Shpigel v. White

RODOWSKY, Judge. This appeal is taken by plaintiffs from a summary judgment for the defendant in a personal injury action based on a motor vehicle tort. The appeal arises out of an unsuccessful effort to prove causation and damages through medical records and bills without five witness sponsorship or amplification. The plaintiffs-appellants are Mark Shpigel (Shpigel) and his children, Benjamin and Daniela, who were respectively five and four years of age on May 21, 1996, the date of the subject accident.

Shpigel owns and operates a 1991 Chevrolet taxicab. The accident occurred at the intersection of Painters Mill and Reisterstown Roads in Baltimore County at approximately 8:45 a.m. while Shpigel was driving Benjamin and Daniela in his cab to daycare. Shpigel was in the merge lane ¹²¹ from Painters Mill Road for traffic seeking to proceed in a southerly direction on Reisterstown Road. Unable to merge, he had come to a full stop when a vehicle operated by the defendant-appellee, Doreen Elizabeth White (White), made contact with the rear of Shpigel’s cab.

There is no claim for property damage to Shpigel’s taxicab in the record before us, and none of the plaintiffs, all of whom were wearing their seatbelts, suffered any impact against any portion of the interior of the cab. The plaintiffs were transported by ambulance to Northwest Hospital Center in Randallstown where they were examined in the emergency room by a Dr. Matheus. Each plaintiff was discharged that morning, and, on discharge, computer generated discharge instructions were furnished for each plaintiff between 11:20 a.m. and 11:32 a.m. These discharge instructions were signed by a member of the emergency room staff.

Shpigel’s set of instructions estimated that his complaints would subside in three days. His hospital bill was $146.30, and those of the children were $51.04, each. On the day immediately following the accident Shpigel presented at the offices of Drs. Braeger, Gaber and Associates, P.A.

(the P.A.). Following the initial examination there were four follow-up visits. The P.A. also administered physical therapy on eight occasions between May 24 and July 25, 1996. Records generated by the P.A. which Shpigel sought to introduce consisted of a bill totaling $867, notes of office visits, and three “disability certificates” that collectively state that Shpigel was “totally incapacitated” from May 22 through June 14 and that he had “recovered sufficiently to be able to return to regular work duties on June 17,1996.” Also on the day immediately following the accident Benjamin and Daniela were examined by a pediatrician, Dr. Allen Stambler, who found nothing wrong with either child.

Dr. Stambler billed $450 per child, a figure that includes $75 per child for the preparation of reports to plaintiffs counsel. On May 28,1996, William D. Petok, Ph.D. conducted a “diagnostic interview exam” of Benjamin and Daniela, followed by four ¹²² “family psychotherapy” sessions, the last of which was on August 19, 1996. Dr. Petok billed $475. The record does not contain any written report from him.

The instant action was filed on February 13, 1997, and the summary judgment from which this appeal is taken was entered on November 30, 1998, the day on which trial was scheduled. During discovery the plaintiffs furnished copies of the reports of the P.A. and of Dr. Stambler to White by attaching them to answers to interrogatories. On February 12, 1998, the plaintiffs also furnished copies of all of the bills and reports in issue here in response to the defendant’s request for production of documents. In June 1998 the plaintiffs sought voluntarily to dismiss this action in order to refile in the District Court of Maryland.

White opposed that dismissal on the ground that she was entitled to a jury trial, and the circuit court refused leave to dismiss. See Maryland Rule 2-506(b). The trial date of November 30,1998, was set on June 11,1998. On October 21, the plaintiffs served a request for admissions on White to which the medical reports and bills were attached.

The plaintiffs sought an admission that the documents were business records and that the amounts charged were fair, reasonable, and necessary. White denied the request for admissions. The plaintiffs also served the following notice on White on October 21: “Plaintiffs ... hereby give notice of their intent to place in evidence at the trial of this case pursuant to Maryland Rules including, but not limited to, Rules 5-803(b)(3), (4) and (6), copies of the documents designated EXHIBITS AT appended to the Plaintiffs’ Request For Admissions previously served on Defendant’s counsel, authenticated by a custodian of records.” Exhibits A through T include all of the medical records, reports, and bills in issue here. On the morning of trial the court and counsel met in chambers.

