McCoy v. Hatmaker

THIEME, Judge. This is an appeal from summary judgment granted to appellees in a wrongful death claim and survival action. Appellant Linda McCoy, individually and as personal representative of the estate of William McCoy, filed a complaint on January 10, 1999, in the Circuit Court for Baltimore City against two Baltimore City employees, paramedic Billie R. Hatmaker and police officer Brian Schwaab; the Baltimore City Police Department; 1 and the Mayor and City Council of Baltimore City. Hatmaker and Officer Schwaab filed separate motions for summary judgment, and the. court heard these motions and McCoy’s opposition to them on January 14, 2000.

The City filed a line adopting Hatmaker’s pleadings on the same day, although its separate summary judgment motion was not before the court at that time. The court granted Hatmaker’s and Schwaab’s motions at the hearing, and it later granted Baltimore City’s motion for summary judgment on February 10, 2000. This appeal followed, and McCoy now asks: ⁶⁹⁹ 1. Did the court below err in considering and granting appellees’ motions for summary judgment on the basis that appellant failed to make a prima facie showing of gross negligence on the part of appellees Hatmaker and Schwaab, even assuming the truth of all allegations against them? 2.

Did the court below abuse its discretion by striking an affidavit of appellant’s expert witness contradicting that witness’s deposition testimony, because it included testimony that amounted to a legal conclusion and because appellant submitted it beyond the discovery deadline? 3. Did the court below abuse its discretion when it quashed the subpoena for the deposition of a supervising Lieutenant who investigated the incident and entered a protective order barring, as privileged, discovery of his report? To these questions, we answer “no” and explain. Facts On the evening of January 24, 1996, William McCoy, age 62, was driving himself and a co-worker, Bernard Lowe, to their place of employment.

McCoy typically picked up Lowe at about 10:00 p.m. so that the two would arrive in time for their 11:00 p.m. shift. McCoy, heading north on Hanover Street in Baltimore City, stopped for a red light. As the two men conversed, Lowe recalls, the following took place: I said something to Bill, and Bill never answered me. I said, “You didn’t see that Bill?” I turned around and looked, and I thought Bill dropped his cigarette between his legs because his head was down and his hand was in his lap, and I thought he dropped his cigarette.

I’m like, “Hey Bill,” and there was no response, no nothing. The next I know we’re going off into the parked cars. I reached over and grabbed the steering wheel. I’m still yelling at him and I grabbed the steering wheel and got it ⁷⁰⁰ straight back out on the street to keep us from hitting the parked cars.

That’s how it happened. Lowe then engaged the emergency brake. When the car had come to a stop, Lowe explains, McCoy was still in the driver’s seat, non-responsive to Lowe’s efforts to rouse him and making what Lowe described as gargling noises. Lowe left the car and flagged down a passing police car, driven by Officer Irvin Bradley.

He asked me what was going on. I told him something is wrong with my buddy. I said, “All he’s doing is gargling. I thought he dropped his cigarette.” He heard me yelling, “Bill, Bill,” and he walked over, put his hand in the throat area by his ear and stuff I guess to check for a pulse, and he • said something.

Officer Bradley told Lowe that McCoy had a “small pulse,” then called for assistance on his shoulder radio. After Officer Bradley called for assistance, Officer Brian Schwaab arrived at the scene. Officer Schwaab is a trained emergency medical services provider who is qualified both as a first responder and an emergency medical technician (“EMT”). At the time, he had been about eight blocks away, patrolling the lower area of the southern district.

Responding to Officer Bradley’s call for assistance, he estimated that he arrived at the scene within “a minute” of hearing the call. He brought with him a personal resuscitation mask. Officer Schwaab immediately asked Officer Bradley what had occurred. He also went over to McCoy, ensured that his airway was open, and checked for a pulse.

He did not feel one. Before he could start cardiopulmonary resuscitation (“CPR”), however, Officer Schwaab noticed an ambulance, Medic 5, rounding the corner to turn southbound on Hanover Street. Although appellant now seeks to infer otherwise, the undisputed evidence, including City records and staff testimony, shows that Medic 5 reached the scene only on its second attempt. Medic 5 was initially dispatched at 10:21 p.m.

