Paige v. Manuzak

BLOOM, Judge. In the fall of 1976, appellant Daniel E. Paige began to suffer from chest congestion and a persistent cough. His symptoms also included fever and sweating. Consequently, ⁶²⁵ Mr. Paige made an appointment to see appellee Hubert Manuzak, a physician engaged in the practice of family medicine.

On October 22 Dr. Manuzak examined Mr. Paige, took a complete history from him, measured his height and weight, took his temperature and blood pressure, performed a urinalysis, and ordered chest x-rays. Dr. Manuzak initially diagnosed Mr. Paige’s problem to be bronchitis and emphysema, for which he prescribed an antibiotic and a cough syrup. The x-rays ordered by Dr. Manuzak were interpreted by the radiologist as presenting a possibility of either “pneumonitis or active acid-fast infection [tuberculosis].” The interpretation also indicated “considerable generalized pulmonary emphysema.” The radiologist recommended that additional x-rays be taken and that they be compared with past x-rays. New x-rays were then obtained, and the radiologist was furnished with a set of x-rays that had been taken in 1975.

The radiologist thereafter submitted to Dr. Manuzak a report containing a conclusion that “[c]areful clinical correlation will be needed to exclude the possibility of reactivation of disease such as tuberculosis. If the patient is asymptomatic there is probably no immediate cause for concern and only follow-up chest examinations would merit consideration.” Dr. Manuzak instructed the patient to return for another checkup and additional x-rays within a month. On November 29 Mr. Paige returned to Dr. Manuzak’s office. This visit was precipitated by an incident that had occurred a few nights earlier at his home when Mr. Paige experienced stomach distress and uncontrollable coughing, followed by vomiting and unconsciousness.

His wife, appellant Joyce Paige, called for an ambulance; but when the ambulance arrived, Mrs. Paige stated that her husband was too ill to go to the hospital and that he would be all right in his own bed. Dr. Manuzak examined Mr. Paige again and ordered another set of chest x-rays as well as a gastrointestinal series. The radiologist’s report of those tests disclosed new diagnos ⁶²⁶ tic information. The gastrointestinal series indicated a small gastroesophagel hiatus hernia.

Of much greater importance, however, was the radiologist’s opinion that the latest x-rays presented the possibility of lung cancer. The report stated that [t]he first consideration is that of bronchogenic carcinoma for the left upper lobe lesion and it is possible a second malignancy is present in the right lung apex although there is evidence of chronic obstructive pulmonary disease and the latter lesion, or possibly even both lesions, may be scarring from old inflammation. Upon reviewing that report, Dr. Manuzak contacted Mrs. Paige and told her that her husband might have lung cancer and that he had arranged for Mr. Paige to be examined by a thoracic surgeon, appellee Michele Cerino. On December 8 Mr. Paige was seen by Dr. Cerino at Dr. Cerino’s office.

After reviewing Paige’s x-rays, examining him and taking his history, Dr. Cerino informed appellants that it was highly probable that Mr. Paige had cancer. Dr. Cerino explained that certain diagnostic procedures would confirm the presence or absence of cancer. He also explained that surgery would be performed only if tests indicated that the cancer had not spread to the right lung. On December 13 Mr. Paige was admitted to Greater Baltimore Medical Center (G.B.M.C.) in Towson where various pre-operative diagnostic tests were performed.

A fourth radiological interpretation was obtained by Dr. Cerino on that date. It reported that “worrisome” changes had occurred in the patient’s left upper lobe and that these changes “may be secondary to a neoplasm [cancer].” Dr. Cerino also ordered a tomogram (a procedure in which radiographic pictures are taken at various tissue levels) to be performed on Paige’s left lung. The tomogram, performed on December 14, indicated that the condition of the right apex of the upper lobe was “worrisome as to the possibility of a neoplasm developing in this area.” The tomography report also stated that the problems in other areas of the lung may have been infectious in nature. ⁶²⁷ Also on the 14th Dr. Cerino performed a bronchoscopy, a procedure whereby a lighted scope was inserted into the patient’s lung, enabling the physician to inspect the lungs and also retrieve, by means of brushings and washings, cells and fluids from the lung. The materials thus obtained from Mr. Paige’s lungs were examined by appellee Rudiger Breitenecker, a physician employed by Dr. John E. Adams, another appellee, in the pathology laboratory at G.B.M.C. In identifying the results of his cytologic examination, Dr. Breitenecker utilized a standard system whereby cells are classified by Roman numeral designations ranging from Class I (normal) to Class V (definitely cancerous).

Dr. Breitenecker labeled Paige’s cells Class V. In addition to that designation, Dr. Breitenecker’s report stated that “there are abnormal groups of cells present suggestive of a poorly differentiated carcinoma (adeno).” The washings from the bronchoscopy were also tested for the presence of tuberculosis. An acid-fast test performed on sputum smears collected by the bronchoscope was negative for the presence of tuberculosis bacilli. Some material taken from the lung was also placed in a culture medium to check for eventual growths of tuberculosis germs. The results from culturing are generally not available for about six weeks from the date of the test.

