Reddy v. Mody

MacDaniel, J., delivered the opinion of the Court. An action for medical malpractice was filed by Ronald S. Schimel, personal representative of the estate of Kamala Reddy, G. Pulla Reddy, individually and as husband of Kamala Reddy, and Getta G. Reddy, Swinita G. Reddy, Ragashkar G. Reddy and Rajandra G. Reddy, as children of Kamala Reddy, appellants, against Vibhakar J. Mody and Sigma Centers of America, Incorporated, appellees. This case was tried in the Circuit Court for Montgomery County by a jury. On July 15, 1977, the jury returned a verdict in favor of all appellees.

This appeal was timely filed after the denial of appellants’ motion for a retrial. On or about November 28, 1975, the deceased, Kamala Reddy, the wife and mother of the appellants, presented herself to the Sigma Reproductive Health Center, Inc., operated by appellee Sigma Centers of America, Incorporated, and applied to have an abortion procedure performed. Appellee Dr. Mody attended to Sigma Centers patients requesting abortions two days a week. Dr. Mody had no written contract with Sigma Centers but received a fixed fee per patient.

The deceased and her husband both signed the “consent” portion of the application form. This application indicated that the deceased denied any allergies to medications, except sulfa. Deceased’s husband, to his knowledge, denied that his wife ever had any complications with the birth of their four children or any adverse reaction to the administration of a drug or anesthetic. In preparing the deceased for the operation, Dr. Mody administered a local anesthetic.

The deceased had a violent reaction to the local anesthetic, was then transferred to the Washington Adventist Hospital where she died the following day. Nella ⁶⁷⁷ Williams, an employee of appellee Sigma Centers, was the nurse assisting appellee Mody at the time of the incident involving Mrs. Reddy and in which she suffered the reaction here involved. Nurse Williams was called as a witness by appellee Sigma Centers. Over objection, Nurse Williams was allowed to testify to an alleged conversation between the deceased and appellee Mody.

The testimony in question was as follows: “Q Mrs. Williams, tell the Court and the jury what was said. A Camela [sic] Reddy complaining, ‘I do not feel well.’ Dr. Mody asking, ‘Have you ever felt this way before?’ Camela [sic] Reddy saying, ‘Yes.’ Dr. Mody stating, ‘Why didn’t you tell us?’ Camela [sic] Reddy stating, ‘I didn’t think it would be so bad.’ ” Appellee Mody, over objection, was allowed to testify concerning this same alleged conversation as follows: “Q Would you answer the question, Dr. Mody? What further conversation was had with Mrs. Reddy? A Sir, as soon after she mentioned that she — she is not feeling well, I went over to her side; I asked her if she had similar such reactions in the past and to which she said, ‘Yes.’, she had something like this before and I told her, ‘Why didn’t you tell us before?’ ” The issues presented to this Court on appeal are: 1.

Did the trial court err in admitting the testimony of Nurse Williams as to conversations between the deceased and Dr. Mody? 2. Did the trial court err in not recognizing Nurse Williams as an incompetent witness? 3. Did the trial court err in admitting testimony of appellee Mody as to his conversations with the deceased? ⁶⁷⁸ All three questions presented for our review turn on the application of the Dead Man’s Statute. Before discussing the merits of the issues, it is necessary to consider the purpose and history behind the Statute.

At common law, in order to avoid self-interested perjury, no party to a lawsuit was competent to testify in that suit. 2 J. Wigmore, Evidence, § 575 (3d ed. 1940). The Legislature by the Acts of 1864, ch. 109, § l, 1 liberalized the common law rule and qualified witnesses, including parties to the case, who by reason of interest had previously been disqualified “except as hereinafter excepted.” Section 1 of ch. 109 has been retained in substance in § 9-101 of the Courts and Judicial Proceedings Article and reads in pertinent part as follows: “§ 9-101. In general. Unless otherwise provided in this subtitle: ...

(2) litigants and their spouses are competent and compellable to give evidence.” The Dead Man’s Statute, § 9-116 of the Courts and Judicial Proceedings Article, originally enacted by the Acts of 1864, ch. 109, § 2, 2 remains as a vestige of the common law ⁶⁷⁹ disqualification. It carves from the rule rendering interested parties competent (Courts and Judicial Proceedings Article § 9-101), an exception which disallows a party from testifying to transactions with a deceased person. The Statute presently reads as follows: “Section 9-116. Dead man’s statute.