Because of confusion relating to the exact location of McCoy’s ⁷⁰¹ vehicle, the ambulance initially went to the wrong address. The same rig was then dispatched a second time-in fact, Paramedic Hatmaker, who was with the ambulance, even recorded a new call on the run sheet—at 10:25 p.m., and it reached the scene at about 10:30 p.m. Officer Schwaab greeted the ambulance crew with the news that McCoy was in full cardiac arrest. Paramedic Hatmaker ran to McCoy’s car and assessed his condition.

He noted that McCoy, who was slumped over the steering wheel, showed no visible signs of life. He felt no pulse in McCoy’s carotid artery. Placing his stethoscope under McCoy’s sweatshirt, Hatmaker listened for a heartbeat and heard none. 2 Heart sounds, in fact, were entirely absent. Hatmaker next examined McCoy’s eyes by opening his eyelids and examining his pupils with a penlight.

He observed McCoy’s pupils to be fixed and dilated and his sclera dry. He then checked McCoy’s body for signs of trauma, including blood, and found none. Finally, Hatmaker observed that McCoy had already released body fluids and his body temperature had already dropped markedly. He thus concluded that McCoy was dead and was not a viable candidate for resuscitation.

Because he considered his job there over, Hatmaker proceeded to complete a Maryland Ambulance Information Sheet regarding the call, then conferred with police, who would summon the Medical Examiner to remove McCoy’s body from the car and transport it to the morgue. In her complaint, appellant alleged that Hatmaker breached his duty of care to McCoy by “failing to render appropriate resuscitation and emergency medical treatment” and “violating the Maryland State Protocols for Cardiac Rescue Techni ⁷⁰² cian and Emergency Medical Technician/Paramedic Guidelines for deceased cases” (hereinafter the “Maryland Institute for Emergency Medical Services Systems protocols” or the “MIEMSS protocols”). Appellant asserted that, by committing such a breach, Hatmaker was grossly negligent. All of appellant’s experts- were deposed during discovery, including her emergency medical services expert Gerald M. Dworkin, who testified at a deposition on October 20, 1999.

Additionally, on October 15, 1999, appellant noted the deposition of Lieutenant William J. Shelley of the Baltimore City Fire Department. Lt. Shelley had investigated the incident on behalf of the Fire Department’s Medical Bureau and had concluded, in his report to the Fire Department chain of command, that Hatmaker had violated some MIEMSS protocols when he treated McCoy. 3 The report was placed in Hatmaker’s personnel file. On November 9, the Baltimore City Police Department moved to quash appellant’s subpoena duces tecum and prevent discovery of the report, on grounds that such information was confidential and thus not subject to discovery.

Appellant opposed appellees’ motion. On December 15, the court granted that motion, quashed the subpoena for Lt. Shelley’s deposition, and entered an order precluding formal discovery of any findings or records of the Fire Department’s review of Hatmaker’s performance in the McCoy incident. For reasons that are not clear, we note that appellant already possessed a copy of the report in question.

The court’s order, however, effectively precluded her from using the report. On December 2, Hatmaker and Officer Schwaab moved for summary judgment, and the City adopted Hatmaker’s pleading by line. Appellees argued that, because neither had committed any willful act nor any grossly negligent act or omission under the standard set forth in Tatum v. Gigliotti, 80 Md.App. 559 , 565 A.2d 354 (1989), aff'd, 321 Md. 623 , 583 A.2d ⁷⁰³ 1062 (1991), they were immune from suit under both the Good Samaritan Act, Md.Code (1973, 1998 Repl.Vol.), § 5-603 of the Courts & Judicial Proceedings Article, 4 and the Fire and Rescue Company Act, Md.Code (1973, 1998 Repl.Vol.), § 5-604 of the Courts & Judicial Proceedings Article. 5 Appellant opposed the motion, submitting with her opposition an affidavit from Dworkin, in which he opined, ⁷⁰⁴ to a reasonable degree of certainty in the field of emergency medical services, the acts and/or omissions of Defendant Hatmaker and Defendant Schwaab constituted not only a breach in the standard of care by falling well below the recognized standards, but that these acts and/or omissions also constituted a reckless disregard for the life of William McCoy and resulted in his death. The court granted appellees’ motion for summary judgment after a hearing on January 14, 2000.

