Brown v. CONTEMPORARY OB/GYN

• Decision Date: 27 March 2002
• Docket Number: No. 1033,1033
• Citation: 143 Md. App. 199,794 A.2d 669
• Parties: Folake Odejinmi BROWN, et al. v. CONTEMPORARY OB/GYN ASSOCIATES, et al.
• Court: Court of Special Appeals of Maryland

794 A.2d 669

143 Md. App. 199

Folake Odejinmi BROWN, et al. v. CONTEMPORARY OB/GYN ASSOCIATES, et al.

No. 1033, Sept. Term, 2000.

Court of Special Appeals of Maryland.

March 27, 2002.

Taiwo A. Agbaje of Windsor Hill, MD, for appellants.

Kenneth Armstrong and Robert R. Michael (Armstrong, Donahue, Ceppos & Vaughan, Chartered and Shadoan & Michael, LLP on the brief, for appellees Contemporary, Levitt, Rosenblatt & Goodman), Rockville, MD.

David A. Roling (David A. Levin and Wharton, Levin, Ehrmantraut, Klein & Nash, on the brief, for appellees Holy Cross, Craddock and McKibben), Annapolis, MD.

Argued before HOLLANDER, SONNER, LAWRENCE F. RODOWSKY (Retired, specially assigned), JJ.

HOLLANDER, J.

This appeal arises from the unfortunate death of a baby girl who was born prematurely in May 1994 to Folake Odejinmi Brown and Richard Afolabi Brown, M.D., appellants,¹ at Holy Cross Hospital of Silver Spring, Inc. (the "Hospital" or "Holy Cross"). On May 9, 1997, appellants filed a malpractice claim with the Maryland Health Claims Arbitration Office.

After arbitration was waived, appellants filed a five-count complaint on December 10, 1997, in the Circuit Court for Montgomery County. The suit named sixteen defendants, including Contemporary OB/ GYN Associates ("Contemporary"), the obstetrical practice that cared for Ms. Brown; Contemporary's individual physicians and their respective professional associations; Holy Cross; and two of the Hospital's nurses, all appellees herein.² Appellants sought compensatory and punitive damages of $20 million in connection with their claims for wrongful death (Count I); a survival action (Count II); health care malpractice (Count III); breach of contract (Count IV); and intentional infliction of emotional distress (Count V).

Prior to trial, the circuit court granted summary judgment in favor of Holy Cross, Dr. Jeffrey Levitt, Dr. Goldberg, Dr. Brooks, and the two nurses, McKibben and Craddock. As to Contemporary, Dr. Donald Levitt, Dr. Goodman, and Dr. Rosenblatt, the court granted summary judgment as to the claims of wrongful death, the survival action, and punitive damages. Thereafter, the court bifurcated the issues of liability and damages. Accordingly, as to the remaining defendants, the case proceeded to trial on liability in June 1999 (Mason, J.), with respect to the claims of health care malpractice and intentional infliction of emotional distress. At the trial, Newton Osborne, M.D., Ph.D., a professor of obstetrics and gynecology at Howard University Hospital ("Howard" or "Howard Hospital"), and chairman of the Department from 1994 to 1997, testified as an expert for appellants. After the court determined that he offered an opinion that had not been previously disclosed to opposing counsel, the court granted a mistrial. A second trial, as to both liability and damages, commenced in January 2000 (Woodward, J.). It, too, ended in a mistrial, apparently because a juror overheard certain comments by a lawyer representing the Hospital.

In the meantime, after the second trial, and without appellants' knowledge, Dr. Osborne's employer, Howard Hospital, retained H. Kenneth Armstrong, Esq., to represent Dr. Osborne in a medical malpractice action filed again him and others in the District of Columbia (the "Singleton" case). At that time, Armstrong was also the attorney for Contemporary and its physicians in this case (hereinafter sometimes referred to as the "Brown " case). Nevertheless, Dr. Osborne and Armstrong did not plan to meet to discuss the Singleton case until after the trial in the Brown matter was completed. As a result of the second mistrial, that matter did not end when anticipated. Nevertheless, prior to the third attempt to try the underlying case, Armstrong met with Dr. Osborne to discuss the Singleton litigation.

After the commencement of the third trial in March 2000, appellants learned that Armstrong represented Dr. Osborne in the Singleton matter. During the course of the third trial, appellants also learned that Dr. Osborne was out of the country and unavailable to testify as their expert. They also discovered that Armstrong knew that Dr. Osborne would be unavailable at that time, yet had failed to disclose that information to appellants. The court (John McAuliffe, J.) attributed Dr. Osborne's unavailability to appellants' failure to subpoena the doctor, but permitted appellants to put in evidence the testimony of Dr. Osborne, elicited at the first trial in June 1997.

