Bentley v. Carroll

RAKER, Judge. Appellant, plaintiff in a medical malpractice suit in the Circuit Court for Frederick County, appeals from that court’s entry of judgment for the defendants, private family health care practitioners in Emmitsburg, Maryland, following a jury verdict in their favor after a nine day trial in December, 1997. Because we agree with Appellant on a number of the issues she has raised, we shall reverse and remand the case to the Circuit Court for Frederick County for a new trial. ³¹⁵ I. Appellant, Christine Ann Bentley, filed suit against Appellees, Alan Carroll, M.D., Morningstar & Carroll, P.A., and the Estate of George L. Morningstar, alleging medical malpractice by the defendants based upon their purported negligence in failing to prevent the continual, long-term child sexual abuse suffered by Appellant at the hands of persons within her household. 1 The pertinent facts and arguments regarding Appellees’ treatment of Appellant which underlie the latter’s medical malpractice claims and this appeal are as follows. Appellees began treating Appellant in March of 1978, when Appellant, then just shy of two and a half years old, was brought by her mother into Appellees’ family health care office complaining of frequency of urination, dysuria (painful urination), constipation, and vaginal inflammation.

Treating Appellant on approximately twenty occasions over the next ten years, Drs. Carroll and Morningstar acted as Appellant’s primary care physicians until 1988, the year Dr. Morningstar passed away. During some or all of this period, Appellant was sexually abused on a regular basis by Luther Burner, her mother’s boyfriend, at times by Etheline Burner, her mother, and at least once by Luther’s nephew. Appellant’s chief contention is that Appellees could have prevented the continuation of this abuse had they not been negligent in meeting the standard of medical care at that time, which included a mandatory statutory obligation for physicians to report to social service or law enforcement authorities what they believed, or had reason to believe, constituted child physical or sexual abuse.

See Maryland Code (1957, 1976 RepLVol., 1981 Cum.Supp., 1982 RepLVol., 1984 Cum.Supp.) Article 27, § 35A(b)(l), (c), and (d). 2 ³¹⁶ In contrast, Appellees’ core theory is that they met all their obligations under the prevailing standard of medical care required of family health care physicians during the relevant period. Simply put, Appellees argue, they were not negligent. Moreover, any negligence that might be attributed to them was wholly superseded by intervening causes. The abuse and injuries suffered by Appellant were due solely to criminal actions that were neither known nor suspected by the doctors, and that were committed by offenders, the worst of whom, Luther Burner, Appellees had never met nor were even aware of, and over all of whom the doctors had no control.

In large part, Appellees’ medical treatment of Appellant during the critical period from 1978 to 1984 is not disputed by the parties. Recitation of all those details and the related trial testimony and exhibits seems unnecessary for purposes of our analysis. It is worth noting, however, that there was significant factual disagreement at trial concerning whether Dr. Carroll ever (1) evaluated Appellant for sexual abuse and a variety of sexually transmitted diseases, (2) questioned her about being touched inappropriately, (3) inquired into Appellant’s childhood and sexual history, (4) conducted a standard, thorough examination, and (5) explained to her mother why he was administering a gonorrhea culture, the method and significance of which were also hotly contested. The parties do not dispute that the gonorrhea culture was performed in January of 1980 when Appellant was four and a half years old, and that it tested negative.

They are in conflict, however, as to the site of the culture sample. Dr. Carroll testified that when he took the sample for the gonorrhea culture from Appellant, her hymen was intact. Admitting that it would be “extremely difficult” to sample the cervix if the hymen were intact, and that it would probably require “an examination under anesthesia to even attempt it” on a ³¹⁷ child of Appellant’s age at the time, Dr. Carroll attributed to “clerical error” the fact that the laboratory sheet sent to the Maryland Department of Health along with the cotton swab to be analyzed indicated Appellant’s cervix as the culture examination site. Appellant countered that in responding to her pretrial interrogatory as to whether any medical report or like document from the doctors’ records contained any inaccuracy, Dr. Carroll stated, “No such contention is made at this time.” In addition, Appellant’s expert witness, Dr. David Abramson, testified that the condition of a female child’s hymen can be a critical factor in determining whether the child has been sexually abused.