At that hearing, Hat-maker moved to strike Dworkin’s affidavit on grounds that i) the affidavit could not act to defeat summary judgment under Pittman v. Atlantic Realty Co., 127 Md.App. 255 , 732 A.2d 912 (1999), rev’d, 359 Md. 513 , 754 A.2d 1030 (2000), and ii) Dworkin’s affidavit was inadmissible because it stated a conclusion of law. The Court granted this oral motion and also granted Hatmaker’s and Officer Schwaab’s summary judgment motions at the hearing. On February 10, the court additionally granted Baltimore City’s motion for summary judgment. This appeal followed.

Discussion We review grants of summary judgment de novo under a simple standard: whether the trial court’s legal conclusions were correct. See Matthews v. Howell, 359 Md. 152, 161-62 , 753 A.2d 69 (2000); Green v. H. & R. Block, Inc., 355 Md. 488, 502 , 735 A.2d 1039 (1999); Calomiris v. Woods, 353 Md. 425, 434 , 727 A.2d 358 (1999); Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 204 , 680 A.2d 1067 (1996). Here, the grant of summary judgment rests in part on the court’s exclusion of expert witness Dworkin’s eleventh-hour affidavit, which concludes that appellees had been grossly negligent. Without that affidavit, appellant cannot aver any genuine issue of material fact—any factual controversy that would somehow affect the outcome of this case, see Goodwich, 343 Md. at 206 , 680 A.2d 1067 (citing King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985))—that shows Hatmaker and Officer Schwaab committed any willful or grossly negligent act.

Appellant otherwise concedes that the immunity provisions of sections 5- ⁷⁰⁵ 603 and -604 apply. Although the Court of Appeals, when it reversed Pittman, dealt a blow to the trial court’s reasoning relying on that case, we hold that the* blow was not fatal, for the court’s secondary justification gave it sufficient rationale for striking the affidavit. Likewise, we hold that the trial court committed no abuse of discretion when it quashed appellant’s subpoena duces tecum for the deposition testimony of Lt. Shelley and the report he prepared.

We address each issue in turn. I The trial court granted summary judgment in favor of appellees because Maryland law affords them immunity from civil damages in the absence of gross negligence or willful misconduct. Finding that appellant presented no evidence of such abuses, the trial court properly ended this action. Under Maryland law, two separate statutes immunize fire, rescue, and law enforcement personnel from civil damages for errors and omissions made while acting in the scope of their duties.

The Good Samaritan Act grants a broad class of rescuers, which would include both Hatmaker and Schwaab (because he is a trained EMT), and medical providers civil immunity “for any act or omission in giving any assistance or medical care,” in the absence of gross negligence, where they provide care without fee or compensation i) at the scene of an emergency, ii) during transit to a medical facility, or iii) through communication with personnel providing such assistance. § 5-603. The Fire and Rescue Company Act further ensures that members of fire and rescue companies, like Hatmaker, “are immune from civil liability for any act or omission in the course of performing their duties,” except for those acts that are willful or grossly negligent. § 5-604(a). Appellant concedes, in fact, that the proper standard for determining appellees’ liability is one of gross negligence. A Tatum v. Gigliotti fleshes out Maryland’s gross negligence standard in the context of services provided by emer ⁷⁰⁶ gency medical technicians such as Hatmaker operating within their assigned duties: “Gross negligence has been equated with ‘wilful and wanton misconduct,’ a ‘wanton or reckless disregard for human life or for the rights of others.’ ” Tatum, 80 Md.App. at 568 , 565 A.2d 354 (quoting Foor v. Juvenile Serv., 78 Md.App. 151, 170 , 552 A.2d 947 (1989)).

One is grossly negligent or acts wantonly and willfully “ ‘only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.’ ” Tatum, 80 Md.App. at 568 , 565 A.2d 354 (quoting Romanesk v. Rose, 248 Md. 420, 423 , 237 A.2d 12 (1968)). Stated differently, only extraordinary or outrageous conduct can be termed gross negligence-mere “reckless[ness] is not enough; there must be reckless disregard for human life.” Khawaja v. Mayor & City Council, 89 Md.App. 314, 319 , 598 A.2d 489 (1991) (citing Nast v. Lockett, 312 Md. 343, 352 , 539 A.2d 1113 (1988)), appeal dismissed, 326 Md. 501 , 606 A.2d 224 (1992). In Tatum , an asthma sufferer in the midst of a severe attack called the Prince George’s County Fire Department and requested emergency aid. Paramedics, including defendant Gigliotti, arrived and sought to have plaintiffs decedent employ an emergency treatment commonly used for hyperventilation (but not for asthma).

