Butler-Tulio v. Scroggins

KRAUSER, Judge. Appellant, Charlotte Butler-Tulio, brought this medical malpractice action in the Circuit Court for Prince George’s County against appellees, Carlton Henry Scroggins, M.D. and the Prince George’s Hospital Center, for allegedly leaving part of a microsurgical needle in her wrist during an operation to repair a transected median nerve. 1 After the jury returned a verdict in favor of appellees, appellant noted this appeal, challenging the admissibility of the testimony of appellees’ expert witness, Ronald William Luethke, M.D., and the propriety of certain jury instructions given by the trial court. Those two issues are now presented to us in the form of five questions: 2 I. Did the trial court err in permitting Ronald William Luethke, M.D., to testify as an expert witness for appellees, over appellant’s objection, although he had originally been consulted by appellant for a medical evaluation and possible treatment?

II

Did the trial court err in instructing the jury on intervening and superseding cause? ¹³¹ III. Did the trial court err in stating, during the course of instructing the jury on the applicable standard of care, that “[tjhere is a presumption that health care providers perform their medical duties with the requisite care and skill?” IV. Did the trial court err in failing to instruct the jury on the doctrine of res ipsa loquitur? V. Did the trial court err in failing to instruct the jury as to the “borrowed servant” or “captain of the ship” doctrines?

For the reasons that follow, we shall affirm the judgment of the trial court. BACKGROUND On August 19, 1991, appellant accidentally cut the wrist of her right arm while she was performing a household chore. She subsequently sought medical attention at appellee Prince George’s Hospital Center. There, the cut was sutured in appellee’s emergency room.

When appellant continued to experience pain and numbness in her right hand, she was referred to appellee, Carlton Henry Scroggins, M.D. After examining appellant, Dr. Scroggins concluded that she had suffered an injury to the median nerve, and scheduled her for surgery. On September 12, 1991, Dr. Scroggins performed surgery on appellant’s wrist at Prince George’s Hospital Center. On the median nerve, he found a neuroma, a nodule made up of nerve and scar tissue, and removed it. During that operation, he was assisted by another surgeon, a scrub technician, and two circulating nurses.

The nurses were employees of Prince George’s Hospital Center. Among other things, they were responsible for counting the needles and recording whether the count was “correct” on the “Operation Room Data Form.” During appellant’s operation, two counts were performed and recorded as “correct” on that form. ¹³² Following surgery, appellant continued to complain of pain. Dr. Scroggins referred her to the Raymond Curtis Hand Center at Union Memorial Hospital (“Union Memorial”). At Union Memorial, on December 15, 1992, Clara Belle Wheeler, M.D., performed another surgery on appellant’s wrist.

In her operative notes, Dr. Wheeler indicated that she found “a shiny object ... lying over the tendinous portion of the palmaris longus 3 as it splayed into the palmar fascia.” 4 Under loupe 5 magnification, Dr. Wheeler identified the object as a “surgical suture needle.” The surgical pathology report identified the same object as a “metallic splinter,” which was six-tenths of a centimeter in length and less than one-tenth of a centimeter in diameter. On January 12, 1995, appellant was examined by Ronald William Luethke, M.D., a plastic surgeon. Appellant told Dr. Luethke that she had cut her hand on a piece of glass in 1991, and that Dr. Scroggins had performed surgery a few weeks after the injury. She complained of weakness in her hand, abnormal sensations in her thumb and fingers, and difficulty in bending her hand back.

After examining appellant’s hand and wrist, Dr. Luethke concluded that appellant was suffering from a “low median nerve injury,” but advised against further surgery. Instead, he recommended only symptomatic treatment. At the end of the examination, appellant asked Dr. Luethke if he “could support her claim of negligence” against appellees. In reply, Dr. Luethke stated that “the presence of a small microsurgical needle in the wound in the area where it was described ... would have little, if any effect, on her current ¹³³ disability or treatment with regards to her previous injuries.” He further advised her that he “could not support her claim of negligence” but “would be happy to see her back should she desire further consultation and treatment.” Appellant did not see Dr. Luethke again.

