Riffey v. Tonder

Moore, J., delivered the opinion of the Court. The surviving husband of a young mother who died of a pulmonary embolism instituted this medical malpractice ⁶³⁵ action against her obstetrician, Cesar L. Tonder, M.D. and the South Baltimore General Hospital, appellees. Suit was brought by the husband individually, in his capacity as administrator, and as father and natural guardian of the couple’s two infant children. After an 11-day jury trial, there was a verdict for the defendants-appellees.

On this appeal, the principal assignment of error is a ruling of the trial court which precluded the appellants from producing a pathologist as a rebuttal witness. Errors in the court’s charge to the jury are also claimed. We find reversible error in the holding by the trial court that the testimony of the pathologist would not have constituted rebuttal evidence. I On October 23, 1970, Wanda Riffey delivered a child by caesarean section at the South Baltimore General Hospital.

Her physician, Dr. Cesar L. Tonder, a specialist in obstetrics and gynecology, was Associate Director of the Department of Obstetrics and Gynecology at the Hospital. The medical records introduced into evidence revealed that Mrs. Riffey was a private patient of Dr. Tonder. She was discharged on October 26,1970. A persistent swelling of her right calf forced Mrs. Riffey to seek medical assistance in the emergency room of the Hospital on November 7, 1970.

One of the Hospital’s interns, Dr. Yu, examined her at that time and diagnosed her condition as acute thrombophlebitis (the formation of a blood clot caused by inflammation of the vein). She was admitted under the care of Dr. Tonder. The latter saw the patient on the evening of the 7th and, concurring with Dr. Yu’s diagnosis, ordered administration of the drug dextran. One of the facts elicited from Mrs. Riffey upon admission was that the leg pain associated with the swelling had persisted for about one week.

On November 10, she was seen in consultation by Dr. Colen Heinritz, an internist with privileges at the Hospital. He examined her, made a diagnosis of thrombophlebitis resolving in the right leg, and reordered another unit of dextran. Twice the following day, ⁶³⁶ in a follow-up consultation, Dr. Kermit Bonovich, Dr. Heinritz’s partner, visited the patient. The medical records disclose that on November 12 the patient experienced chest pains, of which she complained to the nurse, in the upper left lung and at the base of the neck.

One of the Hospital’s interns, Dr. Matesic, was notified and he ordered chest x-rays (which were negative) and recorded her vital signs. Additionally, she was examined the same day by Dr. Bonovich, who noted that she was responding well to the dextran and that she was ambulatory. Mrs. Riffey was discharged from the Hospital on November 14 at 9:15 a.m. According to her discharge records, she was asymptomatic, swelling and pain having been relieved.

Shortly after her release, however, while at home, she collapsed and was rushed to the emergency room of Bon Secours Hospital. There she succumbed to a massive pulmonary embolism at 11:45 a.m. Dr. William D. Roche, a specialist in obstetrics and gynecology at Navy Regional Medical Center in San Diego, California, qualified as appellants’ sole expert witness. In his opinion, both Dr. Tonder and the Hospital breached the appropriate standard of care required of physicians and hospitals in the same class as the appellees, acting under similar circumstances, by failing to diagnose Mrs. Riffey’s symptoms on November 12, the day of her chest complaints, as a minor pulmonary embolism, and by failing thereafter to treat her properly with an anticoagulant drug, specifically heparin.

Dr. Roche testified that where an overweight, 1 post-operative patient, suffering from thrombophlebitis complains of chest pains, a diagnosis of a pulmonary embolus is indicated “until otherwise proven.” 2 ⁶³⁷ Testifying from the medical records admitted in evidence, Dr. Roche concluded that certain diagnostic tests should have been performed to ascertain the existence vel non of an embolus on November 12. These tests should have included additional x-rays, enzyme, bilirubin and blood gas tests, a lung scan and electrocardiograms. The physician relied upon the recorded vital signs, measured on the day of Mrs. Riffey’s chest complaints, indicating elevated pulse (110 per minute) and increased respiratory rate (from 20 to 28) to corroborate his conclusions that the patient suffered from a minor pulmonary embolism on November 12. By administering the drug heparin, according to Dr. Roche, Mrs. Riffey’s blood would not have coagulated, or clotted, to any further degree thereby avoiding the possibility of a second, more serious pulmonary embolus; “my opinion is unequivocally that failure to treat this first pulmonary embolus directly led to her death,” he flatly declared.