When he resisted this effort, they administered oxygen and then escorted him to the ambulance, requiring him to walk. En route to the hospital, plaintiffs decedent further resisted the paramedics’ efforts to administer oxygen and refused to lie on the stretcher. When the ambulance rounded a sharp turn at the entrance of the hospital, the decedent fell to its floor. At the emergency room door, paramedics placed the decedent on a gurney and turned him over to hospital personnel.

Tatum, 80 Md.App. at 562-63 , 565 A.2d 354 . In the ambulance report, paramedics stated that the decedent “was conscious, stable, pupils normal, and pupils were equal.” Id. In fact, emergency room personnel testified that ⁷⁰⁷ the decedent was “in complete respiratory and cardiac arrest” when admitted. Id.

A physician performing the post-mortem examination testified that plaintiffs decedent died from cerebral edema, secondary to anoxia from status asthmaticus with respiratory arrest. Id. When asked whether the administration of oxygen in the ambulance would have saved decedent’s life, the physician testified in the affirmative. Id.

Despite such highly egregious facts showing misdiagnosis of the patient, treatment bordering upon cruelty, and falsification of official records, we nevertheless upheld the trial court’s grant of summary judgment in favor of Gigliotti: Even though the lower court, in ruling on the question of sufficiency of the evidence, is required to take the facts in the light most favorable to the plaintiff, we hold that the trial judge acted properly in granting the appellee’s motion for judgment. The evidence in this case indicated that although the actions of Gigliotti may have amounted to negligence, they do not satisfy the threshold of gross negligence. Id. at 569 , 565 A.2d 354 . We went on to explain how the plaintiffs own expert, although he initially condemned the actions of the paramedics as “reckless,” backed away from this description during cross-examination, stating, “I believe it is an improper action that could have aggravated the condition.” Id.

After being instructed by the court on the correct standard for gross negligence, the expert refused to testify that Gigliotti’s actions constituted reckless disregard for the decedent’s life. Id. We thus held that, as a matter of law, Gigliotti was insulated from liability by the Good Samaritan Act. Here, appellant asserts that Hatmaker “breached [his duty] of care by [failing] to render appropriate resuscitation and emergency medical treatment; by [abandoning] treatment of Mr. McCoy without the direction of a medical doctor; and by [failing] to appropriately examine [sic ] the plaintiff to determine his status and survivability prior to abandoning his efforts.” She then posits that each of these alleged breaches constitutes gross negligence and argues that, in concluding ⁷⁰⁸ otherwise, the court below engaged in improper fact-finding.

See, e.g., DiGrazia v. County Executive, 288 Md. 437, 445 , 418 A.2d 1191 (1980) (purpose of summary judgment is not to settle factual disputes but rather to determine existence of a genuine issue of material fact that would provide the basis for trial). From our perspective, however, the court below did nothing more than apply the legal standard in Tatum to the undisputed facts and, even resolving all inferences in appellant’s favor, found that her insubstantial allegations failed to withstand the most basic level of scrutiny provided by the summary procedure. No party disputes that when Hatmaker arrived on the scene he ran from the ambulance to McCoy’s vehicle and began to assess his condition with the intention of saving his life. Using his stethoscope on McCoy’s chest, he tried to establish a heartbeat.

He likewise checked McCoy’s carotid artery for a pulse. He assessed McCoy’s eyes and found his pupils to be fixed and dilated and the schlera dry. He examined McCoy’s body for signs of bleeding or other trauma and found none. He noted that McCoy had released his bowels and bladder.

All of the above are, we note, medical signs that death has occurred, and only after noting all of such symptoms did Hatmaker conclude that McCoy was beyond resuscitation and treat the patient like a corpse. Far from exhibiting deliberate indifference to McCoy’s welfare, the undisputed facts show that Hatmaker demonstrated genuine concern and urgency that was appropriate to the situation, and, at worst, he made an error in medical judgment. If the facts in Tatum supported a finding that careless, inconsiderate and deceitful ambulance crewmen were not grossly negligent, the court could not have reasonably found that the undisputed facts sub judice, as averred by the parties, would support an inference that Hatmaker had responded to McCoy’s illness with grossly deficient care. Just as appellant failed to present facts from which the court could infer that Hatmaker sought to injure McCoy or acted with willful indifference to his well-being, she cannot ⁷⁰⁹ point to facts in the record that show the court engaged in improper fact-finding.

