Greenstein v. Meister

Levine, J., delivered the opinion of the Court. This appeal deals mainly with questions of admissibility and sufficiency of evidence in a medical malpractice case. Appellees recovered judgments totaling approximately $214,500 against appellants, George Greenstein, an orthopedic surgeon, and Sinai Hospital of Baltimore, Inc., in the Superior Court of Baltimore City (Murphy, J.). Appellants then noted appeals to the Court of Special Appeals, but we granted certiorari prior to consideration of the case by that court.

We affirm. Although the events culminating in this appeal originated with the performance of a spinal operation, the negligence charged to the two surgeons who performed it and to Sinai Hospital occurred not during surgery, but in the postoperative stage that followed. 1 The entire episode began on the morning of Sunday March 9, 1969, when the decedent, Nathan Meister, then 49 years of age and employed as a part-time television repairman, entered Sinai Hospital for the purpose of undergoing elective surgery to be performed on the following day by Doctor Greenstein and Doctor Neal Aronson, a neurosurgeon. Mr. Meister, otherwise in good health, had for the past few years suffered from instability of the low back, which had necessitated three prior surgical ²⁷⁸ procedures including one disc removal and three spinal fusions. The third operation had been performed only 18 months earlier.

Since it had afforded him no relief, a fourth fusion was to be performed on the following day, Monday March 10th. Because his own blood was known to contain a characteristic described as Duffy Antigen, Mr. Meister had been tested at the Sinai blood bank a week earlier to insure the availability of an adequate supply of compatible blood during the surgery. After the blood was crossmatched, seven pints were set aside for the surgery. On Monday March 10, Mr. Meister underwent a four-hour operation.

At the outset, Doctor Aronson performed his neurosurgical procedures, which consisted essentially of explorations to ascertain the possible presence of nerve root compression. Since he found no evidence of a protruded disc, it was unnecessary for him to perform a neurosurgical operation. The services which he did render consumed about thirty minutes, whereupon he left the operating room. Doctor Greenstein then took over and performed an extensive spinal-fusion operation at the levels of L-4 to S-l.

To accomplish this, a bone graft from the right hip was necessary. The combined efforts by the two surgeons were themselves uneventful and technically successful. At midnight, Mr. Meister was removed from the recovery room to his own semi-private room in satisfactory condition. Shortly after 9:00 a.m. on the following morning, Tuesday March 11, Doctor Aronson visited Mr. Meister in his room.

He found the patient lying on his side and complaining of acute pain at the donor site. Although he regarded the pain as a normal consequence of the particular surgery which had been performed, he observed that the donor site was swollen “more than what one would ordinarily expect. . . . [T]he hip seemed much more prominent to [him] than an ordinary hematoma.” While he no longer considered Mr. Meister to be his patient, he was sufficiently concerned by what he had seen to telephone Doctor Greenstein, in whose care the patient had remained. Doctor Greenstein was not available, but one of his partners recommended to Doctor Aronson ²⁷⁹ that an ice pack be applied. After seeing to this and prescribing a pain medication, Doctor Aronson departed.

Although Doctor Greenstein testified that he visited the patient about midnight on the 11th, and his associate, Doctor Arthur Baitch, testified to having visited 90 minutes earlier, the hospital records failed to reveal any such visits until 10:00 a.m. on the 12th, when another orthopedic associate, Doctor Melvin Friedman, arrived. Mr. Meister, however, was seen twice on the 11th by a house physician, once at 6:00 a.m. and again at 1:15 p.m. He was, of course, also seen a number of times by nurses. Late in the morning of the 11th, Mrs. Meister received a telephone call from her husband’s roommate at the hospital, Francis C. Jackson, a Baltimore County police detective.

He called at the request of Mr. Meister, whom he described as suffering from severe pain in the right hip and complaining that he was hot. Earlier that morning, he had begun to notice “a yellowish cast” over Mr. Meister’s face. When Mrs. Meister arrived shortly after receiving the telephone call, she found her husband with a “slightly yellowish cast on his skin,” in great pain and feverish to touch. With the exception of a brief absence to pick up their 17-year old daughter at school, Mrs. Meister remained with her husband continuously until 9:00 p.m. on the evening of the 11th.

