Keyes v. Lerman

• Court: Court of Special Appeals of Maryland
• Citation: 992 A.2d 519,191 Md. App. 533
• Parties: Polly KEYES, et al. v. Sheldon H. LERMAN, et al.
• Decision Date: 30 March 2010

992 A.2d 519
191 Md. App. 533

Polly KEYES, et al.
v.
Sheldon H. LERMAN, et al.

No. 2290 September Term, 2008.

Court of Special Appeals of Maryland.

March 30, 2010.

992 A.2d 520

Laurence A. Marder (Emily C. Malarkey, Salsbury, Clements, Bekman, Marder & Adkins, LLC, on the brief), Baltimore, MD, for Appellant.

Charles I. Joseph (Amanda P. Just, Shaw, Morrow & Joseph, PA, on the brief), Hunt Valley, MD, for Appellee.

Panel: DAVIS, KEHOE and ALAN M. WILNER (Retired, Specially Assigned), JJ.

ALAN M. WILNER, Judge (Retired, Specially Assigned).

This is a medical malpractice action filed by appellants, Polly and Stuart Keyes, against appellee, Sheldon Lerman, in the Circuit Court for Baltimore County. After a full trial, the jury concluded that Dr. Lerman was not negligent and returned a verdict in his favor. In this appeal, appellants complain that the unfavorable verdict resulted from the refusal of the court (1) to give a requested spoliation of evidence instruction, and (2) to permit cross-examination of a defense expert witness that would have revealed to the jury that both the witness and Dr. Lerman had medical malpractice insurance policies issued by Medical Mutual Liability Society of Maryland. Perceiving no error, we shall affirm.

992 A.2d 521

BACKGROUND

Ms. Keyes appeared at the St. Joseph's Medical Center emergency room on June 12, 2006, complaining of abdominal pain. After an initial examination and certain tests conducted by the emergency room staff, Dr. Lerman, who had removed a cancer from Ms. Keyes's colon nine years earlier, was consulted. After examining Ms. Keyes and reviewing the test results, Dr. Lerman arrived at a diagnosis of gall bladder disease and possible small bowel obstruction. Additional tests seemed to confirm a non-functioning diseased gall bladder but revealed no evidence of a small bowel obstruction. The next day, he removed the gall bladder through a laparoscopic cholecystectomy.

During the operation, Dr. Lerman observed some dilation of the small bowel but no apparent obstruction. He observed as well some adhesions but decided not to remove them, as that would have entailed much more extensive surgery. Instead, he opted to monitor Ms. Keyes's post-operative progress. Unfortunately, Ms. Keyes did not progress well. An examination the next day revealed a distended abdomen, and a CAT scan conducted that evening indicated to the radiologist a small bowel obstruction. On June 15, after confirming that diagnosis, Dr. Lerman performed the more extensive surgery—a laparotomy— and removed 62 cm. of dead small bowel and 40 cm. of large bowel. Ms. Keyes was discharged on June 20 but was readmittted from June 22 to June 26 and again on July 4. On July 5, she underwent a third operation to repair an anastomatic leak and to remove an additional 34 cm. of bowel.

The issue of spoliation raised by appellants concerns the June 15 surgery that dealt with the small bowel obstruction— something they believe should have been dealt with on June 13. Among the hospital's Medical Staff Rules and Regulations is a requirement that an "operative report" be recorded on all patients who had surgery performed at the hospital. Among other things, the report is to contain "indications for operation" and "description of the findings," and it is to be "dictated immediately after surgery, transcribed by the Medical Record department and placed on the patient's chart on the floor within one working day of the operation." The responsible surgeon is required to sign the typed report "as soon as possible."

Dr. Lerman testified that, to the best of his knowledge, he dictated an operative report following the June 15 surgery, but there was substantial evidence to the contrary. No such report was found in Ms. Keyes's medical record, and there was no indication in the hospital's computer archival documents that one was ever dictated. Appellants argued that this was not an innocent omission, in that Dr. Lerman had occasion to review Ms. Keyes's chart on at least two occasions in the succeeding month and would have noticed that the operative report was missing. They claimed that the absence of the report hindered the ability of their experts to render opinions regarding Dr. Lerman's compliance with the applicable standard of care, and, prior to closing argument, they requested an instruction, in the form of Maryland Pattern Jury Instruction (Civil) 1:10, on spoliation. The court permitted counsel to argue spoliation to the jury, but it declined to give the requested instruction.