Two years later, on January 10, 1997, appellant filed a complaint in the Circuit Court for Prince George’s County against Dr. Scroggins and the Prince George’s Hospital Center, alleging, among other things, that appellees were negligent in leaving a foreign object in her wrist during surgery. Trial At trial, appellant called two expert witnesses: Joseph Anthony Mead, Jr., M.D. and Carol M. Mennich, R.N. Dr. Mead opined that Dr. Scroggins had violated the standard of care owed appellant by leaving “a needle or part of the needle” in the wound, by later failing to discover that “the needle part” had been left there, and by failing to recognize that that was the cause of appellant’s continued pain and disability. Dr. Mead further testified that, in his opinion, the “needle” left in the wound was the cause of appellant’s “pain and injury.” But he declined to express an opinion as to how a part of that needle had broken off or how it had found its way into the wound site. Moreover, he declined to state that Dr. Scroggins was responsible for breaking the needle in the first place.

Appellant’s other expert witness was Carol Mennich, a registered nurse. She testified that needle counts were performed during appellant’s surgery at Prince George’s Hospital Center, and that those counts were the responsibility of the operating room nurses. The purpose of such counts, according to Mennich, is to “insure there are no foreign objects left in the body cavity.” She opined that the nurses, who assisted Dr. Scroggins, failed to properly account for the needles because they indicated twice on the operating room data form ¹³⁴ that the needle count was correct when a portion of one of the needles was missing. Appellees’ expert witness was Dr. Luethke, the plastic surgeon consulted by appellant two years earlier.

Dr. Luethke had not been named as either a fact or expert witness by appellant. After describing his examination of appellant, Dr. Luethke testified that leaving a microsurgical needle in the wound is not a violation of the standard of care, and that it “[i]n fact ... happens all the time.” He further opined that there are “many ways ... a microsurgical needle could ... find its way into an operative wound by no fault of anyone’s.” According to Dr. Luethke, “[t]he needle was found well away from the area of the previous median nerve repair,” and, the metallic sliver or microsurgical needle had “nothing to do” with appellant’s injury or the pain in her wrist and hand. He further stated that, at the conclusion of her examination, appellant had asked him whether he could support her claim of negligence. In response, Dr. Luethke stated that he could not as there was no evidence that either appellee had “breachfed] the standard of care.” When defense counsel asked Dr. Luethke why he thought appellant had come to see him, Dr. Luethke responded that he “came away [from the consultation] with the distinct impression that [appellant] was hoping for someone or a physician to support her claim of negligence.” When the trial ended, the jury returned a verdict in favor of appellees, finding that neither Dr. Scroggins nor Prince George’s Hospital Center had breached the standard of care.

DISCUSSION Appellant contends that the trial court erred in allowing Dr. Luethke, who had previously examined appellant at her request, to testify as an expert witness for appellees, over appellant’s objection. In support of that contention, appellant advances four reasons why the doctor’s testimony should have been excluded: First, as a “treating physician,” Dr. Luethke ¹³⁵ violated a fiduciary duty when he gave expert testimony against appellant. That duty, according to appellant, arose out of their physician-patient relationship. Second, “the probative value of [Dr. Luethke’s] testimony ... was outweighed by its prejudicial effect.” Third, allowing a treating physician to testify as an expert witness against a patient in a medical malpractice case, as Dr. Luethke was permitted to do, “threaten[s] the integrity of the judicial process.” And fourth, “Dr. Luethke’s testimony should have been excluded because he participated in ex parte contacts with [appellees’] attorneys.” After carefully considering each ground, we remain unpersuaded that the trial court erred in permitting Dr. Luethke to testify as a defense expert.

Before addressing the merits of appellant’s claims, we note that, in deciding whether to admit or exclude expert testimony, a trial judge is “vest[ed] ... with [a] wide latitude” of discretion. Massie v. State, 349 Md. 834, 850 , 709 A.2d 1316 (1998). Indeed, that decision “will be reversed only if it is founded on an error of law or some serious mistake, or if the judge has abused his discretion.” Franch v. Ankney, 341 Md. 350, 364 , 670 A.2d 951 (1996) (citing Hartless v. State, 327 Md. 558, 576 , 611 A.2d 581 (1992)). Even then a reversal is not warranted unless the erroneous admission of such evidence was prejudicial.

