Landon v. Zorn

²¹¹ GREENE, J. This matter arises from a medical malpractice action brought by Richard Landon and his wife, Joann Landon, against Pamela Zorn, M.D. and Atlantic General Hospital (“AGH”). 1 The Landons contend that Dr. Zorn committed medical malpractice when she failed to diagnose Mr. Landon as suffering from necrotizing faciitis, or flesh eating bacteria. They argue that, as a result of Dr. Zorn’s failure to diagnose his condition, Mr. Landon’s right leg was amputated at the hip. Following a two-week trial in the Circuit Court for Worcester County, a jury returned a verdict in favor of Dr. Zorn. The jury found that Dr. Zorn did not breach the standard of care in her treatment of Mr. Landon.

This appeal followed. We granted certiorari prior to consideration of the matter by the Court of Special Appeals. Landon v. Zorn, 385 Md. 511 , 869 A.2d 864 (2005). The Landons present two questions, which we have rephrased, for our review: 1.

Did the Circuit Court err by failing to voir dire the prospective jurors on the issue of tort reform? 2 2. Did the Circuit Court err by failing to give a requested jury instruction and the Maryland Pattern Jury Instruction (“MPJI-Cv.”) on informed consent? For the following reasons we hold that the trial court was correct in refusing to give the Landons’ proposed voir dire question, and we find the court’s denial of the Landons’ request for an instruction on informed consent was proper. Facts The parties have stipulated to the following facts for the purposes of this appeal: ²¹² In January of 2001, the Atlantic General Hospital (“AGH”) was party to a contract with Emergency Services Associates, P.A.

(“ESA”) pursuant to which ESA would provide staffing for the AGH’s Emergency Department. Appellee Pamela Zorn, M.D. was an employee of ESA who was working in AGH’s Emergency Department on January 8, 2001. At 7:38 a.m. on January 8, 2001, Appellant Richard Landon presented to the Emergency Department complaining of leg pain and flu-like symptoms over the preceding several days. A triage nurse initially assessed Mr. Landon, and he was thereafter evaluated by Dr. Zorn.

Dr. Zorn then ordered medications and diagnostic tests. Dr. Zorn and the nurses observed Mr. Landon for several hours, and monitored his vital signs. Upon considering the results of the various tests, Dr. Zorn formed an initial impression that Mr. Landon had a flu-like syndrome and, that independent of the flu, pain from an old leg injury was flaring up. Based on the information available to her, Dr. Zorn was not satisfied that she had diagnosed the source of Mr. Landon’s leg complaints.

Consequently, she requested that Mr. Landon undergo an additional non-invasive radiological test, a CAT scan, to attempt to reach a diagnosis. The contemporaneous medical records reflect, and Dr. Zorn testified at trial, that she tried at length to talk Mr. Landon into undergoing the CAT scan because she believed it would yield more information about his condition. Mr. Landon testified that he was not interested in having more testing done, and informed Dr. Zorn that he wanted to go home to sleep. Dr. Zorn testified that she told Mr. Landon that the CAT scan would provide more diagnostic information and that, without the CAT scan, she might not be able to diagnose his condition.

Dr. Zorn then offered to let Mr. Landon stay in the Emergency Department for further observation. Mr. Landon again declined to stay and was thereafter discharged at 12:15 p.m., with a prescription for a muscle relaxant, and with instructions to get rest and drink fluids, and to return if he had any other problems or if his condition got worse. Although Appellants testified at trial ²¹³ that Mr. Landon’s condition got worse throughout the afternoon and evening, he did not return to AGH until nearly twelve hours later. Dr. Zorn and Mrs. Landon spoke when Mrs. Landon called back to the Emergency Department with a medication question at approximately 4:45 p.m.

At that time, Dr. Zorn reiterated her desire to perform more testing and a CAT Scan, and Mrs. Landon testified that she would attempt to talk her husband into returning to have the test. Mrs. Landon advised her husband of the conversation with Dr. Zorn. Mr. Landon did not recall that conversation, but did not deny that it took place. Mr. Landon reappeared at AGH approximately seven hours after that call, only after Dr. Zorn, who was home after her ER shift and getting ready for bed, learned that Mr. Landon had never returned for additional testing and called Mrs. Landon’s home to instruct her to bring Mr. Landon back to AGH, even if she had to call 911.

