Mahler v. Johns Hopkins Hospital, Inc.

KRAUSER, J. Appellant, Mark Mahler, underwent elective plastic surgery to improve the appearance of his chin. The surgery was performed by Anthony Tufaro, M.D., at The Johns Hopkins Hospital. As a result of that surgery, his lower lip purportedly “dropped,” and he now experiences numbness in his chin. Appellant claims that Dr. Tufaro never disclosed the material risks of the surgery to him, and, based on that claim, he brought suit against appellee, The Johns Hopkins Hospital, Inc. (“Johns Hopkins”) in the Circuit Court for Baltimore City.

Two consecutive trials ensued. After the first ended in a judgment in favor of appellant, a new trial was granted when appellant rejected a remittitur proposed by the circuit court. After the second trial ended in a hung jury, the circuit court granted Johns Hopkins’s motion for judgment notwithstanding the verdict (JNOV), prompting this appeal. 1 Appellant presents four questions for our review. Reordered to facilitate analysis, they are: I. Did the circuit court err in failing to allow appellant to designate a treating physician as an expert in the ²⁹⁷ second trial after his expert in the first trial was excluded on qualification grounds?

II

Did the circuit court err in granting a judgment notwithstanding the verdict in appellant’s informed consent case in light of the trial evidence presented by appellant?

III

Did the circuit court abuse its discretion in denying appellant a new trial which was based on appellant’s inability to present to the jury expert testimony on essential elements of his informed consent case?

IV

Did the circuit court err in failing to afford appellant the opportunity to read into the record the trial testimony of Barry M. Zide, M.D. on the basis of his unavailability pursuant to Maryland Rule 5-804? For the reasons set forth below, we hold that the circuit court did not abuse its discretion in prohibiting appellant from designating a new expert witness in the second trial but that it did err in granting Johns Hopkins’s motion for a JNOV. Accordingly, we vacate the circuit court’s judgment and remand this case to that court for a new trial. BACKGROUND In 1993, appellant, then twenty-six years old, underwent a chin augmentation surgery, performed by Steven Denenberg, M.D., during which a chin implant was inserted into his lower jaw.

Two years later, liposuction was performed on his neck. 2 The next year, appellant consulted with Paul Manson, M.D., a plastic surgeon at The Johns Hopkins Hospital, seeking, according to Dr. Manson, “improvement in neck redundancy and improvement in the appearance of his chin.” Although Dr. Manson concluded that appellant was “not a candidate for any revisional procedure on either the chin or the neck,” he referred appellant to Anthony Tufaro, M.D. ²⁹⁸ When appellant met with Dr. Tufaro, Tufaro outlined four possible procedures: sliding genioplasty, platysma plication, removal of appellant’s chin implant, and insertion of cheek implants. He recommended a sliding genioplasty coupled with the removal of appellant’s chin implant and the placement of cheek implants. A “sliding genioplasty” involves cutting the patient’s mandible in half horizontally with a reciprocating saw and separating the halves. The lower section is then moved down or forward or a combination of both to achieve the desired change in jaw appearance.

Hydroxylapatite is used to fill any gaps between the two halves of the patient’s mandible, and the halves are then screwed together. During that visit and those that followed, appellant was accompanied by his friend, Frances Bloom. When appellant and Ms. Bloom next met with Dr. Tufaro to discuss undergoing the sliding genioplasty, appellant brought with him a list of approximately thirty questions about the procedure. After discussing the questions with Dr. Tufaro, he was given a consent form by the doctor.

Appellant read the consent form, discussed its contents with Dr. Tufaro, and then signed it. That form warned of the major risks of the operation, stating, in part: MAJOR RISKS OF THE OPERATION OR OTHER PROCEDURE AND ANESTHESIA (including such items as failure to obtain the desired result, discomfort, injury, additional therapy and death): Bleeding. Infection. Loss of implant.

Change in sensation (Numbness). (Italics indicates handwritten). On May 28, 1997, Dr. Tufaro performed the sliding genioplasty; at that time, he removed appellant’s chin implant and inserted cheek implants. Approximately a week later, appellant returned to Dr. Tufaro’s office to have his bandages removed.

