Butler-Tulio v. Scroggins

• Citation: 774 A.2d 1209,139 Md. App. 122
• Decision Date: 29 June 2001
• Docket Number: No. 1478,1478
• Parties: Charlotte BUTLER-TULIO v. Carlton Henry SCROGGINS, M.D., et al.
• Court: Court of Special Appeals of Maryland

774 A.2d 1209

139 Md. App. 122

Charlotte BUTLER-TULIO v. Carlton Henry SCROGGINS, M.D., et al.

No. 1478, Sept. Term, 1999.

Court of Special Appeals of Maryland.

June 29, 2001.

Marc A. Greidinger, Springfield, VA, for appellant.

Eric Rhoades (Armstrong, Donohue, Ceppos & Vaughan, Chartered, on the brief), Rockville, for appellee, Scroggins.

Alan R. Siciliano, Lanham, for appellee, Prince George's Hosp. Center.

Argued before DEBORAH S. EYLER, KRAUSER, and JOHN J. BISHOP, Jr. (Retired, specially assigned), JJ. KRAUSER, Judge.

Appellant, Charlotte Butler-Tulio, brought this medical malpractice action in the Circuit Court for Prince George's County against appellees, Carlton Henry Scroggins, M.D. and the Prince George's Hospital Center, for allegedly leaving part of a microsurgical needle in her wrist during an operation to repair a transected median nerve.¹ After the jury returned a verdict in favor of appellees, appellant noted this appeal, challenging the admissibility of the testimony of appellees' expert witness, Ronald William Luethke, M.D., and the propriety of certain jury instructions given by the trial court. Those two issues are now presented to us in the form of five questions:²

I. Did the trial court err in permitting Ronald William Luethke, M.D., to testify as an expert witness for appellees, over appellant's objection, although he had originally been consulted by appellant for a medical evaluation and possible treatment?

II. Did the trial court err in instructing the jury on intervening and superseding cause?

III. Did the trial court err in stating, during the course of instructing the jury on the applicable standard of care, that "[t]here is a presumption that health care providers perform their medical duties with the requisite care and skill?"

IV. Did the trial court err in failing to instruct the jury on the doctrine of res ipsa loquitur? V. Did the trial court err in failing to instruct the jury as to the "borrowed servant" or "captain of the ship" doctrines?

For the reasons that follow, we shall affirm the judgment of the trial court.

BACKGROUND

On August 19, 1991, appellant accidentally cut the wrist of her right arm while she was performing a household chore. She subsequently sought medical attention at appellee Prince George's Hospital Center. There, the cut was sutured in appellee's emergency room.

When appellant continued to experience pain and numbness in her right hand, she was referred to appellee, Carlton Henry Scroggins, M.D. After examining appellant, Dr. Scroggins concluded that she had suffered an injury to the median nerve, and scheduled her for surgery.

On September 12, 1991, Dr. Scroggins performed surgery on appellant's wrist at Prince George's Hospital Center. On the median nerve, he found a neuroma, a nodule made up of nerve and scar tissue, and removed it. During that operation, he was assisted by another surgeon, a scrub technician, and two circulating nurses.

The nurses were employees of Prince George's Hospital Center. Among other things, they were responsible for counting the needles and recording whether the count was "correct" on the "Operation Room Data Form." During appellant's operation, two counts were performed and recorded as "correct" on that form.

Following surgery, appellant continued to complain of pain. Dr. Scroggins referred her to the Raymond Curtis Hand Center at Union Memorial Hospital ("Union Memorial"). At Union Memorial, on December 15, 1992, Clara Belle Wheeler, M.D., performed another surgery on appellant's wrist. In her operative notes, Dr. Wheeler indicated that she found "a shiny object ... lying over the tendinous portion of the palmaris longus³ as it splayed into the palmar fascia."⁴ Under loupe⁵ magnification, Dr. Wheeler identified the object as a "surgical suture needle." The surgical pathology report identified the same object as a "metallic splinter," which was six-tenths of a centimeter in length and less than one-tenth of a centimeter in diameter.

On January 12, 1995, appellant was examined by Ronald William Luethke, M.D., a plastic surgeon. Appellant told Dr. Luethke that she had cut her hand on a piece of glass in 1991, and that Dr. Scroggins had performed surgery a few weeks after the injury. She complained of weakness in her hand, abnormal sensations in her thumb and fingers, and difficulty in bending her hand back. After examining appellant's hand and wrist, Dr. Luethke concluded that appellant was suffering from a "low median nerve injury," but advised against further surgery. Instead, he recommended only symptomatic treatment.