The burden of showing that as well as error falls squarely on the complaining party. Beahm v. Shortall, 279 Md. 321, 330 , 368 A.2d 1005 (1977). A Physician’s Fiduciary Duty We begin our analysis by observing that there is no physician-patient privilege in Maryland. “Communications made to a physician in his professional capacity by a patient are neither privileged under the common law of Maryland, nor have they been made so by statute.” Rubin v. Weissman, 59 Md.App. 392, 401 , 475 A.2d 1235 (1984) (citing Robinson v. State, 249 Md. 200, 221 , 238 A.2d 875 (1968)); see also O’Brien v. State, 126 Md. 270, 284 , 94 A. 1034 (1915). That has been the law of Maryland, and, except for a narrow exception ¹³⁶ created by the General Assembly in the mental health area, 6 that remains the law of Maryland today.

Given the settled nature of Maryland law on that point, appellant takes a novel tact: conceding that no physician-patient privilege exists in Maryland law and that, even if one did, it was waived when appellant put her medical condition in issue, appellant claims Dr. Luethke’s expert testimony should have nonetheless been barred because it violated, not a privilege, but a physician’s fiduciary duty to his patient. According to appellant, when a treating physician “ceases to be a fact witness” and becomes an “expert witness on standards of care” the physician’s testimony is “no longer an integral component of the fact-finding process” but “becomes part of the defense litigation strategy.” Allowing such testimony, appellant claims, violates “[t]he fiduciary nature” of the physician-patient relationship, the protection of which requires a rule “precluding treating physicians from ever testifying as expert witnesses” against their patients. 7 Before reaching that issue, however, we feel compelled to note that the record does not fully support the conclusion that Dr. Luethke was in fact appellant’s “treating physician.” Although we have not addressed this issue in this context before, we have considered the question of what is a “treating physician” in the context of determining when a patient’s state ¹³⁷ ments to his or her doctor are admissible as an exception to the rule against hearsay. In Low v. State, 119 Md.App. 413 , 705 A.2d 67 (1998), the issue before us was whether a physician was a “treating” or “examining” physician for the purpose of determining whether statements made to that doctor by a twelve-year-old victim of sexual abuse were substantive evidence under Maryland Rule 5-803. Subsection (b)(4) 8 of that Rule permits the admission of “[statements made for purposes of medical treatment or medical diagnosis in contemplation of treatment” as substantive evidence. 9 In Low , we held that because the doctor saw the victim “for the sole purpose of examining and detecting child abuse,” she was not a treating physician under Rule 5 — 803(b)(4) and therefore any statements made to her by the victim were not admissible as substantive evidence under that exception to the hearsay rule.

Id. at 425 , 705 A.2d 67 . In reaching that result, we stressed that “the declarant’s subjective purpose in making any statements to a physician is of vital importance in determining whether to admit those statements as substantive ¹³⁸ evidence even though hearsay.” Id. (citing In re Rachel T., 77 Md.App. 20, 34 , 549 A.2d 27 (1988)). In determining the purpose of the victim (or declarant) we took into consideration that there was “no evidence that [the declarant’s] subjective intent when being examined and interviewed by [the doctor] was to communicate potential ailments or abuse in hopes of further treatment.” Id.

We further noted that the declarant had been referred for only a medical examination, that she presumably had never been treated by that physician before, and that there was no indication that she would ever be again. Id. at 421, 705 A.2d 67 . As in Low , appellant met with Dr. Luethke on only one occasion and, as in Low , it was for a medical evaluation. At the conclusion of her examination, appellant asked the doctor whether he could support her claim of negligence against appellees.

He indicated that he could not, and she did not return for further treatment. At trial, Dr. Luethke testified that he “came away [from their consultation] with the distinct impression that she was hoping for someone ... to support her claim of negligence.” Because appellant did not testify on this point — as the issue of her “subjective intent” was not raised by either party before or during trial — we do not know what explanation she would have given at trial for seeing Dr. Luethke. As this brief summary of the testimony on this issue reveals, the evidence is, to be sure, ambiguous as to whether Dr. Luethke was a “treating” physician. As appellant’s entire argument for finding that Dr. Luethke had breached a fiduciary duty by testifying against appellant is based on the assumption that he was a “treating” physician, this issue would not be, under a different set of circumstances, inconsequential.