In their defense, the appellees produced, in addition to the treating physicians, Dr. Tonder, Dr. Bonovich and Dr. Heinritz, three other medical expert witnesses, unconnected with the treatment of Mrs. Riffey. Each of the witnesses testified that based on the medical records and the autopsy report, Mrs. Riffey did not experience a minor pulmonary embolism on November 12. According to Dr. C. Thomas Flotte, associate professor of surgery at the University of Maryland Medical School, the signs and symptoms of a pulmonary embolism, including sharp, crushing pain in the chest, as opposed to the tenderness noted in Mrs. Riffey’s case, respiratory distress and elevated pulse, were not indicated on the 12th. Also, both Dr. Flotte and Dr. Umberto Villa Santa, professor of medicine at the University of Maryland, stated that the use of dextran was in keeping with the standard of care in treating thrombophlebitis. 3 ⁶³⁸ II The Rebuttal Witness Of critical importance to appellants’ case was evidence that Mrs. Riffey had in fact suffered a minor pulmonary embolism on November 12.

Dr. Roche, in stating his conclusion as to the existence of a pulmonary embolism on November 12, relied primarily upon the Hospital’s medical records of that day. Although appellants’ counsel did inquire of the witness whether he had reviewed the autopsy report, to which Dr. Roche affirmatively responded, it is clear from the record that the doctor used the autopsy report for a limited purpose. The following appears in the transcript: “Q. (Mr. Julian [appellants’ counsel]) Doctor, have you, and I will request also that you look at the autopsy report in the case of Mrs. Riffey?

A. Yes, I have. Q. Do you have a copy of it, doctor? A. Yes, I have a copy. Q. First, with respect to her general state of health, her vital organs, heart, liver, spleen, those things, what does it show with respect to this woman?

A. She was an extremely healthy young woman. Q. And insofar as the hospital record and the autopsy is concerned, did she reveal any kind of a bleeding problem? A. None whatsoever.” On cross-examination, although appellees elicited from Dr. Roche the fact that he considered the autopsy in formulating his opinion as to the deceased’s condition on November 12, the substance of the examination, with regard to the autopsy report, concerned only the witness’ assertion on direct that there were no indications of a bleeding problem. 4 ⁶³⁹ The appellees’ experts, however, used the autopsy report quite extensively in their direct examination to rebut Dr. Roche’s testimony that Mrs. Riffey suffered a pulmonary embolism on the 12th, and that certain diagnostic tests would have revealed this condition. Dr. Flotte was questioned as follows: “Q.

(By Mr. King [counsel for appellee Tonder]) Now, doctor, have you an opinion, with reasonable medical certainty, considering Mrs. Riffey’$ chart and as well as her autopsy findings on autopsy [sic], have you an opinion, with reasonable medical certainty, whether or not on the 12th Mrs. Riffey did have a pulmonary embolus or pulmonary embolia A. There is nothing to suggest that she did. The findings don’t mention anything that would suggest a prior pulmonary embolus. Q. When you say, the findings don’t suggest anything which would — what was your answer, sir? A. When you have a pulmonary embolus, normally you have loss of blood supply to a wedge of tissue in the lung and normally forty-eight hours after this, it should be easily picked up at rntopsy, and they don’t mention it.

They say, the lungs are smooth and glistening, and so forth. 5 Q. Doctor, have you had occasion in the past to examine pathology and pathological reports in patients with pulmonary emboli’! A. Yes. Q. What’s been your experience in that respect? A. Unfortunately for most of them, similar to this, there is a massive fatal pulmonary embolus ⁶⁴⁰ that causes death in a matter of minutes or within an hour.