During her stay, she testified, no physician examined Mr. Meister. The yellowish cast appeared to her “to deepen” as the day wore on. At the same time, his pain and restlessness increased, “and his face was contorted more.” By the time she left at 9:00 p.m., “the yellow [color] had really deepened and he was very feverish.” Some time during the evening, a nurse, at Mrs. Meister’s request, took his temperature and found “it was more elevated.” On learning this, Mrs. Meister asked the nurse “to call the doctor.” After waiting for some time, she was called to the nurse’s station at 7:45 p.m., where she was met by a physician whom she understood to be an employee of the hospital. She described to him her husband’s condition and requested that the doctor make an examination.

He did not ²⁸⁰ do so during her stay, but assured her that he would make one immediately after her departure. On the next morning, March 12, when she again responded to a telephone call from Mr. Jackson, Mrs. Meister found her husband “very, very yellow, [a] deep color yellow” with one eye “back in the side of his head and the other one . . . going up and down.” By then he was unable to speak. Mr. Jackson also detected a worsening of Mr. Meister’s condition on the 12th when he observed the patient to be as “yellow as a banana.” Not surprisingly, therefore, the degree of attention accorded Mr. Meister increased dramatically following the arrival of Doctor Friedman on the morning of the 12th. At that time, he found the patient “grossly jaundiced.” According to the hospital records, he formed the opinion, which came to be shared by virtually every other physician who saw Mr. Meister on the 12th, that the patient’s condition had resulted from a blood transfusion reaction.

Various remedial measures were taken by the hospital staff after 12:30 p.m. when the patient was “in shock.” Among the steps initiated was the insertion of a tube to empty the stomach of fluids and gas. This procedure apparently alleviated the shock condition. Still later, he became even more jaundiced and experienced gross hemolysis — a breakdown of the red blood cells. The family physician then had him transferred to the intensive care unit where the patient was seen by a hematologist.

He, too, concluded that the most likely explanation for Mr. Meister’s condition was “transfusion incompatibility.” Early that evening, Doctor Aronson, on being informed by a telephone call from Doctor Green stein that the patient was “doing very badly,” went immediately to the hospital and, on seeing the patient, recognized that “it was a hopeless situation.” Mr. Meister died at 10:30 p.m. on the 12th. Two death certificates were prepared. The first, executed on the 12th, listed the cause of death as “massive introvascular hemolysis” (destruction of the red blood cells) as a consequence of blood transfusion reaction. The second certificate, dated the 13th, listed the underlying cause as ²⁸¹ “clostridial sepsis,” an infection of the bloodstream, apparently of undetermined origin.

This change of opinion resulted from tests conducted before and after Mr. Meister’s death, which had excluded the possibility of blood transfusion reaction or contamination. The various expert witnesses called by appellees, however, were of the further opinion — to the extent that we can state it concisely — that beneath the airtight covering at the donor site, the hematoma (accumulation of blood), a normal consequence of such an incision, had resulted in dead tissue. This served as fertile ground for the growth of the anaerobic [non-oxygen consuming] organism, clostridia perfringens, which produced a toxin resulting in gas gangrene and thus destruction of the red blood cells. This destructive process which overtook the red blood cells released two components, one in particular, a pigment called bilirubin that caused the jaundiced appearance of the skin.

The depth of the yellowish color was directly related to the amount of blood cell destruction. Following her husband’s death, Mrs. Meister and her daughter brought suit against Sinai and Doctors Greenstein and Aronson. The jury, after a trial that covered a span of some 25 days and produced a transcript of almost 2500 pages, returned verdicts in favor of Doctor Aronson, but against Sinai and Doctor Greenstein in favor of Mrs. Meister, as administratrix of her husband’s estate, in the sum of $152,209; in her favor individually in the sum of $56,600; and in favor of the daughter in the sum of $5,660. Appellants attack the judgments that followed on numerous grounds.

Some merit only brief consideration and others may be grouped together. Appellees, however, have taken no cross appeal from the judgment for costs entered in favor of Doctor Aronson. (1) Both appellants challenge the qualifications of an expert witness produced by appellees, Walter Nick Laurence, an orthopedic surgeon with 30 years’ practice from London, England. They contend that he was unfamiliar with the ²⁸² applicable standard of care and, therefore, should not have been permitted to express his opinion on that subject.

