Dorsey v. Nold

WILNER, Judge. This is a medical malpractice action arising out of the tragic death of 16-year-old Candace Dorsey. Believing that Candace’s death was precipitated by a cancerous thyroid tumor that pressed on her trachea and constricted her breathing, Candace’s parents and her estate sued respondent, Jeffrey Nold, a pediatrician who had examined Candace three days before her death, claiming that Dr. Nold was negligent in failing to diagnose the cancer, recognize the danger that it posed, and take remedial action. A jury in the Circuit Court for Anne Arundel County concluded that Dr. Nold did not breach the applicable standard of care in his treatment of Candace. 1 From the judgment entered on that verdict, petitioners appealed, complaining about three evidentiary rulings made by the trial court.

The Court of Special Appeals affirmed the judgment, Dorsey v. Nold, 130 Md.App. 237 , 745 A.2d 1119 (2000), and we granted certiorari to review further those three complaints. We shall reverse. BACKGROUND In early December, 1993, Candace, who, though obese, appeared to be in good health, developed an unusual and persistent cough from deep in the chest, a cough that did not bring up any phlegm. On Saturday, December 11, her mother took her to the Anne Arundel County Pediatric Center, where she was examined by Dr. Nold.

Candace was breathing normally, without difficulty, and, despite the coughing that led to the visit, neither she nor her mother reported any breathing ²⁴⁴ or coughing problem. Dr. Nold did notice, however, a large thyroid goiter of approximately six centimeters, which was firm and nontender and which Candace said that she had for several years. In light of Candace’s obesity, Dr. Nold thought that the goiter was likely the product of hypothyroidism. When a rapid strep test proved negative, Dr. Nold concluded that she had an upper respiratory infection — a cold — and a viral sore throat.

He authorized a thyroid function test to check for hypothyroidism but prescribed no medication and took no other action. Candace returned to her normal activities for the next two days. After school on Monday, December 13, her mother took her to have the thyroid test and, because she seemed sluggish, decided to keep her home from school the next day and take her back to the doctor. Around 2:00 a.m. on the morning of December 14, Candace’s mother heard what sounded like hard breathing and found Candace on the floor of her room breathing so hard that she could not speak.

Paramedics were called. When they arrived, they administered oxygen and tried to question Candace, but because of her labored breathing she was unable to answer. At that point, they decided to take her to the hospital and placed her in the ambulance. With assistance, she was able to walk out of the house and get on to the stretcher.

On the trip to the hospital, however, Candace went into cardiac arrest, and despite everyone’s best efforts in the ambulance and later at the hospital, she could not be revived. She was pronounced dead at 3:45 a.m., December 14. The emergency room physician who treated Candace upon her arrival at the hospital concluded that Candace died of respiratory arrest but was unable to determine the cause of that arrest — why, exactly, Candace was unable to breathe— and she therefore recommended that the casé be referred to the medical examiner. Dr. Theodore King, an assistant medical examiner, performed an autopsy later on December 14.

In his autopsy report, he observed that Candace’s upper airway was compressed and narrowed by “an extrinsic process.” Specifically, he noted two discreet masses in front of the trachea, just beneath the thyroid gland. Dr. King concluded ²⁴⁵ that Candace died “of asphyxia (choking) secondary to airway compression.” He added that “the airway compression was caused by an infiltrating carcinoma of the thyroid which arose in the neck of the deceased and compressed her airway.” Dr. King mentioned no other cause and said nothing, one way or the other, as to whether Candace suffered from asthma. Petitioners filed this lawsuit in July, 1996, claiming, as we said, that Dr. Nold was negligent in failing (1) to diagnose the cancer of the thyroid, (2) to diagnose and appreciate a significant tracheal obstruction, (3) to order appropriate tests* which would have shown a significant airway obstruction, and (4) to refer Candace to a specialist. In September, 1997, an amended scheduling order was entered pursuant to Maryland Rule 2-504.