Indeed, we find it clear that all the court did was to apply the Tatum standard to the facts sub judice. In doing so, it weighed appellant’s preferred inference and concluded that inference was untenable: [APPELLANT’S COUNSEL]: [L]et me first address Defendant Hatmaker and we agree that the standard is gross negligence. In the standard of gross negligence as cited in Tattum [sic ] and I believe, Your Honor, that I do sight [sic] cases other than Tattum [sic] throughout my brief, but you can be the judge of that, pun intended—but in Tattum [sic] it says the standard of gross negligence is a reckless disregard for human life. THE COURT: A wanton or reck—okay. [APPELLANT’S COUNSEL]: Right.

And willful or wanton reckless disregard for [human] life and wanton, I believe, Your Honor, means that you demonstrate a deliberate indifference or act as if this person does not have the right to live, his rights or her rights do not exist. Your Honor, this case is so much more egregious than Tattum [sic ] that I will do as they did and go briefly through Tattum [sic ]. In Tattum [sic], the paramedic arrives, attempts to do something, here paramedic Hatmaker did nothing. THE COURT: Well, no that’s not—that’s—no he didn’t—I don’t think you can say that.

You can say that he didn’t do what your expert says he should have done but he did do something. [APPELLANT’S COUNSEL]: Your Honor, I will go beyond that. THE COURT: Well, show me where it says he did nothing? [APPELLANT’S COUNSEL]: Sure. He didn’t do just what my expert says, he didn’t do anything that the [MIEMSS] standard set forth. THE COURT: Okay.

He didn’t do those things. When you say he did nothing, that means he didn’t go to the patient, he didn’t, I mean there are things that he did. You say that they’re not sufficient. ⁷¹⁰ [APPELLANT’S COUNSEL]: Right. THE COURT: But, you can’t say that he didn’t do nothing [sic ]. [APPELLANT’S COUNSEL]: I take that back then, Your Honor.

THE COURT: Okay. Appellant countered and still contends that Hatmaker’s failure to observe the MIEMSS and other treatment protocols equaled no action at all and gross negligence on its face. The MIEMSS protocols state that “[t]he goal of pre-hospital emergency medical services is to deliver a viable patient to appropriate definitive care as soon as possible.” Appellant points out that the protocols set forth several criteria for emergency personnel to use in determining whether resuscitation is appropriate, including asking other persons at the scene about the patient’s symptoms and condition; determining by use of a monitoring device that heart rhythms are incompatible with life; checking for the absence of electrical pulse activity; and, in the absence of obvious signs of death, 6 beginning basic and advanced life support procedures, including CPR, to continue until the patient reaches a hospital or a physician directs termination of treatment. Instead, after fully examining McCoy, Hatmaker pronounced him dead and proceeded to document the case as though the patient were dead-on-arrival.

Deposition testimony shows that Hatmaker believed he had authority to do just that. The court below found that, by Tatum’s standard, it could not construe Hatmaker’s failure to follow MIEMSS protocols as reckless disregard for McCoy’s life. Instead, the court characterized his actions as a well-intended but wrong judgment call. [APPELLANT’S COUNSEL]: In my—in my brief, I said he did something. He ran to the person and all he did was ⁷¹¹ a visual assessment of Mr. McCoy.

That visual assessment isn’t enough as set forth in their own protocol, in the [MIEMSS] protocols that he acknowledges. These protocols require certain steps that he has to do. Nowhere in these protocols does it say, Your Honor, that you can show up, look at someone, pronounce them dead, and call the medical examiner. The protocols set forth what he has to do.

THE COURT: Well, don’t you think in Tattum [sic ] the protocols set forth that you don’t put somebody on a gurney in the back of the ambulance and don’t strap them down when you get ready to drive? [APPELLANT’S COUNSEL]: I don’t know, Your Honor. THE COURT: Well, I can tell you what, I bet dollars to donuts they do. THE COURT: Are you saying there is ever a chance where he doesn’t apply the standards? In other words, all the time failure to follow the standards is gross negligence. [APPELLANT’S COUNSEL]: No, no, not at all.

