Chia Chuen Su v. Weaver

³⁷³ BLACKWELL, Judge. There are two issues presented in this medical malpractice case. First, we hold that the trial court improperly admitted hearsay testimony concerning an ultimate issue, thus rendering the verdict unreliable. We therefore remand for a new trial.

Second, in an action to nullify a Health Claims Arbitration Panel’s decision, the award is presented to the jury, but an explanatory opinion is not admissible. However in this case, where the opinion had specific findings which were not included in the award, the jury should have been advised of those conclusions. We summarize the facts and explain. I. Due to a significant recurrence of chronic hemoptysis 1 in January of 1981, the Respondent, William R. Weaver, was referred by his family doctor to a specialist who admitted him in Washington County Hospital for a bronchoscopy.

The bronchoscopic examination indicated, apparently erroneously, that Mr. Weaver had cancer in his right lung. Based on this report, Mr. Weaver was referred to the Petitioner, Dr. Chia Chuen Su, for surgical management. Dr. Su examined Mr. Weaver in February of 1981 and recommended a surgical resection of the affected portion of the right lung. In March of 1981, Dr. Su performed a bronchoscopy and then a lobectomy of the upper portion of Mr. Weaver’s right lung.

A subsequent biopsy of the tissue excised during the bronchoscopy indicated that there was no cancer in Mr. Weaver’s lung. The parties are in dispute as to what occurred after the operation. Dr. Su contends that he informed Mr. Weaver following the operation that the excised portion of his lung was noncancerous and that he did nothing to conceal the error made in the original diagnosis of cancer. The Weav ³⁷⁴ ers contend that Dr. Su informed Mr. Weaver, “we got it all,” implying that Mr. Weaver did have cancer and that Dr. Su sought purposely to mislead Mr. Weaver in order to avoid any allegation that the operation may have been unnecessary.

The family first learned Mr. Weaver may not have had cancer approximately two years later from an anonymous telephone caller. The caller, who purported to be a nurse at Washington County Hospital, said Mr. Weaver never had cancer. In September of 1983, the Weavers filed a complaint of medical malpractice against Dr. Su with the Health Claims Arbitration Office. The complaint alleged, inter alia, that Dr. Su negligently failed to properly diagnose, failed to render proper surgical treatment and failed to inform Mr. Weaver that the lobe excised from his lung was noncancerous.

The Weavers contended that Dr. Su’s failure to properly inform interfered with their marital relationship because of the constant fear of a relapse and/or contagious transmission. In March of 1985, an arbitration panel was convened and following a four day hearing, the panel awarded the Weavers $100,000. In April of 1985, Dr. Su filed a notice in the circuit court to nullify the panel’s award. In February of 1986, a jury in the Circuit Court for Washington County (Moylan, J.) rendered a verdict of $50,000 in favor of Mr. Weaver and $65,000 in favor of Mr. and Mrs. Weaver.

Dr. Su filed a timely appeal to the Court of Special Appeals and that court in an unreported, per curiam opinion, affirmed. We granted certiorari to review the two issues presented.

II

Testimony Recounting Anonymous Telephone Call A. Joyce Weaver, Mr. Weaver’s daughter-in-law, testified at trial she received an anonymous telephone call “about two years” after the surgery, which allegedly informed the Weavers for the first time that Mr. Weaver did not have ³⁷⁵ cancer. Over the repeated and timely objection of defense counsel, the trial court permitted Joyce Weaver to testify: “I answered the phone. I didn’t identify myself. I just said ‘hello’ and a lady on the other end of the phone said, ‘Is this the home of Mr. Weaver who had lung surgery two years ago’, and I said, ‘This is his daughter-in-law.

We live next door’, and she said, ‘Did he know that he never had cancer?.’ I said, ‘Well, he was told that they got it all and he didn’t need any therapy’, and I said, ‘He hasn’t needed any therapy up to this point’; and she was distraught and she said, ‘Well, I just had to get it off my conscience.’ She said, T had to tell somebody that he never had cancer’, and she said, ‘There’s someone here in the hospital asking questions and I don’t want to lose my job.’ I told her, I said, ‘I can assure you that my father-in-law is not behind any asking of questions or any investigation.’ I said, ‘To him, everything was settled with the surgery’, and she just continued to get upset and more distraught, and she said, ‘Well, I just had to tell somebody.’ She did identify herself as a nurse from the hospital and I tried to calm her down and I said, ‘Give me your name and number and I’ll have my father-in-law call you and maybe you’ll feel better talking with him; When I asked her for that, she went hysterical and she said, ‘I can’t do that.’ She said, T probably said too much already and I don’t want to lose my job’, and she said, ‘I’d better hang up’, and she hung up.” Dr. Su argues that the trial court improperly permitted Joyce Weaver to testify to an alleged out-of-court conversation she had with an anonymous telephone caller because such testimony is hearsay. The Weavers, conversely, argue that this testimony was properly admitted to show when they first received notice that Mr. Weaver did not have cancer. The Weavers contend that because the testimony was offered for the purpose of showing the state of mind of being put on notice, the testimony was properly regarded as nonhearsay. ³⁷⁶ B. Generally, statements made out-of-court that are offered for their truth are inadmissible as hearsay, absent circumstances bringing the statements within a recognized exception to the hearsay rule. Kapiloff v. Locke, 276 Md. 466, 471 , 348 A.2d 697, 699-700 (1975).

