Myers v. Estate of Alessi

ALPERT, Judge. A medical malpractice action was brought by Florence A. Myers and her husband, appellants, against Edward J. Alessi, M.D., appellee. 1 Having lost before the Health Claims Arbitration Board, appellants filed a timely appeal in the Circuit Court for Baltimore City. After a trial in that court, the jury returned a verdict on behalf of appellee. Appellants have filed an appeal from the judgment in which they present the following questions: ¹²⁸ 1.

Whether the trial court’s instruction on the issue of contributory negligence was erroneous because it: (a) failed to instruct the jury that a Plaintiff must have an appreciation of the risks inherent in her conduct in order to be contributorily negligent, and (b) failed to instruct the jury that following a doctor’s instructions or relying on his advice does not constitute contributory negligence unless the patient has reason to believe that the doctor’s negligence caused her injury. 2. Whether the trial court erred when it failed to provide an instruction on the theory of last clear chance. 3. Whether the trial court erred when it failed to permit the introduction of ;the Health Claims Arbitration hearing testimony of Dr. Robert Younkin since Dr. Younkin was unavailable for trial. 4. Whether the trial court erred when it permitted the introduction of Dr. Leland Stevens’ deposition since the appellee failed to demonstrate Dr. Stevens’ absence from the jurisdiction and unavailability for trial.

Facts Mrs. Myers was diagnosed on December 3, 1983 as having cancer at the base of her tongue. Subsequently, she underwent surgery to remove her tongue and larynx due to the cancer. She was also required to undergo extensive radiation therapy, and was later required to undergo various other surgeries, all due to the cancer. In appellants’ complaint against Dr. Alessi, they alleged that he breached the standard of care of a general practitioner by failing to diagnose the cancer at the base of Mrs. Myers’ tongue.

Dr. Alessi had been Mrs. Myers’ family doctor since 1973. On October 7, 1982 Mrs. Myers went to see Dr. Alessi due to an illness. At that time she was 43 years old and smoked one pack of cigarettes a day. She testified that she went to see Dr. Alessi on October 7, 1982, primarily for a sore throat.

Dr. Alessi’s office records reflect that she came to his office, complaining that she ached all over, had diarrhea for 36 hours three or four days before, and had missed ¹²⁹ work for four days. He noted that his examination revealed that a piece of tonsillar tissue (a “tag”) in her throat was slightly inflamed. He prescribed an antibiotic for her. She returned to his office four days later on October 11, 1982.

According to Dr. Alessi’s records, she had no diarrhea or fever and was not vomiting, but she still had some nausea, ear pain, headaches, and a mild sore throat. He also noted that the tonsillar inflammation had improved. According to Dr. Alessi, he told Mrs. Myers to return if there was no further improvement or if she had any trouble. Mrs. Myers denied that he told her this.

She testified that he told her she could expect to have some throat pain or discomfort because a piece of her tonsil was growing back, but that it was not serious. Dr. Alessi denied making such a statement to her. Several months later, on May 9, 1983, Mrs. Myers returned to see Dr. Alessi, complaining that she was suffering from a sore throat for the past several weeks, had pain in both ears and had occasional headaches. He diagnosed her condition as “mild otitis media bilaterial,” and prescribed medication for her.

He testified that he told her to return in 5 to 7 days whether she was better or not, but she said she would not return if she was better. Mrs. Myers at first claimed that there was no discussion about a return visit, but on cross-examination, she admitted that she did have a discussion and that he told her to return if her throat was no better. She never returned. Mrs. Myers testified that from May to November 1983 her sore throat symptoms never completely abated, but they also never worsened.

In November, 1983 she experienced trouble swallowing and contacted Dr. Leland Stevens, whom she had seen before, because she was unable to reach Dr. Alessi. Dr. Stevens told her she had “spurs” and gave her a prescription. She testified that her throat improved somewhat, but on December 3, 1983 she began bleeding from the mouth and was taken to St. Joseph Hospital, where she was diagnosed as having cancer at the base of her tongue. ¹³⁰ Mrs. Myers presented three expert witnesses at trial who testified that Dr. Alessi breached the applicable standard of care for a general practitioner by failing to conduct an examination of her throat by a mirror and of her tongue by palpation. Each testified that Dr. Alessi should have diagnosed her cancer.