On December 17 Dr. Cerino operated on Mr. Paige. During the course of the surgery, Dr. Cerino forwarded a lesion from the patient’s right lung to the pathology lab for evaluation. The report from pathology described the specimen as granulamatous disease with a caseating module, i.e., tuberculosis. That report eliminated Dr. Cerino’s concern that cancer from the left lung might have spread to the right lung, so the surgeon removed portions of Mr. Paige’s left lung and forwarded them to the pathology lab.

Those portions were evaluated as being carcinoma in situ, an early stage or pre-cancerous condition. The final postoperative pathology report concluded that the excised portions of the left lung showed no evidence of malignancy. Dr. Cerino testified that he spoke to Dr. Adams about the discrepancy ⁶²⁸ between the finding of Class V cells and the report of carcinoma in situ on one hand and the final pathology report on the other. Dr. Cerino claimed that Dr. Adams reported to him that Paige did indeed have an early stage of cancer.

Mr. Paige developed numerous post-surgical complications. He was hospitalized until Easter of 1977 and was near death on a number of occasions. Sometime late in February the culture test was completed, and it was positive for tuberculosis. Appellant and his wife filed a claim against Dr. Manuzak, Dr. Cerino, Dr. Breitenecker, Dr. Adams, and G.B.M.C. in the Health Claims Arbitration Office.

At the hearing appellants called Dr. Benjamin H. Minchew, a board-certified internist with a sub-speciality interest in infectious disease, to testify that the various appellees had failed to adhere to their respective standards of care. Although Dr. Minchew was allowed to express his opinion as to Dr. Manuzak, the panel chairman refused to allow such testimony as to Dr. Cerino on the ground that an internist is not qualified to render an opinion as to the standard of care applicable to a thoracic surgeon. Appellants then rested their case, whereupon the Health Claims Arbitration Panel ruled in favor of all appellees. Appellants thereafter sought review in the Circuit Court for Anne Arundel County.

Their motion to vacate the panel’s ruling was granted as to Dr. Cerino but denied as to the other appellees. Subsequently, appellants’ suit against all of the appellees went to trial in the circuit court. Appellants’ declaration alleged that appellees were negligent in failing to diagnose Mr. Paige’s condition as tuberculosis and in failing to provide adequate pre-operative and post-operative care. Dr. Manuzak and Dr. Cerino were alleged to have failed to disclose material facts concerning Mr. Paige’s condition.

There was a claim for loss of consortium and damage to appellants’ marital relationship. At the close of appellants’ case, motions for directed verdicts were granted as to Dr. Manuzak and G.B.M.C. The ⁶²⁹ jury returned a verdict in favor of the other appellees. Appellant then brought this appeal, presenting to us the following questions: I. Did the court err in excluding appellant’s testimony as to consent to surgery?

II

Did the court err in restricting argument on behalf of appellants?

III

Was the parol evidence rule violated when testimony of the witness altered the report of Dr. Bauer?

IV

Did the court err in permitting improper argument on behalf of Dr. Cerino? V. Did the court err in granting Dr. Cerino’s [sic] motion for a directed verdict?

VI

Did the court err in failing to vacate the arbitration award as to all appellees? I At trial Mr. Paige was asked the following question: “Now if he [Dr. Cerino] had told you [of] the presence of tuberculosis would you have submitted to the operation?” The court sustained an objection to that question. Appellants contend that the question was a relevant one and that the trial court erred in ruling that Paige’s answer was inadmissible. In making this argument, appellants rely upon the decision of the Court of Appeals in Sard v. Hardy, 281 Md. 432 , 379 A.2d 1014 (1977), in which the Court addressed the doctrine of informed consent.

That doctrine imposes on a physician, before he subjects his patient to medical treatment, the duty to explain the procedure to the patient and to warn him of any material risks or dangers inherent in or collateral to the therapy, so as to enable the patient to make an intelligent and informed choice about whether or not to undergo such treatment. Id. at 439 , 379 A.2d 1014 (citations omitted). At trial appellants argued that Dr. Cerino breached his duty to disclose, in that he failed “to reveal to [Mr. Paige] ⁶³⁰ the nature of the ailment....” Id. at 440 , 379 A.2d 1014 . Appellants’ position was that Dr. Cerino never informed Paige that he was, or may have been, suffering from tuberculosis and that, if Paige had been so informed, he would not have consented to lung surgery.

The Court in Sard held that the causality requirement in cases applying the doctrine of informed consent is to be resolved by an objective test: whether a reasonable person in the patient’s position would have withheld consent to the surgery or therapy had all material risks been disclosed. If disclosure of all material risks would not have changed the decision of a reasonable person in the position of the patient, there is no causal connection between nondisclosure and his damage. If, however, disclosure of all material risks would have caused a reasonable person in the position of the patient to refuse the surgery or therapy, a causal connection is shown. Under this rule, the patient’s hindsight testimony as to what he would have hypothetically done, though relevant, is not determinative of the issue.