At the end of the examination, appellant asked Dr. Luethke if he "could support her claim of negligence" against appellees. In reply, Dr. Luethke stated that "the presence of a small microsurgical needle in the wound in the area where it was described... would have little, if any effect, on her current disability or treatment with regards to her previous injuries." He further advised her that he "could not support her claim of negligence" but "would be happy to see her back should she desire further consultation and treatment." Appellant did not see Dr. Luethke again.

Two years later, on January 10, 1997, appellant filed a complaint in the Circuit Court for Prince George's County against Dr. Scroggins and the Prince George's Hospital Center, alleging, among other things, that appellees were negligent in leaving a foreign object in her wrist during surgery.

Trial

At trial, appellant called two expert witnesses: Joseph Anthony Mead, Jr., M.D. and Carol M. Mennich, R.N. Dr. Mead opined that Dr. Scroggins had violated the standard of care owed appellant by leaving "a needle or part of the needle" in the wound, by later failing to discover that "the needle part" had been left there, and by failing to recognize that that was the cause of appellant's continued pain and disability.

Dr. Mead further testified that, in his opinion, the "needle" left in the wound was the cause of appellant's "pain and injury." But he declined to express an opinion as to how a part of that needle had broken off or how it had found its way into the wound site. Moreover, he declined to state that Dr. Scroggins was responsible for breaking the needle in the first place.

Appellant's other expert witness was Carol Mennich, a registered nurse. She testified that needle counts were performed during appellant's surgery at Prince George's Hospital Center, and that those counts were the responsibility of the operating room nurses. The purpose of such counts, according to Mennich, is to "insure there are no foreign objects left in the body cavity." She opined that the nurses, who assisted Dr. Scroggins, failed to properly account for the needles because they indicated twice on the operating room data form that the needle count was correct when a portion of one of the needles was missing.

Appellees' expert witness was Dr. Luethke, the plastic surgeon consulted by appellant two years earlier. Dr. Luethke had not been named as either a fact or expert witness by appellant.

After describing his examination of appellant, Dr. Luethke testified that leaving a microsurgical needle in the wound is not a violation of the standard of care, and that it "[i]n fact ... happens all the time." He further opined that there are "many ways... a microsurgical needle could ... find its way into an operative wound by no fault of anyone's." According to Dr. Luethke, "[t]he needle was found well away from the area of the previous median nerve repair," and, the metallic sliver or microsurgical needle had "nothing to do" with appellant's injury or the pain in her wrist and hand.

He further stated that, at the conclusion of her examination, appellant had asked him whether he could support her claim of negligence. In response, Dr. Luethke stated that he could not as there was no evidence that either appellee had "breach[ed] the standard of care." When defense counsel asked Dr. Luethke why he thought appellant had come to see him, Dr. Luethke responded that he "came away [from the consultation] with the distinct impression that [appellant] was hoping for someone or a physician to support her claim of negligence." When the trial ended, the jury returned a verdict in favor of appellees, finding that neither Dr. Scroggins nor Prince George's Hospital Center had breached the standard of care.

DISCUSSION

Appellant contends that the trial court erred in allowing Dr. Luethke, who had previously examined appellant at her request, to testify as an expert witness for appellees, over appellant's objection. In support of that contention, appellant advances four reasons why the doctor's testimony should have been excluded: First, as a "treating physician," Dr. Luethke violated a fiduciary duty when he gave expert testimony against appellant. That duty, according to appellant, arose out of their physician-patient relationship. Second, "the probative value of [Dr. Luethke's] testimony ... was outweighed by its prejudicial effect." Third, allowing a treating physician to testify as an expert witness against a patient in a medical malpractice case, as Dr. Luethke was permitted to do, "threaten[s] the integrity of the judicial process." And fourth, "Dr. Luethke's testimony should have been excluded because he participated in ex parte contacts with [appellees'] attorneys." After carefully considering each ground, we remain unpersuaded that the trial court erred in permitting Dr. Luethke to testify as a defense expert.

Before addressing the merits of appellant's claims, we note that, in deciding whether to admit or exclude expert testimony, a trial judge is "vest[ed] ... with [a] wide latitude" of discretion. Massie v. State, 349 Md. 834, 850, 709 A.2d 1316 (1998). Indeed, that decision "will be reversed only if it is founded on an error of law or some serious mistake, or if the judge has abused his discretion." Franch v. Ankney, 341 Md. 350, 364, 670 A.2d...