Keyes v. Lerman

⁵³⁵ ALAN M. WILNER, Judge (Retired, Specially Assigned). This is a medical malpractice action filed by appellants, Polly and Stuart Keyes, against appellee, Sheldon Lerman, in the Circuit Court for Baltimore County. After a full trial, the jury concluded that Dr. Lerman was not negligent and returned a verdict in his favor. In this appeal, appellants complain that the unfavorable verdict resulted from the refusal of the court (1) to give a requested spoliation of evidence instruction, and (2) to permit cross-examination of a defense expert witness that would have revealed to the jury that both the witness and Dr. Lerman had medical malpractice insurance policies issued by Medical Mutual Liability Society of Maryland.

Perceiving no error, we shall affirm. BACKGROUND Ms. Keyes appeared at the St. Joseph’s Medical Center emergency room on June 12, 2006, complaining of abdominal pain. After an initial examination and certain tests conducted by the emergency room staff, Dr. Lerman, who had removed a cancer from Ms. Keyes’s colon nine years earlier, was consulted. After examining Ms. Keyes and reviewing the test results, Dr. Lerman arrived at a diagnosis of gall bladder disease and possible small bowel obstruction.

Additional tests seemed to confirm a non-functioning diseased gall bladder but revealed no evidence of a small bowel obstruction. The next day, he removed the gall bladder through a laparoscopic cholecystectomy. During the operation, Dr. Lerman observed some dilation of the small bowel but no apparent obstruction. He observed as well some adhesions but decided not to remove them, as that would have entailed much more extensive surgery.

Instead, he opted to monitor Ms. Keyes’s post-operative progress. Unfortunately, Ms. Keyes did not progress well. An examination the next day revealed a distended abdomen, and a CAT scan conducted that evening indicated to the radiologist a small bowel obstruction. On June 15, after confirming that diagnosis, Dr. Lerman performed the more extensive sur ⁵³⁶ gery — a laparotomy — and removed 62 cm. of dead small bowel and 40 cm. of large bowel.

Ms. Keyes was discharged on June 20 but was readmittted from June 22 to June 26 and again on July 4. On July 5, she underwent a third operation to repair an anastomatic leak and to remove an additional 34 cm. of bowel. The issue of spoliation raised by appellants concerns the June 15 surgery that dealt with the small bowel obstruction— something they believe should have been dealt with on June 13. Among the hospital’s Medical Staff Rules and Regulations is a requirement that an “operative report” be recorded on all patients who had surgery performed at the hospital.

Among other things, the report is to contain “indications for operation” and “description of the findings,” and it is to be “dictated immediately after surgery, transcribed by the Medical Record department and placed on the patient’s chart on the floor within one working day of the operation.” The responsible surgeon is required to sign the typed report “as soon as possible.” Dr. Lerman testified that, to the best of his knowledge, he dictated an operative report following the June 15 surgery, but there was substantial evidence to the contrary. No such report was found in Ms. Keyes’s medical record, and there was no indication in the hospital’s computer archival documents that one was ever dictated. Appellants argued that this was not an innocent omission, in that Dr. Lerman had occasion to review Ms. Keyes’s chart on at least two occasions in the succeeding month and would have noticed that the operative report was missing. They claimed that the absence of the report hindered the ability of their experts to render opinions regarding Dr. Lerman’s compliance with the applicable standard of care, and, prior to closing argument, they requested an instruction, in the form of Maryland Pattern Jury Instruction (Civil) 1:10, on spoliation.

The court permitted counsel to argue spoliation to the jury, but it declined to give the requested instruction. ⁵³⁷ The second issue concerned a defense expert witness, Dr. Kafonek. Prior to Dr. Kafonek’s testimony, appellants advised the court that they wished to cross-examine him on two matters going to alleged bias on his part. First, they wished to bring out the fact that, in a prior unrelated proceeding, he had been represented by the law firm representing Dr. Lerman, and second, they wanted to establish that Dr. Kafonek had a relationship with that firm, in which he reviewed malpractice cases for them and had testified as an expert in cases they handled at least ten times in the past. In presenting argument on that second point, appellants noted that Dr. Kafonek had stated in a discovery deposition that he would not testify against another Baltimore County doctor insured by Medical Mutual Liability Insurance Society of Maryland, with which he also had a policy of medical malpractice insurance.