A party to a proceeding by or against a personal representative, heir, devisee, distributee or legatee as such, in which a judgment or decree may be rendered for or against them, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement.” The general purpose of the Statute is to equalize the position of the parties by imposing silence on the survivors as to transactions with or statements by the decedent or at least by requiring those asserting claims against the decedent’s estate to produce testimony from disinterested persons. Riley v. Lukens Dredging and Contracting Corp 4 F. Supp. 144 (D.C. Md. 1933). Such a rule renders as much testimony as possible admissible while preventing self-interested perjury. The testimony meant to be excluded by the Statute is only testimony of a party to a cause which would tend to increase or diminish the estate of the decedent by establishing or defeating a cause of action by or against the estate.

Snyder v. Crabbs, 263 Md. 28 , 282 A. 2d 6 (1971); Wm. D. Shellady Inc. v. Herlihy, et al, 236 Md. 461 , 204 A. 2d 504 (1964); Guernsey v. Loyola Federal Savings and Loan Association, 226 Md. 77 , 172 A. 2d 506 (1960); State, Use of Miles v. Brainin, 224 Md. 156 , 167 A. 2d 117 (1960); Robinson v. Lewis, 20 Md. App. 710 , 317 A. 2d 854 (1974). The language of the Statute makes this clear by specifically narrowing its application to “proceeding by or against a personal representative, heir, ⁶⁸⁰ devisee, distributee or legatee as such ...” (Emphasis supplied.) This limitation is important in the case before us because of the two distinct causes of action asserted. Count one of the second amended declaration is brought by the personal representative on behalf of the estate.

Counts two and three are wrongful death actions brought by the husband and children in their own right. The first inquiry as to each of the causes of action is, does the Statute apply? If the Statute applies the question becomes, does the Statute work to exclude the testimony? With regard to counts two and three, the wrongful death actions, the answer to the first inquiry is determinative.

The Dead Man’s Statute does not apply. Any money recovered by the children or the husband of the deceased is received by them in their own right and not through the estate of the deceased because of their status as heir, devisee, distributee or legatee. The Court of Appeals discussed this point in State, Use of Miles v. Brainin, supra. In Brainin , a case factually similar to the one under consideration, the husband and children of the deceased instituted a wrongful death action, claiming malpractice in that the defendant doctor failed to diagnose a diabetic condition from which the deceased died.

The defense was that the doctor had no reason to know of the true nature of the disease. The doctor denied he had ever been informed of the symptoms of diabetes. The plaintiffs sought to contradict this with evidence that both the husband and a daughter were present when the patient told the doctor of the symptoms. The trial judge excluded the plaintiffs’ testimony on the point.

The trial court in sustaining the objection ruled that the plaintiffs were “distributees” within the meaning of the Statute. The Court of Appeals reversed holding that in wrongful death actions the plaintiffs do not bring the action as “distributees of a decedent as such.” The Court held that it is the plaintiffs who are entitled to damages and not the estate of the deceased, and therefore the husband and daughter should have been allowed to testify. ⁶⁸¹ Likewise, in the case at hand, the Dead Man’s Statute was inapplicable with regard to the wrongful death actions and the introduction of Nurse Williams and Dr. Mody’s testimony was not erroneous as to those counts. 3 The Dead Man’s Statute is applicable to the first count. Any recovery by the personal representative, unlike the recovery in the wrongful death actions, would go directly into the decedent’s estate. The inquiry then turns to whether the Dead Man’s Statute works to exclude the testimony of Nurse Williams and Dr. Mody in Count I. The three questions presented by the appellants address this point.

The first two issues raised by the appellants attack the trial court’s ruling that Nurse Nella Williams was a competent witness. It is the appellants’ position that the working relationship of the appellee, Dr. Mody, and Nurse Williams was such as to render her a “party” for the purposes of the Dead Man’s Statute and, therefore, she was rendered incompetent to testify. We disagree. The purpose of the Statute, as was pointed out above, is to prevent the surviving party from having the benefit of his own testimony where, by reason of the death of his adversary, his representative is deprived of the decedent’s version of the transaction or statement.

Ortel v. Gettig, 207 Md. 594 , 116 A. 2d 145 (1955). This disability, while protecting the deceased’s estate, can create a great injustice to the survivor. As was stated in C. McCormick, Evidence, § 65 (2d ed. 1972): “Most commentators agree that the expedient of refusing [to] listen to the survivor is, in the words of Bentham, a ‘blind and brainless’ technique. In seeking to avoid injustice to one side, the statute-makers have ignored the equal possibility of creating injustice to the other.

The temptation to the survivor to fabricate a claim or defense is obvious enough, so obvious indeed that