Little v. Schneider

ADKINS, J. Professional malpractice cases are unique in that the defendants are often highly trained and experienced professionals who possess credentials and specialized knowledge similar to that of an expert witness. In a medical malpractice case, like this one, there is a legal distinction between a defendant physician who testifies based solely on what she did and what she observed in her actual treatment of the patient (a fact witness), and a physician who gives opinions based upon facts and/or materials furnished to him during the course of litigation (an expert witness). See, e.g., In re Application of Republic of Ecuador, 280 F.R.D. 506, 511 (N.D.Cal.2012); Carson v. Webb, 486 N.W.2d 278, 281 (Iowa 1992). In this case, it is undisputed that Dr. Schneider testified solely as a fact witness.

His status as a fact witness limits the proper scope of his witness accreditation, which in turn will affect the admissibility of evidence offered by the patient that he is not board-certified in vascular surgery. Likewise, as a fact witness, his substantive testimony is limited to an explanation of what he did or observed, and why, concerning the alleged malpractice. His testimony may not go beyond that. FACTS AND PROCEDURAL HISTORY In May of 2007, Victoria Little, Petitioner, sought treatment at Vascular Surgery Associates.

She complained of pain in ¹⁵⁴ her thighs and buttocks, which, it turned out, stemmed from a blocked aorta. Little was scheduled for a aortobifemoral bypass surgery to be performed by Respondent Dr. Schneider and Dr. Gonze on July 16, 2007. The goal of the surgery was to remove the buildup of plaque in the aorta and thereby restore appropriate blood flow to the pelvis and lower extremities. The surgery is performed by cutting the abdominal aorta below the renal arteries and then using a graft to connect the aorta to the femoral artery.

The surgeon determines the proper size of the graft by visually inspecting the aorta during surgery. During surgery, Drs. Schneider and Gonze chose to use a 16 x 8 mm graft. The suture used to connect the tissue to the graft, however, would not hold, causing Little to lose a large amount of blood.

The doctors tried to complete the surgery several times, but the sutures continued to open up, making Little lose more blood with each attempt. Unable to complete the aortobifemoral bypass, Drs. Schneider and Gonze converted the surgery into an axillobifemoral bypass. In this procedure, the bypass is performed at the axillary artery, which is then reconnected with the use of a graft to the femoral artery.

The surgeons were able to complete the axillobifemoral bypass with the use of an 8 mm graft. But, by then, Little had lost 5100 ccs of blood — almost her entire volume of blood. As a result, there were severe surgical complications: Little became permanently paralyzed from the waist down and suffered temporary damage to her kidneys, liver, heart, lungs, and spinal cord. At trial, Ms. Little’s primary theory of negligence was based on an alleged mismatch in the size of her aorta and the size of the graft used in the initial attempt at completing the aortobifemoral bypass.

Little contended that her aorta was 7-8 mm, and thus, the 16 x 8 mm graft was much too large. Dr. Schneider maintained that Little’s aorta was 14 mm, and thus, the 16 x 8 mm graft was proper. The jury agreed with Little, finding that Drs. Schneider and Gonze had negligently performed the surgery and awarded Little $224,898 for past ¹⁵⁵ medical expenses, $2,000,000 for future medical expenses, and $1,333,000 for pain and suffering. 1 Dr. Schneider appealed, challenging two evidentiary rulings by the trial court: (1) allowing Little to question Dr. Schneider about his lack of board certification and (2) excluding from evidence a chest CAT scan, from an unrelated hospital visit, which allegedly showed Little’s aorta.

The Court of Special Appeals reversed on both issues. See Schneider v. Little, 206 Md.App. 414 , 49 A.3d 333 (2012). Little petitioned for certiorari review in this Court, which we granted on November 16, 2012. Little v. Schneider, 429 Md. 303 , 55 A.3d 906 (2012).