As to the significance of the gonorrhea culture, Appellees claim that the negative test result refuted any cause for concern of possible sexual abuse. Appellant asserts that the taking of the gonorrhea culture itself reveals Dr. Carroll’s suspicion of abuse, and that the negative result did not rule out, or should not have ruled out, such suspicion. In addition to these factual disputes, the parties at trial were naturally at complete odds as to whether the Appellees'" treatment violated the required standard of medical care, the crux of the case. Specifically contested were whether the doctors believed or had reason to believe Appellant had been or was being sexually abused and, consequently, whether they had a duty to file a report of suspected child abuse with social service and law enforcement authorities.

Lastly, disagreement at trial also occurred over several legal issues, namely: Appellees’ evidentiary use of a psychological test performed on Appellant by a defense expert witness; Appellant’s attempted use of a medical treatise to impeach one of Appellees’ expert witnesses; Appellant’s attempt to evoke from her expert witness his conclusion regarding the cause of Appellant’s recorded medical symptoms prior to age five; and Appellant’s prayers for additional and revised jury instructions. The trial court ruled for Appellees on each of these issues. As noted earlier, the jury later returned a verdict in favor of the defendants-Appellees. ³¹⁸ Appellant filed a timely appeal with the Court of Special Appeals. On our own motion, we granted certiorari prior to that court’s consideration of this case.

II

A. The Trial Court’s Jury Instructions (1) Denied Jury Instruction on Violation of the Maryland Child Abuse Act as Evidence of Negligence In her first assignment of error, Appellant essentially asks that we decide the following question in the affirmative: Did the trial court err in refusing to instruct the jury that violation of a statute may be evidence of negligence and that Maryland’s Child Abuse Act, at the time pertinent to plaintiffs suit, required every health practitioner to report the existence of possible child abuse to social service and law enforcement authorities whenever the health practitioner treated a child and believed or had reason to believe the child had been abused? Specifically, Appellant takes issue with the trial court’s refusal to give the jury two instructions she proposed regarding Appellees’ arguable violation of the Maryland Child Abuse Act, codified during the relevant period under Article 27, § 35A, as well as the legal effect of both a violation and a non-violation of the statute. Appellant contended at trial that, during the time period pertinent to the present case, § 35A imposed a statutory duty upon Appellees to report the possibility of child abuse in certain circumstances, that the defendant doctors violated that duty in their treatment of Appellant, that their violation of the statute constituted evidence of medical malpractice, ie., of Appellees’ negligent failure to render the standard of care imposed upon their profession, and that a non-violation of the statute did not necessarily preclude a finding of professional negligence. The statutory duty of physicians to report suspected child abuse stemmed from two subsections of § 35A which in 1978 provided as follows: ³¹⁹ § 35A.

Causing abuse to child under eighteen. (c) Persons who shall report abuse, etc.—Every health practitioner, educator or social worker or law-enforcement officer, who contacts, examines, attends, or treats a child and who believes or has reason to believe that the child has been abused is required to make a report in the form and manner provided in the following subsection, notwithstanding any other section of the law relating to privileged communications.... (d) Form and contents of report.—Each such report made pursuant to the provisions of subsection (c) shall be made to the agencies as provided for hereinafter, both orally and in written form; both the reports to be made as soon as is reasonably possible in the circumstances, but, in any case, the written report must be made within forty-eight (48) hours of the contact, examination, attention or treatment which disclosed the existence of possible abuse. The oral report shall be made either by telephone or direct communication to the local department of social services or to the appropriate law-enforcement agency.

The agency to which the report is made shall immediately notify the other agency. Nothing however, shall prohibit the local department of social services and the appropriate law-enforcement agency from jointly agreeing to cooperative arrangements. The written report required to be made shall be made in all cases to the local department of social services and a copy sent to the local State’s Attorney. The oral and written reports shall contain the following information, or as much thereof as the person making the report shall be able in the circumstances to furnish: (1) The name and home address or addresses of the child or children and the parent or other persons responsible for the care of the child or children in question; (2) The present whereabouts of the child or children if not the same as the home address or addresses; ³²⁰ (3) The age or ages of the child or children; (4) The nature and extent of the injuries or injury or sexual abuse of the child or children in question, including any evidence or information available to the person or agency rendering the report of previous injury or injuries possibly resulting from abuse or previous sexual abuse; (5) All such information available to the reporter which would be of aid in establishing the cause of the injuries or injury and the identity of the person or persons responsible therefor.