According to appellant, after the bandages were removed, he discovered that he was not able to close his mouth, that he drooled, and that his lower lip had dropped. Dr. Tufaro asserted that he just needed to “heal” and that he ²⁹⁹ would be “fine.” When, on June 17, 1997, appellant complained that his lower lip had dropped further, Dr. Tufaro told him to massage the area and assured him once again that he would be “fine.” Appellant nonetheless telephoned Dr. Manson and told him that his lip had dropped and that he was having trouble with a cheek implant. On July 9, 1997, appellant saw Dr. Manson and, according to the doctor’s report, “expressed] disappointment in the appearance of his chin and the appearance of his lip.” Because appellant was still healing from the surgery, Dr. Manson advised appellant to wait several months to see if matters would improve. On September 15, 1997, appellant returned to Dr. Manson complaining that his right cheek implant was bothering him and that his lip was not as prominent as it had been before the surgery.

That day, Dr. Manson surgically removed appellant’s right cheek implant. In late December 1997, appellant saw Dr. Manson again. Although Dr. Manson found that his lip was “better than it was previously,” appellant complained that he wanted his chin moved further forward. In his notes of that consultation, Dr. Manson wrote, “I am not sure if any further intervention is indicated and [appellant] was so advised.

I personally would have difficulty doing it and feel that he probably should wait before having anything done.” On December 29, 1997, Dr. Manson performed surgery on appellant to improve his lower lip position and appearance. He reattached appellant’s mentalis muscle and performed a “V-Y advancement of mucosa.” He also inserted a small chin implant to improve appellant’s appearance. On January 14, 1998, appellant again saw Dr. Manson, complaining about the position of his chin. At that time, Dr. Manson recorded in his notes that he found appellant’s lip position “satisfactory.” Fourteen days later, appellant returned, complaining that the right side of his lower lip was drooping; Dr. Manson wrote in his notes, however, that appellant’s lip was “of almost normal posture” and that he ³⁰⁰ recommended that several more months elapse before he underwent further treatment.

After several more consultations with Dr. Manson to discuss his chin and lower lip, appellant sought treatment from Louis Belinfante, D.D.S. On May 26, 1998, Dr. Belinfante surgically removed the Hydroxylapatite that had been inserted during appellant’s sliding genioplasty procedure. On July 22, 2003, between the first and second trial, appellant saw Bruce Epker, D.D.S., who, according to his notes, found that appellant had a “fair[ly] classic case of mentalis muscle inferior positioning with lip incompetence.” On October 7, 2003, a year before the second trial, appellant underwent surgery performed by Dr. Epker to correct the ptosis 3 of his lower lip. PROCEDURAL HISTORY On August 27, 2001, appellant filed a complaint in the Circuit Court for Baltimore City against Johns Hopkins, alleging that he had not been told of all of the material risks of the sliding genioplasty and that, if he had been, he would not have gone through with the surgery. Johns Hopkins filed an answer denying liability and pleading the affirmative defenses of assumption of risk, contributory negligence, statute of limitations, and charitable immunity.

On September 14, 2001, appellant amended his complaint by changing the relief requested from two million dollars to an amount “in excess of the required jurisdictional amount.” On September 18, 2001, the circuit court entered a pre-trial scheduling order requiring that appellant designate any expert witnesses by December 19, 2001; that Johns Hopkins designate any expert witnesses by March 20, 2002; and that appellant designate any rebuttal expert witnesses by April 20, 2002. On December 20, 2001, appellant designated Daniel Wilkerson, M.D., as an expert witness. According to that ³⁰¹ designation, which was filed with the court, Dr. Wilkerson was going to testify that Johns Hopkins breached its duty of care “to adequately inform [appellant] of the risks associated with removal of the alloplastie chin implant” performed by Dr. Tufaro. Appellant did not designate any other expert witnesses.