We consider two issues: 1. Did the trial judge abuse his discretion in finding that evidence of Dr. Schneider’s lack of board certification was admissible as a result of Dr. Schneider’s extensive testimony regarding his accomplishments, credentials, and qualifications? 2. Did the trial judge abuse his discretion in prohibiting Dr. Schneider from testifying about a CAT scan that Dr. Schneider had never used in his treatment of Little? 2 DISCUSSION Admissibility of Physician’s Board Certification Status Ms. Little argues that the trial court was correct in allowing her, on re-direct examination, to inquire into Dr. Schneider’s ¹⁵⁶ lack of board certification in vascular surgery. 3 Dr. Schneider counters, claiming that evidence was inadmissible. Both parties rely on Dorsey v. Nold, 362 Md. 241 , 765 A.2d 79 (2001), to support their respective positions.

In Dorsey , we were presented with the question of whether a plaintiff may introduce into evidence the fact that the defendant physician had failed his board certification examination on his first attempt. Id. at 249-51 , 765 A.2d at 83-84 . We held that such information was not admissible, explaining, “the general rule is that a physician’s inability to pass a medical board certification exam has little, if any, relevance” in a medical malpractice suit. Id. at 250 , 765 A.2d at 84 (citations and quotation marks omitted).

That is so because “the fact of failure makes it neither more nor less probable that the physician complied with or departed from the applicable standard of care in the diagnosis or treatment -of a particular patient for a particular condition.” Id. at 250-51 , 765 A.2d at 84 . Little reads Dorsey , however, to say that it is only the physician’s failure to pass the exam that is inadmissible, not the physician’s current status of certification. In support of this distinction, Little explains that in Dorsey the jury was informed of the fact that the physician was “not yet board-certified” at the time of the alleged malpractice. Id. at 250 , 765 A.2d at 83 .

Because the jury in Dorsey was actually allowed to hear the physician’s current certification status, Little argues, Dorsey cannot possibly stand for a rule that a physician’s certification status is always inadmissible. Schneider has a different take on Dorsey , using it to argue that his decision not to take the board certification examination is not relevant. Just like Dorsey’s failure of the ¹⁵⁷ certification exam, Schneider avers, his choice not to take the exam makes it no more or less probable that he breached the standard of care in performing Little’s surgery. The trial judge, he argues, had no discretion to admit this irrelevant evidence.

Schneider’s reading of Dorsey is correct. That Dr. Schneider was not board certified makes it no more or less probable that he breached the standard of care in his treatment of Little. Yet, the doctor’s argument based on Dorsey does not respond to what may be Little’s best theory: that Schneider put his qualifications at issue. In other words, he “opened the door” to Little’s use of the lack of board certification evidence. “Opening the Door ” The doctrine of “opening the door” to otherwise inadmissible evidence is based on principles of fairness.

As we have stated: “ ‘opening the door’ is simply a way of saying: ‘My opponent has injected an issue into the case, and I ought to be able to introduce evidence on that issue.’ ” Clark v. State, 332 Md. 77, 85 , 629 A.2d 1239, 1243 (1993). It is a method by which we allow parties to “meet fire with fire,” as they introduce otherwise inadmissible evidence in response to evidence put forth by the opposing side. See Terry v. State, 332 Md. 329, 337 , 631 A.2d 424, 428 (1993). In this regard, the “doctrine is really a rule of expanded relevancy.” Clark, 332 Md. at 84 , 629 A.2d at 1242 .

It “authorizes admitting evidence which otherwise would have been irrelevant in order to respond to ... admissible evidence which generates an issue.” 4 Id. at 84-85 , 629 A.2d at 1243 . Dr. Schneider’s lack of board certification in vascular surgery was brought up several times in the course of this litigation. It was first raised pre-trial by Schneider himself in a motion in limine seeking to prevent Little from introducing ¹⁵⁸ the evidence at trial. During the motions hearing, Little’s counsel argued that, as a matter of fairness, he should be permitted to use Schneider’s lack of board certification to counter the picture — which he anticipated would be painted by the defense — that Dr. Schneider is the “greatest” vascular surgeon in the region.