Q. Where — go ahead, sir. A. In lesser ones — and, of course, most of them don’t die, — it is only a coincidental finding and most often we didn’t know they had a pulmonary embolus, and we do find this wedge-shaped infarction. Q. Did Mrs. Riffey have any such wedge-shaped infarction? A. It is not reported in the autopsy.” Similarly, with regard to the issue of what the autopsy report reveals as to Mrs. Riffey’s condition on November 12th, appellees’ expert, Dr. Villa Santa, testified as follows: “Q. Have you an opinion, considering the autopsy of Mrs. Riffey, have you an opinion, with reasonable medical certainty, that if a lung scan or serial x-rays had been done, whether or not, in view of her findings on autospy, whether or not they would have been diagnostic of pulmonary emboli on the 12th?

A. Could I use the blackboard? Q. Yes. A. If we can just draw roughly the lungs in a patient, then, you know, this is the neck and the face is here, and these are the shoulders. This is the diaphram and the belly button is down here.

The lungs look like two big sacks and there is blood coming to the lungs, coming from the area here called the iris of the lung, and blood comes through the arteries, as you all know, and then leaves'the lung through veins. And when you have an embolism, what happens, there is a clot, something that stops the flow of blood to this arterial tree. . .. So, what happens, all this blood just comes back and what happens in this area that, is aerated by this artery, there is a tremendous congestion. ⁶⁴¹ because all this blood comes back. That is what we call an infarction, and this thing usually has a triangular configuration and it goes all the way to the surface of the lung, where we have a lining that we call the pleura, and this is an infarction.

If the patient survives and the patient lives through it, it takes roughly a minimum of eight days, approximately ten days before this blood is eventually absorbed and you don’t see it anymore. On anybody who has had an infarction and in whom, you know the life stops two days later, if you do a post mortem examination of the lungs, you should first find [these] changes. Q. Were there any such changes found in Mrs. Riffey? A. On the autopsy there is absolutely no indication that there was any infarction because, the first thing, the description of the pleura, which is the lining here, is of being normal, [sic] Usually if you have an infarction, this becomes bluish — redish-bluish — is due to the fact that the blood — it is just like when you have a bruise.

The skin is light and it gets dark. And so, the pleura should have been dark, and in cutting the lung, they should have found that and there was no evidence that an infarction was there.” (Emphasis added.) Our study of the record discloses that each of appellees’ expert witnesses relied upon the autopsy report’s findings to contradict Dr. Roche’s testimony that other diagnostic tests, in addition to the lung scan or serial x-rays about which Dr. Villa Santa testified, would have disclosed the presence of a minor embolus on the 12th of November. It is clear from the record that the testimony of Dr. Villa Santa, a nonpathologist, impelled appellants’ counsel to secure the testimony of a qualified pathologist as a rebuttal witness. (Indeed, counsel for appellants stated on the record that until the testimony of Dr. Villa Santa he had never conferred with a pathologist in this case.) In essence, Dr. ⁶⁴² Villa Santa testified that there could not have been a small embolus on November 12th and, as shown by his testimony, above quoted, he drew a diagram and demonstrated from the autopsy report that had there been a small embolus pre-existing, the configuration which he placed in the diagram would have occurred.

This, trial counsel argued to the trial court, was a pathological question. In addition, counsel maintained that Dr. Villa Santa’s opinion that, with the massive embolus shown in the diagram, any effort to rescue the decedent would have been unavailing, also involved a pathological question. Accordingly, counsel informed the court after a recess following the testimony of Dr. Villa Santa, that he had conferred with Dr. Michael Baden, Assistant Chief Medical Examiner of New York City, and had informed counsel for the appellees, by appropriate amendment to answers to interrogatories, of his intention to call Dr. Baden as a rebuttal witness. In response to objections from counsel for the appellees that the testimony of Dr. Baden would be nothing more than cumulative to the testimony of Dr. Roche, appellants’ trial counsel advised the court that “I am not using this doctor to make out my ease.” He then went on to explain: “I did not anticipate through Roche the kind of testimony that Villa Santa would give and I think it is absolutely improper and I think in the interest of justice, it’s important that a jury really know what an autopsy report is about, and whether in fact it does indicate that no life saving measure could be employed for this woman or whether, indeed, it is of such condition that it proscribes any thought of a pre-existing small emboli.” When called upon by the court for a formal proffer concerning Dr. Baden’s testimony, trial counsel replied as follows: “Dr. Baden’s testimony will be, A, that this autopsy report does not indicate that there was not a pre-existing small emboli to the massive emboli ⁶⁴³ found.

