Dobson v. Mulcare

⁷⁰¹ Gilbert, J., delivered the opinion of the Court. On May 29, 1973, James L. Mulcare, personal representative and surviving husband of Betty J. Mulcare, brought suit on behalf of his deceased wife’s estate, himself individually, and himself as next friend of his minor daughter, all collectively styled appellee, against Dr. Richard H. Dobson and the Brandy wine-Waldorf Medical/Dental Clinic, Inc., appellants. The suit alleged that Dr. Dobson, President and Treasurer of the Clinic, had negligently administered a tetanus toxoid injection to Mrs. Mulcare, in that the injection was made without first ascertaining Mrs. Mulcare’s medical history, and without determining whether she was likely to suffer an allergic reaction to the administration of the drug. The suit averred that as a result of Dr. Dobson’s negligence Mrs. Mulcare sustained bodily damage which ultimately resulted in her death.

At trial in the Circuit Court for Prince George’s County the appellee offered the testimony of Dr. Harold L. Hirsh, who is also a graduate of the American University, Washington College of Law. 1 Dr. Hirsh was asked the question: “[A]re you familiar with the standard of care in existence in Prince George’s County in May 1970 with respect to the administering of tetanus toxoid?” An objection was immediately interposed by the appellants, and after voir dire and a colloquy with the court, the objection was sustained on the basis that while the doctor was “a qualified internal medicine specialist,” he was “not a general practitioner.” The trial judge stated that he did not “feel” that the witness was “sufficiently experienced as a general practitioner in the community of Brandywine to ⁷⁰² express an opinion in Prince George’s County for an office practice and for that reason” sustained the objection. To support his position the trial judge cited Dunham v. Elder, 18 Md. App. 360 , 306 A. 2d 568 (1973) wherein we, after dischssing the several different rules applicable to the standard of medical skill and care that have been applied by courts in determining whether there has been a breach by physicians and surgeons of the standard required of them, noted that Maryland follows the, “ . .. most restrictive rule, observed in a few jurisdictions ... that an expert medical witness must be familiar with the standard of care possessed and exercised by physicians in the defendant’s own community or locality, the so-called ‘strict locality rule’.” 18 Md. App. at 364 . We concluded in Dunham , that in this State the plaintiff must demonstrate that “the defendant-physician failed to exercise ‘the amount of care, skill and diligence as a physician and surgeon which is exercised generally .. .in the community . . .in which he was practicing. ...” 18 Md. App. at 364 . Kruszewski v. Holz, 265 Md. 434, 438 , 290 A. 2d 534 (1972); Nolan v. Dillon, 261 Md. 516, 534 , 276 A. 2d 36 (1971); State v. Fishel, 228 Md. 189, 195 , 179 A. 2d 349 (1962).

The appellee noted a formal exception to the trial judge’s ruling. The matter was reserved for determination by an en banc panel, and the trial continued. The reservation occurred on a Friday. The following Monday, the next court session, the trial judge stated: “ ...

I had been doing a lot of reading and consider myself much more enlightened now'than I was the other day when I refused to let Dr. Hirsh testify as to the accepted practice in the community. I was unfortunately, I believe, looking at what I personally thought of his ability as a practitioner of medicine, rather than his ability to understand and know the standard of care needed in the ⁷⁰³ community, and I prohibited him from testifying as to the fact. I am convinced his qualifications are such he could have testified about it, and if you want to use him on rebuttal I will let him answer that one question. I just feel obligated to tell each of you two.” Appellee’s counsel noted that Dr. Hirsh had departed for the Orient and would be gone for “four weeks”.

Whereupon the trial judge said: “Let me say this to you, and I am not saying I am wrong in my previous ruling, and I place emphasis on this, that I wanted to get a trial with the most favorable consideration to the plaintiff. I am not convinced the Court of Special Appeals and/or the Court of Appeals wouldn’t sustain my conclusion, based on the fact, I am of the opinion, for some substantial period of time he has become an educator rather than a practitioner of medicine, and I realize the basis for his expertise, apparently, was that he visited his classmate ... down at LaPlata a few times, and his practicing medicine in the City [Washington, D.C.], . . . could very readily be entirely different from Brandywine and the Waldorf area, Prince George’s and Charles County.” The case went to the jury without benefit of Dr. Hirsh’s answer to the question directed toward Hirsh’s familiarity with the standard of care existent in May 1970, in Prince George’s County with respect to the tetanus toxoid injections. The jury found for the appellants. The appellee filed a motion for a new trial.