The trial judge ruled for Dr. Schneider but warned the parties that the order was “subject to the proviso that upon request during the course of the trial, said ruling is subject to reconsideration by this Court.” Apparently, the defense viewed the judge’s favorable ruling as giving them a green light for introducing Dr. Schneider’s experience and achievements, because counsel touted Dr. Schneider’s credentials and qualifications during opening statements. Specifically, he stated that Schneider had gone to undergraduate school at Hamilton College and medical school at Case Western Reserve University. He emphasized that Dr. Schneider completed a five-year residency in surgery at John Hopkins, voluntarily elected to perform an additional year-long fellowship at Hopkins specializing in vascular surgery, and was hired by Hopkins to teach vascular surgery for the next eleven years. Defense counsel also stated that Dr. Schneider was instrumental in bringing a new state-of-the-art hospital into the community, and that he volunteered to serve as the Chairman of the hospital’s Board of Directors, which is an unpaid position.

All this, he said, occurred while Schneider was “a full-time practicing surgeon [who] is in the operating room three or four days a week.” The issue of board certification came up again when Little called Dr. Schneider as an adverse witness. She asked the trial court to revisit its ruling on the motion in limine. At that time, the trial judge refused to overturn his previous ruling, but cautioned defense counsel that unnecessary bolstering of Schneider, like that in the opening statement, could cause him to change his decision. Defense counsel did not heed this warning.

In his cross-examination of Dr. Schneider, he wasted no time: he went over all of Dr. Schneider’s accomplishments, credentials, and ¹⁵⁹ qualifications. This time, defense counsel went into even more detail then he did in opening statements, prompting Dr. Schneider to testify that: • he had graduated from Hamilton College with honors and served as the president of the Senior Honor Society; • in medical school at Case Western Reserve University he was selected to be on the Search Committee for a Dean, the Teaching Excellence Award Committee, and the Quality Assurance Teaching Committee; • after medical school he was selected to complete a residency at John Hopkins; • his initial residency lasted five years in which time he was able to perform all types of surgeries; • he elected to spend an additional sixth year focusing solely on vascular surgery and was trained by “the Chief of Vascular Surgery, who is really one of the most preeminent vascular surgeons in the country, as well as another vascular surgeon who has written several textbooks on vascular surgery”; • his residency started with twenty-two interns, but by his fifth year he was one of only three still remaining, as the rest had been cut out of the program; • he spent six months in an exchange program studying vascular surgery at Oxford University in England; • when he came back to Hopkins, he was chosen as a Halstead Surgical Fellow to continue training in vascular surgery; • upon the completion of his residency he was asked to stay on the faculty at Hopkins to teach vascular surgery while, at the same time, he was also a full-time practicing surgeon; • by the time he completed his training at Hopkins he had performed 300 aortic procedures; • he then formed his own private practice called Vascular Surgery Associates; ¹⁶⁰ • at the time of trial he estimated that he had performed between 400 to 500 aortobifemoral by-pass surgeries; • he had privileges at Upper Chesapeake Medical Center, Greater Baltimore Medical Center, St. Joseph Hospital, Harford Memorial Hospital, and Sinai Hospital; • he served as the Chief of Surgery at Fallston General Hospital, the predecessor to Upper Chesapeake Medical Center, and as the Chairman of the Board of Directors, a position that is unpaid, of the Upper Chesapeake Health System; • he was largely responsible for creating Upper Chesapeake by being in charge of the organization that raised funds to build the hospital; • he had authored numerous publications in national medical journals; • he belonged to several professional organizations, including Chesapeake Vascular Society, John Hopkins Medical and Surgical Association, and Halstead Surgical Society; and • he volunteers for Health Link, which “is a charitable venture that Upper Chesapeake funds through donations from its foundation ... to take care of indigent patients, patients without medical insurance in Harford County.” 5 During this testimony, Little objected twice, on relevancy grounds, but the trial judge permitted Dr. Schneider to continue. Upon the completion of defense counsel’s cross-examination of Schneider, Little once again asked the trial judge to revisit his original ruling on the motion in limine. Little argued that the doctor could not have it both ways: his accomplishments and great deeds were no more relevant than his lack of board certification.