The following deficiencies in the witness’s testimony, appellants argue, disqualified him as an expert witness. First, they complain because in England the entire procedure undertaken here by both the neurosurgeon and the orthopedic surgeon is performed solely by the orthopedist; the witness himself had performed 270 such operations in the 10 years preceding the trial. Secondly, they claim that he was not qualified to testify because his testimony betrayed an ignorance of certain terminology, particularly in regard to the tradenames, as opposed to the generic names, of several medicines mentioned in the decedent’s hospital records. Without exception, these medicines consisted of antacids, tranquilizers or pain killers.

Significantly, none of them was an antibiotic, the very drug which, according to the witness, should have been, but was not, administered to Mr. Meister with the onset of the postoperative symptoms. The remaining reasons for disqualifying the witness, appellants say, were that his testimony amounted to an abandonment of the “national standard” enunciated in Shilkret v. Annapolis Emergency Hosp., 276 Md. 187, 200-201 , 349 A. 2d 245 (1975), for an “amorphous ‘worldwide’ standard,” and that the effect of the witness’s statement that the standard of care was the same in both countries was to make him a self-appointed expert. It is again important to stress here that the charges of negligence leveled at both appellants centered not on the orthopedic-neurosurgical procedures followed in the operating room, but on the lack of necessary care during the postoperative period. From the outset of the trial, no question was ever raised over compliance with the standard of care applicable to the surgery itself.

Furthermore, the infection which overcame Mr. Meister, according to the testimony, presents a threat in every branch of surgery. Appellants do not question the qualifications of the witness per se, that is, they do not contend that he was not an expert in orthopedic surgery in England. Nor could they ²⁸³ logically have done so. Not only did he possess a rather impressive background as an orthopedic surgeon, but also the only orthopedist called as an expert witness by appellant Greenstein, Doctor Robert A, Robinson of Johns Hopkins, testified in relevant part that the American school of orthopedic surgery is based largely on the English school in regard to both surgical and postoperative care.

Doctor Robinson confirmed Mr. Laurence’s testimony that information was freely exchanged between orthopedic surgeons of both countries, as demonstrated by the publication of a joint British-Amoriean journal on orthopedic surgery. Furthermore, early in his career, Doctor Robinson had spent several months as a house officer at the same hospital in England at which Mr. Laurence had once been the senior Registrar (chief orthopedic resident) and at which he had also taught. As we have suggested, Mr. Laurence testified in considerable detail during direct and cross-examination regarding the standard of care applicable not only to the surgeon in the postoperative stage, .but also to the hospital. He explained how those standards had been violated and why the failures had caused Mr. Meister’s death.

More importantly, as we have indicated, he demonstrated at length that the standard of care for the early diagnosis and treatment of the fatal infection process is the same in both countries. Judge Murphy responded to the timely objections, and to the subsequent motions to strike Mr. Laurence’s testimony, by carefully exercising the discretion which is conferred on the trial judge in such instances. As we have repeatedly emphasized, whether a witness is qualified to testify as an expert is largely within the sound discretion of the trial judge. See, e.g., Radman v. Harold, 279 Md. 167 , 367 A. 2d 472 (1977); Raitt v. Johns Hopkins Hospital, 274 Md. 489, 501 , 336 A. 2d 90 (1975); Consol.

Mech. Contractors v. Ball, 263 Md. 328, 338 , 283 A. 2d 154 (1971). In exercising that discretion here, the trial judge was cognizant of the objections raised, but nevertheless found the witness qualified to testify. What we said in Raitt v. Johns Hopkins Hospital, 274 Md. ²⁸⁴ at 500-501, quoting from Casualty Ins.

Co. v. Messenger, 181 Md. 295, 298-99 , 29 A. 2d 653 (1943), is apposite here: “ ‘ .. . It is a familiar rule of evidence that a witness, in order to qualify as an expert, should have such special knowledge of the subject on which he is to testify that he can give the jury assistance in solving a problem for which their equipment of average knowledge is inadequate. It is sufficient if the court is satisfied that the expert has in some way gained such experience in the matter as would entitle his evidence to credit.... A witness is qualified to testify as an expert when he exhibits such a degree of knowledge as to make it appear that his opinion is of some value, whether such knowledge has been gained from observation or experience, standard books, ... or any other reliable sources.. . .’ ” A further reference to Raitt is in order in light of appellants’ emphasis on our subsequent holding in Shilkret v. Annapolis Emergency Hosp., 276 Md. at 200-01 .

