Harold v. Radman

¹⁸⁵ Menchine, J., delivered the opinion of the Court. Mary F. Harold, individually, William H. Harold as her husband, and both as husband and wife jointly, (appellants) sought damages for permanent injury, medical expense and loss of consortium respectively against Dr. H. Melvin Radman (appellee) for alleged medical malpractice in performing a hysterectomy operation and in subsequent aftercare. At trial before a jury in the Baltimore City Court, verdicts in favor of the defendant were directed by the trial judge at the end of the plaintiffs’ cases. Appellants have appealed from the judgments thereafter entered.

The narrow issue presented in this appeal relates to the refusal by the trial judge to permit Dr. Harold Hirsh to testify as an expert witness. 1 In consequence of the trial court’s rejection of the proffered witness, the appellants were left without expert testimony in the medical malpractice case. They maintain that the ruling of the trial judge constituted reversible error. Prior to the rejection of the proposed witness a voir dire examination had been directed to the qualifications of the proffered witness. The Voir Dire Examination of the Proposed Witness On direct examination it was shown that the witness graduated from the Georgetown Medical School in 1942, and trained as an intern and resident for three years at the Gallinger Municipal Hospital, now known as the District of Columbia General Hospital.

Thereafter, he became a Fellow in Medicine at that institution. He has been engaged in the practice of medicine since 1947. In 1950 he was certified by the Board of Internal Medicine. Certification in Internal Medicine meant that he had completed five years of training ¹⁸⁶ and had passed written and oral examinations and was allowed to practice the most skilled kinds of problems in medicine.

At the time of trial he was a Clinical Associate Professor of Medicine at Howard University School of Medicine. His teaching duties at Howard University School of Medicine occupied him from two to six months annually. He had written about ninety medical articles and was the author or contributor to five medical text books. His writing primarily was in the area of infections and diseases of the urinary tract or bladder and the use of antibiotics.

He is a consultant of the Department of Health, Education, and Welfare, and in the past had been a consultant for the Food and Drug Administration, and the United States Public Health Service. At the time of trial he was engaged as a consultant to the Armed Services Institute of Pathology with respect to medical problems in the Armed Services, the Veterans Administration and the National Institutes of Health. His duties for the Armed Services Institute of Pathology required the review of cases for determination whether there had been violations of medical standard of care in any of the Armed Services. In the course of his practice, he had had privileges at Suburban Hospital; Holy Cross Hospital in Montgomery County, and Prince George’s County Hospital.

He had been Chief of Staff for a home for the aged located in Montgomery County. At one hospital he supervised the treatment of some thirty to sixty ward patients who were under the day to day care of two interns and a resident. This duty required him to review their diagnoses and treatment and note the progress of the patients until discharge. He declared that he was familiar with the standard of medical care and skill exercised or expected to be exercised by physicians and surgeons engaged in the field of gynecology and urology in the Baltimore area.

Cross-examination developed that at the trial of the case ¹⁸⁷ his practice of medicine was confined primarily to consultation. He acknowledged that he had seen but two private patients within the month preceding trial. He acknowledged that his last operating room activity had been about one year before the trial, when he was in attendance for the purpose of teaching students during an operation by a surgeon. His last association as non-operating member of an operating team performing a hysterectomy occurred about three years prior to trial.

The witness acknowledged that he had never personally conducted any kind of significant surgery and that in the conduct of his specialty of internal medicine he would call in a surgeon for any recommended surgical procedures. His cross-examination then continued with the following questions and responses: “Q Have you ever done a hysterectomy? A No, sir. Q Do you feel yourself qualified to do the repair of a fistula?

A Personally? Q Yes. A No, sir. Q Do you feel yourself qualified to do a hysterectomy?