In order to fully impress upon the jury her theory of the case, which was based in substantial part upon her claim that Appellees violated their duty to report under § 35A, Appellant first beseeched the trial court to include in its charge to the jury the following statement: “The violation of a statute, which is a cause of plaintiffs injuries or damages, is evidence of negligence.” Maryland Institute for Continuing Professional Education of Lawyers, Inc., Maryland Civil Pattern Jury Instructions § 19:7, at 484 (3d ed.1995) (hereinafter “MPJI 19:7”). Appellant then requested as the first of two “additional proposed jury instructions” that the court follow the MPJI 19:7 instruction with a reading of significant portions of the Maryland Child Abuse Act, as codified in 1978. Included within the proposed additional instruction were subsections (c) and (d) of § 35A exactly as they appear above— except for the headings—along with excerpts from other subsections dealing with the statute’s purpose, the definition of terms, and the procedures to be followed as well as the concerns to be addressed after a report has been made. 3 In addition, the penultimate paragraph of Appellant’s proposed instruction incorporated the provision of immunity granted to persons making a report in good faith, which appeared in the statute as follows: ³²¹ (h) Immunity from civil liability or criminal penalty (1) Any person, including a health practitioner, educator, or social worker or law enforcement officer, participating in the making of a good faith report pursuant to this section or participating in an investigation or in a judicial proceeding resulting therefrom shall in so doing be immune from any civil liability or criminal penalty that might otherwise be incurred or imposed as a result thereof. Finally, Appellant’s “first additional proposed jury instruction” ended with the following statement: Should you find that Drs.

Carroll and/or Morningstar violated Article 27 Section 35A, if you find their violation to be a cause of the injuries or damages suffered by Ms. Christine Bentley, then that finding of a statutory violation is evidence of that Defendants’ negligence. Appellant also proposed a second additional jury instruction to be read immediately after the first, providing as follows: Even if you find that the conduct of Drs. Carroll and Morningstar may have complied with Article 27, Section 35A, their compliance with the statute does not necessarily preclude a finding of negligence if you determine, after reviewing all of the evidence, that a reasonable person would have taken precautions beyond the statutorily required measure. The trial court refused to instruct the jury in any manner as to MPJI 19:7, as to any of the provisions of the Maryland Child Abuse Act excerpted by Appellant, or as to the legal effect of Appellees’ violation or non-violation of that statute.

In rejecting Appellant’s additional proposed instructions regarding these issues, the trial judge stated, “I am persuaded that the standard of care is for the jury to determine, and I believe that should be based on the medical standard of care that’s been presented here and not the statute.” Before directly analyzing the judge’s rejection of all of Appellant’s requested instructions relating to the statute, we shall initially dispose of Appellees’ arguments in support of the ³²² court’s decision. First, Appellees assert that Appellant “offered no evidence that Drs. Carroll or Morningstar ever violated” § 35A. As the basis for this assertion, Appellees cite only Dr. Carroll’s testimony, that he conducted a variety of physical examinations, medical tests, and personal inquiries in treating Appellant, that those interventions confirm that there was “no evidence of any kind of sexual activity going on,” and that he never suspected nor had reason to suspect the girl had been sexually abused.

Appellees ignore, however, that Appellant contradicted Dr. Carroll’s claims through the testimony of several witnesses, including herself, her mother, and her expert witness, Dr. David Abramson, some or all of whom the jury could have deemed credible. In sum, the record itself reveals the fallacy of Appellees’ assertion. Appellees next argue that § 35A is inappropriate for purposes of jury instruction in part because it “carries [no] criminal penalty and [is] silent as to civil liability.” Understandably, Appellees fail to cite any legal authority in support of this proposition; our research reveals nothing in Maryland precedent requiring that a statute whose violation may be used as evidence of negligence need impose either criminal or civil liability in order to be utilized in such fashion. That statutes typically used for such evidentiary purposes, for instance, provisions of the State’s motor vehicle law or utility regulation, may routinely allow for sanction(s) upon their violation is of little, if any, legal significance here.

