Feeney v. Dolan

Moore, J., delivered the opinion of the Court. Dissatisfied with a jury verdict of $20,000 after a trial in which liability was admitted for personal injuries sustained by appellant in a collision between her car and a dump truck, she filed a motion for a new trial. In addition to the general grounds customarily assigned, it was claimed in the motion that the trial court erred in certain rulings on the ⁵⁴⁰ admissibility of evidence. This appeal has been taken, not from the overruling of the motion, but from the verdict and judgment entered.

It is contended on appellant’s behalf that the trial court “committed prejudicial errors which denied the plaintiff-appellant a fair trial and an adequate recovery for the injuries sustained.” 1 Specifically, it is claimed that under the facts of this case, the trial court erred: 1. In refusing to allow redirect examination of appellant’s neurological surgeon on the issue of causal relationship between the accident and the injury; 2. In permitting defense counsel to establish that the appellant and her fiance shared a motel room on a trip to Florida; 3. In permitting defense counsel to refer in opening statement to a Workmen’s Compensation commission award to the appellant of 30% permanent disability by reason of a prior injury to her low back and in permitting counsel to read to the jury the Order of the Commission.

We find the second and third assignments of error to be without merit; and while in our judgment the court erred in refusing to permit redirect examination of appellant’s neurological surgeon, such error has not been shown to have been prejudicial or to have affected the amount of the verdict. Accordingly, we affirm. ⁵⁴¹ I Appellee, Donald Dolan, an employee of appellee, Charles Leitch, was driving a dump truck, owned by Leitch, in a northerly direction on Reisterstown Road, Baltimore County, on November 7, 1973, when he negligently turned in front of the appellant, Catherine H. Feeney, 2 operating a 1969 Pontiac and traveling in the opposite direction. The inevitable collision resulted in property damages of $1,157.47 to appellant’s car. 3 According to Mrs. Feeney’s testimony, upon impact she was thrown about in her vehicle, striking her head on the windshield, her knee on the steering column, and her side on the left door panel. She was driven from the scene to the law office where she was employed.

A physician in the same building examined her. She complained at that time of head and neck pains and a sore knee. The doctor, according to Mrs. Feeney, prescribed bed rest and certain muscle relaxants. The next day she began to experience low back pain, in addition to her previous complaints.

She was seen by Dr. Stuart H. Brager, a specialist in internal medicine, board certified, and an instructor at the University of Maryland School of Medicine, who undertook treatment as her primary care physician. Dr. Brager’s examination of the patient the day after the accident revealed a spasm in the paraspinal muscles from approximately the second through the fifth lumbar vertebrae. The palpable spasm in her lower back, he said, resulted in restricted movement not only in forward bending but also in extension and lateral tilt. He recommended a conservative treatment of physical therapy sessions with a “wait and see” attitude, and prescribed painkillers and muscle relaxants.

After some 8 to 12 physical therapy sessions, Mrs. Feeney’s office visits with Dr. Brager ⁵⁴² terminated in January, 1974. Dr. Brager concluded that Mrs. Feeney had “a reinjured lumbar sprain which was superimposed on this prior post-dissectomy status.” As suggested by the internist’s diagnosis, Mrs. Feeney’s back troubles predated the 1973 accident. In May of 1968, while working at the Townhouse Motor Hotel as a clerk, she injured her back in a fall down a flight of stairs. This incident resulted in surgery by the late Dr. Clinton Harrison in July, 1968 at Mercy Hospital.

Dr. Harrison’s operative notes were admitted into evidence. They disclosed that he had performed an excision of ruptüred discs at L4 and L5. After the operation by Dr. Harrison, appellant was seen by Dr. Edward G. Reahl, Chief of Orthopedics at Mercy Hospital, who testified that he first examined her in March, 1969, at the request of her attorney, in order to evaluate her condition for a pending Workmen’s Compensation claim arising out of the stairway fall. Her complaints at that time consisted of pain beginning in her back radiating down her left leg all the way to her toes.

His opinion was that as a result of the 1968 accident, “she sustained a herniated lumbar disc with persistent symptoms referable to her back and leg.” On cross-examination he testified, without objection, that her post-operative condition in 1969 amounted, in his opinion, to a 35% permanent partial disability of the back. With respect to the 1973 accident, Dr. Reahl testified that he examined the appellant at the request of her internist, Dr. Brager, in December, 1975. In his opinion, she had a recurrence of the L4-L5 disc as well as a rupture of the L3-L4 disc as a result of the accident, and she had “a significant, residual permanent disability in her back.” He did not, however, recommend a spinal fusion because of her history of pulmonary embolism. According to Mrs. Feeney, she was unable to work for one year after the 1968 accident.