Although that meeting is unrecorded, it seems to have considered, in effect, a motion in limine by White. It is ¹²³ clear that the discussion focused on the plaintiffs’ intent to proceed without producing any live expert medical testimony and on White’s objection that the records were not admissible, or if admissible, legally insufficient. At the conclusion of the discussion, proceedings were conducted in open court for the purpose of giving the plaintiffs the opportunity to make by proffer a record for appeal. Counsel for the plaintiffs explained that the clients could not afford to pay the fees charged by the experts to testify in court.

After describing the way in which the accident happened, counsel proffered that Shpigel would testify that, following the impact, he “felt an immediate pain in his neck landing on the right side. The children were also shaken on the impact and were frightened and crying.” Shpigel further would testify “that the pain in his neck worsened over the next several hours, he developed headaches, general stiffness and aching, [and] had difficulty sleeping because of the pain.” In addition, Shpigel would have testified that he lost income while he continued to carry certain business expenses during the period he was disabled from working. The children were examined by Dr. Stambler, it was proffered, because the instructions from the hospital were that “they should be followed up on by their pediatrician.” Dr. Petok was consulted because “the children became extremely fearful about riding in a vehicle. Their parents’ efforts to reassure them ha[d] very little effect.

They also had sleep disturbances... . ” The plaintiffs then tendered the records and bills, with accompanying affidavits by the custodians of those records. The affidavits stated as fact all of the elements required for admissibility of a business record under Maryland Rule 5-803(b)(6). 1 With respect to the bills for services, a lay custodi ¹²⁴ an for Northwest Hospital Center, a lay custodian for the P.A., and Drs. Stambler and Petok respectively made affidavit that their bills were fair and reasonable and that the services were incurred as a direct result of the automobile accident of May 21,1996. White argued, inter alia, “that Mr. Shpigel himself has had multiple prior accidents and there is documentation indicating that there are residuals.

It’s our position that we are entitled to cross-examine those individuals on the fairness, reasonableness of treatment, billing and causal connection.” From a procedural standpoint, the circuit court treated the issue before it as one raised by a motion for summary judgment in favor of the defendant. The court granted the motion, stating that it was “this court’s view that in a case such as this, the issue of causation requires an expert opinion.” The court then explained why “as a practical matter” the records would not be admitted “in a case such as this,” saying: “The defense alleges that these injuries are not caused by this accident. That the plaintiffs condition is not as a result of the occurrence that happened on May 21st involving Miss White, that it’s related to some other occurrence or other occurrences. That the treatment was not reasonable.

That the medical expenses the plaintiff incurred were not reasonable. And the defense wants the opportunity to cross-examine and to see if some expert will say that they are reasonable, will say that it’s causally connected in court. ¹²⁵ Without such testimony put on by the plaintiff that, in fact, there is a causal connection between the negligence, the breach of the duty and the damages then the jury cannot hear the case.” After referring to Maryland Code (1974, 1998 RepLVol.), § 10-104 of the Courts and Judicial Proceedings Article (CJ), dealing principally with the admissibility in the District Court of Maryland of writings or records of health care providers and discussed, infra, the court ruled that “the types of records sought to be introduced in this case are not admissible in circuit court.” The plaintiffs appealed to the Court of Special Appeals, and this Court issued the writ of certiorari on its own motion in order to address the fundamental issues presented. I We shall first address whether, and to what extent, the plaintiffs were able to overcome a hearsay objection to their attempted introduction of the records as business records under Rule 5 — 803(b)(6). To lay the authenticity foundation for admission under that hearsay exception, the plaintiffs sought to use Rule 5-902(a)(ll) which reads as follows: “(a) Generally.

Except as otherwise provided by statute, extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: “(11) Certified records of regularly conducted business activity. The original or a duplicate of a record of regularly conducted business activity, within the scope of Rule 5-803(b)(6), which the custodian or another qualified individual certifies (A) was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters, (B) is made and kept in the course of the regularly conducted business activity, and (C) was made and kept by the regularly conducted business activity as a regular practice, unless the sources of information or the method or circum ¹²⁶ stances of preparation indicate lack of trustworthiness; but a record so certified is not self-authenticating under this subsection unless the proponent makes an intention to offer it known to the adverse party and makes it available for inspection sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to challenge it.” The notice sent by the plaintiffs on or about October 21, 1998, arguably complied with the requirement of Rule 5-902(a)(ll) for notice of intent to offer the documents as self-authenticating records “sufficiently in advance of [their] offer in evidence to provide [White] with a fair opportunity to challenge [them].” The records had been furnished to White in the preceding February in the plaintiffs’ response to White’s request for the production of documents. In the Rule 5 — 902(a)(l 1) certifications the custodians of the proffered records made oath as to the three factual elements, (A), (B), and (C), required by the Rule. The circuit court did not address the adequacy of the notice to invoke Rule 5-902(a)(ll), although White argued that the notice was inadequate.

