Hill v. Wilson, 00790

Citation760 A.2d 294,134 Md. App. 472
Decision Date04 October 2000
Docket NumberNo. 00790,00790
PartiesHugh F. HILL, III, et al. v. Kevin H. WILSON.
CourtCourt of Special Appeals of Maryland

760 A.2d 294
134 Md.
App. 472

Hugh F. HILL, III, et al.
v.
Kevin H. WILSON

No. 00790, Sept. Term, 1999.

Court of Special Appeals of Maryland.

October 4, 2000.


760 A.2d 296
Natalie C. Magdeburger (Leora R. Simantov and Whiteford, Taylor & Preston, L.L.P. on the brief), Towson, for appellants

Kathleen Howard Meredith (David J. Wildberger and Iliff & Meredith, P.C. on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and DAVIS and HOLLANDER, JJ.

760 A.2d 295
MURPHY, Chief Judge

In the Circuit Court for Baltimore City, Kevin Wilson, appellee, filed a medical malpractice action against Dr. Hugh Hill and Emergency Associates, Inc., appellants.1 A jury (Hon. Thomas Noel presiding) returned a verdict in favor of appellee, and appellants now present the following questions for our review:

I. Did the trial court err in permitting impeachment testimony by Dr. Hill regarding Dr. Hill's lectures and writings related to risk management and did the trial court err by denying a new trial on that basis?

II. Did the trial court err by excluding testimony of appellants' expert witness, Dr. Orlando, regarding appellee's broken chair, because the trial court erroneously determined that the matter had not been discussed in Dr. Orlando's deposition, and did the trial court err by denying appellants' motion for a new trial?

III. Did the trial court err by failing to grant appellants' motion for summary judgment regarding appellee's contributory negligence, and did it further err by denying appellants' motion for judgment, motion for a new trial and judgment notwithstanding the verdict on the issue?

IV. Did the trial court err by giving a jury instruction regarding the patient's ability to rely on statements by a doctor that were not a complete statement of the law, because it did not state that a patient's reliance must be reasonable and justified in order for a patient to satisfy his obligation to exercise reasonable care in safeguarding his own health and safety?

For the reasons that follow, we shall answer "no" to each question and affirm the judgment of the circuit court.

Factual Background

Appellee has been paralyzed from the waist down since 1987. On August 30, 1994, he went to the emergency room at Good Samaritan Hospital, complaining of nausea, cloudy urine, and an ulcer on his lower back. Dr. Hill was his emergency room physician. According to appellee, Dr. Hill did not inquire about the duration or history of the ulcer, did not "manually palpate or otherwise touch the ulcer," and made an incorrect diagnosis on the basis of an inadequate examination. Appellee testified that Dr. Hill merely lifted the bandage that appellee had placed on the ulcer at home, glanced at the sore and placed the bandage back on, commenting to appellee

760 A.2d 297
that the ulcer was "not your problem."

Dr. Hill had no independent recollection of appellee's visit, and his testimony was based on the notes he wrote on appellee's chart at that time. According to Dr. Hill, his examination revealed that appellee had a "large sacral ulcer without surrounding erythema," and he diagnosed appellee as suffering from a urinary tract infection. He prescribed antibiotics to last 10 days, and instructed appellee to (1) make an appointment with a plastic surgeon "when available" for treatment of the ulcer, (2) obtain a reculture of the urine in two weeks, and (3) "see your doctor if worse." Even though appellee's record contained no express reference to what kind of examination was performed, Dr. Hill testified that he performed a complete evaluation of appellee because his standard practice is to perform such an evaluation.

Appellee testified that he followed Dr. Hill's advice. When he got home, he made an appointment with a plastic surgeon, Dr. Orlando, whose first available appointment was two weeks away. He also took the prescribed medicine and cleaned and dressed the ulcer every day. Approximately a week after his emergency room visit,2 appellee noticed that an unusual odor was coming from the ulcer.3 He returned to the hospital on September 14, 1994.

Upon his arrival, appellee was diagnosed as suffering from a severe infection,4 and was then admitted. Due to complications from the infection, above the knee amputations had to be performed on both of appellee's legs.