He mil testify that autopsy reports are for the purpose of ascertaining cause of death and not for peripheral questions such as that posed by counsel. ‘Does a massive embolus in this case necessarily mean that there could not have been a pre-existing small embolus?’ He will testify that Dr. Villa Santa’s exhibit — the number escapes me, Judge, — the diagram which he drew is not at all in keeping with pathological doctrines and, actually, does not disclose the condition which a patient with an embolus would have. I’m not just using him, Your Honor, — I am not attempting to use him to establish anything with respect to the use of Heparin. (The Court) I understand. (Mr. Julien) The use of Dextran, nothing with respect to my prima facie case.” (Emphasis added.) At the conclusion of this colloquy, the trial judge observed, “I am inclined to believe that the subject matter is an appropriate one for rebuttal testimony.” (Emphasis added.) But he observed also that the element of appellees’ inability to depose Dr. Baden presented a problem.

Over appellant’s counsel’s protestations that counsel for the Hospital and the doctors had theretofore taken no depositions whatever in the case, the court ruled that appellants’ counsel would be permitted to call Dr. Baden provided he was produced that afternoon or the next afternoon, in Baltimore, for purposes of deposition. Subsequently it developed that Dr. Baden could not be deposed within the time schedule set by the court for the reason that he was engaged in a 2-day examination for the position of Chief Medical Examiner for the City of New York, and counsel sought additional time to meet the requirement that the witness be deposed. Counsel again assured the court that he was offering Dr. Baden to meet “what is now the major contention of the defense, to wit, that because the autopsy report shows no evidence of infarction, there could not have been any previous small ⁶⁴⁴ emboli prior to November 14th.” Counsel supported his plea for additional time with the following statement: “But I respectfully submit, sir, that they have tendered a very basic issue here which I never anticipated. Had I anticipated it, I would have fully examined Dr. Roche, who is no longer available and who is in California at this point.

This morning, because counsel for Dr. Tonder insisted that there had been examination of Dr. Roche on the subject of the autopsy report and did he rely upon it in arriving at his decision and, specifically, the fact that there was smooth and glistening pleura and what its affect was, we spent perhaps as much as an hour going over the minutes, all of which refuted completely the contention made by Mr. King. In effect, nothing had been said on the subject by that witness.” (Emphasis added.) Extended argument ensued in which counsel for the appellees renewed their positions that the testimony of Dr. Baden would be merely cumulative to that of Dr. Roche. At the conclusion of the respective arguments, the trial court recited the sequence of events which had taken place and observed that the inability to present Dr. Baden for deposition within the time specified “has now caused a complete re-examination of the question as to whether Dr. Baden’s testimony would in fact be rebuttal testimony.” The court then reconsidered and concluded that Dr. Baden’s testimony would not constitute rebuttal, stating: “The court feels that, based on the evidence as produced, the issue of a minor nonfatal pulmonary embolism, which occurred at sometime before the pulmonary embolism, was clearly raised by the plaintiff, was clearly a part of the plaintiffs’ expert witness, Dr. Roche. What was not touched upon by the expert, Dr. Roche, was the precise reason that may or may not have been in the autopsy report, which supported or contradicted his opinion.

His ⁶⁴⁵ opinion was rendered and he supported his opinion. When defense experts were called, they pointed to something in the autopsy report which they felt contradicted Dr. Roche’s opinion. “Now, all you are asking to do is to have another expert explain Dr. Roche’s opinion by reexamination of the autopsy report, to say that his examination of the autopsy report somehow confirms Dr. Roche’s opinion, although Dr. Roche didn’t see fit to confirm his own or support his own opinion by reference to the autopsy report in this detail. He was asked, I think, by both counsel as to what documents he had examined before rendering his opinion. I think, while