Dr. Zorn testified that because Mr. Landon refused to undergo the CAT Scan she recommended and wanted performed, Mr. Landon was discharged against her medical advice. Dr. Zorn acknowledged that AGH had a “standard of practice” titled “Request for Leaving Against Medical Advice or Refusal of Treatment.” ... She further testified, however, that she may not necessarily have been aware of the specific contents of the standard of practice at the time she was treating Mr. Landon. The standard of practice stated that “All patients who wish to leave the hospital against the advice of their physician or refuse a prescribed treatment must sign a release form.” Dr. Zorn testified that she elected not to use the release form when discharging Mr. Landon because she wanted to keep the lines of communication open because she wanted him to return for the CAT Scan, and she did not want to create an adversarial relationship with Mr. Landon as he left AGH.

Medical expert witnesses testifying for the Appellants testified that Dr. Zorn’s decision not to utilize the release form in discharging Mr. Landon was a breach in the ²¹⁴ standard of care. However, Appellees’ medical expert witnesses testified that the decision was not a breach in the standard of care and that the open lines of communication (the two phone calls after discharge between Dr. Zorn and Mrs. Landon) saved Mr. Landon’s life. After Dr. Zorn’s call from her home, Mr. Landon returned to AGH just after midnight on January 9. He was then transferred to Maryland’s Shock Trauma Center, where he was diagnosed with a group A beta hemolytic streptococcal infection, and where he underwent multiple surgeries, including a surgery which disarticulated his leg at the hip.

Appellants’ claim of medical negligence against the Appellees ensued. The claim proceeded through trial and the jury determined pursuant to an inquiry on the special verdict sheet that Dr. Zorn did not breach the standard of care in treating Mr. Landon. The Circuit Court for Worcester County thereafter entered judgment in favor of the Appellees. Discussion a.

Scope of Voir Dire The Landons contend that the Circuit Court abused its discretion in not asking a proposed voir dire question that they allege was intended to expose potential jurors’ beliefs regarding tort reform. The question read: Does any member of the jury panel have any preconceived opinion or bias or prejudice in favor of, or against plaintiffs in personal injury cases in general and medical malpractice cases in particular? If yes, please explain. Would this prevent you from fairly and impartially trying the facts and circumstances presented in this matter? 3 ²¹⁶ We begin by noting that, in Maryland, the scope of voir dire is limited.

The purpose of voir dire is to expose “the existence of cause for disqualification ... it does not encompass asking questions designed to elicit information in aid of deciding on peremptory challenges.” Couser v. State, 282 Md. 125, 138-39 , 383 A.2d 389, 396-97 (1978) (quoting Mason v. State, 242 Md. 707, 709-710 , 218 A.2d 682, 684 (1966)). “Questions not directed to a specific ground for disqualification but which are speculative, inquisitorial, catechising or ‘fishing,’ asked in the aid of deciding on peremptory challenges,” are not permitted. Davis v. State, 333 Md. 27, 34 , 633 A.2d 867, 871 (1993) (internal citation omitted). Moreover, “it is well settled that the scope of the questions propounded to jurors on their voir dire is largely in the discretion of the trial court.” Casey v. Roman Catholic Archbishop of Baltimore, 217 Md. 595, 605 , 143 A.2d 627, 631 (1958); Langley v. State, 281 Md. 337, 341 , 378 A.2d 1338, 1340 (1977); Poole v. State, 295 Md. 167, 187 , 453 A.2d 1218, 1229 (1983); Davis, 333 Md. at 34 , 633 A.2d at 871 ; Williams v. Mayor and City Council of Baltimore, 98 Md.App. 209, 212 , 632 A.2d 505, 506 (1993); see also Thomas v. State, 139 Md.App. 188, 197 , 775 A.2d 406, 412 (2001) (noting that “absent a clear abuse of discretion, an appellate court will not disturb a trial judge’s decision to ask or not ask a specific voir dire question. Our review of the voir dire process must be conducted on a case-by-case basis, accounting for the particular circumstances of each case.

