McCormack v. Board of Education

KRAUSER, Judge. Four-year-old Ryan McCormack was riding home on a school bus, when the bus crossed the center line of the road, striking first an oncoming vehicle and then a utility pole and a tree. Upon colliding with the front porch of a nearby house, the bus came to rest, leaving Ryan injured and the driver of the bus dead. This tragic mishap spawned the litigation now before us.

Seeking damages for Ryan’s injuries and reimbursement for the monies they had spent for his care and treatment, 1 Ryan’s parents, appellants Duane and Renee McCormack, brought a negligence action, on behalf of Ryan and themselves, in the Circuit Court for Baltimore County against appellee, the Board of Education of Baltimore County (“the Board”). 2 ²⁹⁷ When the Board conceded liability, the case was tried before a jury solely on the issue of damages. That trial ended in, what was for the McCormacks, a disappointingly small verdict. Blaming this unhappy result on certain evidential rulings made by the circuit court, the McCormacks seek rectification from this Court. Interestingly enough, the rulings of which they complain do not involve the physical injuries that Ryan sustained as a result of this accident.

Rather, they relate to the psychological injuries that he purportedly suffered. The McCormacks claim that the circuit court’s exclusion of certain evidence of those injuries — specifically, the videotaped testimony of Ryan’s treating psychologist and Ryan’s psychological and psychiatric records — requires this Court to vacate the judgment below and order a new trial. Persuaded by the Board’s argument that the McCormacks’ own claim for medical expenses created a conflict of interest with their son’s patient-psychologist privilege, the circuit court gave the McCormacks a choice: either agree to a postponement of the trial so that a guardian could be appointed, pursuant to section 9-109 of the Courts and Judicial Proceedings Article (“CJP”), 3 to assert or waive that privilege or face a court order, prohibiting the introduction of the testimony and records at issue. If they requested a postponement for the appointment of a guardian, the court warned, they would have to pay the Board some or all of the costs and expenses that the Board had incurred in preparing for trial. 4 When the McCoimacks chose to forgo the appointment of a guardian ²⁹⁸ (presumably to avoid paying the Board’s trial preparation expenses), the court excluded the videotaped testimony and the records.

The exclusion of that evidence left the court, in its view, with no alternative but to then prohibit the McCormacks from testifying as to any observations they had regarding Ryan’s behavior that extended beyond the first few days after the accident. Without the records or the psychologist’s testimony, the McCormacks could not establish, the court reasoned, a causal connection between the accident and Ryan’s subsequent long-term behavior. Pulling all of this together, the issue presented by this appeal is: Whether the circuit court erred in excluding the videotaped deposition of the McCormacks’ expert, Joseph H. Kaine, Ph.D., a psychologist who evaluated and treated Ryan following the accident; the psychiatric and psychological records of Dr. Kaine, Mahmood Jahromi, M.D., and Steven Zimmerman, Ph.D.; and evidence of Ryan McCormack’s observable, long-term psychological problems. 5 For the reasons that follow, we shall vacate the judgment of the circuit court and remand for further proceedings consistent with this opinion. FACTS On June 7, 1999, Ryan was a passenger on a school bus, taking him home from school.

Having dropped off the other children, the bus was empty, except for Ryan, the bus driver, Virginia T. Carter, and the bus aide, Ethel Reinhart. While driving on Golden Ring Road in Baltimore County, the bus driver lost control of the bus. After striking an oncoming car, an electric pole, and then a tree, the bus came to a stop upon colliding with the front porch of a nearby ²⁹⁹ house. The bus driver was killed; Reinhart and four-year-old Ryan were injured.

At trial, a now nine-year-old Ryan testified that he “remember[ed] hitting [his] head ... [a'jbout two or three times.” He also recalled seeing the bus driver fall out of her seat and down the bus stairs. After the accident, the bus aide, in the midst of “helicopters, people, and a woman screaming,” checked Ryan’s seat belt; it was loose but fastened. She then attempted to shield Ryan, who was crying and bleeding from his head, from seeing the bus driver’s body. Dispatched to the scene of the bus accident, Officer Raoul Willem of the Baltimore County Police Department observed Ryan “crying very hard.” According to the officer, Ryan was “very nervous” but then stopped crying and became “lethargic.” Fearing that Ryan had gone into shock, the officer immediately sought medical help.