A No, sir. Q And isn’t it true that an internist who is not a surgeon, when such procedures are deemed necessary, the internist consults or calls in the surgeon and follows the advice and procedure of the surgeon? A 1 don’t think I would like to use the term follows. I think that we have a — come to an understanding as to whether the operation has to be done, and what kind of operation, and on many occasions, depending on the condition of the patient, and 1 have always participated with the surgeon or sometimes even by myself ¹⁸⁸ in explaining to the patient the need for it, because even before you start, you call a surgeon, and you have to explain to the patient why you are calling the surgeon, so you have to know the surgical indications, and I think that the internist also has a duty to his patient, and that his patient has to know what the complications are, and what will happen if those complications — show that from a technical point of view, no, I can’t do the technology, but from the point of view of knowing whether the surgery is indicated, what the problems are, what complications could be expected, what should be done with the complications, I think that I know those as well as any surgeon, particularly in this kind of operation, which is so relatively common.” His redirect examination on voir dire included the following: “Q Doctor, have you ever diagnosed the need for a hysterectomy?

A Many times. Q Have you ever diagnosed fistulas? A On a number of occasions, yes. Q Are you familiar with the procedure to repair a fistula?

A You are talking — where, sir? Q Bladder or — A Yes. Q And are you familiar with the procedure used by a surgeon in hysterectomys? A Yes, sir.

Q The reason you have not operated in Maryland, or any other place, is because you are not a surgeon; is that right? A That is true, sir. ¹⁸⁹ Q Are you familiar with the complications which may or do arise in hysterectomys and fistulas? A Yes, sir. Q Are you familiar with what to do when these complications arise?

A Yes, sir. (The Court) But did you, yourself, do it? (The Witness) No, sir. By Mr. Lentz: Q You are not licensed to do it?

A Well, in truth, I am licensed, but I am not trained to do it, and I would not undertake it, because I am not equipped or qualified to do it. My license actually is as a physician-surgeon, but my own self-discipline and my profession, which is what does not allow me to do it.” Th( trial judge then ruled that the doctor was not qualified to testify as an expert witness. He said: “Well, gentlemen, the Court was hopeful, as it always is in medical malpractice cases, in particular, never having reached the point where he has got to make an official ruling on an important part of the case, and unfortunately I have been confronted with that issue, and I have heard argument of counsel. Mr. Lentz argued that Dr. Harold Hirsh is qualified to give an opinion in this case, and that Mr. Bolgiano questioned seriously the qualifications of the physician to give an opinion on surgical procedures.

It is my conclusion in this case that Dr. Harold Hirsh is not qualified to give an opinion as to pass judgment upon a gynecologist and surgeon, who has to face disclaim for malpractice and for the following reasons: Dr. Hirsh has testified that while he teaches in Georgetown Medical Center and Howard University and is a clinical professor, that he is a board certified internist, his testimony is very clear that ¹⁹⁰ he is not a gynecologist, nor a urologist, and indeed he has never performed any type of surgery at all during his entire medical career. The only times that he has been in the operating room were as an observer together with his students, and as an internist, either in the course of surgery or after surgery, to take care of a patient medically, but not surgically. “He has said that he has never performed any surgery. He has never had a knife in his hand, and that he is familiar with the infections or urinary tract and the bladder, but at no time has ever performed any surgery of any kind, let alone in the specialty of gynecology and urology. “So, that for me to permit Dr. Hirsh to give an opinion as an expert in the field in which he is indeed not an expert, would simply permit this jury to conjecture and to speculate as to the issue of negligence, or not on the testimony of Dr. Hirsh. I don’t know what Dr. Hirsh’s opinion would be, but it does seem to me that / cannot permit him, because, in my opinion, he is not qualified as an expert in this particular specialty, and for that reason, or these reasons, I will grant the motion to exclude his testimony and any opinion which may be forthcoming.

