Hitch v. Hall

Liss, J., delivered the opinion of the Court. This case arises out of a claim for damages by reason of medical malpractice filed in the Baltimore City Court by Edith Hitch, appellant, against the appellee, Dr. William Hall, of Baltimore City, a specialist in obstetrics and gynecology. The appellant had been a patient of the appellee since 1964. In the summer of 1970, the appellant became pregnant.

She consulted Dr. Hall about the performance of an abortion and was scheduled for an abortion by suction dilation and curettage at Lutheran Hospital on August 31,1970. She was then at the end of her first trimester of pregnancy. Suction D & C is a procedure whereby the contents of the uterus are ²⁶² evacuated by means of a suction cannula. A cannula is a clear plastic tube which is attached to a vacuum machine.

The procedure is done by dilating the cervix (gradually opening the mouth of the uterus by inserting increasingly larger instruments) and then inserting the suction cannula and vacuuming the walls of the uterus. If the patient is pregnant, the products of conception are removed by this process. During the course of the procedure, after the appellee had vacuumed the wall of the uterus, he discovered that some of the products of conception were too large to fit through the suction cannula. Because this tissue had to be removed, he inserted a sponge stick, also called a sponge forceps (a plier type device) into the uterus to remove the debris.

On his second attempt, the appellee felt the forceps go deeper than on the first attempt. He realized then that the appellant’s uterus had been perforated. When such an eventuality occurs there is danger that one or more of the organs in the peritoneal cavity may be injured by the instrument causing the perforation. Because of this danger, the organs in the peritoneal cavity must be examined.

This was done by the performance of an exploratory laparotomy through an abdominal incision. The findings of the laparotomy procedure and the steps taken to correct the condition discovered were issues at the trial. The appellee testified that as soon as the perforation occurred he requested a consultation with Dr. Harold Johnson, a surgeon with whom he had worked in the past. When the appellee was advised that Dr. Johnson was not in the hospital he requested the assistance of the Chief of Surgery, Dr. Pierson Checkett.

In the meantime, Dr. Hall examined the bowel, and in addition to finding a tear in the uterus, found abrasions (bruises) in the serosal (outer) layer of the bowel in three places to the front of the perforation site. He ran the bowel (a process whereby the entire twenty-four to twenty-eight feet of bowel are passed between the surgeon’s fingers to inspect for tears or interference with the blood supply) and found no other damage. The rent (tear) in the uterus was closed, and when Dr. Checkett arrived, the appellee reported his findings to Dr. Checkett who visually examined the bowel. Both doctors agreed that a serosal repair ²⁶³ of the bowel could be accomplished by Dr. Hall without the necessity of Dr. Checkett scrubbing.

After the operation, the patient’s abdomen was closed, and she was taken to the recovery room in satisfactory condition. Appellant remained at Lutheran Hospital for eleven days as a result of the operation. Appellant presented as her principal witness to substantiate the alleged malpractice of the appellee, Dr. Maurice Brown, a practicing physician from the Philadelphia area who was certified in obstetrics and gynecology. He testified that the appellee had violated accepted medical standards by failing to measure the depth of Mrs. Hitch’s uterus by not “sounding” the uterus (a procedure employed to measure the depth of the uterus), and by failing to administer immediately prior to the abortion or during the procedure a drug known as pitocin which would have caused the uterus to contract and become more firm.

Dr. Brown testified that both of these procedures should have been utilized as they have a tendency to minimize the risk of perforation of the uterus during the performance of the suction D & C. Dr. Brown indicated that it was his opinion that as a result of the appellee’s failure to comply with accepted medical standards the appellant became infertile and sterilization was required; and that the appellant developed a permanent bowel problem. Appellee presented three Baltimore area physicians as expert witnesses to refute Dr. Brown’s suggestion that the appellee had failed to use accepted medical procedure in the performance of the abortion. After a nine-day trial, the case was submitted to the jury which returned a verdict for the defendant. It is from that judgment that this appeal was filed.