Trial commenced on May 5, 2003, in the circuit court before the Honorable Allen Sehwait. 4 At that trial, the court refused to qualify Dr. Wilkerson as an expert witness, thus leaving appellant without an expert witness to testify as to the risks of a sliding genioplasty. Fortunately for appellant, he was able to extract that information from Johns Hopkins’s expert, Dr. Barry Zide, during his case. The first trial ended in a verdict for appellant and an award of $50,000 in economic damages and $500,000 in non-economic damages. Two days after the verdict, Johns Hopkins filed “Defendant’s Motion for a New Trial and/or Remittitur.” After argument on Johns Hopkins’s motion, Judge Sehwait stated, “I find this verdict excessive.

I find it grossly excessive. It shocks my conscious [sic]. I find it inordinate.” The judge explained that he had erred in allowing appellant and Ms. Bloom to testify as to appellant’s dissatisfaction with the treatment by Dr. Manson; in permitting certain operative reports and consent forms to be introduced into evidence; in allowing appellant to wear his “chin bra” during the trial; and in permitting lay testimony regarding appellant’s future pain, suffering, and loss of teeth. To rectify the matter, Judge Sehwait offered to reduce the judgment to $12,500 for economic damages and to $100,000 for non-economic damages or, if appellant did not accept the remittitur, to grant Johns Hopkins’s motion for a new trial.

On June 18, 2003, after appellant rejected the remittitur, the circuit court ordered a new trial. The second trial was scheduled to begin on October 29, 2003. On July 11, 2003, ³⁰² appellant filed a “Request for Continuance and Issuance of a New Scheduling Order,” in which he requested that the date of the trial be postponed because of a scheduling conflict and that a new scheduling order be issued so that the parties could “redesignate their experts for trial.” Appellant stated: The evidence and testimony by [Johns Hopkins’s] experts at the first trial confirmed that [appellant] is in need of at least one additional surgery. Plaintiff is now under the care of two additional physicians who were not called as fact or expert witnesses at the first trial. [Appellant] anticipates that he will undergo at least one additional surgery to his lip and chin in response to the injuries he suffered from the alleged act and omissions of [Johns Hopkins] and its agents. [Appellant] is scheduled to see Bruce Ep[k]er, M.D., of Austin, Texas, for a surgical consultation and Louis Belinfante, D.D.S., of Atlanta, Georgia, for follow-up care, both of whom are expected to serve as fact and expert witnesses at retrial.

Johns Hopkins protested the identification of any new experts because “[e]xpert identification and discovery [had] already been completed” and requested that any additional discovery by the parties be limited to appellant’s “ongoing treatment and related medical information.” On August 25, 2003, the circuit court granted appellant’s request for a postponement of the trial, rescheduling the trial to January 12, 2004. Although the court re-opened discovery, it “limited [it] to issues of treatment rendered to [appellant] since May 28, 2003,” allowing the parties to designate new expert witnesses to testify but only as to the treatment appellant received after that date. Ten days later, appellant filed “Plaintiffs Motion to Reconsider and/or to Modify the Court’s Order Dated August 25, 2003,” in which he complained that the order “unfairly restrict[ed][him] from offering ‘expert’ testimony on the issues of standard of care, proximate cause, and damages related to the initial surgery of May 28, 1997 giving rise to the subject litigation and any of [his] subsequent treatments or evaluations before May 28, 2003.” He further stated that his counsel ³⁰³ had been “unable to locate [his] previously designated expert, Daniel C. Wilkerson, M.D., after numerous attempts to find him.” With his motion, appellant submitted “Plaintiffs Designation of Expert Witnesses,” in which he designated Dr. Wilkerson, Dr. Louis Belinfante, and Dr. Bruce Epker 5 as experts who would each testify that Johns Hopkins had “breached its duty [to him] to adequately inform him of certain material risks associated with the subject sliding genioplasty surgery with concomitant remove of the alloplastic chin implant as performed by Anthony Tufuro [sic], M.D.” In opposition to that motion, Johns Hopkins argued that appellant was seeking “to take advantage of the retrial of this case and [appellant’s] purported intention to undergo additional surgery to designate new expert witnesses.” On December 18, 2003, the circuit court denied appellant’s motion to reconsider and ordered that the trial testimony of the experts named by the parties since May 28, 2003, specifically Louis Belinfante, D.D.S., Bruce Epker, D.D.S., Ferdinand Ofodile, M.D. and Lise C. Van Susteren, M.D., shall be limited in scope to (a) any care and treatment of [appellant] since May 28, 2003 and (b) [appellant’s] mental and physical condition since May 28, 2003, and into the future. The court also scheduled a new trial date for November 8, 2004.