Id. at 450 , 379 A.2d 1014 . Appellants argue that since the patient’s “hindsight testimony” is relevant, the court erred in sustaining the objection to the question which sought to elicit that “hindsight testimony.” That argument, however, must be examined in the context of the pleadings and the evidence. Appellants’ declaration alleged, inter alia, that Dr. Cerino failed to disclose to Mr. Paige “(a) the nature of his ailment; [and] (b) the fact that his symptoms and illness have been caused by a condition other than carcinoma.... ” Paige’s testimony leading up to the question that was disallowed was as follows: Q. Okay. What did Dr. Cerino say to you?

A. He looked at the x-rays and he says this is not scars I’m looking at, not pneumonia scars but that they are tumors and I said well, what does that mean, and he says, well, it could be cancer. There’s a possibility of cancer, ⁶³¹ and that, you know, naturally scared me so he says we’ll have to run some tests at the hospital, says if it was up to me now, I’d send you right on to the hospital because these tumors grow by the hour and not by the month or the year. Q. He said if it was up to him what? A. That he would send me right on to the hospital for an operation.

Q. Did you say anything to him in response to that? A. Yes, I did. I told him that I didn’t want no operation if there’s any other way out, and I had hopes that— Q. Wait a minute, you didn’t want any operation if there was any other way out, is that right? A. Any other way, I didn’t want an operation.

I didn’t want no exploratory. That’s the way I put it. I don’t want to [sic] exploratory operation if you can prove to me medically that I have cancer, then it will have to be. I have no recourse.

Q. Did Dr. Cerino say anything to you about your having tuberculosis? A. No, sir. Q. Did he tell you that there was an indication from the x-ray reports of the possible presence of tuberculosis? A. No, sir.

Q. He didn’t tell you at that time in his office, did he ever tell you in the hospital before you were operated on? A. No, sir. Q. He didn’t tell you at that time in his office, did he ever tell you in the hospital before you were operated on? A. No, sir.

Q. Now if he had told you the presence of tuberculosis would you have submitted to the operation? A. Never. MR. KING [Counsel for Dr. Cerino]: I object.

A. No. ⁶³² COURT: Sustain the objection. Just a minute. The jury will disregard the last remark. Considering the allegations of the declaration as well as the questions that preceded it, the disallowed question can only be construed as inquiring of Mr. Paige if he would have consented to the operation if he had been informed that he had tuberculosis only, i.e., tuberculosis instead of cancer, not tuberculosis in addition to cancer.

For an item of evidence to be admissible, it must be both relevant and material. Evidence is material if it tends to establish a proposition that has legal significance to the litigation. Evidence is relevant if it is sufficiently probative of a proposition that, if established, would have legal significance to the litigation. 1 Wigmore, Evidence § 2 (Tillers rev. 1983). Here, the question asked of Mr. Paige, if relevant (as suggested by Sard v. Hardy), was “relevant” to an immaterial proposition.

That is, it tended to prove a proposition that had no legal significance to the litigation — that Mr. Paige would not have consented to the surgery if he had been told only that he had tuberculosis. That proposition is contrary to the facts confronting both surgeon and patient at the time in question. When Mr. Paige was referred to Dr. Cerino, the surgeon was faced with a radiological report which stated, “[findings very suggestive of left upper lobe bronchogenic carcinoma and possibly a second right upper lobe malignancy.” The fact that Dr. Cerino, at all times, had some evidence that Mr. Paige was suffering from lung cancer is beyond dispute. The proposition was also contrary to common sense.

Obviously, no one would consent to an operation for cancer if told that he had tuberculosis but not cancer. The question, therefore, was properly excluded. Even if we were to assume, arguendo, that the court’s ruling on the objection to the question was error, we would have to conclude that such error was not prejudicial to appellants and, therefore, not reversible. We “will not reverse for an error by the lower court unless that error is ⁶³³ ‘both manifestly wrong and substantially injurious.’ ...

An error which does not affect the outcome of the case is ‘harmless error....’” I.W. Berman Prop. v. Porter Bros., 276 Md. 1, 11-12 , 344 A.2d 65 (1975) (citations omitted). The jury’s verdict was necessarily based upon a finding either that the existence of tuberculosis was not a material fact or that disclosure of the presence of tuberculosis would not have deterred a reasonable person in Mr. Paige’s position from submitting to surgery for lung cancer. Sard v. Hardy, supra. In either event, Mr. Paige’s response to his counsel’s “what if” question would not have affected the outcome of the case.

II Appellants contend that the trial court erred in sustaining appellees’ objection to remarks made by appellants’ counsel during closing argument. In the course of the argument, counsel made reference to the cytology report prepared by Dr. Breitenecker. That report referred to the analyzed cells as being Class V in nature but also stated that “there are abnormal groups of cells present suggestive of