The circuit court, in effect, exercised its discretion in not granting summary judgment on that ground, and we do not ordinarily undertake to sustain a summary judgment by ruling on a ground not ruled upon by the circuit court. See Three Garden Village Ltd. Partnership v. United States Fidelity & Guar. Co., 318 Md. 98, 107-08 , 567 A.2d 85, 89 (1989). In rejecting the proffered documents the circuit court in part relied on CJ § 10-104.

That statute, inter alia, applies to a claim for “[d]amages for personal injury.” § 10-104(b)(l)(i). Its application is limited to a proceeding in the District Court of Maryland, or to certain proceedings in a circuit court under circumstances which are not applicable here. § 10 — 104(b)(2). Under the statute a writing or record of a health care provider, which is otherwise admissible, “is admissible without the support of the testimony of a health care provider as the maker or the custodian of the writing or record to prove the existence of a medical, dental or health ¹²⁷ condition, the opinion, and the necessity and the providing of health care.” § 10-104(d). Further, under § 10-104(e) “[a] written statement or bill for health care expenses is admissible without the support of the testimony of a health care provider as the maker or the custodian of the statement or bill to prove the amount, fairness, and reasonableness of the charges for the services or materials provided.” In order to utilize this statute, the proponent of the evidence must give notice to all other parties, at least sixty days before the beginning of the trial of that party’s intent “to introduce the writing or record without the support of a health care provider’s testimony” and furnish a copy of the writing or record to all other parties. § 10 — 104(c)(1).

Section 10-104 does not restrict the scope and operation in a circuit court of Maryland Rule 5-902(a)(ll). Rule 5-902 became effective July 1, 1994, Michie’s Annotated Code of Maryland, 1 Md. Rules at 663 (1999), while CJ § 10-104 was enacted by Chapter 554 of the Acts of 1996 and has been amended subsequently. Although the statute is later in time, it would violate a well recognized rule of statutory construction to construe the statute as impliedly repealing the rule when the latter is relied upon to introduce the business records of health care providers in an action initially filed in the circuit court. 2 More important, § 10-104 clearly is intended to liberalize the admissibility of the business records of health care providers far beyond the self-authentication provisions of Rule 5-902. Under the statute, and unlike the rule, no certification of the custodian is required to establish authenticity.

Further, but without undertaking exhaustively to describe possible differences, the statute eliminates any requirement that the proponent of the evidence prove the fair ¹²⁸ ness and reasonableness of the charges for the health care rendered. Accordingly, to the extent that the circuit court indicated that a statute, such as CJ § 10-104, was needed in order to make any of the proffered records admissible in a circuit court, we disagree. II “[E]ven though a particular hospital record is not barred from evidence as hearsay, it may be that some or all of its contents are open to objection on other grounds.” Dietz v. Moore, 277 Md. 1, 7 , 351 A.2d 428, 433 (1976). Consequently, we must examine the classes of records proffered by the plaintiffs from the standpoint of whether the records themselves established admissibility.

A. Medical Bills The plaintiffs’ purpose in offering the medical bills in evidence was to prove special damages. In order for the amount paid or incurred for medical care to be admissible as evidence of special damages, there ordinarily must be evidence that the amounts are fair and reasonable. “Evidence of the amount or payment of medical bills does not establish the reasonable value of the services for which the bills were rendered or justify recovery therefor.” Kujawa v. Baltimore Transit Co., 224 Md. 195, 208 , 167 A.2d 96, 102 (1961). In Kujawa we affirmed a trial court’s ruling that the amount of medical bills incurred by a mother and her son could not be established through the testimony of the mother. We indicated, however, that the personal appearance of the billing doctors was not required.