On appeal, appellants present the following four questions:

I. Did the [t]rial [c]ourt err in denying the Plaintiffs' Motion for a Mistrial and Post-trial Motion for a new trial where the court had before it evidence of witness tampering by defense [c]ounsel, Kenneth Armstrong, Esquire, when he had undisclosed and unsupervised access to Appellants' expert and he became attorney for Appellants' expert in an unrelated case shortly before Appellants' expert was scheduled to testify in this case; which caused or contributed to the absence of Appellants' expert witness at trial; which had [a] prejudicial effect upon Appellants' ability to present their case at trial; which deprived Appellants [of] a fair trial; and was prejudicial to the administration of justice in this case[?]

II. Did the trial [c]ourt err in allowing testimony of defense expert Lindsay Alger who rendered new opinions at trial which were prejudicial to Appellants' case, which had never been rendered before and Appellants were not put on reasonable notice of those opinions at anytime before trial[?] III. Did the trial [c]ourt err when it ordered the use of Dr. Osborne's previous trial testimony at the March 2000 trial which did not contain testimony regarding [m]ental anguish that Dr. Osborne had prepared to render at the June 1999 trial but for the bifurcation of the trial and the objection of Appellees[?]

IV. Did the trial [c]ourt err where the [c]ourt gave an incorrect instruction to the jury that a wrongful death claim could not be brought by the Plaintiffs because the baby was non-viable without advising the jurors that that [sic] under Maryland law, a wrongful death suit may be maintained if a nonviable fetus was born alive[?]

For the reasons that follow, we shall affirm.

FACTUAL BACKGROUND³

In January 1994, Ms. Brown came under the prenatal care of Contemporary. At that time, she had already endured four unsuccessful pregnancies, and was experiencing difficulties in the early stages of the pregnancy at issue, including infection and vaginal bleeding.

On May 12, 1994, when Ms. Brown was twenty-two weeks pregnant, she had severe abdominal pains and contractions. As a result, Dr. Brown took his wife to the Hospital's emergency room, where she was examined by Craddock and McKibben. The nurses then contacted Dr. Goodman, the physician on call for Contemporary. He told the nurses to discharge Ms. Brown and instruct her to follow up with Contemporary the next day. Accordingly, Ms. Brown was examined the next day by Dr. Rosenblatt. After an ultrasound revealed that Ms. Brown was dilated four centimeters, she was admitted to Holy Cross. The baby was delivered by Dr. Donald Levitt on May 13, 1994. During the delivery, the baby's head was severed from its body.

At the first trial in June 1999, Dr. Osborne opined that the premature delivery was caused by an undiagnosed "lower genital tract infection" that "eventually progressed to an upper genital tract infection with amnionitis and chorioamnionitis, and caused a contraction of the uterus that resulted in a [premature] delivery." Defense counsel claimed that Dr. Osborne's opinion had not been disclosed by appellants prior to trial, in violation of the Pretrial Scheduling Order. Therefore, appellees moved for a mistrial. Although the court recognized that the disputed opinion was "so important" to the plaintiffs' case, it found that they never disclosed the opinion "in any reasonable form," or "at any time...." Accordingly, the court granted a mistrial, stating:

[T]o allow the case to proceed in the absence of any kind of reasonable disclosure, which I do not find from my review of the record, would in fact unfairly and severely prejudice the defendants.

Accordingly, over the objection of the plaintiffs, I will grant the motion for the mistrial.

Because the court also struck the bifurcation, the trial was rescheduled for January 10, 2000, as to both liability and damages.

In the meantime, on or about September 2, 1999, Dr. Osborne was sued in the District of Columbia for malpractice, in his capacity as Chairman of Howard's Department of Obstetrics and Gynecology, in the "Singleton" case. In December 1999, a representative of Howard Hospital contacted Armstrong and asked him to represent Dr. Osborne in that unrelated matter. Although appellants were not aware of the request, Armstrong knew, of course, that Dr. Osborne was appellants' expert in the case sub judice. In a telephone conversation with Dr. Osborne on January 5, 2000, Armstrong advised the doctor of his willingness to represent him. But, mindful of the impending trial in this case, he suggested that they defer meeting until after the conclusion of the second Brown trial, then scheduled to commence on January 10, 2000. Armstrong also advised Dr. Osborne that it would be inappropriate for the two of them to discuss the Brown litigation at any time.

Armstrong confirmed his telephone conversation with Dr. Osborne by letter of January 6, 2000, stating:

This will confirm our telephone conversation of January 5, 2000. At that time, we discussed that I had been retained by Howard University Hospital to represent your interest in a lawsuit brought by the Singleton family in the Superior Court for the District of Columbia, Civil Action No. 99-0006001.

We have a meeting set up in my office for Thursday, January 20, 2000 at 10:00 a.m.

* * *

This will also confirm that I specifically advised you that I will not

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