Turgut v. Levine

KARWACKI, Judge. This case commenced with the filing of a medical malpractice claim in the Health Claims Arbitration Office by the appellee, Anne Christine Levine, in December of 1985. A hearing was held in January, 1987, before a Health Claims Arbitration panel which resulted in a unanimous award in favor of the appellant, Dr. Oguz Y. Turgut. Appellee rejected that award and brought an action to nullify the award in the Circuit Court for Anne Arundel County.

On November 25, 1987, a jury returned a verdict in favor of appellee against appellant in the amount of $300,000. Dr. Turgut appeals from the judgment entered on that verdict. He poses two questions for our review: I. Did the trial court commit error by restricting the defendant doctor’s allowable testimony to non-expert ²⁸² testimony, so as to severely prejudice the defendant’s presentation of his case?

II

Did the trial court erroneously exclude evidence of Dr. Turgut’s past success/failure rate with the repair technique he chose? Since we view the two contentions raised by appellant as logically intertwined, we shall discuss them as a single issue. FACTS Appellant delivered appellee’s baby girl on June 20, 1982, at Anne Arundel General Hospital. Prior to delivery, appellant made an incision at the opening of the vagina on the rectal side, an episiotomy, in order to facilitate delivery of the baby.

When signs of fetal distress developed, a forceps delivery was necessary, resulting in a fourth degree laceration through the mother’s rectum. This extension of the episiotomy was repaired by the appellant and the appellee was kept at Anne Arundel General Hospital for several days postpartum. On October 2, 1982, the appellee visited Dr. Turgut’s office complaining of some discomfort. Appellant diagnosed appellee as suffering from a rectovaginal fistula 1 and scheduled her for surgery.

On October 26, 1982, appellant performed a rectovaginal fistula repair on appellee. This repair was similar to the fourth degree laceration repair performed immediately after childbirth. 2 For both of these repair procedures, appellant employed a layering technique in suturing the area operated upon. 3 ²⁸³ In November of 1982, appellee again began experiencing discomfort. She visited appellant on November 20, 1982, and at that time he noted a possible fistula reforming and scheduled a follow up visit. Appellee did not keep this appointment.

Appellee sought treatment from another physician and in early January, 1983, was operated on for a second rectovaginal fistula repair at Georgetown University Hospital. This repair effort also failed. After undergoing several other interim procedures and suffering a miscarriage in May of 1983, appellee was admitted to Georgetown University Hospital in June of 1983 for a final repair attempt which was successful. At trial appellee called as her only expert witness Edward Cunningham, M.D., a board certified specialist in obstetrics and gynecology.

Based upon his review of the records of Dr. Turgut’s procedures in closing the fourth degree laceration suffered by appellee at childbirth and Dr. Turgut’s later attempt to repair the rectovaginal fistula, he opined that Dr. Turgut’s choice of suturing technique on both occasions did not comport with the standard of care expected of a competent practitioner of obstetrics and gynecology. Further, Dr. Cunningham testified that the suturing method employed in closing the fourth degree laceration caused the formation of the rectovaginal fistula and also was the cause of Dr. Turgut’s failure to excise that fistula successfully in his subsequent operation upon appellee. James Patterson, M.D., also a board certified obstetrician and gynecologist, testified for the defense. He offered a contrary expert opinion as to Dr. Turgut’s choice of suturing technique in performing the two wound closings.

He testified that the method selected by Dr. Turgut was one of several which could have been chosen and that the layering technique employed met the standard of care expected of a reasonably competent practitioner of obstetrics and gynecology. Dr. Patterson opined that the formation of the ²⁸⁴ rectovaginal fistula was unrelated to the suturing of the fourth degree laceration and that the same suturing technique which Dr. Turgut employed when attempting to excise that fistula was not the cause of the failure of that repair. Thus, the issue of Dr. Turgut’s negligence vel non which was submitted to the jury was a narrow one. Appellee’s claim that Dr. Turgut was negligent was limited to her assertion that he had not exercised due care in selecting a suturing technique.

Issue Presented Before the jury was empaneled on the first day of trial, appellee filed a motion in limine. She sought, inter alia, to preclude Dr. Turgut from (1) testifying as an expert witness, and (2) testifying as to his past success rate in repairing fourth degree lacerations and rectovaginal fistulae. Appellee based her motion on the fact that Dr. Turgut had not, in answer to appellee’s interrogatories, named himself as one of the expert witnesses that he would call at trial. The trial judge granted the motion.

