such a doctor is still required to satisfy the 20 Percent
Rule. This allows a qualified doctor to continue to utilize his
or her expertise, but prevents him or her from launching a
second career as purely an expert witness. The primary
professional activities (at least 80 percent) must still be in the
medical profession that he or she is professing.
Id. at 228.
1. Ms. Streaker bore the burden of proving that Dr. Borow satisfied
the Twenty Percent Rule.
We review the trial court’s decision to exclude expert testimony for abuse of
discretion. Id. at 251. Before undertaking that review, though, we address Ms. Streaker’s
contention that the defendants, Ms. Boushehri and CWC, bore the burden of proving that
her expert, Dr. Borow, did not satisfy the Twenty Percent Rule. Under Ms. Streaker’s
theory, a trial court must accept the expert’s certification that he satisfies the Twenty
Percent Rule unless the defense proves otherwise—essentially, that experts are presumed
qualified until proven otherwise.
As the plaintiff in this case, Ms. Streaker bears the burden of proving her claims.
Cooper v. Singleton, 217 Md. App. 626, 649-50 (2014) (“[T]he burden of persuasion never
shifts in a medical malpractice case, and as at common law, the plaintiff must carry this
burden.”) (emphasis in original) (citations omitted)). And generally, the proponent of
expert testimony (on whatever side of a case) bears the burden of proving that her expert
is qualified to testify and that the testimony will assist the trier of fact. See Md. Rule 5-
8
702(1); Mitchell v. Montgomery Cnty.¸ 88 Md. App. 542, 552 (1991). Those
straightforward and unremarkable principles by themselves seem to refute Ms. Streaker’s
argument that the defense bore the burden to disqualify her expert, but the statutory context
of this case bolsters the point further.
Parties in civil cases normally are free to hire, offer, and attempt to qualify via Rule
5-702 whatever experts they like, even Hired Guns. The parties and the court can explore
the expert’s bona fides or mercenary nature through qualifying testimony and voir dire,
and, assuming the expert is permitted to testify, the fact-finder can credit or discount his
testimony accordingly. Not in medical malpractice cases, though. In response to concerns
about rising medical malpractice insurance premiums in the 1980s, the General Assembly
(among other changes) specially narrowed the universe of potential expert witnesses in
medical malpractice cases. See Witte, 369 Md. at 526-31. One way it accomplished this
narrowing was through the Twenty Percent Rule, i.e., by precluding experts who “devote
annually more than 20 percent of [their] professional activities to activities that directly
involve testimony in personal injury claims,” CJ § 3-2A-04(b)(4), from certifying
departures from or compliance with standards of care. Put another way, the Act put teeth
in the certification requirement by preventing parties from using professional experts to
satisfy it. And because a certifying affidavit from a qualifying expert is a condition
precedent to maintaining or defending against a claim that a health care provider violated
a standard of care, compare CJ §§ 3-2A-04(b)(1) with (b)(2) , the burden of proving the
expert’s qualifications is an inextricable part of the party’s burden of proof. So for a
plaintiff such as Ms. Streaker, this means that she bore the burden of proving that Dr.
9
Borow was a “qualified expert,” and therefore that he satisfied the Twenty Percent Rule. 4
But although we disagree with the circuit court in this regard, our holding doesn’t help Ms.
Streaker—the court required Ms. Boushehri and CWC to refute Dr. Borow’s certification,
as she had contended it should, and ruled against her anyway.
2. The court made a reasonable calculation from a disputed and
messy record.
This brings us to the merits of the Twenty Percent Rule calculation.5 Ms. Streaker
asserts that the trial court erred in finding that Dr. Borow failed the Twenty Percent Rule
because it erroneously included in the numerator of the calculation, as “activities that
directly involve testimony in personal injury claims,” time that Dr. Borow spent on initial
case reviews. She contends that the Court of Appeals expressly excluded initial case
reviews from the Twenty Percent Rule numerator when it held, in Witte, that the numerator
included (among other things not at issue here) “the time spent in reviewing notes and other
materials, preparing reports, and conferring with attorneys, insurance adjusters, other
members of a litigation team, the patient, or others after being informed that the doctor will
likely be called upon to sign an affidavit or otherwise testify.” 369 Md. at 535-36 (emphasis
added). Her reading of Witte assumes that any activity before the expert is notified that he
or she will likely be called upon to sign an affidavit or otherwise testify is not “activit[y]
that directly involve[s] testimony” in personal injury actions. In her view, the court erred
4
The same would be true with regard to a defense expert who certified compliance with a
standard of care under CJ § 3-2A-04(b)(2).
