Hanna v. Emergency Medicine Associates, P.A.

⁵⁹⁸ POLLITT, Judge. Appellant, Dr. Rebecca J. Hanna, sued appellees, Emergency Medicine Associates, P.A. (EMA), and its president, Dr. George W. Schweitzer, in the Circuit Court for Montgomery County. Her complaint alleged that appellees, her former employers, were liable for breach of contract (count I), a denial of her civil rights in violation of Chapter 27 of the Montgomery County Code (count II), intentional infliction of emotional distress (count III), abusive discharge (count IV), and “tortious interference with business and professional relationships” (count V).

The basic premise alleged in support of all counts was that appellees had fired appellant in retaliation for her filing of a sexual discrimination suit against another medical group. She sought both compensatory and punitive damages. During the jury trial, the court granted motions for judgment in favor of appellee, Dr. Schweitzer, as to all counts, and in favor of appellee, EMA, as to counts III, IV and V. Those rulings are not challenged on appeal. The jury returned a verdict in favor of Dr. Hanna against EMA on count I in the amount of $3,300, and judgment was duly entered thereon.

That judgment has not been appealed. On count II, the jury found for Dr. Hanna and awarded damages of $21,198 as compensation for attorneys’ fees. EMA’s motion for judgment notwithstanding the verdict was granted by the trial court and judgment entered for EMA on that count. This appeal followed.

On appeal, Dr. Hanna presents the following issues for our consideration: I. Whether the court erred in setting aside the jury verdict on Count II on the ground that Dr. Hanna was bound by the testimony of an adverse witness called during her case in chief, when that testimony did not contravene any essential elements of plaintiff’s case. ⁵⁹⁹ II. Whether the evidence was sufficient to support the jury’s verdict for the plaintiff on Count II.

III

Whether the court erred in refusing to instruct the jury that, if they found for Dr. Hanna on Count II, she was entitled to compensation for any mental anguish, humiliation and embarrassment she sustained as a result of the retaliatory discharge.

IV

Whether the court erred in dismissing Dr. Hanna’s claim for punitive damages. We think the court erred in granting the judgment notwithstanding the verdict. We think also that there was sufficient evidence of mental anguish and actual malice to generate jury questions on the issues of “emotional” and punitive damages. Therefore, we shall reverse.

Facts Dr. Hanna received her medical doctorate from Pennsylvania State University in 1980 and began a three-year residency in internal medicine at George Washington University Medical Center in Washington, D.C. After completing her first year of residency, her internship year, she began to seek “moonlighting” work as an emergency room physician in the Washington, D.C., area. Beginning in August of 1981, she made several unsuccessful efforts to obtain employment with Alexandria Physicians Group, Ltd. (APG), a group providing emergency medical care for three local hospitals. In April or May of 1983 she filed suit against APG alleging sexual discrimination, based on what she perceived to be a lack of response to her applications for employment, the hiring by that group of several male physicians while her applications were pending, and a letter to her from Dr. James D. Mills, president of APG, in which he acknowledged that his group had no women physicians employed, and cautioned her that he doubted her career would “be advanced over the long haul by feminism.” Meanwhile, in April of 1982, Dr. Hanna applied for employment with and was hired by Emergency Medical Associ ⁶⁰⁰ ates. During the next 12 to 13 months, she worked on a part-time basis as an emergency room physician for EMA, working two or three shifts per month.

In the spring of 1983, Dr. Hanna inquired about increasing to full-time status with EMA, and in May was offered a position as a full-time salaried member of the group, with the third year option of becoming a partner. She declined the offer to become a partner at that time because she had completed her residency and had applied for a cardiology fellowship, but she agreed to work on an hourly basis. Dr. Hanna was additionally told she would have the option of becoming a full-time salaried member the following January if she so chose. She was placed on EMA’s full-time schedule as of 1 July 1983.

As a result of the suit pending against the Alexandria Physicians Group, Dr. Hanna was asked to answer interrogatories, one of which was a qúestion pertaining to her current place of employment. Realizing that the stockholders in EMA may be contacted about the suit, Dr. Hanna attempted to talk to Dr. Schweitzer, the president of EMA, in hopes of personally explaining the situation regarding the other medical group. Unable to contact Dr. Schweitzer, she instead told Rosemary Page, office manager for EMA, about the suit. Appellee admitted that: The stockholder members of EMA were notified in early July, 1983 by the Plaintiff that she had instituted legal proceedings against the Alexandria Physicians Group, Ltd. for sex discrimination.

