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 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, 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

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

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:

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

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:

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:

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. 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 case." He then went on to explain:

When called upon by the court for a formal proffer concerning Dr. Baden's testimony, trial counsel replied as follows:

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 emboli prior to November 14th." Counsel supported his plea for additional time with the following statement:

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:

Basically, rebuttal evidence is any competent evidence which explains, is a direct reply to or a contradiction of material evidence introduced by an accused in a criminal case or by a party in a civil action. State v. Hepple, 279 Md. 265, 270, 368 A.2d 445 (1977), aff'g, Hepple v. State, 31 Md.App. 525, 358 A.2d 283 (1976); Mayson v. State, 238 Md. 283, 289, 208 A.2d 599, 602 (1965); Lane v. State, 226 Md. 81, 90, 172 A.2d 400, 404 (1961), cert. denied, 368 U.S. 993 (1962); 6 Wigmore on Evidence § 1873 (Chadbourn rev. 1976).

It is also well settled that whether evidence is properly rebuttal is a matter for the exercise of judicial discretion. In Maryland, an appellate court will not reverse for error in this determination unless the ruling of the trial court was both "manifestly wrong" and "substantially injurious." Hepple v. State, supra, 31 Md. App. at 532, 358 A.2d at 288.

In our opinion, the instant case involves not an attempt by appellants to adduce evidence in rebuttal which properly should have been elicited in their case in chief, or merely cumulative evidence, as the trial judge suggested but, rather, an effort to produce evidence which truly tended to answer and contradict the testimony offered during appellees' presentation of the defense. Appellees' expert witnesses testified, as has been explained here in some detail, that the findings contained in the autopsy report could properly be used to support the conclusion that there was no evidence present, at the time of death, that Mrs. Riffey had suffered a pulmonary embolism on November 12th. Although it was critical to appellants' case that they produce evidence that the deceased did experience such an embolism on the 12th, and they did so by the testimony supplied by Dr. Roche based principally on his review of the medical records of November 12, it was not incumbent upon them to anticipate that appellees would rely upon the autopsy report to negate the presence of a pre-existent embolus or else be foreclosed from responding to such an assault upon their proof. Dr. Baden's testimony, according to the appellants' proffer, was to be restricted to whether the protocol of an autopsy would concern itself with such secondary questions as whether an infarction existed in the lining of the lungs or whether the autopsy would be limited primarily to the cause of death. If, according to the proffer, an autopsy would not be concerned with a medical condition which was not a contributing cause of death, then the testimony of appellees' experts would have been contradicted not only concerning Mrs. Riffey's condition on November 12th, but also as to whether certain diagnostic tests would have been constructive in diagnosing her condition.

We accordingly find that the trial court's ruling that Dr. Baden's testimony would not constitute rebuttal was "manifestly wrong." Additionally, we conclude such error was "substantially injurious" to the rights of the appellants. If Dr. Baden had testified consistently with the proffer, there would have been evidence before the jury which, if believed, would have seriously undermined the conclusions of appellees' experts that Mrs. Riffey did not have a pulmonary embolism on November 12. Since this issue was so crucial to appellants' case, we find reversible error.

III Trial Court's Instructions

Appellants also assert on appeal various alleged errors in the court's charge to the jury, including refusal to give certain requested instructions, and alleged prejudicial comments made by counsel for the appellee, Dr. Tonder, in his summation. Because of the nature of the alleged errors, and our disposition of the appeal, we shall discuss only those points which may be relevant on retrial.

A. Alleged Erroneous Instructions

(1) The trial court instructed the jury that the appellants bore the burden of proof on the issue of negligence by a preponderance of the evidence. In explaining the appellants' burden, the court stated:

Also, the trial judge discussed the standard upon which the jury should evaluate the appellees' conduct as being: "That degree of care and skill which is expected of a reasonably competent physician [and hospital] in the same class to which he belongs, acting in the same or similar circumstances."

Subsequently, the trial judge declared:

It is appellants' contention that by instructing the jury that the appellees were "presumed," in the absence of evidence to the contrary, to have performed their duties within the appropriate standard of care, that an unfair burden was placed upon their shoulders. Viewed within the entire context of the trial judge's instructions, we conclude that the jury was properly instructed that the burden of the appellants was to prove negligence by a preponderance of the evidence, and that no greater duty was placed upon them. However, we do find troublesome the continued use of the language that a defendant-physician, in a medical malpractice action, is "presumed" to have performed within the appropriate standard of care, as defined in Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245 (1975) unless otherwise proved.

The use of the word "presumption", in the context of medical malpractice suits, first appeared in State, use of Janney v. Housekeeper, 70 Md. 162, 171, 16 A. 382 (1889), where Judge Yellott wrote:

In Evans v. State, 28 Md.App. 640, 349 A.2d 300 (1975), aff'd, 278 Md. 197, 362 A.2d 629 (1976), Judge Moylan, in cataloguing the numerous problems associated with the use of the word "presumption," wrote: "to avoid future confusion, ["presume"] should be restricted to its technically proper role of describing a shifting of a burden." 28 Md. App. at 681, 349 A.2d at 327. Accord, McCormick on Evidence § 342 (2d ed. 1972). McCormick similarly treats the proper use of the term "presumption" as denoting the use of a procedural standardized device whereby, upon proof of fact B, the trier of facts may infer proof of fact A, thereby shifting the burden of producing evidence (and, in certain cases, shift the burden of persuasion as well) to the opposing party on that issue. Id. at § 342.