On October 1, 2004, appellant filed “Plaintiffs Supplemental Designation of Expert Witness,” naming Leonard Hertzberg, M.D., as an expert who would testify that appellant “suffers from injuries directly related to and as a consequence of the surgeries performed upon [him] by Drs. Manson and Tuforo [sic] at John[s] Hopkins Hospital, and that [his] physical injuries are neither exaggerated nor contrived.” On October 8, 2004, Dr. Belinfante’s telephonic deposition was taken by counsel for Johns Hopkins. After Johns Hop ³⁰⁴ kins’s counsel had concluded his examination of Dr. Belinfante, the following exchange took place: MR. BELSKY (Counsel for Appellant): Doctor, is it true that you received from me a two-volume set of medical records marked, “medical records of Mark Mahler versus Johns Hopkins Hospital”? .MR.

SHAW (Counsel for Johns Hopkins): Let me interrupt for a second. Are you saying you’re not going to comply with that Order? Is that what you’re telling me, Mr. Belsky? MR.

BELSKY: Yes, I am. What I’m going to do is I’m going to put on the record that Dr. Belinfante has reviewed Mr. Mahler’s complete medical chart; that he is prepared to offer testimony relative to his opinions as to the issues of informed consent; he is prepared to offer opinions as to Mr. Mahler’s medical history going back to the date that he first saw Dr. Tufaro; he is prepared to offer testimony as to each procedure that any doctor did upon him; he is prepared to offer testimony as to the procedure that he performed on Mr. Mahler prior to the date of — that you’ve referenced; that this deposition is being held and you have been placed on notice by me on numerous occasions that I intend to offer Dr. Belinfante as both a treating physician and as an expert; and that I intend to elicit from Dr. Belinfante at trial all that I believe that I am entitled to in light of the fact that there is a new Trial Order in this case. MR. SHAW: Well, I disagree.

MR. BELSKY: I’m not finished. I’ve also advised you that I do not agree with the Court’s ruling, I do not agree with your characterization that for the purposes of discovery, that the Court has limited the right of an attorney to inquire into the doctor’s opinions in that regard and that this doctor is prepared to offer opinions relative to his treatment, relative to his opinions on all issues that are present in this trial and we will seek review with a new trial judge or the same trial judge of that decision. And you have an opportunity to ask the doctor any questions that you wish.

You are on notice that I intend to offer the doctor for this purpose so ³⁰⁵ that if you seek to claim prejudice, that you have been given the opportunity today to ask those questions relative to all of the doctor’s opinions and have chosen to limit your questions to what you believe the Court has restricted you to. And I ... I disagree with your interpretation ---- MR. SHAW: All right.

My response is that I chose not to and I choose not to violate the Court Order .... ... And unless you have anything further, I’m prepared to terminate this deposition. You’re going to ask questions? MR.

BELSKY: Yeah. I’m violating the Court Order. MR. SHAW: Okay.

Well, I’m not going to participate. MR. BELSKY: I’m violating your interpretation of the Court Order. Following that exchange, counsel for Johns Hopkins hung up, whereupon counsel for appellant questioned Dr. Belinfante about the risks of a sliding genioplasty.