The order set trial for June 16, 1998 and directed that all discovery procedures be completed by April 30, 1998. It required that petitioners furnish to respondent, by October 20, 1997, “the names and addresses of all expert witnesses and such other information regarding expert witnesses as is required by [Maryland Rule 2-402(e)(l)]” and that respondent furnish similar information to petitioners by January 1, 1998. The order warned that failure to comply with its mandates “will or may lead to sanctions of one or more of the parties or their counsel including dismissal or default where applicable.” On October 20, 1997, petitioners served on respondent their designation of expert witnesses, naming only Dr. William Brownley and Dr. Barry Singer. The only information given with respect to their expected testimony was that they would testify “regarding the allegations contained in the Complaint and that the Defendants breached acceptable standards of care in the care and treatment of [Candace] and that these breaches caused injuries and damages to Plaintiffs, as set forth in the Complaint.” The response also stated that petitioners reserved the right to call “any and/or all treating health care providers, and/or other persons involved with the care and treatment of Candace Dorsey” and “to name rebuttal experts after the completion of the depositions of Defendants’ experts.” ²⁴⁶ On December 30, 1997, respondent named his four expert witnesses — Drs.

DeVore, Tunkel, Fink, and Hutchins — although he did not indicate the nature of their expected testimony. On April 20, petitioners filed a notice to take the depositions of those four experts, and on May 12, they sent their answers to respondent’s interrogatories. Petitioners took the-deposition of Dr. Hutchins on May 4, 1998 and, for the first time, were apprised of his opinion that the cause of Candace’s death was not a cancerous thyroid tumor pressing on the trachea, as Dr. King believed, but rather an asthma attack. On June 10 — five weeks later and only six days before trial was scheduled to begin, petitioners informed respondent that, “in light of the deposition testimony of Dr. Grover Hutchins,” they “may” call Dr. King to testify at trial.

The letter, which is not in the record, apparently did not indicate the nature of Dr. King’s possible testimony. Inferring that Dr. King would be called as an expert witness, respondent moved, in limine, to preclude his testimony, noting that, until June 10, Dr. King had not been identified as an expert witness, that he had not been deposed, and that “his opinions, whatever they are, [had not] been provided to the defense for review and evaluation.” Respondent complained that he would be prejudiced if Dr. King was allowed to testify. Accompanying that motion was another one to preclude petitioners from offering evidence that respondent, who currently was a board-certified pediatrician, did not pass the board examination on his first try, urging that such evidence would be both irrelevant and prejudicial. The court took up these motions on the first day of trial and, after hearing argument, granted both of them.

Noting that many lawyers, including top law school graduates, do not pass the Bar Examination on the first try, the court held that evidence regarding Dr. Nold’s unsuccessful first attempt at the board examination had little probative value with respect to whether he violated ‘the applicable standard of care and would not be admitted. With respect to Dr. King, petitioners’ counsel claimed that, until he took Dr. Hutchins’s deposition on May 4, he was unaware that respondent intended to claim ²⁴⁷ that Dr. King’s conclusion was wrong and that asthma would be asserted as the effective cause of Candace’s death. He also contested the assertion that respondent was unaware of Dr. King’s opinion, noting that respondent had a copy of the autopsy report and that defense counsel had, in fact, spoken with Dr. King. In that regard, he asserted that Dr. King “is being called to testify concerning his autopsy report” and that “I am not calling him to offer anything else other than what is contained in his autopsy report.” (Emphasis added).

He further argued that Dr. King was not even an expert witness, but rather was a fact witness. Defense counsel responded that he had no objection to the autopsy report but suggested that King’s testimony would go beyond that, to “counter the argument of a Defense expert.” The court clearly treated Dr. King as an expert, not a fact, witness and concluded that it would be unfair to allow him to testify. The court found no merit in counsel’s assertion that he was surprised by Dr. Hutchins’s conclusions and suggested that it should have been obvious that respondent would not agree with Dr. King’s findings. To permit his testimony, the court found, would require a postponement to allow respondent to take his deposition and possibly to search for additional experts to counter his opinion: “[i]t is prejudicial to the defense in that at the last moment, they are confronted with a witness they have not had the opportunity to depose and with no experts to counter whatever his testimony might be.” The autopsy report was admitted into evidence as an exhibit and, through it, the jury was informed of Dr. King’s conclusion as to the cause of Candace’s inability to breathe.