This time, the trial judge agreed, reversing his ruling and allowing Little to inquire, on re-direct, about Dr. Schneider’s lack of board certification: ¹⁶¹ [WJhen I made my initial ruling pretrial, which I thought was correct, I did caution everybody it was subject to being revisited, depending on how much puffing went in, and, quite frankly, I am going to use the term puffing, but I am not in any way minimizing these things. He is certainly very accomplished. He should be complimented. However, as counsel has indicated, what’s the relevance of all those wonderful accomplishments to the issues before the Court?

So what’s good — there is a balance here. So if you are going to puff up, they get to puff down. The trial transcript reveals that the judge was in tune with the progression of the trial and properly understood that the tables turned once Dr. Schneider engaged in extensive recitation of his many accomplishments on cross-examination. We have held that the doctrine of “opening the door” applies equally in opening statements, witness examination, and closing arguments.

See, e.g., Terry, 332 Md. at 329 , 631 A.2d at 424 (opening statement); Oken v. State, 327 Md. 628 , 612 A.2d 258 (1992) (cross examination); Mitchell v. State, 408 Md. 368 , 969 A.2d 989 (2009) (closing argument). Here, the “puffing” evidence was introduced during a phase of testimony known as “witness accreditation.” We see no reason why the doctrine should apply any differently in this context. Witness accreditation is an aspect of the witness examination process that has received scant attention in appellate opinions or legal treatises. It is a process by which a lawyer (usually the witness’s counsel) elicits preliminary background information from the witness to “enhance a witness’ credibility because the information portrays the witness as a real human being, not just an impersonal source of evidence.” Paul Bergman, Trial Advocacy In A Nutshell 173 (2013).

In other words, “the purpose of the accreditation process is largely ... to do whatever possible to make the jury receptive to the witness and his testimony before eliciting the key aspects of that testimony.” Steven P. Grossman, Trying the Case 47 (1999). As we have explained: ¹⁶² It is a routine practice in trials for an attorney to ask his witness certain preliminary questions which may not be relevant to the issues being litigated, which may go beyond mere identification and which are designed to show that the witness will be somewhat credible or not biased in favor of the side calling him. For example, the educational background or professional status or employment position of a non-expert witness may be asked, or the witness’s lack of prior contact with the side who has called him may be brought out. These questions give the jury some knowledge of the individual and a more complete perspective in considering his testimony.

City of Baltimore v. Zell, 279 Md. 23, 28 , 367 A.2d 14, 17 (1977). The legitimate process of accrediting a witness is not without limits, however. In Zell , we acknowledged that accreditation questions “serve the useful function of informing the jury about the witness,” but the “extent to which such questions are permitted must ... remain in the sound discretion of the trial judge.” 279 Md. at 28 , 367 A.2d at 17 ; see also White v. State, 125 Md.App. 684, 695 , 726 A.2d 858, 863 (1999). Thus, the key to deciding whether Dr. Schneider “opened the door” through his testimony during the accreditation is to examine the “reasonable limits” imposed by the trial judge on the accreditation process.

In doing so, we are mindful that Schneider was not an expert; he was a fact witness testifying as an adverse witness in the plaintiffs case-in-chief. With regard to fact witnesses, “[pjersonal background questioning is usually quite short.” Bergman, supra at 173. Ordinarily, it is not as extensive as that of an expert, because a fact witness will not give any opinions in the case. Therefore, the jury does not need to receive the same amount of detail as to his qualifications or credentials in order to decide whether he is credible.

Thus, a