But because we find no fiduciary duty in Maryland that would prohibit a physician, treating or otherwise, from giving expert testimony against a patient, we do not reach that issue here. In support of her argument that Dr. Luethke should not have been permitted to testify, appellant cites three Maryland cases, Maryland’s Confidentiality of Medical Records Act, and ¹³⁹ several decisions rendered by trial and intermediate appellate courts in other jurisdictions. The Maryland cases and statute cited by appellant, however, lend no support to the proposition that a treating physician should not be permitted to testify as a medical expert against a patient, and the out-of-state cases relied upon by appellant run counter to Maryland law. The first Maryland case that appellant relies on is Lemon v. Stewart, 111 Md.App. 511 , 682 A.2d 1177 (1996).

In Lemon , the issue before us was whether a health care provider has “a duty to inform the members of a patient’s extended family ... of the patient’s positive HIV/AIDS status.” Id. at 514 , 682 A.2d 1177 . In that case, we held that there is no such duty, id. at 524 , 682 A.2d 1177 , and explained that “the relationship between a health care provider and its patient is one of trust and confidence and that, absent a statute permitting otherwise, the patient has a right to assume that his medical condition will not voluntarily be disclosed by the provider to other persons without the patient’s consent.” Id. at 525 , 682 A.2d 1177 . Appellant’s reliance on Lemon is manifestly misplaced. In Lemon , we reasoned that “[t]o recognize a common-law duty on the part of health care providers to inform persons such as appellants would not only be thoroughly impractical but would constitute a wholly unwarranted invasion of the patient’s privacy.” Id. at 524 , 682 A.2d 1177 .

In other words, we found that there was “a compelling substantive public policy reason not to impose it — the privacy rights of the patient.” Id. Our statement that “the relationship between a health care provider and its patient is one of trust and confidence” refers only to the unwarranted disclosure of confidential patient information and was not intended, as appellant claims, to preclude a physician from giving expert testimony against a patient who has waived his right to privacy by placing his medical condition in issue. In short, unlike in Lemon , there is no right of privacy at stake here. Lemon , therefore, lends no support to appellant’s contention that “[b]y participating in the defense’s case, a treating physician necessarily betrays his or her patient’s confidence.” ¹⁴⁰ Appellant cites two other Maryland cases to buttress her “fiduciary duty” claim.

They are Dr. K v. State Board of Physician Quality Assurance, 98 Md.App. 103 , 632 A.2d 453 (1993), and Suburban Trust Co. v. Waller, 44 Md.App. 335 , 408 A.2d 758 (1979). Neither one provides any support to the proposition for which they are cited. In Dr. K , we held that a patient’s “constitutional right to privacy in her medical records [was] ... outweighed by the State’s compelling interest in obtaining those records for the purpose of investigating possible disciplinary action against Dr. K.” Id. at 122 , 632 A.2d 453 . In Suburban Trust, we stated that “a bank depositor in this State has a right to expect that the bank will, to the extent permitted by law, treat as confidential, all information regarding his account and any transaction relating thereto.” Id. at 344, 408 A.2d 758 . “Accordingly,” we held there “that, absent compulsion by law, a bank may not make any disclosures concerning a depositor’s account without the express or implied consent of the depositor.” Id.

Neither Dr. K nor Suburban Trust bolsters appellant’s claim. In both of those cases, as in Lemon , this Court found a confidential relationship but only in the context of a right to privacy, where that right had not been waived, expressly or impliedly, by the party invoking it. Because none of the Maryland cases cited by appellant are relevant to the issue now before us, they serve only to underscore the unprecedented nature of appellant’s claim. Appellant next invokes Maryland’s Confidentiality of Medical Records Act (“Act”), 10 claiming to find support in section 4-302(a) of the Act for prohibiting a treating physician from testifying as an expert witness against a patient.