Dr. Lerman moved, in limine, to preclude any questions that would reveal the existence of medical malpractice insurance, and, although the court said that it would allow questions regarding Dr. Kafonek’s relationship with defense counsel and his refusal to testify against Dr. Lerman, it granted the motion to the extent of precluding any mention of medical malpractice insurance. DISCUSSION Spoliation Instruction In general parlance, spoliation is “the act of plundering; robbery; plunder; particularly, the act of plundering an enemy in time of war.” Webster’s New Universal Unabridged Dictionary, 2nd ed. (1979) at 1755. In law, the word has a more particularized meaning, though one that is entirely consonant with the general concept.

Black defines it as “[t]he intentional destruction, mutilation, alteration, or concealment of evidence, usu[ally] a document.” Black’s Law Dictionary, 8th ed. (2004) at 1437. Courts and commentators have viewed the spoliation of evidence as perhaps the most grievous aspect of the broader situation in which a party fails to produce evidence that is, or ⁵³⁸ was, available to the party and that the party might ordinarily be expected to produce. This may be in the form of witnesses, documents, or other tangible evidence, the precise issue, in any of these situations, being what, if any, inference may be drawn by the trier of fact from the non-production of such evidence.

The most recent edition of McCormick on Evidence well expresses the long-held general rule that: “When it would be natural under the circumstances for a party to call a particular witness, or to take the stand as a witness in a civil case, or to produce documents or other objects in his or her possession as evidence and the party fails to do so, tradition has allowed the adversary to use this failure as the basis for invoking an adverse inference.” 2 McCormick on Evidence, 6th ed. (2006), § 264 at 220. Because the circumstances surrounding the non-production of evidence vary, this general rule is subject to a host of caveats and distinctions designed to ensure that, in the particular case, the inference is a fair and reasonable one. As Wigmore points out, “[t]hese inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure.” 2 Wigmore, Evidence § 285 at 192 (Chadbourne rev. 1979).

With respect to uncalled witnesses, the courts have tended to limit the inference to situations in which (1) the witness was peculiarly available to one party and could have been produced by that party, and (2) the testimony that might be expected from the witness would be important and not merely cumulative and would elucidate the transaction. See Mitchell v. State, 408 Md. 368, 384 , 969 A.2d 989, 999 (2009); Bereano v. State Ethics Comm’n, 403 Md. 716, 741 , 944 A.2d 538, 552 (2008); Woodland v. State, 62 Md.App. 503, 509-10 , 490 A.2d 286, 289-90 (1985). Similarly, for the inference to apply to documents and other tangible evidence not produced, it must be shown that the party was able to produce the evidence and ⁵³⁹ that the evidence would have been admissible. Wigmore, supra, § 291, at 225-27.

Although the word “spoliation” or conduct involving the intimidation of witnesses or the actual destruction of or tampering with evidence is sometimes included in a more general discussion of missing witnesses or evidence, that kind of conduct is regarded as more egregious and, to an extent, different in kind, than simply not producing available evidence. It has been characterized as conduct constituting obstruction of justice and analogized to other conduct of that nature. The inference that may be drawn from that kind of conduct goes beyond allowing a finding that the missing evidence, if produced, would be unfavorable, but allows, in addition, an inference of consciousness of guilt in a criminal case or a belief that the party’s case is weak. McCormick observes: “[A] party’s failure to produce evidence that he or she is free to produce or withhold may be treated as an admission.