Petitioners added to that the expert testimony of Drs. Singer and Brown-ley, both of whom opined that Dr. Nold violated the applicable standard of care in not appreciating and acting upon the danger posed by the thyroid growth, in light of the fact that Candace also had a cold. The essence of their testimony was not that the cancer would grow precipitously but that the goiter, as it existed, would constrict Candace’s breathing and that the constriction could become dangerous when coupled with her upper respiratory infection. Dr. Singer testified that ²⁴⁸ the standard of care mandated that Dr. Nold evaluate the growth that he found to see if it was causing an occlusion of the respiratory track, which in turn required an immediate CT scan to show if the mass was impinging the trachea and causing respiratory problems.

Dr. Brownley stated that recognition of an upper respiratory infection in a patient with a sizeable neck mass warranted immediate attention, which, in his view, meant referral to a surgeon. Both of those opinions rested, at least tacitly, on the assumption that Candace died as the result of the thyroid tumor pressing on the trachea and thereby restricting her ability to breathe. Respondent countered with the testimony of three of his experts. Dr. Hutchins, a pathologist, opined that Candace died of an acute attack of asthma and not from a compression of the trachea caused by the thyroid tumor.

That opinion was based on a number of things, including his analysis of tissue slides made in connection with the autopsy. Essentially, he concluded that the tumor displaced softer tissue surrounding it and may have moved the trachea but did not invade or compress it. On cross-examination, he stated directly that a review of the histology — the tissue slides — did not support Dr. King’s contention that the upper airway was narrowed by the tumor. In that regard, he said that he saw creóla cells on one of the high — magnification slides, which was another indication of asthma.

Dr. Tunkel, a pediatric otolaryngologist, also testified that Dr. Nold met the standard of care in evaluating and treating Candace — that it was appropriate for him to refer her for a thyroid function test before resorting to either a CT scan or surgery. Although, in contrast to the view of Dr. Hutchins, Dr. Tunkel believed that Candace did have some compression of the trachea when she saw Dr. Nold, he felt it appropriate to proceed as Dr. Nold did. He too stated that the tumor would more likely move the semi-rigid trachea rather than restrict the breathing. Dr. Fink, a board-certified pediatrician who practices pulmonary medicine, further confirmed that Dr. Nold practiced entirely within the standard of care, noting that there were no symptoms of airway compression at the time of Candace’s visit ²⁴⁹ and that hypothyroidism is not an emergency situation that required hospitalization.

Dr. Fink agreed with Dr. Hutchins that Candace died of an acute asthma attack and that both her history and the anatomical observations of the trachea itself were inconsistent with death from a tracheal obstruction. On cross-examination, he noted Dr. King’s conclusion that the tracheal sections were normal and pointed out that if an extrinsic mass were narrowing the trachea to the extent claimed, the cartilage would become “markedly distorted,” and that condition would be observable under a microscope. Following this testimony, which concluded the defendant’s case, petitioners sought to call Dr. King as a rebuttal witness. Respondent objected on the ground that, if Dr. King was merely to confirm the conclusions he stated in his autopsy report, the testimony would not rebut anything new injected by the defense and would not, therefore, be proper rebuttal.

Petitioners suggested that Dr. King would be able to rebut Dr. Hutchins’s testimony regarding the presence of creóla cells on the tissue slides of the trachea and would testify that he saw no such cells on those slides. The court disallowed the rebuttal testimony, in part because to do otherwise would be inconsistent with the sanction applied for the discovery violation, and in part because the testimony would not add anything new. In the Court of Special Appeals, petitioners argued that the trial court abused its discretion in (1) not allowing Dr. King to testify in their case-in-chief, (2) not allowing him to testify as a rebuttal witness, and (8) not allowing evidence that Dr. Nold failed his board examination on the first try. That court found no abuse of discretion in any of those rulings and affirmed the judgment entered in favor of Dr. Nold.

DISCUSSION Failure To Pass Board Examination We shall deal first with the third issue raised by petitioners. Dr. Nold graduated with a degree in osteopathic medicine in 1989. He did a one-year rotating internship, ²⁵⁰ followed by a three-year residency in pediatrics, which he completed in June, 1993. He became board-certified in pediatrics in 1994.