Although Judge Moylan in Evans concluded that for the sake of clarity the technical use of "presumption" should be restricted to those cases involving a shifting of the burden, he noted that the term has been used with five distinct connotations.6 Our examination of the relevant case law discloses that the term "presumption," in the context of medical malpractice actions, is used merely as a shorthand statement of assigning the burden of proof in such cases, and does not involve a "shifting" of the burden. Since "the general principles which ordinarily govern in negligence cases also apply in medical malpractice claims," Shilkret, supra, 276 Md. at 190, 349 A.2d at 247, a statement that physicians are "presumed" to have acted within the appropriate standard of care cannot operate to shift the burden of proof to the plaintiff since that party already has the burden under the ordinary rules governing negligence actions. As "the vocabulary is rich enough to find words to describe this... burden [of proof] upon the [plaintiff] without resorting to a misuse of that procedural word of art `presume'," Evans, supra, 28 Md. App. at 681, 349 A.2d at 327, we eschew the continued use of the term in describing the burden of proof in medical malpractice actions. As previously stated, however, we find no error here in the light of the totality of the court's instructions with respect to the burden of proof.

(2) Appellants also contend that the trial court erred in charging the jury that:

It is asserted that "while judgment has always been held to be a defense in malpractice causes, it must be judgment which is arrived at through the use of all modalities available, and only after the most careful and precise evaluation." We construe appellants' contention as attacking the trial court's charge with respect to the applicable standard of care to which the appellees were bound in diagnosing Mrs. Riffey's condition.

In determining whether the appellees' diagnosis was "reasonably and prudently arrived at," the jury was bound by the trial court's earlier instruction that:

This instruction was clearly proper as within the guidelines enunciated in Shilkret v. Annapolis Emergency Hospital Association, supra. Under these circumstances, we find no error. See generally 70 C.J.S. Physicians and Surgeons § 48 (1951); Marlow v. Cerino, 19 Md.App. 619, 630-32, 313 A.2d 505, 511-13 (1974).

(3) In the course of the trial court's charge to the jury, the court stated that the testimony of appellants' expert was "diametrically opposed" to that of the experts produced by the appellees. Appellants contend that this statement compelled the jury to weigh the number of witnesses for both sides in resolving credibility. Any such impression created in the minds of the jury was certainly dispelled by the court's further instruction that:

We find no error.

B. Failure to Give Requested Instructions

(1) At the end of the court's charge, appellants' counsel made several requests for additional instructions.7 One such instruction requested by the appellants, relating to the appellees' use of dextran in treating Mrs. Riffey in contrast to the testimony of Dr. Roche that heparin was the drug of choice, was as follows:

In Nolan v. Dillon, supra, the Court of Appeals considered, in the context of a medical malpractice suit, whether there was error in the trial court's charge that the jury could consider as evidence of negligence the defendant-physician's failure to observe the manufacturer's warnings contained in the package insert accompanying each drug. In holding that the court's instruction was proper, Judge Singley noted that, "there was ample testimony that a failure to observe the manufacturer's warnings did not conform to the standards of practice in the field of obstetrics in Montgomery County." 261 Md. at 540, 276 A.2d at 49.

The only evidence adduced on this subject in the case sub judice was the testimony of Dr. Tonder. Called as an adverse witness in appellants' case, Dr. Tonder conceded that the manufacturer's insert and the Physicians Desk Reference, which contains substantially the same information, do not indicate the use of dextran in the treatment of thrombophlebitis. However, in the absence of testimony from either Dr. Tonder or any other medical expert to the effect that the manufacturer's instructions contained on the package insert or in the Desk Reference establish a standard of care to which physicians of Dr. Tonder's class, acting upon the same or similar circumstances, are bound, we hold that the trial court properly denied appellants' instruction.

(2) Finally, appellants challenge the trial court's failure to give a requested instruction declaring that since Dr. Tonder held himself out as a specialist in the field of obstetrics and gynecology, he was held to that degree of skill and knowledge ordinarily possessed by similar specialists.

As previously quoted, the trial court properly instructed the jury on the standard of care, as articulated in Shilkret, supra, to which the appellees were bound in performance of their duties. In formulating a standard in which the defendants' conduct is to be measured against that of other "reasonably competent practitioner[s] in the same class to which he belongs, acting in the same or similar circumstances," (emphasis added), 276 Md. at 200, 349 A.2d at 253, the Court in Shilkret specifically stated, "[T]here is no valid basis for distinguishing between general practitioners and specialists in applying standards of care." Id. at 199, 349 A.2d at 252. Judge Levine, speaking for the Court, noted that the standard as formulated took into account the fact of specialization or general practice. The trial court's instruction in the instant appeal followed the rule mandated in Shilkret and, therefore, appellants' request for an additional charge was properly rejected. See Aronstamn v. Coffey, 259 Md. 47, 267 A.2d 741 (1970).

Judgment reversed; case remanded for a new trial; costs to be paid by appellees.