I will say, too, that I am making this decision not lightly, but after a great deal of soul-searching and full consideration of it.” (Emphasis added.) The Law In II Wigmore, Evidence, § 561 (3d Ed. 1940) it is suggested that the issue of expert witness qualification should be the exclusive prerogative of the trial judge: “Looking at the complication of facts often entering into a witness’ competency and best understood by the trial judge alone, — looking at the comparatively trifling character (in relation to all ¹⁹¹ the issues of a trial) of the topics over which controversy arises, — looking at the ample and sure safeguard of cross-examination to reveal the witness’ real qualifications, — looking at the injustice of requiring the busy judges of the Supreme Courts to investigate such trifles, — in view of all these considerations, it cannot be doubted that the rule of the future ought to be: The experiential qualifications of a particular witness are invariably determined by the trial judge, and will not be reviewed on appeal.” It is manifest, however, that Maryland does not subscribe to that suggested course. In Marder v. Baltimore, 232 Md. 299 , 192 A. 2d 512 (1963), while reiterating the view that the issue is largely discretionary with the trial judge, it was said at 303 [514]: “The rule that the determination of the competency of an expert witness as to whether or not he is qualified to testify is largely within the discretion of the court is too well fixed in the law of this State to require citations. This Court will not normally reverse the court below in its ruling on the competency of an expert witness unless the discretion has been abused.” The Court, after pointing out that the trial judge’s refusal to allow the expert witness to express an opinion created a condition where the appealing parties “were left with practically no evidence supporting their side of the controversy,” said at 304 [514]: “We think on the whole the record before us discloses that the trial judge should have exercised his discretion in determining the witness’s qualifications so as to allow him to express an opinion as an expert in order that the jury might consider it. Such opinion could have been of some help to the jury in determining its award of compensation, giving the opinion such weight as in ¹⁹² the judgment of the jury it felt it merited.

Having reached this conclusion the judgment must he reversed and the case remanded for a new trial. ” (Emphasis added.) To the same effect is Stewart v. Baltimore City, 250 Md. 569 , 244 A. 2d 231 (1968), wherein the Court of Appeals, again recognizing the-“frequently affirmed principle that the competency of an expert witness is usually left to the discretion of the trial court” (581 [238]), nonetheless reversed because “... we think the lower court was overly exacting in the qualifications it felt that an expert should meet before being competent to testify (582 [238]). We are aware of no Maryland appellate decision relating to the precise issue presently before us, namely: propriety of the rejection of a medical witness in a surgical malpractice case when grounded upon suggested lack of professional qualifications. In an annotation in 46 A.L.R.3d 275 , et seq., entitled: “Medical Malpractice: Necessity and Sufficiency of Showing of Medical Witness’ Familiarity With Particular Medical or Surgical Technique Involved In Suit,” it is stated, inter alia, that decisions in other jurisdictions suggest three differing views upon the subject, namely: 1. That the proposed witness must have personally performed the technique in issue; (§ 3 of Annotation, p. 279, et seq.) 2.

That the proposed witness must have familiarity with the technique in issue; (§ 4 of Annotation, p. 282, et seq.) and 3. That the proposed witness need not be familiar with the technique. 2 (§ 5 of Annotation, p. 286, et seq.) See also 31 A.L.R.3d 1163 . ¹⁹³ The View Requiring Showing of Personal Performance of the Technique Cases seemingly tending to such a view include: Moore v. Belt, 212 P. 2d 509 (Cal., in Bank, 1949), wherein it was said at 513: “A medical expert is not qualified as a witness unless he is shown not only to have the required professional knowledge, learning and skill to express his opinion, but is also familiar with the standards required of physicians under similar circumstances. Sinz v. Owens, supra, 33 Cal.2d at pages 753 et seq., 205 P.2d at page 5. A party is entitled to examine an expert witness as to his qualifications and experience so that the full weight to be accorded his testimony will become apparent.