Such an observation certainly does not translate into a rule of law requiring the inclusion of sanctions as a condition precedent to the use of a statute’s violation as evidence of negligence. Appellees’ contention that instructing the jury on § 35A would have been inappropriate for the additional reason that the statute “was designed not only to protect children who have been the subject of abuse, but also to extend immunity from civil liability or criminal penalty to those who report in good faith” is an argument against itself. For, Appellees fail to recognize that the immunity from liability is granted to those who report, not to those who do not. Indeed, ³²³ rather than hiding the statute’s immunity provision from the jury, Appellant deliberately included it within her proposed instructions.

The evident purpose behind the statute’s grant of immunity to good faith reporters is to instigate the exercise of the duty to report; it hardly serves as an excuse for not reporting. Moreover, to the extent that laypersons might commonly experience and expect that physicians render their treatment of patients under a duty of privacy and confidentiality, the instruction on the immunity provision would have directly assisted the jurors in understanding the existence of a duty to report and the ramifications of reporting, particularly the protections provided to physicians who, in filing a report, might appear to a layperson to breach any such confidentiality. Appellees’ alternatively argue that Appellant’s proposed instructions were unnecessary and superfluous, because the statutory duty to report was no different than that which was required under the medical standards of care testified to by both sides’ expert witnesses. Appellees’ equation of the standards as identical is directly nullified, however, by the assertion of their trial counsel during closing remarks that, for a doctor treating child patients in 1978, “[t jhere was no standard of care ... requiring a mandatory reporting [of sexual abuse].

It was simply you had to use your best medical judgment, that’s what you were required to do.” 4 ³²⁴ Finally, Appellees postulate that Appellant “could not establish that a violation of the statute was the proximate cause of her injuries.” The legal effect Appellees attach to the actual incidents of abuse committed by third-party intentional tortfeasors, as “superceding, intervening torts that broke any possible chain of causation between an alleged violation of [§ 35A] and the harm alleged by” Appellant, essentially denies the legislative purpose and desired beneficial effects of § 35A: to redress previous abuse and to prevent future incidence thereof. The General Assembly’s intended goals in enacting the Child Abuse Act, and specifically in imposing a duty on physicians to report suspected abuse, are neither illusory nor fruitless. Maryland Rule 2-520 addresses jury instructions for civil cases tried in circuit court and provides, in pertinent part, that [t]he court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instructions of its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.

Maryland Rule 2-520(c). This Court has provided guidance to trial courts concerning the considerations to be made in determining whether a particular jury instruction requested by a party should be given. More than a decade ago we stated: A party is generally entitled to have his theory of the case presented to the jury through a requested instruction if that theory is a correct exposition of the law and there is evidence in the case which supports it. The test for whether an instruction was proper has two aspects: (1) whether the instruction correctly states the law, and (2) whether the law is applicable in light of the evidence before the jury.

If the test is met, the instruction must be given. Johnson v. State, 303 Md. 487, 512 , 495 A.2d 1, 13 (1985) (citations omitted). See also Smith v. State, 302 Md. 175 , 179- ³²⁵ 80, 486 A.2d 196, 198 (1985). More recently, we have restated this test as follows: [T]o rule upon the propriety of denying a requested jury instruction, a reviewing court must determine whether the requested instruction was a correct exposition of the law, whether that law was applicable in light of the evidence before the jury, and finally whether the substance of the requested instruction was fairly covered by the instruction actually given.

Holman v. Kelly Catering, 334 Md. 480, 495-96 , 639 A.2d 701, 709 (1994) (quoting Wegad v. Howard Street Jewelers, 326 Md. 409, 414 , 605 A.2d 123, 126 (1992)). See also Jacobson v. Julian, 246 Md. 549, 561 , 229 A.2d 108,116 (1967) (“So long as the law is fairly covered by the instructions ... we will not disturb them.” (citations omitted)). Applying the principles of Johnson and Holman to the present case, we must initially determine whether Appellant’s requested instructions were legally accurate. Specifically, is it the law in Maryland, first, that the violation of a statute may be evidence of negligence and, second, that a finding by the jury that Appellees had not violated that statute did not necessarily preclude a finding of negligence? 5 Not long ago we reaffirmed that ftjhis Court has consistently held that the violation of a statutory duty may furnish evidence of negligence.

