Fabritz v. State

Lowe, J., delivered the opinion of the Court. The facts surrounding the conviction of Virginia Lynette Fabritz for child abuse, by a jury of the Circuit Court for Calvert County, are detailed in our reports, Fabritz v. State, 24 Md. App. 708 , and in those of the Court of Appeals, State v. Fabritz, 276 Md. 416 . Suffice to say that her conviction and sentence to 5 years imprisonment were founded upon facts showing that Mrs. Fabritz had neglected to “seek or obtain any medical assistance” for her daughter for a period of eight hours after she should have known, as the Court of Appeals viewed the evidence, that the need therefor was compelling and urgent. 276 Md. 416 at 425 . Our opinion of the intent of the Legislature in enacting the child abuse statute was that an accused must be shown to have caused the injury to be guilty of child abuse, “not simply aggravated it by failure to seek assistance.” 24 Md. App. 714 .

The Court of Appeals disagreed. It held that “... a parent would be criminally responsible as having ‘caused’ such a physical injury to his child in the sense contemplated by the statute if, as a result of the parent’s ‘cruel or ³ inhumane treatment/ the child suffered bodily harm additional to that initially sustained as a consequence of the injury originally inflicted upon him.” 276 Md. at 424 . What was meant by cruel and inhumane treatment within the meaning of the statute was “as those terms are commonly understood.” In the case at bar, the jury below “commonly understood” the terms to mean the failure of a parent to seek or obtain medical assistance for her daughter for eight hours after she had reason to know the daughter had been injured. The Court of Appeals held that the evidence was sufficient to convict under the statute as that Court interpreted it.

The Court of Appeals then remanded the case to us for consideration of two other issues that had been presented upon appeal. Instructions Appellant set forth two complaints regarding the instructions. The first is clearly answered by the opinion of the Court of Appeals. Appellant complained that the trial judge erroneously instructed the jury, that if it found that Windy’s death had resulted from appellant’s cruel or inhumane treatment, the death could be the resulting injury contemplated in the definition of abuse in Md. Code, Art. 27, § 35A.

The appellant contends there was no testimony before the jury upon which it could have made such a finding, and the court’s instructions permitted the jury to speculate on the proximate cause of Windy’s death. That issue was considered pointedly and implicitly answered by the Court of Appeals. After determining that the Legislature intended that withholding treatment could “cause” a physical injury if such action was cruel and inhumane, the Court proceeded to point out that the crux of the appeal was “[w]hether, in view of the evidence adduced at the trial, Virginia’s failure to obtain medical assistance for Windy constituted cruel or inhumane treatment resulting in physical injury to the child.. . .” ⁴ In answering its question, the Court also answered appellant’s: “We think the jury properly could have concluded from the evidence that, as a result of Virginia’s conduct, Windy’s condition was permitted to steadily deteriorate until the child’s ordeal was ended by death; that Virginia’s failure to act caused Windy to sustain bodily injury additional to and beyond that inflicted upon her by reason of the original assault and constituted a cause of the further progression and worsening of the injuries which led to Windy’s death; and that in those circumstances Virginia’s treatment of Windy was ‘cruel or inhumane’ within the meaning of the statute and as those terms are commonly understood.” 276 Md. at 425-426 . We are given less direct guidance by the Court upon appellant’s other instructional complaint, but find the answer in its opinion nonetheless.

At the conclusion of the court’s instructions to the jury, the appellant made the following request for an additional instruction concerning the principle of gross negligence. “Mr. Dorsey: Then we would also ask that in order for the jury to determine that the Defendant was guilty of cruel and inhuman punishment, if they accept — Judge Bowen: Cruel and inhumane treatment. Mr. Dorsey: Cruel and inhumane treatment, rather, assuming the Court to be correct by saying death itself would be the physical injury. I would like the Court to advise the jury that the failure to provide the medical attention must have been to constitute cruel and inhumane treatment, must be of such an aggravated nature as to shock the conscience of a reasonable amount to, amounting to gross negligence amounting to almost awiljul act. Judge Bowen: We are not talking about ⁵ negligence we are talking about something that is life threatening that could produce serious bodily harm.