By early 1970, however, improved by physical therapy, she resumed her employment and normal physical activities and her back presented no significant problems, except for sporadic episodes of pain. On cross-examination, without objection, she admitted that ⁵⁴³ she received a 30% permanent partial industrial disability from the Maryland Workmen’s Compensation Commission as a result of the fall. 4 As previously stated, she stopped receiving treatment from Dr. Brager in January, 1974. However, she recounted at trial that her back was “slowly getting worse” during the following months. The appellant and her fiance took a motor trip to Disneyworld, Florida in April, 1974. 5 Her testimony reveals that the entire drive was uncomfortable and by the time she returned to Maryland, a week later, the deteriorating condition of her back forced her to see Dr. Brager on April 30.

An examination disclosed, in Dr. Brager’s opinion, the signs of a ruptured disc. He also stated that, in retrospect, the symptoms, as exhibited by the patient in her December 1973 — January 1974 examinations, coupled with Mrs. Feeney’s medical history, indicated that the ruptured disc was present when he first saw the patient immediately after her accident. Dr. Brager referred Mrs. Feeney to Dr. Jerome Reichmister, an orthopedic surgeon at Sinai Hospital, who placed her in traction and then arranged a consultation with Dr. Neal Aronson, Chief of Neurosurgery at the hospital. The patient remained in traction from May 3rd to May 20th.

A myelogram was then performed. Dr. Aronson testified that he and Dr. Reichmister decided, “after careful consultation with the patient who said she couldn’t live with the symptoms that she had even after a full trial of conservative treatment,” to proceed with exploratory surgery. This decision was made “reluctantly” because of appellant’s history of pulmonary embolism after a hysterectomy. ⁵⁴⁴ According to Dr. Aronson, he removed a ruptured disc located in the midline between the 3rd and 4th lumbar vertebrae as well as a “recurrent disc rupture” between the 4th and 5th vertebrae. Dr. Aronson stated that the latter rupture was the same disc previously removed in Dr. Harrison’s procedure in 1968.

On cross-examination, he testified that the results of his final examination of the patient in August, 1975 negatived a spinal fusion because of the success of the May surgery. Although the appellant still complained of occasional nagging backaches, Dr. Aronson found no objective abnormalities. Appellant introduced into evidence medical bills aggregating in excess of $8,000. She also testified that as a result of the car accident her loss of wages was approximately $8,000.

In his charge to the jury, the trial judge instructed that “there is no legally sufficient evidence in this case that the plaintiff will require any future medical treatment or incur any future medical expenses other than drugs.” 6 II On direct examination, appellant’s counsel elicited from Dr. Aronson, who performed the exploratory surgery of appellant’s spine in May 1974, the medical history which he obtained from Mrs. Feeney, his findings upon examination, and the results of the operation. Based on the information derived from these three sources, in response to the inquiry whether there existed a causal relationship between “the rupture that you found” (in May, 1974) and the automobile accident of November 1973, Dr. Aronson stated: “Well, this is a preamble that I always give when I am asked to testify. I was called in as a consultant and a treating doctor in this case. I was not the initial treating doctor who saw this lady after her injury.

I have to rely upon her believability and ⁵⁴⁵ honesty as a person in determining causal relationship. If one takes for granted that the history she gave me was correct, then I would have to assume that the recurrence of her disc trouble was the result of the injury that she sustained. But everything depends upon the honesty of the patient, because obviously I did not treat her initially, had not been treating her prior to this accident and was not intimately aware day to day what her symptoms were and how she was doing, remembering that she had prior disc trouble five years before. So if a consultant or a secondary doctor that comes into the picture later on,■ the history as given by the patient to him is the only thing upon which I can base my conclusions.

And, I therefore have to say as I have already stated, if the history given to me is correct, then a causal relationship exists in my opinion.” (Emphasis added.) Apparently in the light of Dr. Aronson’s expressed dependence upon the veracity of the patient in relating medical history, counsel for the appellees on cross-examination exposed certain discrepancies in the medical history upon which the physician had relied. Thus, counsel’s cross-examination established: 1. Dr. Aronson was under the impression that appellant’s low back pain in 1968 radiated into the right leg as compared to her complaint of left leg radiating pain in 1974. 2. He believed that the appellant’s back complaints began about one month before he saw her, that is, in April 1974, some five months after the car accident. 3.