As an initial response to appellant’s contention that the court committed reversible error in limiting his testimony, appellee urges that the issue has not been preserved for our review. She points out that appellant never attempted at trial to introduce the evidence which was excluded by the court’s ruling on the motion in limine. Consequently, she posits, the ruling on the motion is an insufficient basis for an appellate review. We disagree and explain.

In Prout v. State, 311 Md. 348 , 535 A.2d 445 (1988), the Court of Appeals construed Rule 4-322 (which since July 1, 1988 has been renumbered 4-323), 4 governing the methods ²⁸⁵ of making objections at a criminal trial. In Prout defense counsel moved in limine to “advise the court” of his intention to cross-examine the prosecuting witness regarding her prior convictions of certain crimes. The trial judge, in response to that motion, ruled that the proffered convictions were not relevant to the credibility of the prosecuting witness and therefore inadmissible. At trial, defense counsel did not attempt to cross-examine the prosecuting witness concerning her prior convictions.

When the defendant in appealing his conviction contended that the prior convictions of the prosecuting witness should have been admitted, the State argued that the issue had not been preserved for trial. The Court of Appeals, in agreeing with the defendant-appellant, reasoned: Whether a trial judge’s ruling granting a motion in limine 5 may be reviewed on appeal when there is no subsequent proffer of the evidence at trial presents a question of first impression in this Court. Typically, a motion in limine is a motion made before or during a jury trial outside of the hearing of the jury, the purpose of which is to prevent the jury from hearing certain ²⁸⁶ questions and statements that are allegedly prejudicial to the movant. Specifically, the motion usually seeks an order restricting opposing counsel from offering questionable evidence before the judge has had an opportunity to rule on its admissibility.

Evidence is most often sought to be excluded because is is incompetent, irrelevant, immaterial, privileged, or otherwise inadmissible. See generally McCormick on Evidence § 52, at 128 (E. Cleary 3d ed. 1984). Thus, the real purpose of a motion in limine is to give the trial judge notice of the movant’s position so as to avoid the introduction of damaging evidence which may irretrievably infect the fairness of the trial. Obviously, the trial judge may either grant or deny the motion.

If the trial judge admits the questionable evidence, the party who made the motion ordinarily must object at the time the evidence is actually offered to preserve his objection for appellate review. However, when the trial judge resolves these motions by clearly determining that the questionable evidence will not be admitted, and by instructing counsel not to proffer the evidence again during trial, the proponent of the evidence is left with nothing to do at trial but follow the court’s instructions. Under these circumstances, the court’s ruling controls the subsequent course of the trial and the proponent’s objection is preserved for review without any further action on his part. The State, however, insists that Maryland Rule 4-322(a) requires that a party make a subsequent proffer or objection when his evidence is excluded.

Rule 4-322(a) provides that “[a]n objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise the objection is waived.” As we see it, Rule 4-322(a) is inapplicable when a trial judge rules to exclude evidence. Moreover, subsection (c) of Rule 4-322 states that to preserve an objection to a “ruling or order” other than one admitting evidence, “it ²⁸⁷ is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court.” Thus, when a trial judge, in response to a motion in limine, makes a ruling to exclude evidence that is clearly intended to be the final word on the matter, and that will not be affected by the manner in which the evidence unfolds at trial, and the proponent of the evidence makes a contemporaneous objection, his objection ordinarily is preserved under Rule 4-322(c). (Footnotes omitted.) 6 (Emphasis in original.) Id. at 355-57, 535 A.2d 445 .

We believe the rationale of the Prout court is fully applicable to the situation presented in the instant case. Rule 2-517 which governs the method of making objections in civil cases is textually identical to Rule 4-322 (now 4-323). 7 Id. at 354 n. 1, 535 A.2d 445 . When the court ²⁸⁸ granted appellee’s motion in limine, it effectively precluded appellant’s counsel from eliciting his client’s expert opinions on the medical issues before the jury notwithstanding the appellant’s proffered competence to render such opinions. Therefore, we hold that under the circumstances presented in this case appellant’s contentions have been preserved for our review.

The discovery of findings and opinions of experts who are expected to be called as witnesses at trial by an opposing party is governed by Rule 2-402, which in pertinent part provides: Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (a) Generally. — A party may obtain discovery regarding any matter, not privileged, including the existence, description, nature, custody, condition and location of any documents or other tangible things and the