Thimatariga v. Chambers

Morton, J., delivered the opinion of the Court. The appellee, Belinda C. Chambers, brought suit in the Baltimore City Court against the appellant, Manu Thimatariga, a medical doctor, and Edmondson Village Medical Center, Inc. (Medical Center), for alleged negligence ²⁶² in performing a surgical operation upon Ms. Chambers during which Dr. Thimatariga removed her right Fallopian tube, her right ovary and her uterus. During the same operation he removed her left Fallopian tube and her left ovary. No complaint was made as to this phase of the operation.

Count I of the declaration claimed compensatory damages for injuries resulting from the alleged negligence and for failure to obtain Ms. Chambers’ informed consent to the removal of those reproductive organs. Count II was a claim for punitive damages. At the conclusion of Ms. Chambers’ casé, Dr. Thimatariga’s motion for a directed verdict in his favor was granted as to Count II and denied as to Count I. The Medical Center’s motion for a directed verdict in its favor was granted. The jury returned a verdict in favor of Ms. Chambers in the amount of $1,500,000 which was reduced by the trial judge to $1,200,000.

The record indicates that on December 16, 1975, appellee visited the Medical Center to seek an abortion. At the time she was a twenty-five year old, unmarried mother of two boys. After going through certain routine procedures conducted in the Medical Center, she was introduced to the appellant. After reviewing the history she had given and examining her, he performed the abortion by dilatation and curettage (D&C), a procedure, according to appellant’s brief, "that involves suctioning out the contents of the uterus through a vacuum tube.” Tissue obtained from the uterus was compatible with the size of a four to six week’s fetus, according to Dr. Thimatariga.

On December 26, 1975, the appellee returned to the Medical Center and was examined by the appellant. He was of the opinion that the abdominal pains and cramps she complained of were caused by a cyst upon her left ovary and he scheduled her for an operation on January 6, 1976, to remove the cyst. On January 3, 1976, according to the appellee, she was suffering severe abdominal pains to an extent that "[i]t hurt to breathe, to talk, to walk. It hurt to do anything.” She ²⁶³ endeavored to contact the appellant by telephone and finally reached him about 1 a.m. on January 4,1976.

He advised her to go immediately to the emergency room of the Lutheran Hospital and he agreed to meet her there. The hospital records indicate she was transferred from the emergency room and formally admitted as an in-patient at 3:30 a.m. She was taken to the operating room about 9 a.m. and there the operation was performed by the appellant. As he proceeded with the operation, according to the appellant, he observed that her left Fallopian tube had ruptured as a result of a tubal pregnancy and her left ovary had a large cyst.

He removed both the left tube and the left ovary. Appellant further testified that in his opinion the condition of the right tube and the right ovary was such that the appellee would never be able to conceive a child and he decided it would be good surgical practice to remove them at that time. He thereupon removed the right tube, the right ovary and the uterus. The appellee testified that after the operation she was "awakened in the recovery room by Dr. Manu [Thimatariga], He woke me up and asked me how I felt, and then he told me he had given me a complete hysterectomy.” She then went on to state: "I thought I was having a nightmare.

I was shocked. I said, 'why,’ and then I went back to sleep. I just couldn’t believe it was happening.” Shé further testified that "he told me that I had had a pregnancy in one tube and the other tube was badly infected, and then he told me that I shouldn’t discuss this type of operation because most people don’t understand it.” When the appellee was asked: "[D]id you ever at any time before this operation was performed, either verbally or in writing, ever authorize Dr. Thimatariga to remove your reproductive organs?,” she replied: "No, I didn’t. I never saw Mr. Manu before the operation.

The only time I was made aware of it was after it was over.” On the other hand, the appellant testified that when he got to the hospital he immediately went to see the appellee and discussed with her the necessity for surgery and the possible need to remove all her reproductive organs. The ²⁶⁴ appellee conceded that she signed some forms before the operation, but stated that "the forms that I did sign didn’t have anything on it, like you showed me at the top, they just had words in the middle. I was in so much pain on January 4th Mr. Savage [appellant’s counsel], I would have probably signed anything.” Testifying on behalf of the appellee, Dr. Marshall Klavan, an obstetrician and gynecologist, and Dr. John W. Combs, a pathologist, were of the opinion that appellant acted negligently in failing to have certain tests made in the course of his examination of the appellee on December 26, 1975. They testified that had the tests been made the results would have apprised the appellant that the abortion procedure he performed on that date could not have been successful.