He received no history that the appellant complained of her back or received any treatment for her back following the November 1973 accident. ⁵⁴⁶ On all three points Dr. Aronson’s history was in error. Both appellant’s testimony and the medical records in evidence revealed that the 1968 back injury was productive of pain radiating to the left leg. Furthermore, the appellant’s complaint of low back pain originated within forty-eight hours of the accident and she had received physical therapy treatments under the care of Dr. Brager. Apparently disturbed by these revelations, Dr. Aronson altered his previous testimony when asked on cross-examination his opinion as to causal relationship.

The following appears in the transcript: “Q. So that there was a recurrence of the disc at L4-5 resulting from the previous surgery, is that right? A. I cannot answer that question. I don’t know what it resulted from. Q. So you have no opinion as to the cause of the recurrence of the ruptured disc at L4-L5 level, is that correct?

A. Can I only say this? Trauma is a very important cause of disc protrusion, and it is not unlikely that the injury that she sustained would have caused a recurrence, although if the symptoms had began immediately thereafter it would be easier to say that a definite causal relationship existed. Q. Do you have an opinion that you can state with a reasonable degree of medical certainty or probability that the accident of November 7, 1973 caused a recurrence of the ruptured disc at the L4-L5 level? A. In terms of reasonable medical probability, I would have to say I’m not sure.

Q. Do you have an opinion that you can state with a reasonable degree of medical certainty or probability as to whether or not the accident on November 7, 1973 caused the ruptured disc that you found at the L3-L4 level? ⁵⁴⁷ A. The answer is the same, I’m not sure. I think it’s highly possible but I can’t — Q. Don’t you know, Doctor, you have been in Court enough times that we do not talk about possibilities. A. That’s right.” (Emphasis added.) With appellant’s expert witness thus impeached, her counsel on redirect attempted to rehabilitate him. The following colloquy appears in the transcript: “Q.

(By Mr. O’Doherty) Dr. Aronson, in your direct examination you expressed the opinion that the condition you found based on the history was related to the accident of November 7, 1973, correct? A. Yes. Q. In your cross-examination — and you correct me if I’m wrong — you said that you couldn’t say for sure? A. Yes.

Q. Why did you say that? (Mr. Cadigan) Objection. (The Court) Overruled. Q.

(By The Court) Doctor, the question is why you said you were not sure in response to the questions of Mr. O’Doherty and —■ A. Because I looked over my notes more carefully. Your Honor, and I saw that there were certain things lacking there that I would really need in order to give a valid answer to that question. That information may exist, but I don’t have it. Q.

(By Mr. O’Doherty) What is that information? (Mr. Cadigan) Objection. (The Court) Sustained. ⁵⁴⁸ Q. (By Mr. O’Doherty) You said there were certain factors lacking within the purview of your knowledge.

What are those factors? (Mr. Cadigan) Objection. (The Court) Sustained. Come up to the Bench.

At The Bench (The Court) I have sustained the objection because you have not gotten to the point the way you’re going at it. You’re taking the approach that you should have taken in direct examination, not in redirect examination. So I am not going to permit you to go any further. (Mr. O’Doherty) If you don’t mind, since I have to protect the record, by putting my two cents in.

I proffer now that I am entitled to know those factors; and I point out to Your Honor that he did not say that was the reason because she gave a history of sciatic pain on the right and not on the left side. I proffer to you what he said before is that he would want to know the history of her condition from, the date of his first examination. (Emphasis added.) (The Court) Regardless of what he said, I’m telling you what the impact was, that as soon as he learned that the pain in 1974 radiated down the left leg rather than the right, he said — the question was put to him immediately after that — and he said, I’m not sure. My ruling is based upon the fact that you have an opinion which is negated by his cross-examination.

You can’t go ahead and try something on redirect that could have been done and should have been done on direct examination. If you want to make another proffer, go ahead.” The scope of redirect examination rests within the sound discretion of the trial judge, and his discretion is wide. Bailey v. State, 16 Md. App. 83, 111 , 294 A. 2d 123 , 138-39 ⁵⁴⁹ (1972); Fisher Body Division v. Alston, 252 Md. 51, 56 , 249 A. 2d 130, 133 (1969). Even inquiry into new matters, not within the scope of cross-examination, may be permitted; and a party is generally entitled to have his witness explain or amplify the testimony which he has given on cross-examination and to explain any apparent inconsistencies.

Mills v. State, 12 Md. App. 449, 461-62 ,