Rarely has an appellate court found abuses of discretion within the voir dire process.”). Failure to ask all of a litigant’s proposed questions on voir dire is not an abuse of discretion, if the questions proposed were more than adequately covered by the court’s voir dire examination. Miles v. State, 88 Md.App. 360, 381 , 594 A.2d 1208, 1218 (1991), cert. denied, 325 Md. 94 , 599 A.2d 447 (1991). The court may exercise its discretion by refusing ²¹⁷ “to ask questions that it deems are speculative or insufficiently tailored to the particular case at issue.” Henry v. State 324 Md. 204, 221 , 596 A.2d 1024, 1033 (1991).

There are, however, limited areas of inquiry which we have held are mandatory when applicable. They are: [Rjacial, ethnic and cultural bias, religious bias, predisposition as to the use of circumstantial evidence in capital cases, and placement of undue weight on police officer credibility.... [T]hese mandatory areas of inquiry involve “potential biases or predispositions that prospective jurors may hold which, if present, would hinder their ability to objectively resolve the matter before them.” Dingle v. State, 361 Md. 1 , 11 n. 8, 759 A.2d 819 , 824 n. 8 (2000) (internal citations omitted). The failure of a trial judge to give one of these questions, when applicable, constitutes an abuse of discretion. The Landons contend that the proposed voir dire question was designed to uncover potential prejudice against them and in favor of doctors in medical malpractice cases. 4 The Lan ²¹⁸ dons characterize this inquiry as “a tort reform” question.

At the outset of our analysis, it is important to note that we find it difficult to glean the subject of tort reform from the question proposed. Even so, we acknowledge that this Court has already addressed the issue of voir dire questions and tort reform in Kujawa v. Baltimore Transit Company, 224 Md. 195 , 167 A.2d 96 (1961). The plaintiffs in Kujawa suffered personal injuries as a result of an automobile collision. Although the jury awarded the plaintiffs damages, the trial court entered a judgment notwithstanding the verdict due to the plaintiffs’ failure to produce sufficient evidence of negligence.

Kujawa, 224 Md. at 199-200 , 167 A.2d at 97 . The Kujawas alleged that the trial court erred in refusing to propound a question to jurors during voir dire that was intended to determine bias with respect to the size of jury verdicts. 5 Kujawa, 224 Md. at 200 , 167 A.2d at 98 . The question was proposed in order to counter the “ ‘steady stream of indoctrination’ flowing from the insurance companies to the public generally” in an amount that would negatively influence the jury verdicts in negligence cases. Kujawa, 224 Md. at 201 , 167 A.2d at 98 .

In response to the plaintiffs’ contention that refusal to submit this question led to a jury that included persons “obviously predisposed against bringing in an adequate jury verdict,” we held that, absent any prejudice to the plaintiffs, a question may be excluded if it is not properly formed to determine a potential cause for disqualification. Id. (citing Grossfeld v. Braverman, 203 Md. 498 , 500- ²¹⁹ 501, 101 A.2d 824, 825 (1954) (citation omitted)). In affirming the trial court we further stated: Even if a juror had formed or expressed an opinion as to the adequacies or inadequacies of jury verdicts in negligence cases, that fact would not have disqualified him.

A juror to be competent need not be devoid of all beliefs and convictions. All that may be required of him is that he shall be without bias or prejudice for or against the parties to the cause and possess an open mind to the end that he may hear and consider the evidence produced and render a fair and impartial verdict thereon. Kujawa, 224 Md. at 201 , 167 A.2d at 98 (citing Garlitz v. State, 71 Md. 293, 300 , 18 A. 39 (1889) (citation omitted)). Subsequently, the issue of voir dire questions addressing tort reform was revisited by the Court of Special Appeals in Williams v. Mayor and City Counsel of Baltimore, 98 Md.App. 209 , 632 A.2d 505 (1993), cert. denied, 334 Md. 19 , 637 A.2d 1192 (1994).