The tests would have indicated that the fetus was in appellee’s Fallopian tube rather than in her uterus. They testified further that the right Fallopian tube, the right ovary and the uterus were normal based upon their review of the pathology results. They asserted that had the right tube, the right ovary and the uterus not been removed, the appellee would have been able to bear more children. They pointed out that the loss of estrogen from her ovaries would cause the appellee to undergo physical changes, although the use of Premarin would minimize such changes.

They did say that the use of Premarin increased the risk of breast cancer, gall bladder diseases and caused thickening of the blood. On behalf of the appellant, Dr. James Donald Woodruff, the author of a textbook on gynecologic pathology, testified that because of the condition of the right tube and right ovary, which he observed during his examination of the pathology slides, the appellant had acted in accordance with accepted medical standards when he removed the right tube, the right ovary and the uterus. Dr. Firooz Beheshti testified on behalf of the appellant and said he was the pathologist at Lutheran Hospital who examined the tissues of the appellee after the operation on January 4, 1976. In his original report, he found that the ²⁶⁵ appellee’s right tube and right ovary, which had just been surgically removed by the appellant, were normal.

In March of 1978, which was after suit had been filed by the appellee, he was asked by appellant to review his original findings. Dr. Beheshti testified that after reviewing his original report he discovered he was in error in finding that the appellee’s right tube and right ovary were normal. In fact, he stated, his subsequent findings indicated evidence of chronic pelvic inflammation of the right tube and right ovary. Dr. Frank Baker, called by the defense, testified that it was not normal practice to conduct the tests which appellee’s expert witnesses said should have been performed at the time of her examination by the appellant on December 26, 1975.

Based on the hospital records, the Medical Center records and appellant’s records, as well as the testimony of Dr. Beheshti, he was of the opinion that the removal of the right tube and the right ovary and the uterus was within the acceptable standards of medical care. In his brief the appellant raises eight issues which we shall address in the order they were presented. I. It is first contended that the comments of appellee’s jifmnsel in his opening statement were so prejudicial that it was error to deny appellant’s motion for a mistrial. It appears that in the course of his opening statement, counsel for appellee advised the jury that since the suit against appellant had been filed, "there has been an effort to cover up facts”; that counsel for appellant had gotten expert medical witnesses to persuade the hospital to send them the pathology slides of the appellee, although the appellee never gave her consent to their transmission to the experts; and that such conduct was contrary to Maryland law.

Appellant’s counsel then objected and all counsel approached the bench where appellant’s counsel asked for a mistrial on the ground that he had been accused in front of the jury of committing a crime. After considerable discussion the trial judge announced that he did not think "that a ²⁶⁶ mistrial is warranted at this time. Should this type of statement continue, it may become necessary to grant a mistrial, but at this point I don’t think there is ample prejudice or misconduct to warrant it.” While we think that the course of conduct followed by counsel for appellee in this regard approached the borders of unfairness and prejudicial misconduct, we are not prepared to say that the trial judge, who had the feel of the courtroom atmosphere at the time, abused his judicial discretion in denying appellant’s motion for a mistrial. See Bailey v. Wray, 230 Md. 359, 362-63 (1963).

Prior to the giving of the opening statements, the trial judge had advised the jury: "What the lawyers say in their opening statements and what they say in their closing arguments and what they say in making objections or in making motions are not evidence. The evidence consists of the testimony of the witnesses, any exhibits which may be placed into evidence for your viewing, and any facts which may be stipulated to or agreed upon by both sides.” At the conclusion of the opening statements by both counsel, the trial judge again admonished the jury: "Let me again remind you that the opening statements of the lawyers do not constitute evidence. At this point you have been told by each attorney what he contends that the evidence will reveal, but you have heard no evidence, so at this time your minds should be completely open and you should decide the case strictly on the evidence that is about to be presented.” Moreover, when counsel for appellee resumed his opening statement, after the appellant’s request for a mistrial had been denied, he advised the jury: "I want to say at this point that my reference to Mr. Savage [counsel for appellant] hiring experts and my reference to the fact that records were ²⁶⁷ released by Dr. Beheshti in no way was meant to indicate that Mr. Savage had committed a crime, or that Mr. Savage has done anything wrong. Mr. Savage is an honorable gentleman doing his job for his client.