In Raitt v. Johns Hopkins Hospital, 274 Md. at 500 , we held that expert witnesses proffered in a medical malpractice case were not disqualified from testifying on the applicable standard of care merely because they did not practice in the same community as the physician charged with malpractice, provided they were familiar with that standard. As we there said, “the expert witness need only possess such knowledge of the applicable standard of care as will enable him to render an informed opinion.” Id. We also underscored the distinction, which seems to have been overlooked here by appellants, “between the requisite qualifications of an expert witness and the subject matter of his testimony itself.” Id. In sum, the witness in question here demonstrated to the satisfaction of the trial judge, who was exercising his sound discretion, that he possessed sufficient knowledge of the applicable standard of care to enable him to render an informed opinion, that is, to provide assistance ²⁸⁵ to the jurors in “ ‘solving a problem for which their equipment of average knowledge [was] inadequate.’ ” Id.

We hold that no error was committed here in permitting the orthopedic surgeon to testify as an expert witness. (2) Two further contentions, which may be treated as one, are raised concerning the admissibility of testimony presented by Mr. Laurence and another expert witness, Doctor Theodore Rodman, an internist from Philadelphia. Appellants argue first that Mr. Laurence relied on the depositions of Doctors Rodman and Greenstein for his opinion testimony even though those depositions were not admitted in evidence. Secondly, they argue that Doctor Rodman also relied on the deposition of Doctor Greenstein.

Two aspects of this contention may be answered without extensive comment. Although Mr. Laurence testified to having read Doctor Rodman’s deposition, he categorically stated in response to repeated questions from various counsel and from the court that he did not rely on that deposition in formulating any of his opinions. Doctor Rodman, in turn, while stating that he also had read Doctor Greenstein’s deposition, never relied on it as the basis for his conclusions. The question is limited, then, to whether Mr. Laurence’s opinion was properly admitted in light of his reliance, in part, on Doctor Greenstein’s deposition.

It is, of course, well settled that the hypothetical opinion of an expert witness must rest upon a factual basis that is sufficient to support a rational conclusion. Nolan v. Dillon, 261 Md. 516, 531-32 , 276 A. 2d 36 (1971). The jury must be informed of the facts or assumed facts upon which the expert’s opinion is based and there must be evidence to support such facts. State, Use of Solomon v. Fishel, 228 Md. 189, 198 , 179 A. 2d 349 (1962); see State v. Eye, Ear, Etc., Hospital, 177 Md. 517, 524-25 , 10 A. 2d 612 (1940); Mangione v. Snead, 173 Md. 33, 42 , 195 A. 329 (1937).

Here, Mr. Laurence rested his opinions on the depositions of Doctors Greenstein and Aronson (the latter of which was read to the ²⁸⁶ jury), the hospital records, and the testimony of Francis C. Jackson, the roommate. Although his deposition was not admitted in evidence, Doctor Greenstein testified at great length during the trial. We have examined the deposition and find absolutely no testimony contained therein that was not also presented by him as a witness during the trial. 2 In short, Mr. Laurence’s testimony rested entirely, for the formulation of his opinions, on facts contained in the evidence presented to the jury. The trial judge ruled correctly, therefore, in refusing to strike any testimony presented by the witness on grounds that it lacked an evidentiary basis.

(3) Appellant Sinai Hospital also contends that the trial court erred in permitting Mrs. Meister to relate statements made by her to the hospital physician on the evening of the 11th. This contention simply finds no support in the record. The principle which this appellant seeks to invoke is that the party who introduces the statement of an agent for the purpose of thereby binding his principal with an admission must first bear the burden of showing that an agency existed, Wells v. Hecht Bros. & Co., 155 Md. 618, 623 , 142 A. 258 (1928), and that the statement was made while the agent was acting within the scope of his authority, Grzboski v. Bemheimer-Leader Stores, 156 Md. 146, 148 , 143 A. 706 (1928). This principle simply has no application here because the purpose of the testimony was not to attribute an ²⁸⁷ admission by the resident