When he saw Candace in December, 1993, he was five-and-a-half months out of training and not yet board-certified. In accordance with standard procedure, his hospital privileges during that first year of practice were probationary. All of that information was presented t'o the jury. Petitioners wanted to add evidence that Dr. Nold did not pass the board examination when he took it the first time.

Respondent asserted, in response, that “[h]e was ill, and did not pass it. And then when he took it the second time, he did pass it.” Noting that he would not be testifying as an expert witness regarding the standard of care, respondent moved in limine to exclude that evidence. As noted, the court granted the motion upon a finding that the proffered evidence would have “little probative value.” We find no error in that ruling. Although a physician’s failure to pass a board certification examination has been held admissible when the physician testifies as an expert, as being relevant to his or her qualifications as an expert, see Ward v. Epting, 290 S.C. 547 , 351 S.E.2d 867, 872 (Ct.App. 1986); McCray v. Shams, 224 Ill.App.3d 999 , 167 Ill.Dec. 184 , 587 N.E.2d 66, 69-70 , appeal denied, 145 Ill.2d 635 , 173 Ill.Dec. 6 , 596 N.E.2d 630 (1992), the general rule is that “a physician’s inability to pass a medical board certification exam has little, if any, relevance to the issue of whether the physician complied with the standard of care required in his or her treatment of a patient.” Gipson v. Younes, 724 So.2d 530, 531-32 (Ala.Civ.App.1998).

See also Campbell v. Vinjamuri, 19 F.3d 1274, 1276-77 (8th Cir.1994); Douglas v. University Hosp., 150 F.R.D. 165, 171 (E.D.Mo.1993); Jackson v. Buchman, 338 Ark. 467 , 996 S.W.2d 30, 34 (1999); Williams v. Memorial Medical Center, 218 Ga.App. 107 , 460 S.E.2d 558, 560 (1995); Beis v. Dias, 859 S.W.2d 835, 838-39 (Mo.Ct.App. 1993). We agree with that view. There could be many reasons why a physician failed all or part of a board certification examination; the fact of failure makes it neither more nor less probable that the physician complied with or departed ²⁵¹ from the applicable standard of care in the diagnosis or treatment of a particular patient for a particular condition. Dr. Nold did not testify as an expert in this case.

His testimony was limited to a recitation of what he observed and what he did on the occasion of Candace’s visit. He did not opine with respect to the standard of care, and the fact that he failed the board examination on his first try had little or no probative value with respect to whether his conduct was negligent. Exclusion of Dr. King in Case-In-Chief Dr. King was excluded as a witness on the ground that he would be testifying as an expert, that petitioners’ intent to call him as an expert was not disclosed to respondent in conformance with the scheduling order, and that allowance of his expert testimony, in light of the late disclosure and respondent’s inability to depose the witness, would prejudice respondent. Petitioners urge that the court erred in so ruling, in that (1) Dr. King was not an expert witness whose identity needed to be disclosed in discovery, (2) there was, therefore, no violation of the discovery rules or of the scheduling order, and (3) in any event, there was no prejudice to respondent, who, having received a copy of the autopsy report and having actually spoken with Dr. King about the report, was fully aware of Dr. King’s opinion and findings.

In examining these issues, we begin by laying out the broad discovery framework and distinguishing between the substantive requirements of the discovery rules and the timing requirements of a scheduling order entered pursuant to Rule 2-504. As an introduction, it is important to note that parties in litigation are not limited in their gathering of information to formal discovery procedures but may make any lawful investigations they choose. They may, on their own, search for and obtain documents, witness statements, and all other kinds of evidence. Thus, respondent did not, as a legal matter, need to invoke any formal discovery process in order to learn about Dr. King, to obtain a copy of his autopsy report, or to interview him and question him about his findings.

Indeed, ²⁵² without invoking formal discovery, they did all of those things early in the litigation. The formal discovery process applicable in the circuit courts is set forth in Title 2, Chapter 400, of the Maryland Rules. It is a compulsory one in that it requires parties to disclose certain relevant information that they may not be willing to disclose voluntarily. The compulsion lies in the fact that failure to make adequate disclosure upon a proper request can result in a range of sanctions, including an order that precludes the party from using the information that