5
The parties appear to agree that the relevant time period was Calendar Year 2014.
10
on the law when it included time Dr. Borow spent on initial case reviews, and that if we
hold as much, the correct calculation, with the initial case review time excluded, will bring
Dr. Borow under the Twenty Percent Rule threshold.
It is true that the circuit court’s calculation of Dr. Borow’s activities didn’t segregate
or eliminate initial case reviews, or even account for them. But that didn’t reflect a
conscious legal or mathematical decision on the court’s part—it reflects the fact that the
record about Dr. Borow’s activities was, to put it as neutrally as possible, disputed and
incomplete. The trial court was not presented with detailed records of Dr. Borow’s
activities during the relevant period. To the contrary, the court had to resolve discovery
disputes over the records the Doctor had and hadn’t produced, and faced lingering
questions about what might be missing from his testimony and productions (including a
motion Dr. Borow filed in his home state ahead of his trial deposition to quash a subpoena
for his office calendar and list of prior depositions). Nor did Dr. Borow attempt to separate
medical legal work that he sought to exclude from the Twenty Percent Rule numerator,
except through a two-page handwritten summary he prepared and offered for the first time
at his de bene esse deposition. The trial court’s ultimate calculation was, as we discuss
below, an estimate from a muddled record, one that required the court first to assess the
relative credibility of the evidence feeding it. The court’s decision that Dr. Borow’s
testimony about his activities lacked credibility was not clearly erroneous, and we see no
abuse of discretion in its decision to exclude his testimony.
Indeed, the court made the most of the record it had. At the close of the hearing on
the defendants’ motion to exclude Dr. Borow’s testimony, the court left the bench and
11
considered Dr. Borow’s deposition testimony about the time he spent on activities that
directly involve testimony in personal injury actions, Dr. Borow’s tax records, arguments
from both parties, and the relevant cases. And in its oral opinion, the court highlighted at
some length the facts on which it based its decision, in the process highlighting the lack of
precision in the information Dr. Borow provided:
• Dr. Borow testified that he typically spends about 46-50 hours in the office
on weekdays and 8-10 hours on medical-legal work on nights and weekends,
and that some of these hours included medical legal review and depositions.
• Although subpoenaed to bring a list of cases he had worked on that year, Dr.
Borow declined to bring it, and produced no record of the number of
depositions he had done that year, or of the number of hours he spent
preparing or traveling for trial or time spent testifying at trial.
• Dr. Borow charged by the hour for his medical legal work, yet did not itemize
his time or keep track of the number of hours he spent on legal case work.
• Dr. Borow had testified as a medical expert for years in Maryland, but had
never calculated the number of hours he spent doing medical legal work. In
his trial deposition, he testified that he spent fifteen percent of his time doing
medical legal work, but on previous occasions testified that it was ten
percent, and later said it was maybe twelve percent.
• Dr. Borow charges $400 per hour for trial testimony, and a $1,200 minimum
for depositions (which covers the first three hours). His income in 2014 from
his corporation was $725,243, and of that amount, the portion attributable to
medical legal work was $324,602.50.
Defense counsel argued, based on Dr. Borow’s rate of $400 per hour for medical
legal service, and his total medical legal income of $324,602.50, that Dr. Borow had spent
811 hours performing expert legal work ($324,602.50 ÷ $400) during the relevant time
period. This broke down to sixteen hours per week (811 hours per year ÷ 48 hours per
12
week), or 33.12% of his professional time (48 hours per week x 51 weeks of work per year
= 2,448 total hours worked, of which 811 hours is 33.12%).