My reference to the violation of this woman’s rights had to do with the fact that Dr. Beheshti, who will be summoned here, had no right to release those records to Dr. Woodruff in 1979 without her permission, and that is what I meant, and if there is any other meaning then I apologize to you and to Mr. Savage.” We think the advisory instructions of the court and the apology extended by counsel for appellee effectively eliminated any prejudice which might have been generated by appellee’s counsel’s remarks. Certainly, we cannot find that the denial of appellant’s motion for a mistrial at that point entitles him to a reversal of the judgment entered against him.

II

It is next contended that the trial judge "erred by allowing the Plaintiff [appellee] to attack Dr. Donald Woodruffs integrity in closing argument.” . During cross examination of Dr. Woodruff, the following colloquy occurred: "Q. [Counsel for appellee] Why don’t you take a look at the nurse’s notes and familiarize yourself with what the condition [of appellee] really was, Doctor. A. [Dr. Woodruff] Basically, I don’t believe notes that are written. Sorry about that.

Q. You don’t believe notes that are written? A. That’s correct. Q. He said he doesn’t believe notes that are written. Does that go for the pathology report of ²⁶⁸ January 6th, which says that everything was normal on the right; you don’t believe that either, do you?

A. That’s correct. Q. But you do believe the later one, don’t you? A. I believe the one that I wrote. Q. The one you wrote, and you wrote the later one, and gave it to Dr. Beheshti didn’t you?

A. I really don’t know. He just asked me for a consultation and I wrote him what my opinion was.” The first pathology report, to which appellee’s counsel referred, was dated January 6, 1976. The second report was dated March 16, 1978. On redirect examination Dr. Woodruff testified that he had been initially consulted by appellee just four weeks before the trial, which would have been in early May, 1979.

Immediately prior to closing arguments appellant’s counsel filed a motion in limine to prevent appellee’s counsel from making any comment to the jury about covering up hospital records. The trial judge denied the motion and in the course of his closing argument, counsel for appellee made the following remarks: "[Mr. Ellin], You have a very important exhibit in this case, one that I think to use the word which you are going to have to consider, and which I suggest to you merits what I am about to say. You all have that hospital chart there and I won’t trouble you to look at it, or point out the page number. The pathology report of January 6, ’76 is page 31 and 32. — and I mean on page 32 one doesn’t have to be a pathologist or a physician to read the phrases here, microscopic diagnosis: The appendix normal, ovary salpinx right, normal.

Normal. Salpinx being the medical word for tube. The right tube, normal. Woodruff at least agreed that the ovary and uterus was normal, but then ²⁶⁹ since he stated he wrote the second report and Dr. Beheshti accommodated him and filed that amendment.

(Mr. Savage). Objection. (Mr. Ellin). Two years after the fact — (The Court).

Just a minute. (Mr. Savage). I don’t think Dr. Woodruff — he wrote the second report that Dr. Beheshti prepared. (Mr. Ellin).

I just read the testimony where the doctor said I wrote it, and that is why he believes it. (The Court). The jury has been instructed and is still instructed that it is to use its own recollection as to what the testimony was if there is a conflict. (Mr. Ellin).

Members of the jury, I just read Dr. Woodruffs testimony to you on page 61 and 62. But you do believe the later one, don’t you? The later one being the pathology report of April, 1978, and his answer was: I believe the one that I wrote. Now, what else did he mean other than that?

What else did he write? Then we come along March 16, 1978. We suddenly find that the right tube has a fibrous tube ovarian adhesion and fusion of the tubal folds consistent with chronic salpingo oophritis. Beheshti takes the stand and says all of these things were obvious; obvious.

Well, if they were obvious in 1978 why in the world weren’t they obvious in 1976? And this nonsense he was used to dealing with fresh tissue after completing a four year residency at University of Maryland simply doesn’t merit belief. On page 60 of his testimony Dr. Beheshti said: Now, if you look at it, talking about the right Fallopian tube, it is very, very, very — three very’s obvious that this Fallopian tube has a very thick wall. Something that is very, very, very obvious in ’78 should have at least been quite obvious if not very, very, very in 1976.

I urge you to view that change in 1978 as a monumental attempted coverup of facts, and I would urge you — ²⁷⁰ (Mr. Savage). Objection. (The Court). Overruled.

(Mr. Ellin). I would urge you not to give any more weight to that addendum than it deserves, and it deserves nothing. Those hospital records were intact right up until this suit was filed, and then some two years later there is a very convenient change. Can we say that this man didn’t know about the first report?