After the deposition, Johns Hopkins filed “Defendant’s Motion for Sanctions and to Restrict Scope of Plaintiffs De Bene Esse Deposition of Louis S. Belinfante, D.D.S.” In that motion, Johns Hopkins asked that appellant be sanctioned for violating the court’s August 25th and December 18th orders restricting discovery. Noting that a de bene esse videotape deposition of Dr. Belinfante was scheduled to take place, it further requested that appellant be precluded from questioning him “on issues and opinions exceeding the scope of the Court’s two previous discovery Orders.” Granting that motion, the court ordered that the scope of the de bene esse deposition of Dr. Belinfante be limited to that allowed by the December 18, 2003, order, which restricted trial testimony of newly designated experts to the treatment appellant received after the first trial and to his mental and physical condition after that proceeding had ended. Although the court ordered appellant to pay a “monetary sanction” to ³⁰⁶ Johns Hopkins for the “time and effort associated with the preparation” of that motion, it reserved on the amount of that sanction. On November 3, 2004, five days before the second trial was to begin, appellant filed a motion asking the circuit court to reconsider the restrictions it had placed on the designation of expert witnesses and that Dr. Belinfante’s de bene esse deposition be reopened.

To that motion, appellant attached Dr. Belinfante’s affidavit in which the doctor stated that he would testify that appellant suffered from “wound dehiscence, asymmetry, lip incompetence, lip deformity, chin deformity, injury to dental structures, neurosensory disturbance of the lip, chin, gengiva, and teeth;” that those were all material risks of, and caused by, appellant’s sliding genioplasty; that the treatments that appellant received after the surgery by Dr. Tufaro were all necessitated by that surgery; that the costs of those treatments were reasonable; and that appellant did not give his informed consent to the sliding genioplasty surgery. On November 8, 2004, the second trial began with the Honorable Joseph P. McCurdy presiding. At the beginning of that trial, after hearing argument on appellant’s motion to reconsider the discovery issue, Judge McCurdy denied it. TRIAL At trial, appellant testified that, at his second meeting with Dr. Tufaro, he asked if the surgery “could affect function” and that Dr. Tufaro told him “no,” explaining that function was controlled by “the side muscles and they would not be involved.” Although they discussed whether he could be in the sun, possible allergies, and if he might die during the surgery, Dr. Tufaro never mentioned, appellant asserted, that he could suffer a permanent loss of sensation.

When appellant asked Dr. Tufaro what the “worst case scenario” was, Dr. Tufaro responded, “you might have a little bit of reduced sensation in your lower lip for about two or three months” but that it would not be permanent. Appellant further claimed that Dr. Tufaro told him that there was a possibility of infection, but ³⁰⁷ that it was “unlikely.” They then discussed, according to appellant, how soon he could resume his art and weight training and if he would have any problem lifting his luggage immediately following surgery. Appellant next testified about the consent form he signed, which stated, in part: MAJOR RISKS OF THE OPERATION OR OTHER PROCEDURE AND ANESTHESIA (including such items as failure to obtain the desired result, discomfort, injury, additional therapy and death): Bleeding. Infection.

Loss of implant. Change in sensation (Numbness). (Italics indicates handwritten). Although Dr. Tufaro told him that it was “just some red tape” that he needed to sign, the doctor did go over the form with appellant, explaining what each of the risks listed meant.

He said that the “failure to achieve desired result” risk meant that he might not be happy with how it looked because “some people might want a ton of chin. Some people might want just a little bit of chin.” As for the “discomfort” risk, Dr. Tufaro told him, “You’re probably going to be in pain the first couple of days after this surgery,” but that the pain would subside. As for risk of “injury,” Dr. Tufaro cautioned him that he would be black and blue and swollen immediately after the surgery. The “additional therapy” referred to in the consent form Dr. Tufaro explained would be the platysmal plication, which he would not need because he was having the sliding genioplasty performed.

As for “bleeding,” Dr. Tufaro said that this meant that he could turn black and blue right after the surgery. Although “infection” was possible, Dr. Tufaro assured him it was “unlikely.” And, as for the risk of “change in sensation (numbness)” Dr. Tufaro warned only that he could have “reduced sensation in [his] lower lip ... for two or three months.” But Dr. Tufaro never discussed, appellant claimed, wound dehiscence, the possibility of losing function in his lip, the possibility ³⁰⁸ of his metalis muscle separating from his gum, or the possibility that he could suffer permanent numbness. On cross examination, appellant admitted that he read and understood the part of the form that stated, “I am aware that the practice of medicine and surgery is not an exact science and I acknowledge that no guarantee has been made as to the results that may be obtained.” Frances Bloom testified next. She accompanied appellant on his visits to Dr. Tufaro.