We have accepted the appellee’s somewhat simplified version of the issues. The issues are as follows: I. Did the trial court commit prejudicial error in its instructions to the jury when it: a. Refused to grant a missing witness instruction; b. Refused to tell the jury that medical chart ²⁶⁴ entries, uncontradicted by appellee, were declarations of his partners and binding on him; or c.

Instructed the jury that the mere happening of an accident is not evidence of negligence?

II

Did the trial court commit prejudicial error in granting appellant’s motion to strike certain testimony only after a delay during which time she reviewed the testimony in detail?

III

Did the trial court commit prejudicial error in allowing one of the appellant’s expert witnesses to be cross-examined about his motives for testifying? Appellant complains initially that the trial court committed reversible error by instructing her counsel not to comment on the failure of the appellee to call as witnesses his partners, Drs. Randall and Chambers, and Dr. Johnson, who collaborated with the appellee in the treatment of the appellant. That error, she contends, was compounded by the refusal of the trial judge to grant a “missing witness instruction.” Appellant cites as authority for her first complaint, Hoverter v. Director, 231 Md. 608, 609 , 188 A. 2d 696 (1963), where it was said: In a civil case it is well settled that failure of a party to produce an available witness who could testify on a material issue, if not explained, gives rise to an inference that the testimony would be unfavorable, and is a legitimate subject of comment by counsel in argument to the jury.

(Citations omitted.) (Emphasis supplied.) The controlling requirement justifying the argument to the jury is that the available witness must be able to testify on a material issue, and that the testimony must be relevant and material, and not merely corroborative or cumulative. Jacobson v. Julian, 246 Md. 549 , 229 A. 2d 108 (1967); Brooks v. Daley, 242 Md. 185 , 218 A. 2d 184 (1966); Critzer v. Shegogue, 236 Md. 411 , 204 A. 2d 180 (1964). The basic issue ²⁶⁵ in this case was whether Dr. Hall had failed to treat this patient in accordance with accepted medical standards. There is nothing in the record which indicates that either Dr. Randall or Dr. Chambers had knowledge of what had occurred in the perforation of the appellant’s uterus.

Neither Dr. Chambers nor Dr. Randall had been present at the time of the performance of the first operation involving the abortion procedure. Neither had any personal knowledge as to whether the patient’s uterus had been sounded or whether pitocin had been administered. Neither of the doctors had information, other than what was recorded in the hospital records, as to what procedures were followed after the patient’s abdomen was opened. It was the appellee’s decision in the preparation and trial of his case as to whether either Dr. Randall or Dr. Chambers should be called to substantiate Dr. Hall’s defense that he had acted in accordance with accepted medical standards in his treatment of the appellant.

If he ha.d called them certainly their testimony would have been cumulative and would have been subject to attack on the grounds of bias. It would appear to have been sound trial tactics not to have called them in view of their minimal personal knowledge of the pattern of events and in view of the expert testimony available in the appellee’s portion of the case. The same result is obvious when one considers the failure to call Dr. Johnson. He was not present at the first operation.

Testimony and records were presented to the jury which contained his treatment and operative findings and any testimony from Dr. Johnson personally would have been cumulative and collateral. Finally, all of these witnesses were available to the appellant. If she suspected that the records of these doctors might have revealed information which would have been useful in establishing the negligence of the appellee, then she could have subpoenaed Drs. Chambers, Randall and Johnson and required them to appear as adverse witnesses.

As such witnesses, they would have been subject to cross-examination. Intertwined with appellant’s complaint concerning the trial court’s restricting appellant’s counsel from arguing to the jury the failure to call the doctors as witnesses is the ²⁶⁶ complaint that the trial court erred in refusing to give a missing witness instruction. In Critzer v. Shegogue, supra, at 420-21, the Court of Appeals said: Am. Jur. [20 Am.

Jur. Evidence Section 183, at 188 (1939)]