THE COURT: When is it not? [APPELLANT’S COUNSEL]: Not at all. If he—let’s say for example that Hatmaker would have—he never even took him out of the car—let’s say he gets there, does the examination, gets the medical consult immediately. Doctor, we’ve got somebody coming in. On the way there to the hospital with the medical consult trying to save the man’s life.

He doesn’t intubate, he doesn’t hook up a defibrillator, he doesn’t bag the patient. Gets to the hospital, hands it off to the doctor— THE COURT: What’s different about that then [sic ] what happened here? [APPELLANT’S COUNSEL]: Because here he didn’t do anything. ⁷¹² THE COURT: Well, you keep saying that he didn’t do anything. He didn’t do what you thought, but he did something. [APPELLANT’S COUNSEL]: He did a quick visual assessment and called the medical examiner. The standards don’t allow for him ever to do that unless he’s obviously dead....

Because not following the standards is gross negligence.... THE COURT [Reading from Tatum]: “Gross negligence has been equated with willful and wanton misconduct. A wanton and reckless disregard for human life or for the lives of other [sic ]. Those aren’t to say that a wrong doer is guilty of gross negligence or acts wantonly and willfully, only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.” And frankly, I can not see any set of circumstances under which a fact finder could find in this case that the two Defendants meet, met that standard.

The Plaintiffs, Plaintiff I should say, has stated several times that the Defendant Hatmaker did nothing. Perhaps I don’t know, if that were true that might be gross negligence. Perhaps had he arrived on the scene and been told and instead of running to the car said, do you have a cigarette to someone and lit a cigarette and began to smoke a cigarette. I think under those circumstances that would well be something that would show utterly [sic ] indifference to the rights of others, just total indifférence.

But, here the evidence it [sic] to the contrary. All the evidence is that he ran to the car and that was something. The evidence is also that he took a stethoscope and tried to see if he heard a heartbeat, that is something. That he tried to get a pulse, that is something.

That he looked to see if his eyes were dilated, that was something and that he saw that he expelled, his bowels on himself, that was something. The Plaintiffs position is that is [sic ] was not enough and for purposes of this emotion [sic ] I will assume that it was ⁷¹³ not enough, but it was something and it did not amount to utter indifference to the rights of others. It did not—what it was, was a judgment by Defendant Hatmaker that this man was dead. It was a judgment that was wrong but, it was a judgment that was made.

It was not an action based on utter indifference and just simply saying—not saying but behaving in such a way is indifference as to whether or not Mr. McCoy lived or died.... If this is gross negligence then there’s never a time when a medic and a police officer who doesn’t fail to do everything they are suppose [sic ] to do and someone—death results or it’s not gross negligence. I mean there were judgments being made. The judgments may have been wrong, but they were not indifference [sic ] judgments they were actual judgments.

We agree with the court’s reasoning and believe it to be consistent with the standard we expressed in Tatum . Were we Baltimore City officials responsible for Hatmaker’s job performance, we might recommend retraining in the protocols of emergency care, or even disciplinary action. As judges, however, we cannot equate a well—intended error in medical judgment—even if it costs the patient’s life—with wanton and reckless disregard for the life of that patient. Medical protocols seek to establish best practices for successfully treating certain conditions.

Failure to follow such protocols might sometimes be deliberate, but more often than not, we believe, such failure to heed them during an emergency would be purely accidental and, therefore, at most simple negligence. 7 Even resolving all inferences in appellant’s favor, the undisputed facts here simply do not show that Hatmaker’s failure falls into the former category. Appellant cannot point to any facts that show he made a deliberate choice not to give McCoy a chance to survive, and, at the end of the day, it is ⁷¹⁴ deliberateness that lies at the core of the Tatum standard of willfulness and wantonness. We note, furthermore, that neither of appellant’s experts would testify at deposition that Hatmaker’s conduct was grossly negligent. Dr. John J. Shane, appellant’s medical expert, testified as follows: Q: There is no evidence, as I understand, from the materials that you have reviewed or from your testimony so far that Mr. Hatmaker knew Mr. McCoy?

A: No. Q: There is no indication, is there, that Mr. Hatmaker arrived at the scene and decided that he was willfully going to harm this gentleman, was there? A: No. Q: There is no indication in the record &r in any material you have reviewed or from any testimony you have reviewed that there was any grossly willful and wanton disregard for the person we know as Mr. McCoy as an individual? A: No, no. Q: Where in your report do you use the term grossly negligent or gross negligence ?

A: I do