In addition, one of Mrs. Myers’ experts testified that Dr. Alessi breached the standard of care by failing to contact Mrs. Myers after she failed to show up for a follow-up visit. Dr. Alessi, on the other hand, presented three expert witnesses who testified that the standard of care under the circumstances did not require an examination of her throat by a mirror or her tongue by palpation. Each testified that a diagnosis of base of tongue cancer was not indicated under the circumstances. They further testified that it is the patient’s responsibility to return to a physician if they do not get better.

Mrs. Myers requested that the transcript of the testimony that a Dr. Robert Younkin gave at the arbitration hearing be read to the jury. Dr. Younkin is a specialist in family practice and resides in the State of Washington. His opinions were the same as the other experts who testified for her at trial regarding the applicable standard of care. Appellee objected to the reading of Dr. Younkin’s testimony on the grounds that Dr. Younkin’s absence was procured by the appellants and that appellee needed to cross-examine Dr. Younkin on new information provided by Dr. Alessi and Mrs. Myers that was unknown to Dr. Younkin at the time he testified.

After considering the objection, the trial court excluded the transcript. The trial court did allow the arbitration testimony of one of appellee’s witnesses to be read to the jury. The trial judge found that Dr. Stevens was unavailable and that appellee had exercised reasonable diligence in attempting to obtain his presence at trial. 1. JURY INSTRUCTIONS A litigant is entitled to have his or her theory of the case presented to the jury if that theory is a correct ¹³¹ exposition of the law and if there is evidence in the case that supports the theory.

The Sergeant Co. v. Pickett, 285 Md. 186 , 401 A.2d 651 (1979), quoting Levine v. Rendler, 272 Md. 1, 13 , 320 A.2d 258 (1974); Zeller v. Greater Baltimore Medical Center, 67 Md.App. 75, 80 , 506 A.2d 646 (1986). In advancement of that proposition, Rule 2-520(c) provides: “How Given. — The court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instruction of its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.” Against this background, we will discuss each of appellant’s requested instructions and the propriety of the court’s denial of those requests. a. Contributory Negligence Appellant contends that the court erred in refusing to grant his request for additional instruction to the jury regarding contributory negligence. 2 By contrast, appellee argues that the court properly instructed the jury on the issue of contributory negligence. ¹³² To determine the propriety of denying a requested jury instruction, a reviewing court must examine whether the requested instruction was fairly covered by the instructions actually given, and that the requested instruction is a correct statement of the law based on the evidence presented.

It is firmly established that under Maryland Rule 2-520(c) a trial judge is not obliged to give a requested instruction if the matter is fairly covered in the instructions actually given. See State Roads Comm’n v. Parker, 275 Md. 651, 688 , 344 A.2d 109 (1975); Aronstamn v. Coffey, 259 Md. 47, 50-51 , 267 A.2d 741 (1970); Peterson v. Goodyear Tire and Rubber Co., 254 Md. 137, 144 , 254 A.2d 198 (1969); State ex rel. Dearstone, 225 Md. 355, 370 , 170 A.2d 758 (1961); Rhone v. Fisher, 224 Md. 223, 233 , 167 A.2d 773 (1961); Nash v. Raneri, 77 Md.App. 402, 411 , 550 A.2d 717 (1988); and Zeller, supra, 67 Md.App. at 83, 87 , 506 A.2d 646 . Appellant contends that she was entitled to an instruction that in order for her to be found contributorily negligent, she must have actually been aware of or should have been aware of the risk and the treatments.

She argues that because she was not aware that she had developed cancer at the base of her tongue, she did not know the risks that her failure to return to the doctor entailed and, therefore, cannot be charged with contributory negligence. Such an instruction would have removed the issue of contributory negligence from the jury and, furthermore, is not the law. In order for a plaintiff to be found contributorily negligent, his or her conduct must either be such (1) that he or she intentionally and unreasonably exposes himself or herself to danger created by the defendant’s negligence, of ¹³³ which danger the plaintiff knows or has reason to know, or (2) that his or her conduct falls short of the standard to which the reasonable man should conform in order to protect himself from harm. See Restatement (Second) of Torts § 466 (1965); Menish v. Polinger, 277 Md. 553, 562 , 356 A.2d 233 (1976).