Ryan was thereafter transported to a hospital. When he arrived, he seemed, according to Mrs. McCormack, “[v]ery sleepy.” She said that the doctors “stapled up his head and kept an eye on him for [a] concussion.” To Mr. McCormack, Ryan appeared “very pale, very quiet ... [and] in shock.” A day or two after the accident, Mrs. McCormack noticed a change in Ryan. She was, however, prohibited by the court ruling now at issue from describing Ryan’s behavioral and emotional problems in the weeks that followed the accident. The accident left Ryan, in his words, “hurt” and “scared.” He chose not to ride the school bus for the three days of the school year that remained.

After that, he rode on the school bus, except when his fears required his mother to drive him to school. When he does ride the bus, he testified that he sits “[o]ne seat in front of the back of the bus ... [s]o if [he] ever get[s] in another bus accident, [he] can just get out of [his] seat and make sure everybody’s all right, then get people to open the emergency exit and they can escape and [he] could, too.” He further testified that he had nightmares following the accident and that he thinks about it “[o]nce in a while [sic],” ³⁰⁰ especially about “getting hurt in the bus accident and [the bus driver] dying, [and] stuff[ ] falling downstairs.” Joseph H. Kaine, Ph.D., Ryan’s psychologist, testified, at his videotaped deposition-the judicial exclusion of which is the principal issue before us-that Ryan suffered from post-traumatic stress disorder following the accident, which manifested itself in, among other things, wetting himself during the day, increased anxiety, aggressive behavior, and nightmares. DISCUSSION The McCormacks contend that the circuit court erred in excluding, pursuant to section 9-109(b) of the Courts and Judicial Proceedings Article, 6 the videotaped deposition of Ryan’s psychologist, Joseph H. Kaine, Ph.D. and the psychological and psychiatric records of Ryan’s treatment 7 that were to be introduced through his testimony. Section 9-109(c)’s requirement that a guardian be appointed to assert or waive the patient-psychologist privilege, 8 “[i]f a patient is incompetent” to do so for himself, see CJP § 9-109(c), applies “only within the context of a custody dispute,” the McCormacks insist.

And, furthermore, section 9-109(d)(3) 9 permitted the ³⁰¹ introduction of Dr. Kaine’s testimony, they assert, because Ryan introduced the subject of his “psychological injuries ... as an element of his claim,” thereby waiving the privilege. That error was compounded, the McCormacks claim, when the circuit court excluded their testimony “regarding [their] long term observations of changes in Ryan McCormack’s behavior following the bus accident,” on the grounds “that without the support of medical testimony, any other testimony regarding behavioral changes that occurred after the first few days of the accident” was immaterial. After the Board conceded liability for the accident, this matter proceeded to trial on the issue of damages alone. On the first day of trial, the Board moved to exclude Dr. Kaine’s videotaped deposition as well as Ryan’s psychological and psychiatric records, which were to be introduced through Dr. Kaine’s testimony.

In support of that motion, the Board argued that, notwithstanding its request to take the deposition of Dr. Kaine, the McCormacks “ignored [its] request to schedule the deposition in a collaborative fashion as [required] under the discovery guidelines,” and that when it “served a deposition notice [it was] informed that he would not appear for that discovery deposition.” It further argued that Ryan’s patient-psychologist privilege, under section 9-109(b), could not be waived by his parents because their interest in obtaining reimbursement for the costs of his psychological and psychiatric treatment conflicted with Ryan’s interest in keeping his mental condition a private matter. 10 The circuit court rejected the Board’s first ground, but granted the Board’s motion in limine on the second — that the McCormacks could not waive Ryan’s privilege. Consistent with this ruling, it later prohibited the McCormacks from ³⁰² testifying about any post-accident behavior of Ryan’s that occurred more than a few days after the accident, because of the absence of expert testimony linking that behavior to the accident. In reviewing the circuit court’s decision to exclude the videotaped deposition of Dr. Kaine, Ryan’s records, and the McCormacks’ observations, we note that the question of the admissibility of evidence is ordinarily “ ‘left to the sound discretion of the trial court,’ so that ‘absent a showing of abuse of that discretion, its ruling[ ] will not be disturbed on appeal.’” J.L. Matthews, Inc. v. Md-Nat’l Capital Park & Planning Comm’n, 368 Md. 71, 91 , 792 A.2d 288 (2002) (quoting Farley v. Allstate Ins. Co., 355 Md. 34, 42 , 733 A.2d 1014 (1999)).