That section provides that “[a] health care provider shall: (1) Keep the medical record of a patient or recipient confidential; and (2) Disclose the medical record only: (i) As provided by this subtitle; or (ii) As otherwise provided by law.” Md.Code Ann. ¹⁴¹ (1982, 2000 RepLVol., 2000 Cum.Supp.), § 4-302(a) of the Health-Gen. I Article. An express exception to the confidentiality established by that Act, however, is when a patient puts his or her medical condition at issue in a civil action. Then, a health care provider must disclose, in accordance with § 4-306(b)(3), all medical information, that forms the basis of the patient’s claim, regardless of whether the patient consents to that disclosure. 11 Notwithstanding this unambiguous expression of the legislature’s intent not to shield information of this nature from disclosure, appellant argues that the legislature, by “crafting the [Act] so that confidentiality is the rule and disclosure the exception, plainly recognized the important public policies underlying the physician-patient relationship.” Whatever the merits of this pronouncement, the Act clearly does not preclude treating physicians from testifying as experts against their patients.

Ultimately, appellant turns to cases from other jurisdictions to bolster her claim of the existence of a fiduciary duty that bars adverse expert testimony by a treating physician. These cases, however, are plainly at variance with Maryland law. The first case appellant cites is Piller v. Kovarsky, 194 N.J.Super. 392 , 476 A.2d 1279 (Law Div.1984). In that case, the Superior Court of New Jersey, Law Division, held that “the fiduciary nature of the [physician-patient] relationship should preclude a physician from testifying against his patient as a liability expert, at least in a medical malpractice action involving the very condition for which the physician has treated the patient.” Id. at 1282.

In support of that conclusion, ¹⁴² the New Jersey court cited a Pennsylvania case, Alexander v. Knight, 197 Pa.Super. 79 , 177 A.2d 142 (1962), a case upon which appellant now heavily relies. Piller, 476 A.2d at 1281 . In Alexander , the Superior Court of Pennsylvania, an intermediate appellate court, declared that physicians “stand in a confidential or fiduciary capacity as to their patients.” Alexander, 177 A.2d at 146 . In that regard, the court continued, “[tjhey owe their patients ... a duty of total care; that includes and comprehends a duty to aid the patient in litigation, to render reports when necessary and to attend court when needed.” Id.

That duty also includes, the court asserted, “a duty to refuse affirmative assistance to the patient’s antagonist in litigation.” Id. Unfortunately for appellant, this Court flatly rejected that reasoning in Stevens v. Barnhart, 45 Md.App. 289 , 412 A.2d 1292 (1980). In that medical malpractice case, the deceased plaintiff was allegedly a former patient of a partner of the defense’s medical expert and had allegedly been treated by that partner for an ailment unrelated to the issues before the trial court. Stevens, the personal representative of the plaintiffs estate, claimed that the trial court “ ‘erred in refusing to advise’ ” the defense’s medical expert that, in testifying against the deceased plaintiff, “ ‘he might well be violating his duty to a patient of his partnership.’ ” Id. at 294 , 412 A.2d 1292 .

To bolster that claim, Stevens cited the foregoing statements from Alexander v. Knight, supra. Declaring that that language does not “represent ] the law of Maryland,” this Court stated that “ ‘[cjommunications made to a physician in his professional capacity are not privileged under the common law of Maryland, nor, with some exceptions in the case of psychiatrists, have they been made so by statute.’ ” Id. at 295, 412 A.2d 1292 (quoting Franklin v. State, 8 Md.App. 134, 141 , 258 A.2d 767 (1969)). See also Green v. Otenasek, 267 Md. 9, 15 , 296 A.2d 597 (1972) (declaring that the Alexander statement “hardly rises to the level of dicta”). Admittedly, our rejection in that case of a physician’s duty “to refuse ¹⁴³ affirmative assistance to the patient’s antagonist in litigation” appears to rest solely on the ground that Maryland does not have a physician-patient privilege outside of the mental health field.

We reaffirm that holding but do so on the ground that a physician, treating or otherwise, has no fiduciary duty to refuse to give expert medical testimony adverse to his patient’s legal interests. Nor is Maryland alone in rejecting such a duty. See, e.g., Torres v. Superior Court, County of San Diego, 221 Cal.App.3d 181 , 270 Cal.Rptr. 401 (1990); Richbow v. District of Columbia, 600 A.2d 1063 (D.C.1991); Orr v. Sievert, 162 Ga.App. 677 , 292 S.E.2d 548 (1982); Cates v. Wilson, 321 N.C. 1 , 361 S.E.2d 734 (1987); Trujillo v. Puro, 101 N.M. 408 , 683 P.2d 963 (Ct.App.1984); Carson v. Fine, 123 Wash.2d 206 , 867 P.2d 610 (1994). In Cates v. Wilson, 321 N.C. 1 , 361 S.E.2d 734 (1987), for example, the Supreme Court of North Carolina held that “fo]nce a plaintiff waives his right to prohibit disclosures of confidences by his physicians he may not assert the physician-patient privilege to prevent them from testifying as experts for his opponent.” Id. at 740.