Mr. Dorsey: Well it didn’t come across to me that way Your Honor.” (Emphasis added). Although awkwardly articulated, that request adequately preserved the issue of whether appellant was entitled to an instruction commensurate with the definition of gross or criminal negligence, i.e., a “wanton and reckless disregard of human life.” Hughes v. State, 198 Md. 424, 432 . Appellant relied on Craig v. State, 220 Md. 590 which is apposite factually. There, both parents of a child who died from pneumonia were convicted of involuntary manslaughter for withholding medical aid for 2 or 3 days after the seriousness of the child’s illness became apparent.

That their withholding of medical aid was predicated upon their religious beliefs (although indicative of an intentional denial of medical aid) was considered by the Court to be “ . . . beside the point, unless their gross and wanton negligence — ordinary negligence being insufficient — caused the child’s death. We have pointed out above that parents are vested with a reasonable discretion in regard to when medical attention is needed for their children. If we assume that ordinarily careful and prudent parents would have called in medical aid during the initial stages of the child’s illness, and, therefore, the defendants were guilty, at this time, of ordinary negligence in failing to call in a physician, we still find nothing in the testimony that would sustain a finding that during this early period of the child’s illness the parents displayed ‘a wanton or reckless disregard for’ the child’s life; and, if we assume that the seriousness of the child’s illness was easily discernible to them in the last two or three days of its life, so that their failure, at that time, to call in medical aid did constitute gross negligence, the ⁶ record fails to disclose that this failure was the proximate cause of the child’s death, because, as above noted, the doctors stated that it would then have probably been ineffective to control the disease.” Craig v. State, 220 Md. at 598-599 . The Craig Court then held that the evidence was insufficient to sustain a finding that gross negligence on the part of the defendants was the proximate cause of the child’s death.

The Craigs were tried for involuntary manslaughter. Criminal negligence or “conduct intentionally or wantonly disregardful of any interest of others” is a species of involuntary manslaughter. Perkins on Criminal Law at 70 (2d ed. 1969). Mrs. Fabritz was tried for child abuse and, as the Court of Appeals pointed out in Fabritz, that crime is entirely different.

The jury was to determine not whether appellant’s conduct was “intentionally or wantonly disregardful of any interest of others,” but rather whether “ ... Virginia’s treatment of Windy was ‘cruel or inhumane’ within the meaning of the statute and as those terms are commonly understood.” 276 Md. at 426 . Although we are troubled by the breadth of that definition of “cruel and inhumane” treatment, 1 we find that Judge ⁷ Bowen’s instruction did not violate the standard so prescribed. 2 Cross-Examination The determination of criminal culpability by the jury thus rested upon whether they found Mrs. Fabritz’s delay in seeking medical attention for Windy was poor judgment, though excusable as parental discretion, cf. Craig v. State, 220 Md. at 597 ; neglect (which was not charged), or inaction amounting to what the jurors “commonly understood” to be cruel or inhumane treatment. The judge described the question in somewhat more narrow terms: “Somewhere and the Court is not prepared to say to you where that line is to be drawn, somewhere in the relative descending scale actions become abuse as opposed to neglect.

Whether the Defendant’s conduct was actuated by malice or evil intent and whether you find it was .. . within the framework of this case, either neglect or abuse, is the question you ladies and gentlemen have to resolve.” Therefore, the most crucial testimony in the case was that of the expert medical witnesses produced by the State, one of whom was Dr. Delroy Hire, a pathologist with the State Medical Examiner’s office. For reasons undisclosed, appellant submitted as to Dr. Hire’s qualifications to testify as an expert pathologist. “Mr. Dorsey: Your Honor, I am sure the State’s Attorney wants the jury to have the benefit of the background of the doctor. We do submit to his qualifications.” ⁸ Sometime later, the question concerning Dr. Hire’s qualifications was again raised and the stipulation more clearly defined. “Mr. Sengstack: For the record Your Honor, it is my understanding that the defense counsel did stipulate that the doctor was an expert. Mr. Dorsey: Expert as to pathology, Your Honor, not to surgery.” The testimony disclosed that Dr. Hire had performed an autopsy on Windy which indicated her death had come from generalized peritonitis brought about by “blunt trauma,” that is, multiple bruises about her entire body.