The only requirement was that the plaintiffs should “ ‘have evidence’ ” that the charges were reasonable. Id. (quoting trial court’s ruling). See also Brooks v. Fairman, 253 Md. 471, 476 , 252 A.2d 865, 868 (1969) (absent evidence of the reasonableness of charges for medical services, an error affecting the verdict in that action, case remanded for a new trial); Metropolitan Auto ¹²⁹ Sales Corp. v. Koneski, 252 Md. 145, 154 , 249 A.2d 141, 146 (1969) (absent evidence, inter alia, of the reasonableness of hospital charges, judgment reduced and, as reduced, affirmed); In re Gloria T., 73 Md.App. 28, 33-34 , 532 A.2d 1095, 1097-98 (1987) (medical bills are not admissible to support restitution award in juvenile proceeding without some evidence of reasonableness), cert. denied, 311 Md. 718 , 537 A.2d 272 (1988); Thomas v. Owens, 28 Md.App. 442, 445 , 346 A.2d 662, 664 (1975) (“[B]efore a medical bill can be admitted to prove the reasonableness of the amount charged, there must be other evidence that the charge set forth in the bill was reasonable.”).

Professor McLain has pointed out that, although authentication as a business record can be accomplished under Rule 5-902(a)(ll) without a live witness, “a live witness still will be needed if ... the business record does not establish all the facts needed to be proved, such as that the proved medical bills were ‘reasonable and customary.’ ” L. McLain, Self-Authentication of Certified Copies of Business Records, 24 U. Balt. L.Rev. 27, 75 (1994). See also P.W. Grimm, New Rule Covers Authentication of Business Records, Vol. 10, No. 2, The Maryland Litigator 1, 5 (Dee.1994) (“The mere fact that these records are admitted into evidence without a testimonial sponsor would not establish that the charges for the services reflected in the bills are reasonable and customary, nor that the treatment itself was appropriate.”). Inclusion in the affidavits of certain of the custodians of the records proffered in the instant matter of statements that the charges were reasonable did not make the medical bills admissible.

On that aspect of admissibility required by our cases, the fact to be proved is the reasonableness of the bill, but the witness to that fact is not present and subject to cross-examination. Accordingly, the circuit court did not err in excluding from its consideration on summary judgment the medical bills proffered by the plaintiffs. B. The Physicians’ Records In the P.A.’s consultation note dictated on May 29, 1996, based on an examination of May 22, the “clinical impres ¹³⁰ sion” as of the date of that examination was that Shpigel “sustained acute musculoligamentous strain injury of the supporting structures of the cervical spine.” The “medical history” segment of the initial consultation note advises that Shpi-gel “was involved in a motor vehicle accident one year ago in which he injured his neck but from which he recovered without sequelae” and that “[h]e had been followed through this office for that injury as well.” Shpigel’s purpose in proffering the P.A.’s records concerning his examinations, his visits for physical therapy, and the disability certificates is to prove that he was totally disabled from May 22 through June 17, 1996, with resulting economic and non-economic damages. In order to fall within the Rule 5 — 803(b)(6) exception to the hearsay rule the evidence must be trustworthy.

Further, relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of ... confusion of the issues, or misleading the jury.” Rule 5-403. Here, the causal connection between the accident of May 21, 1996, and the damages claimed by Shpigel presents a somewhat complicated medical question on which expert testimony is required in order to support a finding that the accident of May 21, 1996, caused a total disability. The seminal case in this state is Wilhelm v. State Traffic Safety Commission, 230 Md. 91 , 185 A.2d 715 (1962). There we held that expert testimony was required in order to establish a causal nexus between a motor vehicle collision and “emotional disturbances in [the plaintiff] sufficient to evoke, subconsciously, grossly exaggerated symptoms.” Id. at 101 , 185 A.2d at 719 .

Expert testimony was also required to establish a nexus “between the accident and abdominal and back pains associated with the [plaintiffs] menses.” Id. No expert testimony, however, was required in order to prove the nexus between the accident and a loss of pigmentation on the plaintiffs forehead at the site where her head struck a sun visor in the accident and where she had a bruise for some three or four months. Id. at 103 , 185 A.2d at 721 . ¹³¹ Maryland appellate cases on this issue have recently been reviewed for the Court of Special Appeals by Judge Thieme in Hunt v. Mercy Medical Center, 121 Md.App. 516, 538-42 , 710 A.2d 362, 373-75 (1998), and by Judge Moylan in S.B. Thomas, Inc. v. Thompson, 114 Md.App. 357, 376-81 , 689 A.2d 1301, 1310-13 (1997). Although recognizing that these cases are fact specific the court in S.B. Thomas undertook a distillation, saying: “A genuine jury issue as to the causal relationship between an earlier injury and a subsequent trauma may sometimes be generated, even in the absence of expert [medical] testimony, when some combination of the following circumstances is present: 1) a very close temporal relationship between the initial injury and the onset of the trauma; 2) the manifestation of the trauma in precisely the same part of the body that received the