The court reasoned that “[w]hen a patient dissolves the fiduciary relationship with his physician by disclosing or permitting disclosure of details of their consultations, he should not, in fairness, be allowed to prevent the physician from stating an opinion which might aid the trier of fact in assessing the merits of the patient’s case.” Id. at 743. The court noted that “to hold otherwise would enable patients ... to suppress the truth in litigation.” Id. In Richbow v. District of Columbia, 600 A.2d 1063 (D.C.1991), the District of Columbia Court of Appeals reached a similar conclusion, stating that “there is no satisfactory basis for, on the one hand, conceding that a physician may testify about the facts of his patient’s treatment but, on the other, disputing the admissibility of an expert opinion formed in the course of, or on the basis of, that treatment (even though rendered by the physician as a paid expert).” Id. at 1069 . In Torres v. Superior Court, County of San Diego, 221 Cal.App.3d 181, 184 , 270 Cal.Rptr. 401 (1990), the Court of ¹⁴⁴ Appeal of California for the Fourth Appellate District also addressed the issue of “whether a nonparty physician who treated a malpractice claimant may testify as an expert for the defense.” Id. at 184 , 270 Cal.Rptr. 401 .

In that case, the plaintiff, Torres, filed a motion to prevent his former treating physician from “testifying as a defense expert witness on the medical negligence standard of care employed by subsequent treating physicians.” Id. at 183 , 270 Cal.Rptr. 401 . As grounds for that motion, Torres claimed that a doctor owes a patient “a fiduciary duty to refuse affirmative assistance to his patient’s adversary in litigation.” Id. at 184 , 270 Cal.Rptr. 401 . The court nonetheless concluded that “the better rule [was] to permit [Torres’ doctor] to testify for the defense.” Id. at 187 , 270 Cal.Rptr. 401 . Similarly, in Carson v. Fine, 123 Wash.2d 206 , 867 P.2d 610 (1994), the issue before the Supreme Court of Washington was the “admissibility of adverse opinion evidence offered by a treating physician against the plaintiff, his former patient in a malpractice action filed against another physician.” Id. at 613.

That court held that “a plaintiffs waiver of the physician-patient privilege extends to all knowledge possessed by the plaintiffs doctors, be it fact or opinion.” Id. at 616. The court reasoned that “[t]here is no basis in reason, the common law, or in statutory law to draw a distinction between the types of testimony a treating physician may offer once the physician-patient privilege has been waived.” Id. at 616-17. Finally, in Orr v. Sievert, 162 Ga.App. 677 , 292 S.E.2d 548 (1982), the Court of Appeals of Georgia stated that “we discern no restraint upon a doctor who has entered into a patient-doctor relationship and treated a patient from rendering an appropriate opinion as to the nature and quality of treatment afforded the same patient for the same course of illness by another physician.” Id. at 550. See also Trujillo v. Puro, 101 N.M. 408 , 683 P.2d 963, 966 (Ct.App.1984) (court agreed with defendant’s assertion that “a physician who has previously treated a plaintiff in an action alleging negligence or malpractice is not precluded from testifying as an expert for the defendant”). ¹⁴⁵ Probative Value v. Prejudicial Effect Appellant next claims that the trial court should have excluded Dr. Luethke’s testimony because its probative value was substantially outweighed by its prejudicial effect.

Specifically, appellant asserts that there is an “unfair prejudice that inherently derives from the physician’s breech [sic] of trust in testifying as part of the adversary party’s team.” Such testimony, appellant explains, is unfairly prejudicial as “[j]urors are inclined to give great weight to a treating physician’s testimony because they recognize the special nature of a physician-patient relationship.” Thus, appellant maintains that the trial court erred in permitting Dr. Luethke to testify as a defense expert and thereby exposing her to unfair prejudice. Maryland Rule 5-403 provides in part that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by