The positive evidentiary value of a statutory violation, however, is subject to the condition that “the person alleging negligence is within the class of persons sought to be protected, and the harm suffered is of the kind which the statute was intended, in general, to prevent.” County Commissioners v. Bell Atlantic, 346 Md. 160, 179 , 695 A.2d 171, 181 (1997) (quoting Atlantic Mutual v. Kenney, 323 ³²⁶ Md. 116, 124, 591 A.2d 507, 510-11 (1991) (other citations omitted)). See also Erie Ins. Co. v. Chops, 322 Md. 79, 84 , 585 A.2d 232, 234 (1991) (reiterating that the negligence for which the statutory violation provides evidence is only actionable to the extent it proximately caused injury or damage to the plaintiff). Furthermore, in Leonard v. Sav-A-Stop Services, 289 Md. 204 , 424 A.2d 336 (1981), we stated that “ ‘[cjompliance with a legislative enactment ... does not prevent a finding of negligence where a reasonable man would take additional precautions.’ ” Id. at 212 , 424 A.2d at 340 (quoting Restatement (Second) of Torts § 288C (1964) and citing W. Prosser, Handbook of the Law of Torts 203 (4th ed.1971)).

It therefore cannot be denied that MPJI 19:7 and Appellant’s reformulation of it with specific regard to the Child Abuse Act correctly stated the law. 6 Appellant’s proposed instruction on the legal effect of the jury’s finding no violation of the Child Abuse Act by Appellees also accurately reflects Maryland law. Consequently, Appellant was entitled to have the jury instructed as to the substance contained in her requested instructions, as long as the legal propositions therein were applicable in light of the evidence presented at trial. 7 In our view, the evidence within the present case was sufficient to trigger the applicability of the Maryland Child Abuse Act and the possible judgment by the jury that Appellees’ violation of the duty incorporated therein constituted evidence of negligence. 8 During the relevant time period, ³²⁷ Appellant was a child under eighteen and thus a member of the class intended to be protected by the Act. Moreover, the general injury that she allegedly suffered prior to 1981 and undeniably endured thereafter was child abuse, the very evil against which the legislation was intended to protect. As to the final requirement of proximate cause, Appellant produced a reasonable, credible theory that a violation by Appellees of their statutory duty to report contributed to the set of circumstances which allowed the perpetrators to continue their sexual abuse of the plaintiff and therefore proximately caused whatever related injuries she endured after the defendants’ failure to comply with the law.

Such causation could be inferred from the Act’s stated purpose for setting into motion the intervention of the State’s social service and law enforcement personnel: to redress previous abuse of the reported child while ensuring against any future incidence. 9 In addition, the provisions of the statute detailing the responsibilities of the respective state agencies triggered by a report of suspected child abuse, see § 85A(f)-(i), could likewise have generated or reinforced the inference that Appellees’ failure to fulfill the duty to report resulted in continued abuse. Along these lines, Appellant had presented testimony from Peggy ³²⁸ Walter, a child protective service worker with the Frederick County Department of Social Services, who explained in great detail the practices and procedures implemented by her office, in combination with local police authorities, whenever a report of suspected child abuse was filed during the years between 1978 and 1984. The “overriding goal” of this combined intervention was to ensure the “safety of the child.” Therefore, under Appellant’s theory of the case and presentation of evidence, the jury could reasonably have found the required element of causation to have been adequately proven. With regard to the last prong under Holman , the instructions actually given by the trial court did not fairly cover the substance of the issues validly presented by Appellant for consideration by the jury.

Indeed, as noted earlier, the court refused to instruct the jury in any manner whatsoever as to these statutory matters. Perhaps most egregious was that the jurors in this case were in no way instructed by the trial court as to the obligation of physicians to report suspected child abuse, whether couched as a statutory duty or a professional requirement. To the extent it places a statutory reporting duty on physicians, the Maryland Child Abuse Act, now contained in the Code in large part within the Family Law Article, §§ 5-701 to 5-715, is thus incorporated as part of the general standard of care expected of and within the medical profession in the treatment of child patients. While we do not decide exactly how much of or in what manner Appellant’s requested instructions ought to have been given, we hold that the trial court was obligated in the instant case to instruct the jury in some manner as to the legal propositions that (1) Maryland statutory law, during the relevant period, required every physician who treated a child and believed or had reason to believe that the child had been abused was required to make a report as to the existence of