By the time the motion was heard our decision in Raitt v. Johns Hopkins, 22 Md. App. 196 , 322 A. 2d 548 (1974), rev’d on other grounds, 274 Md. 489 , 336 A. 2d 90 , had been handed down. The trial judge denied the motion for a new trial, and the matter then proceeded before the en banc panel. The panel consisted of Ralph W. Powers, Chief Judge of ⁷⁰⁴ the Seventh Judicial Circuit, and Judges Samuel W.H. Meloy and Joseph A. Mattingly. The majority of the panel, Judges Powers and Meloy 2 concluded that the trial judge had erred, and .they accordingly ordered a new trial.

Appeal was entered to this Court from that ruling. The appellee moved to dismiss the appeal on the ground that no appeal lies from an order granting a new trial. They reason that inasmuch as the en banc panel granted a new trial, there is no appealable judgment to be reviewed by this Court. It is, of course, axiomatic that an appeal does not lie from an order granting a new trial, 3 but the Court of Appeals has carved out an exception to the general rule, insofar as its applicability to en banc proceedings is concerned, and allowed such appeals.

Recently, in Buck v. Folkers, 269 Md. 185 , 304 A. 2d 826 (1973), Chief Judge Murphy, after noting that the en banc panel had, on April 26,1972, remanded a case for a new trial, which new trial was held on October 2,1972, observed that: “While Buck, as the adverse party, was entitled under [the Constitution of Maryland] Article IV, § 22 to appeal from the en banc determination, . . . such an appeal, to be timely, must have been filed within thirty days after April 26, 1972. .. . Since it was not, we cannot take cognizance of the questions presented. ...” 269 Md. at 187-88 . As we read Buck , an adverse party in the en banc proceeding may appeal to this Court 4 from an order of the panel notwithstanding the fact that the order grants a new trial, and provided that the appeal is taken within the thirty days prescribed by Md. Rule 1012. ⁷⁰⁵ Article IV, § 22 of the Constitution provides in pertinent part: “Where any Term is held, or trial conducted by less than the whole number of said Circuit Judges, upon the decision or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for the consideration of the three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting, at which such decision may be made; and the several Circuit Courts shall regulate, by rules, the mode and manner of presenting such points, or questions to the Court in banc, and the decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party, at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal, or writ of error to the adverse party, in those cases, civil or criminal, in which appeal, or writ of error to the Court of Appeals may be allowed by Law. ...” 5 (Emphasis supplied). The italicized portion of § 22 makes it crystalline that the adverse party in an en banc proceeding may appeal to this Court “in those cases, civil or criminal,” in which the appeal is “allowed by law.” As we have seen (n. 3, supra), appeals from the granting of a motion for a new trial are not ordinarily “allowed by law”, but Buck clearly stands for the proposition that the granting of a new trial by an en banc panel is immediately appealable.

Therefore, the appellants are properly before us, and the appellee’s motion to dismiss the appeal is denied. We now turn to a discussion of the case on its merits. ⁷⁰⁶ The law in this State is that whether a witness is qualified to testify as an expert is largely within the sound discretion of the trial judge, “and unless such ruling is clearly erroneous or a clear abuse of discretion it will not be reversed on appeal.” Spence v. Wiles, 255 Md. 98, 102-03 , 257 A. 2d 164 (1969). See also Nizer v. Phelps, 252 Md. 185 , 249 A. 2d 112 (1969); Smith v. State Roads Comm’n, 240 Md. 525 , 214 A. 2d 792 (1965); Christ v. Wempe, 219 Md. 627 , 150 A. 2d 918 (1959); Beckner v. Chalkley, 19 Md. App. 239 , 310 A. 2d 569 (1973); Owens v. Creaser, 14 Md. App. 593 , 288 A. 2d 394 (1972), rev’d on other grounds, 267 Md. 238 , 297 A. 2d 235 (1972); Murphy v. Bd. of County Comm’nrs, 13 Md. App. 497 , 284 A. 2d 261 (1971). In the case presently before us, the majority of the en banc panel did find that the trial judge was.incorrect in his refusal to allow the testimony of Dr. Hirsh.

A review of the record reveals that the