More damaging to Mrs. Fabritz was his testimony that symptoms of distress or serious illness should have been apparent from time to time during the elapsed period between trauma and death. This testimony was designed to show that during the eight hour period that she delayed seeking medical attention, Mrs. Fabritz must have been aware of the seriousness of Windy’s condition. Equally critical was the doctor’s testimony that, during at least part of this eight hour period, medical attention might have saved Windy’s life. Obviously, the weight given by the jury to this expert’s opinion that the seriousness of Windy’s physical condition would have been apparent to her mother was determinative of the result the jury reached. 3 The very issue before the jury was whether Mrs. Fabritz should have known from simple observation that her daughter was in critical and immediate need of medical aid.

This was pointed out to the jury when the judge instructed: “Now the question of whether or not such action is called for is one of fact and that must be resolved by you ladies and gentlemen. Critical to the resolution to that question we think and so advise you, is the extent of information or notice that the ⁹ person having custody of the child had of the necessity for such action. ” (Emphasis added) On cross-examination appellant therefore sought to discredit the doctor in the eyes of the jury. One attack was based upon his lack of experience as a practitioner of medicine and in treating children of Windy’s age for peritonitis. The court precluded that inquiry giving three reasons for foreclosing that line of examination. “Q How many three year old children have you treated for peritonitis?

Mr. Sengstack: Objection. Judge Bowen: Sustained. Mr. Dorsey: Well Your Honor this certainly goes into — he has made certain — Judge Bowen: Objection sustained. Q Well doctor, have you ever actively engaged in the private practice of medicine1*.

Mr. Sengstack: Objection. Judge Bowen: Sustain the objection. You admitted he was qualified. Mr. Dorsey: Your Honor I would like to approach the bench please.

I do not like to argue in front of the jury. Judge Bowen: You may do so. (counsel to bench) Mr. Dorsey: Your Honor, I objected at the time it was part of his testimony and it was overruled. However, the State’s Attorney has had the pathologist testify to certain objective symptoms that this child would have exhibited so many hours prior to death.

I certainly think that I have the right to cross examine him to, at least, attempt to refute his testimony to show he is not qualified, he has had no experience on which to base his opinion as to certain complaints which would be exhibited ¹⁰ by this child so many hours prior to her death. He made an unequivocal statement to that effect. Judge Bowen: You may cross examine him on that, but what does the variety of practice or anything, or any other type of practice have to do with that. He obviously doesn’t practice clinical medicine.

Mr. Dorsey: That is the point I want to bring out to the jury Your Honor. You see, not to attack his report, but to attack his opinions as to — Judge Bowen: You may cross examine about his opinions, but I am not going to let you embarrass him by asking about his private practices. Q Now doctor you have really concerned yourself in your medical career with the pathology of medicine and I guess in later years you have concentrated on it. A That is partially true.

We are all doctors first and then we specialize. Q And you specialized in pathology. A Right. Q And in the course of — you have actually never treated patients or — Mr. Sengstack: Your Honor, Mr. Dorsey has been warned about this once already and the State would object.

There is a proper way to ask it and an improper way. Mr. Dorsey insists on asking it the improper way. Judge Bowen: Finish your question. Q So doctor in the period of time that you have been engaged or graduated from law school — A Law school?

Q I mean medical school, in the period of time you graduated from medical school, you really have not been familiar with complaints exhibited by patients in the course of treatment. ¹¹ Mr. Sengstack: Objection. Judge Bowen: Objection sustained. He doesn’t tend patients. Q Doctor then you have not been engaged in the practice of medicine in which you would diagnose and treat patients'1.

Mr. Sengstack: Objection. Q Or have you ever been so engaged. Judge Bowen: Objection sustained. ” (Emphasis added). The judge pointed out that appellant had admitted that the doctor was qualified, that it was obvious that the doctor didn’t practice “clinical medicine,” and he should not be “embarrassed” by asking him about his private practice.

We do not find the judge’s reasons for denying that line of cross-examination persuasive. The stipulation by appellant as to the doctor’s qualifications was an admission that he was qualified to express an expert opinion, not that his qualifications were impeccable and unimpeachable. Furthermore, appellant explained that this stipulation that the doctor was qualified was limited to the speciality of pathology. Secondly, although it was “obvious” to the judge that a pathologist is not a treating physician, this fact had not been imparted to the jury and thus the appellant should not have been precluded from further examination.

Finally, the judge’s desire to protect the doctor from embarrassment would have been commendable