This communication was received by Rosemary Page and was communicated to the members of the Board of Directors at their meeting of July 14, 1983, a copy of the minutes of which have already been provided. Those minutes contain the following item: 6. Dr. Hanna Concerns raised as to how she is working out. It is requested she be counselled [sic] and document everything. ⁶⁰¹ The testimony during the trial did not reveal any definite conversations by the group at the Board meeting regarding Dr. Hanna’s job performance, however, there apparently was concern expressed over having “her counseled, documenting] things in all discussions with her and keeppng] accurate records from then on.” There also was concern that there was “a physician on board that was litigioness [sic]” and that they “should just cover ... bases by documenting anything that should ever come up in regard to Dr. Hanna, since she was taking somebody to court, another ER group to court.” Two days later, on July 16, Dr. Hanna received from Dr. Dyer, a stockholder of EMA, five pages of notes containing critiques of the charts of patients she had seen during the previous week.

Dr. Hanna testified that she had never before received any negative comments about her performance from Dr. Dyer or any of the doctors. On August 5, approximately three weeks following the stockholders’ meeting of July 14, Dr. Wilner told Dr. Hanna that “they had a shareholders’ meeting the night before and decided that [she] was to be fired [that] morning” based on “eight or nine charts of patients that [she] had managed” during that week. This suit followed. Further facts will be added where necessary.

I and II Appellant asserts that the trial court erred in granting appellee’s motion notwithstanding the verdict, specifically because the court’s stated reason for granting the motion was incorrect, and generally because the evidence was sufficient to support the jury’s verdict as to count II. We think she is right for both reasons. In granting the motion for judgment notwithstanding the verdict, the trial judge said: [T]he plaintiff in her own case called the doctors to the stand, didn’t give any limit to them: Did you find out that there was sex discrimination, a suit? Yes, we did.

You thereafter fired her? Yes, we did. You stop there, perhaps you have the inference. But in the case, they ⁶⁰² testified that that was not the reason that they fired her.

It was not because of the suit. They all testified—at least Dr. Schweitzer testified that Dr. Mills may have been selected as an expert witness by Dr. Donohue in the trial that he had pending before here [sic] but that he had no reason to appease him. They were creditors [sic—competitors]. This came out in plaintiffs case.

It was unrebutted and it, therefore—you are bound by it. You cannot, therefore, draw the inferences adverse to it when there is no direct evidence that they in fact were endeavoring to endear themselves to Dr. Mills’ group or they were firing her solely because they found out she filed a sex discrimination suit, and they being a group of men saying we’ll get even with her for filing a sex discrimination suit; we’ll fire her____ [T]he testimony that was produced during the plaintiff’s case was that that was not the purpose, and that was not directly refuted nor rebutted, and she is bound by it. We think the trial judge misconstrued both Dr. Schweitzer’s testimony and its binding quality. Dr. Schweitzer was called as an adverse witness by appellant in an unsuccessful effort to show Dr. Schweitzer’s indebtedness to Dr. Mills of APG because Dr. Mills had testified for Dr. Schweitzer in a malpractice suit, the theory being that Dr. Schweitzer was returning the favor by firing someone who had sued Dr. Mills.

As we said, that effort did not succeed. Dr. Schweitzer denied any friendship with or obligation to Dr. Mills. He did not, however, while testifying as an adverse witness, testify that such was not the reason for appellant’s being fired. No reason for her firing was mentioned by Dr. Schweitzer in his adverse witness capacity.

His testimony that appellees were not prejudiced against her by the previous law suit came much later in the trial when Dr. Schweitzer was testifying in his own behalf, and that testimony most certainly was in no way binding upon appellant. Even if the adverse witness’ testimony was, in some respects, unfavorable to appellant, and despite the ⁶⁰³ general rule that when one calls an adverse party as his witness, he is bound by his adversary’s testimony unless it is contradicted or discredited, Larsen v. Romeo, 254 Md. 220 , 255 A.2d 387 (1969), 1 we are aware of no rule which says that testimony must be directly refuted or rebutted. The jury is not required to “blindly adopt all such statements simply because no other witness has denied them and the character of the witness is not impeached.” Proctor Electric Co. v. Zink, 217 Md. 22, 32 , 141 A.2d 721, 726 (1958). As the Court of Appeals there stated: In the application of this rule, it is sometimes difficult to determine when a witness has been contradicted in a legal sense.