Salmon v. Rathjens, 152 Cal. 290, 299 , 92 P. 733 . But in view of the witness’ admitted lack of practice in urology the extent of the examination as to his qualifications in relation to the subject matter of his opinion was within the sound discretion of the trial court. “It is urged that the trial court unduly limited the plaintiff’s examination of his expert witness. It appeared from the testimony of this witness that he had practiced as an autopsy surgeon for twenty-nine years, that he did not practice urology, did not conduct genito-urinary examinations in the diagnostic or treatment fields, and did not know the methods of practice therein, but that he had learning and knowledge of the anatomy and of infections in relation to the genito-urinary system.” 3 ¹⁹⁴ Harris v. Campbell, 409 P. 2d 67 (Ariz. App. 1965), wherein the proffered witness: “ . .. was not a specialist in the field of gynecology or obstetrics and had not practiced in any of the offices of the specialists in Phoenix specializing in the field of gynecology and obstetrics.

He . . . had no direct way of knowing ‘what the standard of practice is for gynecologists and obstetricians in Phoenix, Arizona, or was in 1958.’ ” (p. 72) Under those circumstances the Court held at 73: “A reading of the record does not show that trial court abused its discretion in not permitting the witness to testify.” 4 Appellee cites Peterson v. Carter, 182 F. Supp. 393 (W.D. Wisc. 1960); Carbonneau v. Lachance, 29 N.E.2d 696 (Mass. 1940); DiFilippo v. Preston, 173 A. 2d 333 (Del. 1961); Harris v. Campbell, supra; Hunt v. Bradshaw, 251 F. 2d 103 (4th Cir. 1958); Huttner v. MacKay, 293 P. 2d 766 (Wash. 1956); Peters v. Gelb, 303 A. 2d 685 (Sup. Ct. Del. 1973), affirmed 314 A. 2d 901 (1973); and Pearce v. Linde, 248 P. 2d 506 (C.A. Cal. 1952) as authority for the proposition “that the trial court properly exercised its discretion in refusing to allow ¹⁹⁵ opinions from non-qualified physicians against surgeons.” (Appellee’s Brief, p. 5). We do not believe the above cited cases declare so broad a view. The following quotation from Hunt v. Bradshaw, supra, will serve to explain our belief.

In Hunt it was said at 107: “[H]ere, the Judge acted within the limits of his allowable discretion. He did not disqualify Dr. Walker as a matter of law because he was not a specialist in surgery but, after weighing the witness’ professional background and qualifications, reached the conclusion that he had not shown such familiarity with the subject upon which he was being interrogated as to entitle him to express the opinion called for. Reading the testimony in all its detail, we cannot say that the District Judge acted unreasonably in restricting the scope of Dr. Walker’s testimony to radiological matters. The general rule, adhered to by the Supreme Court of North Carolina and this court as well, is that the qualification of a witness to express an expert opinion should be left to the sound discretion of the trial judge.” (Emphasis added.) In the discussion of this view in the annotation in 46 A.L.R.3rd, supra, the author had said, inter aim, at 279, et seq.: “§ 3.

View that witness must have personally performed technique In a series of California cases, the courts have taken the ‘occupational experience’ test set forth by Professor Wigmore and have developed it, with respect to medical experts, to the point where it is apparently now required in California that such an expert, in order to qualify as an expert witness in a malpractice action not involving a unique or extremely rare technique, must show that he has personally performed the particular medical or ¹⁹⁶ surgical technique that the defendant was alleged to have negligently performed. Thus, while earlier cases appeared to recognize that a medical expert’s acquaintance with the particular technique involved in a malpractice case need not be derived from personal performance of the technique, the requirements were tightened in subsequent cases requiring ‘occupational experience’ with the particular medical or surgical technique in question.” 5 However, in a recent decision, Brown v. Colm, 522 P. 2d 688 (1974) the Supreme Court of California, In Bank, clearly altered the California rule, saying at 692: “The unmistakable general trend in recent years has been toward liberalizing the rules relating to the testimonial qualifications of medical experts. Thus, whereas a number of earlier cases held that a physician of