Heck no. We can’t say that. Dr. Beheshti testified that he sent a copy of the January 6, ’76 report to Dr. Thimatariga.” Appellant contends that these remarks were improper and should have been disallowed for two reasons. First, he says there is no evidence to support the contention that anyone other than Dr. Beheshti wrote the second pathology report.

Second, appellee did not contradict Dr. Woodruffs testimony that he was not called into the case until four weeks before the trial. The Court of Appeals has held that counsel has "great latitude in presentation of closing argument and any restriction on his remarks is within the trial court’s sound discretion.” Dorsey Bros., Inc. v. Anderson, 264 Md. 446, 454 (1972). Although it is true, in the instant case, that the date of Dr. Woodruffs entry into the case was not contradicted, it is not true that there was no conflicting evidence on the authorship of the second pathology report. The testimony of Dr. Woodruff, set out above, raised a reasonable inference that he did have a hand in writing that report.

This raised a legitimate question of fact for the jury to decide and we cannot say it was an abuse of the trial judge’s discretion to allow appellant’s counsel to make an argument based upon that question.

III

Appellant contends that the trial judge erred in allowing counsel for the appellee to change his peremptory strikes after all counsel had submitted their strikes to the court and ²⁷¹ the jury was being impanelled. He argues that this constituted an abuse of the court’s discretion. It appears that after an extensive voir dire of the members of the proposed jury, which was to be selected from two jury lists, the trial judge permitted counsel for each of the parties in the case to exercise five peremptory strikes. 1 Counsel made their strikes on the two jury sheets which they bad before them. According to counsel for the appellee, "[a]fter juror no. 2 was called and took his place in the jury box, Plaintiffs counsel rechecked the sheet and noticed the fact that it was a juror he intended to strike.

Plaintiffs counsel asked to approach the bench and requested that it was necessary to substitute one of his strikes removing a strike so that that could be utilized to remove proposed juror no. 2. It was pointed out to the trial judge that juror no. 2 was employed by the Baltimore Gas & Electric Company, that Plaintiffs counsel had a number of cases pending against this company, and feared any possible prejudice should this juror know of Plaintiffs counsel’s involvement against his employer. It was later pointed out to the Court that while the jury was on recess and milling around the Courtroom door that Plaintiffs counsel had come through the door almost knocking this proposed juror off balance because of his proximity to the door.” Over strenuous objection by counsel for appellant, the trial judge authorized the withdrawal of a strike previously exercised against another juror and permitted the appellee’s attorney to strike juror no. 2. In the course of making his ruling the trial judge said: "Of course, each attorney has the right, an absolute right to strike a specific number, in this ²⁷² case five.

It seems to me the real question is whether or not Mr. Ellin — inasmuch as he did have a right to strike Mr. Waltrop in the beginning when he failed to do so, the question is whether or not it was truly inadvertent on his part, or whether it was an after-thought. And I think the second question is whether or not then in evaluating this change would be prejudicial in any way to either side. Gentlemen, the ruling is that, as I previously indicated, I think that it is a bona fide mistake on the part of — an oversight on the part of Mr. Ellin. I think that the Court does have — I think it is proper for the Court to exercise discretion in permitting him to utilize the strike insofar as this juror is concerned, and I believe it was a bona fide mistake.

So, I will permit this juror to be removed and Alternate No. 1 would replace him. Alternate No. 2 would then become Alternate No. 1, and we will pick a new Alternate No. 2.” In Bluthenthal & Bickart vs. May Co., 127 Md. 277 (1915), the Court of Appeals was confronted with the identical issue. There the trial judge permitted counsel for the plaintiff, over the objection of the defendant, to withdraw one of his strikes and to exercise that strike to exclude the individual who had been selected as the foreman of the jury which had been impanelled but had not yet been sworn. The Court of Appeals, in approving the action of the trial judge, said, at 285-86: "It does not appear that the defendant was injured by the action complained of or that the jury which actually tried the case was not composed of competent and qualified jurors.

The authorities support the proposition that it is not reversible error for the Court of its own motion to exclude a juror, even for insufficient cause, if an unobjectionable jury is afterwards obtained. .. . This question is examined and authorities collected ²⁷³ in 12 Ency. PI. & Prac. 381-384, where it is said: 'In the absence of any showing to the contrary, it will be presumed that in excusing a juror the Court acted on correct principles, and that the excuse was sufficient to warrant its action. In any event, the exercise of its discretion will not be revised unless it is clearly apparent that it has been abused. * * * That the