The testimony of a witness may be contradicted or discredited by circumstances as well as by statements of other witnesses, and a jury is not bound to accept a witness’ testimony as true if it contains improbabilities, or if there are reasonable grounds for concluding that it is erroneous. It is the jury’s duty to take into consideration all the evidence, whether circumstantial or otherwise, tending to disprove any statement of fact made by a witness in the course of his testimony, and thus determine the weight or credibility to be given to such statement, [citations omitted, emphasis added] Proctor Electric Co., supra, 217 Md. at 33 , 141 A.2d at 726 . In this instance, even though Dr. Schweitzer’s testimony may not have been directly rebutted, the jury was free to ⁶⁰⁴ draw whatever inferences were necessary. While the evidence may have been primarily circumstantial, as we shall see, infra, there was more than sufficient evidence from which the jury could choose to disbelieve Dr. Schweitzer’s testimony.

Appellant secondly asserts that it was error to grant the motion for judgment notwithstanding the verdict because there was sufficient evidence to support the verdict of the jury. In considering this argument we must resolve all conflicts in the evidence and all inferences fairly deducible therefrom in the light most favorable to support the right of the appellant to recover. Smith v. Miller, 71 Md.App. 273 , 525 A.2d 245 (1987). Keeping in mind this standard of review, we have no difficulty in determining that there was evidence or inferences from which the jury could find that Dr. Hanna’s employment was terminated in violation of the applicable statute.

Chapter 27 of the Montgomery County Code, § 27-17, prohibits discrimination in employment because of, among other things, that person’s sex. Section 27-19(2) of that Article provides, among other things: It shall be a violation of this Article for any person to cause or coerce, or attempt to cause or coerce, directly or indirectly, retaliation' against any person because such person has lawfully opposed any act or failure to act that is a violation of this Article or has, in good faith, filed a complaint, testified, participated or assisted in any way in any proceeding or investigation under this Article____ Section 27-20(a) provides, in pertinent part: Any person who has been subjected to any act of discrimination prohibited under this subtitle shall be deemed to have been denied a civil right and shall be entitled to sue for damages, injunction or other civil relief, including reasonable attorney’s fees____ As we understand appellees’ argument, both in the trial court and before this Court, they do not seriously contend that if, in fact, Dr. Hanna was fired in retaliation for having ⁶⁰⁵ filed an earlier sex discrimination suit, such firing would not be a violation of her civil rights under the county code. Their position is that Dr. Hanna failed to sustain her burden of proof. They further assert in this Court, although the question does not appear to have been presented to the trial court until after the trial, that “the trial court was correct in setting aside the jury verdict on count II upon defendant’s motion” because “the plaintiff was never entitled to a jury on the determination of count II of the complaint.” They posit that because the appellant was never entitled to a jury in the first place, the granting of their motion for judgment notwithstanding the verdict “is simply an expression of the trial court’s verdict, and the trial court should be sustained but for reasons other than cited by the trial court at the time of its ruling.” They acknowledge that this argument was raised for the first time in their motion for judgment notwithstanding the verdict. 2 Rule 2-532(a) provides that: In a jury trial, a party may move for judgment notwithstanding the verdict only if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion. [emphasis added] The record extract discloses that appellees “renewed” their motion for judgment as to count II at the close of all the evidence, but does not disclose what reasons, if any, were assigned.

The court’s response in reserving ruling thereon indicates that the only question raised was the sufficiency of the evidence. Nothing in the record indicates the raising of any question about the right to a jury trial. Under these circumstances, the issue is not properly before us, and, ordinarily, we would not discuss it. Because the case must be remanded for trial on the issues of “emotional” and punitive damages, and solely for the guidance of the trial court on remand, Rule B-181(a), we refer that court to ⁶⁰⁶ Curtis v. Loether, 415