She stated that Dr. Tufaro told appellant that “there would be no loss of function ... that there would be no permanent nerve damage, [and] that there could be some numbness from three to six months.” She could not remember, however, whether Dr. Tufaro discussed with appellant asymmetry, bleeding, or injury to teeth. She further stated that appellant looked at the consent form for five to ten minutes before signing it and that the consultation lasted thirty to forty minutes. She also testified that, on the morning of the surgery, Dr. Tufaro saw appellant, before surgery, and told him that he “shouldn’t be so nervous” because he would “love” the result and that “there would be no chance of losing function” or dying. Appellant next called Dr. Tufaro to testify.

Unable to recall exactly what he discussed with appellant, he did testify to what he generally tells patients who are about to undergo a sliding genioplasty; that is, that they could expect numbness in their chin, lips, teeth, and gums following the surgery. He further advises them: [T]here will be one hundred percent incidence of numbness and tingling of your lower lip in the early postoperative period----That should go away over the next few months. Some people are left with a small area of numbness, particularly underneath the chin, where there’s overlap from the two sides. Some patients have a permanent area of permanent numbness ... on the chin.

He also tells them that they will experience pain and discomfort after the surgery and that they may require “touch-up surgery” and that, if their implants become infected, ³⁰⁹ they will have to be taken out. He further warns them, as to post-operative functions: In the early postoperative period, your function will seem different to you. Your lip will feel thick. It will feel swollen.

Your lip will feel numb in the early postoperative period. So, to you, you might feel like your lip is not functioning normally. It will feel like you went to the dentist and you had an injection and your lip was numb. When you go to the dentist and you walk out, you think your lip isn’t working, but you’re the only one that thinks that____ In the early postoperative period, this operation will affect your sensation and your function because the lip will be swollen and sore and stiff.

After stating that he counsels patients, especially patients who have had previous operations in the same area, “You may not be happy with the outcome,” he disputed appellant’s testimony that he never told him that there could be permanent problems. The doctor insisted that he tells patients, “You can have some permanent problems.” Dr. Tufaro conceded, however, that he does not tell patients that there is a risk of “permanent functional disability” and that is because, he explained, it “is not a common sequelae and not one of the material risks.” “[Ujnsightly ptosis of the ehin, with or without concomitant lip incompetence,” he opined, is a “very uncommon finding.” It is not a “material complication,” he asserted. Although Dr. Tufaro agreed that asymmetry, lip ptosis, dimpling of the soft tissues around the chin, a change in position of the lower lip, and damage to the mentalis muscle are known risks of sliding genioplasty surgery, he did not mention those potential problems because he did not believe they were “material risks.” He explained that he uses “layman’s terms” rather than the “anatomic terms” in explaining the risks of the procedure to patients because patients can better understand those terms. For instance, he does not tell ³¹⁰ patients that they could suffer an injury to the mental nerve 6 but, instead, advises them that they could have numbness, which means the same thing; and, rather than use the term “ptosis,” he tells patients, “Your lip is going to be rubbery and full.” But he admitted that he did not tell appellant that he could have a “permanent hanging lip.” Appellant next called Dr. Manson as an expert witness in the field of plastic and reconstructive surgery.

Dr. Manson testified that a doctor must inform a patient of the material risks that are known to him even if the doctor has not experienced them during his practice. The risks of a sliding genioplasty include, he stated, death, ptosis of the chin, lip incompetence, dimpling, temporary and permanent numbness, and injury. He explained: You can have damage to any of the muscles that are transected. You could end up with a lip that’s lower in position.

You could end up with your lip not working as well as it should and the primary mechanism for that is sensory input; in other words, lack of enough sensory input to feel where your lower lip is. Though asymmetry