The only issue tried in Williams was the amount of damages, as the defendant admitted that he negligently caused the automobile collision in question with the plaintiffs. Williams, 98 Md.App. at 210 , 632 A.2d at 505 . After the jury’s failure to award any non-economic damages, the plaintiffs alleged error because of the trial court’s failure to ask several questions during voir dire that resulted in alleged prejudice to their case for damages. 6 Williams, 98 ²²⁰ Md.App. at 212, 632 A.2d at 506 . In its affirmance of the trial court, the Court of Special Appeals addressed the position of our sister states on similar types of voir dire questions, including Montana’s stance as voiced in Borkoski v. Yost, 182 Mont. 28 , 594 P.2d 688 (1979).

The Landons ask us to apply the basic principles of Borkoski to voir dire questions involving medical malpractice and tort reform. Jerome Borkoski filed a medical malpractice and wrongful death action following the death of his wife, suing both the hospital where his wife received her care and two doctors. 7 Borkoski, 594 P.2d at 689 . It was established during discovery that the insurance company that provided malpractice insurance to the defendant doctors had been actively involved in a campaign to influence jurors. Id.

The campaign specifically targeted jurors and the focus of the advertisements “was that large jury awards would result in everyone paying higher insurance premiums,” and appeared in several national magazines at the time the jury was impaneled. Borkoski, 594 P.2d at 689-90 . As a result, Borkoski made a motion requesting permission to examine prospective jurors to determine whether they had been exposed to this campaign in any manner. Borkoski, 594 P.2d at 690 .

Borkoski’s motion was denied and after the jury found for the defendants, Borkoski requested a new trial, alleging he had been denied a fair and impartial jury by the denial of his voir dire motion. Id. The Borkoski court affirmed the trial court, but acknowledged that the trial court should have allowed the inquiries to determine juror bias or prejudice. The court stated: [W]e hold that in appropriate cases an attorney upon voir dire may inquire of prospective jurors whether they have ²²¹ any business relationship with insurance companies and whether they are policyholders of an insurance company named as a defendant or of a mutual insurance company involved in the case.

We further hold that, upon a proper showing of possible prejudice, an attorney may inquire whether a prospective juror has heard or read anything to indicate that jury verdicts for plaintiffs in personal injury cases result in higher insurance premiums for everyone; if so, whether the prospective juror believes such materials; and if so, whether that belief will interfere with the juror’s ability to render a fair and impartial verdict. Borkoski, 594 P.2d at 694 . The Court of Special Appeals considered Borkoski , but declined to adopt its holdings. The intermediate appellate court noted that it was necessary to view Borkoski within the context of Maryland’s voir dire jurisprudence, which supports voir dire as a tool for discovering information that would disqualify jurors and “support challenges for cause, and not for assisting in the exercise of peremptory challenges.” Williams, 98 Md.App. at 217 , 632 A.2d at 509 .

The Williams court noted that both our strong stance opposing the introduction of the issue of probable insurance coverage and the precedential effect of Kujawa, supra, would factor into the application of the Borkoski approach in Maryland. Williams, 98 Md.App. at 217 , 632 A.2d at 509 (citing Morris v. Weddington, 320 Md. 674, 681 , 579 A.2d 762, 765 (1990)) (other citations omitted). Ultimately, the Court of Special Appeals concluded that it was not necessary to decide if the Borkoski approach was authorized under Maryland law because the proposed voir dire, questions were neither required under the Borkoski analysis nor required under Maryland law. The Landons request that this Court “reconsider [its] previous holdings in light of the political, social and judicial change in climate which has occurred since the time Williams was decided.” In its amicus brief, the Maryland Trial Lawyers Association argues that the Court of Special Appeals “left open” the issue of Borkoski’s application in the proposal of voir dire questions addressing tort reform.

The Maryland ²²² Defense Counsel contends that, although the trial court in this case made the correct decision, we should take this opportunity to expand voir dire when an appropriate factual basis is proffered. We decline the Landons’ request to adopt the basic principles of Borkoski and to apply them to the facts of the case sub judice. The facts of this case do not warrant our expansion of the scope of voir dire in Maryland. Unlike the law of Montana, the scope of voir dire in Maryland is limited.