In this case there was no evidence that Mrs. Myers intentionally exposed herself to base of tongue cancer. Restatement (Second) of Torts, § 466(a). Rather, the evidence presented established that she failed to return to Dr. Alessi more than once, although her sore throat persisted for 14 months. Id., § 466(b).

The jury was asked to decide whether an ordinary person in the position of Ms. Myers would have returned to the doctor’s office under similar circumstances, ie., whether she was negligent in failing to return. The instruction the trial court gave the jury 3 fairly and adequately stated the law based on the facts presented. Appellant further argues that the trial court should have instructed the jury that “following the physician’s instruc ¹³⁴ tions or failing to consult other doctors is not contributory-negligence where the patient has no reason to suspect his physician’s treatments were the cause of his injury and he or she can rely on the physician’s knowledge and skill.” The evidence presented in this case, however, did not warrant such an instruction. The basis of appellant’s claim is that Dr. Alessi “instructed” her that she could expect to have problems as a result of [her tonsillar tag] on an intermittent and ongoing basis” and, therefore, she did not return despite a persistent sore throat.

Mrs. Myers’ testimony at the arbitration hearing concerning Dr. Alessi’s comments was admitted into evidence and revealed that Dr. Alessi did not tell her that she could expect sore throats because of the tonsillar tissue. Rather, she said “I know tonsils can cause sore throats.” At the trial, she stated that Dr. Alessi did not tell her to expect future sore throats from the tonsillar tag but that he told her that it was “possible.” She further testified at trial that Dr. Alessi did not instruct her to ignore future sore throats, and that she should not come back to see him. 4 Thus, the evidence presented did not support a finding that Dr. Alessi’s comments to her constituted an “instruction” and, therefore, the requested jury instruction was property refused. b. Last Clear Chance Appellant also asserts that the court erred by failing to instruct the jury on the doctrine of the last clear chance. Appellant sought an instruction which provided in part: ¹³⁵ you may still find for the plaintiff (even if you find she was contributorily negligent) if you should conclude that the defendant has a fresh opportunity of which he was aware to avoid injury to the plaintiff and failed to act.

In support of her claim of error, appellant avers that Dr. Alessi had a fresh or new opportunity on May 9, 1983 to perform the appropriate examination or refer her to another physician, which he failed to do, or alternatively that he had a fresh opportunity to avoid the harm by contacting her once he realized she failed to return, which he failed to do. The predicate for the proposed instruction is that the evidence establishes that Dr. Alessi was afforded a new or fresh opportunity to avert the consequences of his original negligence and Mrs. Myers’ contributory negligence, of which he failed to avail himself. See MacKenzie v. Reesey, 235 Md. 381 , 201 A.2d 848 (1964); Ritter v. Portera, 59 Md.App. 65 , 474 A.2d 556 (1984); Cohen v. Rubin, 55 Md.App. 83 , 460 A.2d 1046 (1983); Johnson v. Dortch, 27 Md.App. 605 , 342 A.2d 326 cert. denied, 276 Md. 745 (1975). The doctor’s act of primary negligence may not be used again to serve as the last clear chance of avoiding injuries.

Benton v. Henry, 241 Md. 32, 35 , 215 A.2d 226 (1965). In addition, the fresh negligent act must come at a time when the defendant can, but the plaintiff cannot, avoid the accident. Johnson, supra, 27 Md.App. at 614 , 342 A.2d 326 . Neither element is present in this case.

First of all, Dr. Alessi is alleged to be guilty of the same negligence in failing to realize in October, 1982 and May, 1988 that the patient needed further examination of her throat and tongue. The May visit did not represent a new situation in which the doctor, aware of danger to Mrs. Myers, negligently failed to avoid it. Secondly, Mrs. Myers was never in a position where she could not have avoided the injury for which she sued. Her failure to return to him for further treatment as instructed constituted contributory negligence “preventing recovery for injurious consequences from such failure.” See Chudson v. Ratra, 76 Md.App. 753, 773 , 548 ¹³⁶ A.2d 172 (1983).

At any time, she could have returned to Dr. Alessi for her persistent sore throat. 5 Consequently, the trial court correctly refused to instruct the jury on the doctrine of last clear chance because it did not apply to the facts of this case. 6 2. PREVIOUSLY TRANSCRIBED TESTIMONY Appellant next argues that the trial court committed reversible error in two of its evidentiary rulings regarding two transcripts of testimony. Each transcript was from the prior arbitration hearing. The first involved the