Hearsay has been defined as “testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” Aetna Cas. & Sur. Co. v. Kuhl, 296 Md. 446, 452 , 463 A.2d 822, 826 (1983), Kapiloff v. Locke, supra, 276 Md. at 471 , 348 A.2d at 699 -700 (quoting C. McCormick, Law of Evidence § 246, at 584 (2d ed. 1972)). Out-of-court statements may have an impermissible hearsay aspect as well as a permissible nonhearsay aspect. C. McCormick, McCormick on Evidence § 249, p. 734 (3d ed. 1984).

Extrajudicial statements which are relevant and proffered, not to establish the truth of the matter asserted, but as circumstantial evidence that the statements were made, are considered nonhearsay and therefore admissible. Lunsford v. Bd. of Ed. of Pr. Geo’s Co., 280 Md. 665, 670 , 374 A.2d 1162, 1165 (1977) (evidence that students were discussing rumors of impending violence prior to an attack on a fellow student is admissible, not to prove the truth of the matter asserted, but simply to establish that such statements were made); 2 Greenwald v. State, 221 Md. 245, 256 , 157 A.2d 119, 125 , cert. denied, 363 U.S. 719 , 80 S.Ct. 1596 , 4 L.Ed.2d 1521 (1960) (statements of witness that were in the nature of instructions are admissible, not to prove the truth of the matter asserted, but to show the witness acted upon the statements); Sun Cab Co. v. Walston, 15 Md.App. 113, 131-32 , 289 A.2d 804, 815 (1972), aff'd on other grounds, 267 Md. 559 , 298 A.2d 391 (1973) (testimony of police officer that he had heard statements made ³⁷⁷ that a taxi cab had been struck from the rear admissible, not to prove the ultimate issue, but to prove statements were made and when). See also McLain, Maryland Evidence § 801.5 (1987).

Thus, the witness may testify as to the date a telephone call was received and that the telephone call notified the witness that Mr. Weaver did not have lung cancer. However, the witness may not testify as to the content of the conversation generally which in effect was substantive evidence of the ultimate issue. One of the ultimate issues presented at trial was whether Dr. Su properly and adequately informed Mr. Weaver postoperatively that he did not have cancer. Joyce Weaver’s testimony strongly suggests Mr. Weaver was purposely misinformed of the results of his lung operation.

We conclude the trial court erred in permitting Joyce Weaver to testify to the out-of-court conversation she had with an anonymous caller, with the exception of the date of the call and the allegation that Mr. Weaver did not have cancer. The inadmissible hearsay testimony was directed toward the ultimate issue of responsibility and should have been excluded.

III

Health Claims Arbitration Panel’s Award A. In 1976 the General Assembly enacted the Maryland Health Claims Arbitration Act (the Act), Maryland Code (1974, 1976 Cum.Supp.) Courts and Judicial Proceedings Article, § 3-2A-01, et seq. 1976 Md.Laws Ch. 235 § 1. (All further references to code sections are to the Courts and Judicial Proceedings Article unless otherwise indicated.) This legislation substantially altered the procedure in which a medical malpractice claim is brought against a health care provider by requiring a malpractice claim to be submitted to a mandatory arbitration proceeding as a condition precedent to maintaining such an action in the circuit court. Ott v. Kaiser-Georgetown Health Plan, 309 Md. 641, 645 , 526 A.2d 46, 51 (1987); Cherry v. Brothers, 306 Md. 84, 88-89 , 507 A.2d 613, 615 (1986); Tranen v. Aziz, 304 Md. 605, 612 , 500 A.2d 636, 639 (1985). See also § 3-2A-02(a). “All ³⁷⁸ issues of fact and law raised by the claim and response” are referred to the arbitration panel. § 3-2A-05(a).

Once a panel has been selected and all prehearing issues are decided the claim is set for hearing. Section 3-2A-05 provides in pertinent part: “(d) Determinations.—The arbitration panel shall first determine the issue of liability with respect to a claim referred to it. If the arbitration panel determines that the health care provider is not liable to the claimant or claimants the award shall be in favor of the