Discussion

I. Impeachment of Dr. Hill

Appellants assert that Judge Noel erred in allowing appellee's counsel to cross-examine Dr. Hill about certain of his writings and lectures.5 Dr. Hill is the author of a chapter in a risk management manual for doctors, and has also lectured on how emergency room medical charts should be prepared and documented from a "risk management or a legal perspective." Appellants filed a Motion in Limine to prohibit the admission of these materials, asserting that the materials were (1) not relevant, and (2) prejudicial to appellants' case. Judge Noel concluded that the materials would be admissible for impeachment purposes, and perhaps on the issue of appellee's contributory negligence, but could not to be used to prove that Dr. Hill breached the standard of care in his treatment of appellee.

During Dr. Hill's cross-examination, several bench conferences took place, the first occurring when Dr. Hill was being cross-examined with respect to his medical credentials. Judge Noel concluded that (1) he was going to deal with the issues raised by the materials on a question to question basis, and (2) appellee's counsel could inquire about the contents of the writings. Appellee's counsel could not, however, use the writings to establish the requisite standard of care, and could not inform the jury

760 A.2d 298
that the writings were primarily directed at the goal of avoiding lawsuits

Counsel for appellee also used the materials to question Dr. Hill on the issue of contributory negligence.6 In the materials, Dr. Hill had commented that directions to the patient to see your physician for follow-up "as necessary" or "as worse" were insufficient because of a lack of understanding by the patient as to the specific time frame. Because of the notes that Dr. Hill made in appellee's chart, Judge Noel allowed Dr. Hill to be questioned on the apparent inconsistency between what he had documented and what he had advised others to document. Judge Noel explained:

I cannot let this jury not hear this examination. I think it would be patently unfair to just say that it was written based upon a theory of risk management; therefore, the jury should not hear it. If for no other bottom line reason is that it would demonstrate the defendant's knowledge in this area alone. And on that basis alone, I think it becomes admissible ... Also, when someone writes something in an area, I think it only fair that they be held accountable to what they write. Now, if [counsel for appellants] wants to have this jury advised of the purpose of the writing, its intent, the fact that it was written for risk management, and have your client or witness explain it, you can do so. If you prefer the jury not hear anything about the distinction between risk management and standard of care, then I can advise counsel not to delve into that area. But I don't see that once someone writes something that they can say, `Well, I am not going to have a trier of fact be privy to my writings because I wrote it with a different intent in my mind.' It is the doctor's own writing, and I think it only appropriate that he be permitted to be cross-examined on what he has written.

(Emphasis added).

We agree with that analysis. During her closing argument, counsel for appellee stated:

Frankly, what I really think Dr. Hill is saying is that he hopes he gave more elaborate discharge instructions than what are written on this record because that is what he should have done. He testified, you'll remember, that he gives lectures and talks to other doctors, and what he tells them is that no patient understands the instruction, `see your doctor if worse,' or `see your doctor if not better.' He tells them that discharge instructions must be time and action specific, and he tells them that they should document these time and action specific instructions. But though he tells other doctors that no patient can be expected to understand instructions of the type he gave in this case, he asks you to impose that expectation on Mr. Wilson.

There is nothing unfair in that argument.

Appellants claim that the materials were not relevant. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Md.Rule 5-401. The materials were relevant to the issue of credibility.

A witness generally may be cross-examined on any matter relevant to the issues, and the witness's credibility is always relevant.

DeLilly v. State, 11 Md.App. 676, 681, 276 A.2d 417 (1971). The DeLilly Court went on to state that it is proper to allow "any question which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity,

760 A.2d 299
character or credibility." Id. Furthermore, the "scope, range and extent of such interrogation rests in the sound discretion of the trial court." Kruszewski v. Holz, 265 Md. 434, 440, 290 A.2d 534 (1972) (citing Shupe v. State, 238 Md. 307, 311, 208 A.2d 590 (1965)). We "will only reverse upon finding that the trial judge's determination was `both manifestly wrong and substantially injurious.'" Lomax v. Comptroller of Treasury, 88 Md.App. 50, 54, 591 A.2d 1311 (1991) (internal citations omitted).

Judge Noel did not err or abuse his discretion in allowing Dr. Hill to be impeached by his own prior statements, as they were relevant to his credibility as a witness. Maryland law provides that

... upon the laying of a proper foundation... the credit of a witness
...

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