The second issue concerned a defense expert witness, Dr. Kafonek. Prior to Dr. Kafonek's testimony, appellants advised the court that they wished to cross-examine him on two matters going to alleged bias on his part. First, they wished to bring out the fact that, in a prior unrelated proceeding, he had been represented by the law firm representing Dr. Lerman, and

992 A.2d 522

second, they wanted to establish that Dr. Kafonek had a relationship with that firm, in which he reviewed malpractice cases for them and had testified as an expert in cases they handled at least ten times in the past. In presenting argument on that second point, appellants noted that Dr. Kafonek had stated in a discovery deposition that he would not testify against another Baltimore County doctor insured by Medical Mutual Liability Insurance Society of Maryland, with which he also had a policy of medical malpractice insurance. Dr. Lerman moved, in limine, to preclude any questions that would reveal the existence of medical malpractice insurance, and, although the court said that it would allow questions regarding Dr. Kafonek's relationship with defense counsel and his refusal to testify against Dr. Lerman, it granted the motion to the extent of precluding any mention of medical malpractice insurance

DISCUSSION

Spoliation Instruction

In general parlance, spoliation is "the act of plundering; robbery; plunder; particularly, the act of plundering an enemy in time of war." Webster's New Universal Unabridged Dictionary, 2nd ed. (1979) at 1755. In law, the word has a more particularized meaning, though one that is entirely consonant with the general concept. Black defines it as "the intentional destruction, mutilation, alteration, or concealment of evidence, usually a document." Black's Law Dictionary, 8th ed. (2004) at 1437.

Courts and commentators have viewed the spoliation of evidence as perhaps the most grievous aspect of the broader situation in which a party fails to produce evidence that is, or was, available to the party and that the party might ordinarily be expected to produce. This may be in the form of witnesses, documents, or other tangible evidence, the precise issue, in any of these situations, being what, if any, inference may be drawn by the trier of fact from the non-production of such evidence. The most recent edition of McCormick on Evidence well expresses the long-held general rule that:

"When it would be natural under the circumstances for a party to call a particular witness, or to take the stand as a witness in a civil case, or to produce documents or other objects in his or her possession as evidence and the party fails to do so, tradition has allowed the adversary to use this failure as the basis for invoking an adverse inference."

2 McCormick on Evidence, 6th ed. (2006), § 264 at 220.

Because the circumstances surrounding the non-production of evidence vary, this general rule is subject to a host of caveats and distinctions designed to ensure that, in the particular case, the inference is a fair and reasonable one. As Wigmore points out, "these inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party's fear of exposure." 2 Wigmore, Evidence § 285 at 192 (Chadbourne rev. 1979).

With respect to uncalled witnesses, the courts have tended to limit the inference to situations in which (1) the witness was peculiarly available to one party and could have been produced by that party, and (2) the testimony that might be expected from the witness would be important and not merely cumulative and would elucidate the transaction. See Mitchell v. State, 408 Md. 368, 384, 969 A.2d 989, 999 (2009); Bereano v. State Ethics Comm'n, 403 Md. 716, 741, 944 A.2d 538, 552 (2008); Woodland

992 A.2d 523

v. State, 62 Md.App. 503, 509-10, 490 A.2d 286, 289-90 (1985). Similarly, for the inference to apply to documents and other tangible evidence not produced, it must be shown that the party was able to produce the evidence and that the evidence would have been admissible. Wigmore, supra, § 291, at 225-27.

Although the word "spoliation" or conduct involving the intimidation of witnesses or the actual destruction of or tampering with evidence is sometimes included in a more general discussion of missing witnesses or evidence, that kind of conduct is regarded as more egregious and, to an extent, different in kind, than simply not producing available evidence. It has been characterized as conduct constituting obstruction of justice and analogized to other conduct of that nature. The inference that may be drawn from that kind of conduct goes beyond allowing a finding that the missing evidence, if produced, would be unfavorable, but allows, in addition, an inference of consciousness of guilt in a criminal case or a belief that the party's case is weak. McCormick observes:

"A party's failure to produce evidence that he or she is free to produce or withhold may be treated as an admission. As might be expected, wrongdoing by the party in connection with its case amounting to an obstruction of justice is also commonly regarded as an admission by conduct. By resorting to wrongful devices, the

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