Greater Metropolitan Orthopaedics, P.A. v. Ward

DAVIS, Judge. Appellants Greater Metropolitan Orthopaedics, P.A. (Greater Metropolitan) and Heart Center of Southern Maryland, LLP (Heart Center) appeal from the judgment of the Circuit Court for Prince George’s County denying their motion in limine, motion for mistrial, and motion for new trial. Appel-lee Sue Ward, 1 Personal Representative of the Estate of Archibald Ward, filed suit against appellants on July 8, 1999, alleging medical malpractice in the care of Ward.

During the trial, the court denied appellants’ motion in limine, motion for mistrial, and motion for new trial and, on November 7, 2001, entered judgment following a jury verdict in favor of appellee. On January 9, 2002, appellants timely noted their appeal and ⁶⁸⁹ raised four questions for our review, which we restate and consolidate into three questions as follows: I. Did the trial court err in denying appellants’ motion in limine and allowing evidence of permanent injury without medical testimony in support thereof?

II

Did the trial court err in denying appellants’ motion for mistrial and subsequent motion for new trial on grounds that appellee presented an improper closing argument before the jury?

III

Did the trial court fail to exercise any discretion in its ruling on the motion for new trial, thereby constituting an abuse of discretion? We answer questions I and III in the affirmative and question II in the negative, reversing the trial court’s judgment. FACTUAL BACKGROUND On July 28, 1998, Ward, an 87-year-old male, was transported to the emergency room at Southern Maryland Hospital, where doctors determined that he had a broken hip. At the time of his fracture, he suffered from various health problems, such as difficulty swallowing, high blood pressure, atherosclerosis, and cardiovascular disease.

Nonetheless, he was physically capable of all aspects of independent daily living and his doctor recommended surgery. Dr. Edward Rabbit, a Greater Metropolitan employee, performed the surgery on Ward’s broken hip on July 28, 1998. Prioi- to surgery, a series of baseline blood levels were obtained from Ward in order to adequately monitor him post-surgically. Immediately after the surgery, new blood tests indicated a nineteen-point drop in Ward’s blood volume. • On July 29, 1998, Ward’s condition was labeled “serious” as a result of his post-surgical blood loss and low blood pressure caused by his low blood volume.

From July 29 through August 4, 1998, he received nine units of blood. Additionally, ⁶⁹⁰ by August I, 1998, Ward’s International Normalization Ratio (INR) count had increased to 7.34. 2 Ward bled continuously from the time of his surgery on July 28 until August 4, 1998. The Greater Metropolitan doctors assigned to his case did nothing to determine the source of his bleeding and, on August 3, 1998, concluded that a “wait-and-see” approach was in order. That same day Ward suffered a stroke.

At trial, appellee’s expert testified that appellants’ delay in treating Ward, as well as repeated episodes of hypotension, 3 caused the stroke. The jury returned a verdict in favor of appellee in the amount of $400,000. LEGAL ANALYSIS I Appellants contend that the trial court erred in denying their motion in limine and allowing appellee to introduce evidence of permanent injury unaccompanied by supporting medical testimony. Specifically, appellants argue that it was improper to allow the jury to consider evidence beyond Ward’s hospitalization because medical evidence was not presented demonstrating that such injuries were causally related to the stroke he suffered while hospitalized.

Appellants further assert that it was improper for the jury to award damages based upon evidence of Ward’s injuries beyond hospitalization. Appellee contends that this issue is not preserved for appellate review because appellants failed to raise the issue at trial. Appellee, however, is incorrect. Appellants made a motion in limine, in which they objected to the “day-in-the-life” videotape that appellee wished to introduce at trial.

Within that motion, appellants also objected to appellee’s attempt to introduce Ward’s injuries sustained after his hospi ⁶⁹¹ talization and attribute those injuries to the stroke without medical opinion. The court denied the motion, but stated that it would “allow a continuing objection to be made part of the record throughout with regard to [appellee’s expert’s] testimony, at least that evidence.” Additionally, appellants repeatedly objected when appellee began testifying about ailments that her husband experienced after the stroke. Appellants’ attorney approached the bench and stated, “[Appellee is] going to attempt to attribute everything that was wrong with [Ward] to these [appellants].” The trial court overruled the objection. Direct examination of appellee resumed and the following colloquoy ensued: [APPELLEE’S COUNSEL]: What about [Ward’s] bowel function, bowel and bladder [after he suffered the stroke]? [WITNESS]: Well, he was incontinent, which was a— [APPELLANTS’ COUNSEL]: Objection, Your Honor.

THE COURT: Overruled. [APPELLANTS’ COUNSEL]: For the same reason I said before. THE COURT: Overruled. Appellants objected once again when appellee’s counsel asked appellee to describe any problems Ward encountered after the stroke that were not associated with the broken hip. Despite appellants’ contention that appellee was not qualified to testify on this matter, the trial court overruled the objection.