But the “[ajpplication of that standard ... depends on whether the trial judge’s ruling under review was based on a discretionary weighing of relevance in relation to other factors or on a pure conclusion of law.” Id. at 92 , 792 A.2d 288 . When “the trial judge’s ruling involves a weighing, we apply the more deferential abuse of discretion standard. On the other hand, when the trial judge’s ruling involves a legal question, we review the trial court’s ruling de novo.” Id. (footnote omitted).

Because the circuit court’s ruling that the McCormacks could not waive Ryan’s patient-psychologist privilege was based on a conclusion of law, specifically its interpretation of section 9-109(c), we shall review that decision d,e novo. That review will have to wait, however, to permit us to briefly consider two preliminary claims made by the McCormacks. They are: first, that the circuit court erred in granting the motion in limine because it was untimely, having been filed by the Board after the deadline for the filing of such motions had passed and, second, that Ryan’s patient-psychologist privilege was waived, pursuant to section 9 — 109(d)(3), when Ryan, through his parents, “introduce[d] his mental condition as an element of his claim.” See CJP § 9-109(d)(3)(i). ³⁰³ The first issue requires no more discussion than to note that, although the McCormacks opposed the Board’s motion in limine at trial, they never claimed that the Board’s motion was untimely. 11 Consequently, they cannot do so now. Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court. ...”).

Nor does the McCormacks’ second argument, that Ryan’s patient-psychologist privilege was waived when Ryan, through his parents, “introduce^] his mental condition as an element of his claim,” merit substantive consideration. See CJP § 9-109(d)(3)(i). It, too, was not raised by the McCormacks at trial and, therefore, as the first claim, it founders upon that procedural rock. We turn now to the issue that has been preserved for our review: the McCormacks’ contention that the circuit court wrongly excluded Dr. Kaine’s videotaped deposition and records based upon an erroneous interpretation of section 9-109(c).

That section provides that, “[i]f a patient is incompetent to assert or waive this privilege, a guardian shall be appointed and shall act for the patient. A previously appointed guardian has the same authority.” Id. § 9-109(c). The McCormacks maintained that, as Ryan’s parents, they were his guardians and therefore had the authority to waive his privilege. The Board of course disagreed.

While acknowledging that the McCormacks, as Ryan’s parents, might fall within the category of a “previously appointed guardian” under section 9-109(c), it insisted that they “as individual [p]laintiffs in their own right in this matter, ha[d] a pecuniary interest in the pursuit and outcome of th[e] litigation, and thus [we]re precluded from acting as guardians to protect Ryan’s ³⁰⁴ interests for purposes of [section] 9-109(c).” 12 In other words, the Board claimed that the McCormacks’ interest in disclosing information about Ryan’s post-accident mental condition, to recover the costs of Ryan’s psychiatric and psychological care and treatment, conflicted with Ryan’s interest in the non-disclosure of such sensitive information. That potential conflict of interest, the court held, necessitated the appointment of a guardian under section 9-109(c), to assist Ryan in deciding whether to waive his patient-psychologist privilege. 13 To determine the validity of the court’s ruling, we invoke the canons of statutory construction. The first such canon, indeed the “cardinal rule” of statutory interpretation, “is to ascertain and effectuate legislative intent.” Mona Elec. Servs., Inc. v. Shelton, 148 Md.App. 1, 8 , 810 A.2d 1022 (quoting Mayor & City Council v. Chase, 360 Md. 121, 128 , 756 A.2d 987 (2000)), aff'd, 377 Md. 320 , 833 A.2d 527 (2003).