As might be expected, wrongdoing by the party in connection with its case amounting to an obstruction of justice is also commonly regarded as an admission by conduct. By resorting to wrongful devices, the party is said to provide a basis for believing that he or she thinks the case is weak and not to be won by fair means, or in criminal cases that the accused is conscious of guilt. Accordingly, the following are considered under this general category of admissions by conduct: a party’s false statement about the matter in litigation ...; subornation of perjury; fabrication of documents; undue pressure by bribery; intimidation, or other means to influence a witness to testify favorably or to avoid testifying; destruction or concealment of relevant documents or objects; attempt to corrupt the jury; and hiding or transferring property in anticipation of judgment.” McCormick, supra, § 265 at 226-27 (Emphasis added). The Maryland Pattern Jury Instructions for criminal cases articulate that distinction quite well.

Compare MPJI-Cr 3:29 (Missing Witness) with MPJI-Cr 3:26 (Concealment or Destruction of Evidence as Consciousness of Guilt), MPJI-Cr ⁵⁴⁰ 3:27 (Suppression, Alteration or Creation of Evidence as Consciousness of Guilt), and MPJI-Cr 3:28 (Bribery or Witness Intimidation as Consciousness of Guilt). The Pattern Jury Instructions for civil cases, presumably because “consciousness of guilt” is not relevant in civil cases, do not draw that distinction, or, indeed, any distinction between mere missing evidence and the more culpable conduct. There is no form pattern jury instruction dealing generally with missing evidence or uncalled witnesses — only MPJI-Cv 1:10 dealing with spoliation, which is the instruction requested by appellants. It reads: “The destruction of or the failure to preserve evidence by a party may give rise to an inference unfavorable to that party.

If you find that the intent was to conceal the evidence, the destruction or failure to preserve must be inferred to indicate that the party believes that his or her case is weak and that he or she would not prevail if the evidence was preserved. If you find that the destruction or failure to preserve the evidence was negligent, you may, but are not required to, infer that the evidence, if preserved, would have been unfavorable to that party.” (Emphasis added). This instruction reorganizes somewhat the matrix of concepts. It deals with the destruction or failure to preserve evidence, rendering it unavailable, and not merely the failure to produce evidence that is available, or, indeed, the failure to create evidence, but, for purposes of the permissible inference, it does distinguish between destruction or failure to preserve with an intent to conceal the evidence and destruction or failure to preserve that is the product of negligence.

The court gave several reasons for rejecting the requested instruction. Primarily, it noted that there was no evidence that Dr. Lerman actually destroyed or failed to preserve the operative report. At worst, the report was simply never written — the evidence never existed. The court cited testimony by the hospital’s Director of Health Information Management and Privacy Office that it was not uncommon for ⁵⁴¹ physicians to forget to dictate operative reports, discharge summaries, and other medical records, that the Medical Records Department routinely reviewed medical charts and would remind a physician if an operative report or other medical record was missing, but that Ms. Keyes’s chart was not flagged and thus Dr. Lerman was never notified that his operative report was missing.

From this, the court speculated that Dr. Lerman may have dictated the operative report, which was later lost or misplaced by hospital personnel, or, even if he did not dictate the report, it was the kind of omission that apparently was not uncommon and did not indicate that the report would have been unfavorable to him. There clearly was no finding by the court, or evidence that would support a finding by the jury, that Dr. Lerman deliberately failed to dictate the report in contravention of hospital policy in order to conceal evidence of wrongdoing on his part. The “bottom line” was that the court did not believe, from the evidence in the case, that the requested instruction was appropriate. Relying on a number of Maryland cases and one case from Rhode Island, appellants aver that the Circuit Court erred in distinguishing between the destruction or non-preservation of evidence, on the one hand, and the non-creation of evidence, on the other, where there is a duty to create such evidence.

It is their view that, where a party was under a duty to make a report documenting certain events that could have legal significance, the failure to make such a report, under certain circumstances, may create an inference that the report, if made, would have been unfavorable to a position taken by the party in the litigation, and there is, indeed, some authority to support that view. Even if appellants are correct, however, the question here is