The Landons’ question can be distinguished from the question proposed in Borkoski , not only in its failure to address the issue of tort reform, but in its generality. See Williams, 98 Md.App. at 218 , 632 A.2d at 509 . The proposed question asks jurors about general bias against plaintiffs in lawsuits, and in malpractice cases in particular, and does not inquire about anything that can be construed as a tort reform issue. 8 In their brief filed in this case, the Landons offered several unsubstantiated assertions 9 regarding information that would ²²³ have prejudiced jurors; however, the questions proposed did not reflect any of the Landons’ concerns. Even if prospective jurors had preconceived notions about plaintiffs in lawsuits, and in medical malpractice cases in particular, such beliefs would not automatically render them disqualified for cause.

See supra note 4. The Landons’ proposed question is essentially a general question. It is not designed to elicit responses about the biases of the jurors with regard to tort reform. As a general question, it inquired into whether jurors had any “preconceived opinion or bias or prejudice” involving “plaintiffs in personal injury cases in general and medical malpractice cases in particular.” The proposed question was not directed to a specific reason for disqualification and exclusion of jurors as required by Maryland law; thus, it was properly refused, in the court’s discretion, on that ground.

We have acknowledged that where the parties identify an area of potential bias and properly request voir dire questions designed to ascertain jurors whose bias could interfere with their ability to fairly and impartially decide the issues, then the trial judge has an obligation to ask those questions of the venire panel. Merely asking general questions, such as, “is there any reason why you could not render a fair and impartial verdict,” is not an adequate substitute for properly framed questions designed to highlight specific areas where potential jurors may have biases that could hinder their ability to fairly and ²²⁴ impartially decide the case. Those voir dire questions, however, should be framed so as to identify potential jurors with biases which are cause for disqualification, rather than merely identifying potential jurors with attitudes or associations which might facilitate the exercise of peremptory challenges. Davis, 333 Md. at 47 , 633 A.2d at 877 .

It was the Landons’ responsibility to propound voir dire questions designed to elicit potential bias from jurors, and not to bootstrap a tort reform argument on appeal to a general question inquiring into any potential “bias or prejudice” against plaintiffs in personal injury or medical malpractice cases. The trial court was well within its discretion in declining to propound the Landons’ proposed question. b. Jury Instructions The Landons next challenge the court’s refusal to give two jury instructions, one proposed by them addressing the issue of contributory negligence, and the other the MPJI-Cv. 27:4, Informed Consent. The Landons contend that the two instructions “together should have been read to the jury to allow an appropriate understanding of [Mr. Landon’s] refusal to submit to a CAT scan in this case.” Further, they contend that by denying to give the two instructions, “the court deprived [Mr. Landon] of the full advantage of presenting his theory to the jury.” In Wegad v. Howard Street Jewelers, 326 Md. 409 , 605 A.2d 123 (1992), we discussed the proper standard of review for a denial of a requested jury instruction.

We said: ²²⁵ Wegad, 326 Md. at 414 , 605 A.2d at 126 . See also Farley v. Allstate Ins. Co., 355 Md. 34, 47 , 733 A.2d 1014, 1020 (1999) (quoting Wegad); Fearnow v. Chesapeake & Potomac Telephone Co., 342 Md. 363, 385 , 676 A.2d 65, 76 (1996). The standard is based on the theory “that a ‘litigant is entitled to have his theory of the case presented to the jury’ ” provided the instruction is a correct statement of the law, and that the statement of law is applicable given the facts presented at trial.

Wegad, 326 Md. at 414 , 605 A.2d at 126 (internal citations omitted). See also The Sergeant Co. v. Pickett, 285 Md. 186, 194 , 401 A.2d 651, 655 (1979). The third inquiry is derived from Md. Rule 2-520(c) which provides that a court “need not grant a requested instruction if the matter is fairly covered by instructions actually given.” 10 Id. The burden of showing reversible