Ms. Streaker’s counsel, on the other hand, argued that Dr. Borow’s handwritten
notes from his trial deposition revealed that his medical legal income included $130,177 in
payments for initial case reviews and cancellations (cases for which Dr. Borow was paid
but didn’t have to appear at trial or deposition because the case settled or otherwise
resolved). That income, counsel argued, should be subtracted from the total, leaving
$194,425.50 in medical legal income ($324,602.50 - $130,177 = $194,425.50) from 486.06
hours in 2014 of work directly involving testimony in personal injury actions. ($194,425 ÷
$400 per hour = 486.06), or 10 hours per week (486.06 ÷ 48 = 10.13), which is less than
20% of his professional time.
Ms. Streaker quarrels on appeal with the defense’s “money-based analysis,” and we
recognize that the statute doesn’t measure “activity” in terms of income. The statute
doesn’t define “activity” for these purposes in terms of time either, but the Court of Appeals
cases interpreting the Twenty Percent Rule have. See Waldt, 411 Md. at 221-31; Witte,
369 Md. at 525-36. The problem with Ms. Streaker’s calculation, though, is that her expert
didn’t produce time records—both sides had to back into their estimates of Dr. Borow’s
activity using income as a proxy, along with assumptions about Dr. Borow’s hourly rate
and the hours he spends working each week. And the income records the court did have
contained holes: there was no way to tell with certainty what Dr. Borow’s actual income
from his medical legal work was because he failed to produce at least one 1099 where he
was paid for work directly involved in testimony in a personal injury claim–the very claim
13
for which he was testifying—and might have omitted others. Moreover, the court expressed
skepticism about Dr. Borow’s record keeping. Dr. Borow knew the Twenty Percent Rule
and had testified numerous times in Maryland, yet failed to produce evidence that
persuaded the court that he met the Twenty Percent Rule (and his resistance to discovery
didn’t help his cause). The state of the record left the court to decide the inputs to the
Twenty Percent Rule formula from the record it had, and after finding Dr. Borow not to be
credible in this regard, the court found that his professional activity that directly involved
testimony in personal injury claims exceeded twenty percent of his professional time.
We don’t mean to suggest that experts need to maintain compulsive, tenth-of-an-
hour timesheets, as lawyers and certain other professionals often do, to satisfy the Twenty
Percent Rule, nor to require any particular form or quantum of proof. But Dr. Borow’s
approach here would, if it had worked, circumvent the Twenty Percent Rule, and more to
the point, the statutory purpose underlying it. Cf. Zorzit v. Comptroller, 225 Md. App. 158,
175-80 (2015) (Comptroller could calculate tax liability from revenue estimates where the
taxpayer actively refused to keep records.). The trial court can, and must, make the Twenty
Percent Rule calculation from the record before it, and an expert who leaves uncertainty
about the nature and extent of his activities directly involving testimony in personal injury
claims risks a finding that he’s not qualified. In this case, the circuit court was well within
its discretion to find that the defendant’s “version or analysis” was a “much more accurate
[account] of the testimony” concerning Dr. Borow’s activities than Ms. Streaker’s version,
and then to exclude Dr. Borow from testifying.
B. The Trial Court Correctly Granted Summary Judgment.
14
Although we review de novo a decision of a circuit court granting summary
judgment, Harford County v. Saks Fifth Avenue Distribution Co., 399 Md. 73, 82 (2007),
the issue is simpler here. Ms. Streaker’s challenge to the court’s summary judgment
decision depends on the success of her challenge to Dr. Borow’s exclusion—she agrees, as
she must, that if her challenge to that decision fails, as it has, she is without an expert to
testify on the standard of care, and the defense was entitled to summary judgment. See
Karl v. Davis, 100 Md. App 42, 51 (1994) (“Except in cases where the medical negligence
alleged is of such gross and obvious nature that a layman can comprehend the breach of
care, the standard of care and breach thereof must be shown by expert testimony.”) (internal
citations omitted)).
JUDGMENT OF THE CIRCUIT COURT
FOR HOWARD COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
15