Therefore “we look first to the words of the statute, giving them their ‘natural and ordinary signification, bearing in mind the statutory aim and objective.’ ” Azarian v. Witte, 140 Md.App. 70, 96 , 779 A.2d 1043 (2001) (quoting Richmond v. State, 326 Md. 257, 262 , 604 A.2d 483 (1992)), aff'd, 369 Md. 518 , 801 A.2d 160 (2002). If possible, “ ‘a statute is to be read so that no word, phrase, clause or ³⁰⁵ sentence is rendered surplusage or meaningless.’ ” Kerpelman v. Smith, Somerville & Case, L.L.C., 115 Md.App. 353, 356-57 , 693 A.2d 357 (1997) (quoting Mazor v. State, Dep't of Corr., 279 Md. 355, 360 , 369 A.2d 82 (1977)). Moreover, “we must always be cognizant of the fundamental principle that statutory construction is approached from a ‘commonsensical’ perspective. Thus, we seek to avoid constructions that are illogical, unreasonable, or inconsistent with common sense.” Frost v. State, 336 Md. 125, 137 , 647 A.2d 106 (1994) (quoting Richmond, 326 Md. at 262 , 604 A.2d 483 ) (internal citations omitted). “We also avoid constructions that would ‘lead to absurd [results].’ ” Azarian, 140 Md.App. at 97, 779 A.2d 1043 (quoting Thanos v. State, 332 Md. 511, 525 , 632 A.2d 768 (1993)). “ ‘[I]f the statute is part of a general statutory scheme or system, the sections must be read together to ascertain the true intention of the Legislature.’ ” Kerpelman, 115 Md.App. at 357 , 693 A.2d 357 (quoting Mazor, 279 Md. at 361 , 369 A.2d 82 ).

We now apply these time-honored canons of statutory construction to the question of whether section 9 — 109(c) required the appointment of a guardian, as the circuit court ruled. We begin our analysis by noting that “the psychotherapist-patient privilege is ‘rooted in the imperative need for confidence and trust.’” Jaffee v. Redmond, 518 U.S. 1, 10 , 116 S.Ct. 1923 , 135 L.Ed.2d 337 (1996) (quoting Trammel v. United States, 445 U.S. 40, 51 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980)). Highlighting the importance of that privilege, the Supreme Court stated: Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.

Because of the sensitive nature of the problems for which ³⁰⁶ individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment. Id. As the Court of Appeals succinctly put it in Laznovsky v. Laznovsky, 357 Md. 586 , 745 A.2d 1054 (2000), “ ‘[m]any physical ailments might be treated with some degree of effectiveness by a doctor whom the patient did not trust, but a psychiatrist must have his patient’s confidence or he cannot help him.’ ” Id. at 613 n. 13, 745 A.2d 1054 (quoting Taylor v. United States, 222 F.2d 398, 401 (D.C.Cir.1955)).

Indeed, the privilege not only serves the private interest of the patient “[b]y protecting confidential communications between a psychotherapist and her patient from involuntary disclosure,” but it “serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Jaffee, 518 U.S. at 11 , 116 S.Ct. 1923 . Nor can anyone dispute that “[t]he mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.” Id. Mindful of the compelling policy considerations in favor of this privilege, we turn to the words of the statute itself: (b) Privilege generally. — Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient’s authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing: (1) Communications relating to diagnosis or treatment of the patient; or (2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment. (c) Appointment of guardian. — If a patient is incompetent to assert or waive this privilege, a guardian shall be ³⁰⁷ appointed and shall act for the patient.

A previously appointed guardian has the same authority. CJP § 9-109(b)-(c). Sections 9-109(b) and (c) plainly state that, in judicial as well as other types of proceedings, a patient has the right to assert or waive his patient-psychologist privilege. Id.

But, if the patient is not competent to make such a decision, section 9 — 109(c) requires the appointment of a guardian to act on the patient’s behalf, unless he or she already has such a guardian. Id. § 9 — 109(c). Ryan, a four-year-old minor, was obviously not capable of making such a decision. See Nagle v. Hooks, 296 Md. 123, 127 , 460 A.2d 49 (1983) (“Certainly a minor under the age of 10 years would be incompetent to make such a decision fas whether to waive or assert his patient-psychologist privilege.]”).

Therefore, the statute required that a guardian be appointed to assert or waive Ryan’s privilege, unless Ryan already had someone acting on his behalf, who qualified as a “previously appointed guardian” under section 9-109(c). The McCormacks point out that, as Ryan’s parents, they were his guardians under section