We, therefore, conclude that appellants properly preserved the issue for appeal thereby warranting our discussion of its merits. Whether expert testimony is necessary to prove the causal relationship between a defendant’s negligence and a plaintiffs alleged damages is determined on a ease-by-case basis. S.B. Thomas, Inc. v. Thompson, 114 Md.App. 357, 376 , 689 A.2d 1301 (1997). In Wilhelm v. State Traffic Comm’n, 230 Md. 91 , 185 A.2d 715 (1962), the Court of Appeals stated that ⁶⁹² [t]here are, unquestionably, many occasions where the causal connection between a defendant’s negligence and a disability claimed by a plaintiff does not need to be established by expert testimony.

Particularly is this true when the disability develops coincidentally with, or within a reasonable time after, the negligent act, or where the causal connection is clearly apparent from the illness itself and the circumstances surrounding it, or where the cause of the injury relates to matters of common experience, knowledge, or observation of laymen. However, where the cause of an injury claimed to have resulted from a negligent act is a complicated medical question involving fact[-]finding which properly falls within the province of medical experts ... proof of the cause must be made by such witnesses. Id. at 99-100 , 185 A.2d 715 (citations omitted). Consequently,, when a “complicated medical question” is involved, Maryland courts have declared the need for expert medical testimony.

See, e.g., Craig v. Chenoweth, 232 Md. 397 , 194 A.2d 78 (1963)(holding expert testimony was necessary in order to establish a causal nexus between the car accident and the partial hand paralysis that plaintiff suffered six weeks after the accident); Desua v. Yokim, 137 Md.App. 138 , 768 A.2d 56 (2001)(holding that the evidence of causation was insufficient without an expert because the injury was diagnosed too long after the accident); Strong v. Prince George’s County, 77 Md.App. 177 , 549 A.2d 1142 (1988)(opining that proof of a causal connection between an automobile accident suffered by plaintiff and the onset of pancreatitis several months later was necessary); Kraft v. Freedman, 15 Md.App. 187 , 289 A.2d 614 (1972)(asserting that expert testimony was necessary to prove the causal relationship between an automobile accident allegedly resulting in the recurrence of plaintiffs ileitis). In Wilhelm , appellant claimed that expert testimony was unnecessary to prove the causal connection between the car accident and her three subsequent injuries. As to the first alleged injury — emotional problems — the Court held that expert testimony was necessary in order to submit the question to the jury, asserting that “a question involving the causes of ⁶⁹³ emotional disturbances in a person sufficient to evoke, subconsciously, grossly exaggerated symptoms is an intricate and complex one, peculiarly appropriate for science to answer.” Wilhelm, 230 Md. at 101 , 185 A.2d 715 . The Court likewise opined that the second claimed injury — low back pain during her menstrual periods — was an inappropriate jury question in the absence of medical testimony because the question was complicated and presented an “involved and intricate medical inquiry.” Id.

The Court, however, held that Wilhelm’s third injury — skin depigmentation — was not a complicated medical question and, therefore, did not require expert medical testimony. Id. at 104 , 185 A.2d 715 . The car accident in which Wilhelm was involved left her with a large bruise on her face. Within a few weeks, Wilhelm developed a skin depigmentation confined solely to the area of the bruise.

Noting that Wilhelm had never experienced any previous skin depigmentation on her face, the Court opined that “common experience, knowledge and observation of laymen, we think, would permit a rational inference that the bruise had probably caused the loss of pigmentation, in the absence of evidence of any other equally probable cause.” Id. at 104 , 185 A.2d 715 . 13] In the case sub judice, whether Ward’s alleged permanent injuries, including incontinence, difficulty seeing from one side, and difficulty with speech and swallowing, are causally connected to the stroke is a complicated medical question that requires expert testimony. It is complicated because Ward was an 87-year-old male who already suffered from various health problems associated with old age. The jury would certainly have difficulty distinguishing between effects of the stroke and effects from Ward’s deteriorating health condition. Thus, it was necessary for appellee to present expert medical testimony demonstrating that Ward’s injuries were in fact permanent and were caused by the stroke.

Clearly, appellee’s testimony regarding her personal knowledge of Ward’s incontinence and swallowing difficulties after the stroke do not ⁶⁹⁴ qualify as expert medical testimony and is insufficient to prove a causal connection. Appellee asserts that she presented adequate expert medical testimony indicating a causal relationship between Ward’s permanent injuries and his stroke. Appellee’s expert, Dr. Seneff, testified as follows: [APPELLANTS’ COUNSEL]: Doctor, with regard to your review of the records through August 12th, 1998, did you happen to note what damages that Mr. Ward sustained that were not attributable to his broken hip? [WITNESS]: The homonomous hemianopsia, which he had difficulty seeing on one side, his difficulty with speech and swallowing. There’s a description in the medical records about him having trouble eating and aspirating, for which he subsequently needed a feeding tube inserted.

Those are all characteristic of people who have low flow or strokes in the posterior part of the brain because those functions, those cranial nerves come off that part of the brain. [APPELLANTS’ COUNSEL]: And it’s your opinion that [appellants’ violation of the standard of care was] the proximate cause of the damages that you’ve just