Kruszewski v. Holz

• Decision Date: 10 May 1972
• Docket Number: No. 322,322
• Citation: 265 Md. 434,290 A.2d 534
• Parties: Helen B. Thoresen KRUSZEWSKI v. Richard G. HOLZ.
• Court: Maryland Court of Appeals

Page 434

265 Md. 434

290 A.2d 534

Helen B. Thoresen KRUSZEWSKI v. Richard G. HOLZ.

No. 322.

Court of Appeals of Maryland.

May 10, 1972.

George W. Shadoan, Rockville (Shadoan & Mack, Rockville, on brief), for appellant.

William A. Ehrmantraut, Rockville (Donahue & Ehrmantraut, Rockville, on brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

DIGGES, Judge.

This case deals with what apparently is becoming a proliferating phenomenon in this country-suit for professional malpractice. The appellant, Helen B. Thoresen Kruszewski, instituted this action in the Circuit Court for Frederick County (Barrick, J.) against her physician, Richard G. Holz, appellee, alleging negligence in medical treatment. The doctor, in a jury trial, was eronerated of all charges and this appeal follows.

In the fall of 1967, appellant, then a forty-seven year old woman, after having undergone four unsuccessful D. & C. procedures, consulted Dr. Holz, a specialist in obstetrics and gynecology. ¹ She complained of irregular and unusually frequent menstrual periods in which she encountered heavy bleeding and severe pain. The doctor, after thoroughly examining his patient, recommended still another D. & C. treatment which was performed one week later. This procedure alleviated her discomfort temporarily but within a few months she again experienced these same difficulties. In mid-May of 1968, in addition to her continuing menstrual problems, the appellant detected a small lump on her left breast. Despite this, Mrs. Kruszewski did not revisit her physician until June 3, 1968 at which time she complained anew of menstrual problems and also repined about the existence of the breast lump. During this visit the possible use of hormone treatment to regulate the bleeding was discussed, but with the presence of the lump Dr. Holz thought it desirable to first have the nodule evaluated. He therefor referred his patient to a general surgeon, Dr. Robert Thomas, for examination and consultation. The surgeon examined appellant and suggested that she be admitted to the hospital for a biopsy to determine if the growth was malignant. Appellee, after discussing the patient's problems with Dr. Thomas, decided the administration of hormonal therapy was not advisable. Instead he recommended that since appellant had to enter the hospital anyway, while there, if the lump was found to be benign, he, assisted by Dr. Thomas, would perform a hysterectomy. Mrs. Kruszewski approved this plan even though Dr. Holz warned her that the hysterectomy was major surgery and complications could arise.

Appellant was admitted to Frederick Memorial Hospital on June 30, 1968 and there signed a standard form granting consent to operate which in part read:

'2. The nature and purpose of the operation, possible alternative methods of treatment, the risks involved, and the possibility of complications have been fully explained to me. I acknowledge that no guarantee or assurance has been made as to the results that may be obtained.'

On July 1, Dr. Thomas made an excisional biopsy of her left breast and when the growth was found to be benign then, as planned, Dr. Holz performed the hysterectomy. There were no apparent complications during surgery and following an uneventful convalescence the patient was discharged on July 9 and went home. A few days later Mrs. Kruszewski experienced post-operative complications with the leakage of urine through her vagina. She stated that as a result, she telephoned Dr. Holz on July 15 to inform him of this new condition. The physician denied receiving this call and testified that the patient did not contact him until July 23, at which time he immediately ordered her to the hospital for treatment. In any event, on that latter date, Dr. Holz determined the urine leakage was caused by a fistula, or hole, in the bladder and referred his patient to Dr. Crouch, a urologist. Drs. Crouch and Holz originally thought the difficulty may have been caused during the hysterectomy by a suture which injured the bladder but the urologist, after further examination, changed his diagnosis and concluded the leakage resulted from a hole which developed in a weak spot in the bladder wall. Before it was eventually stopped two surgical operations were required.

Mrs. Kruszewski then instituted this malpractice suit against Dr. Holz. In a three count declaration she first alleged that the physician negligently injured her bladder during the hysterectomy; she next claimed that Dr. Holz improperly delayed post-operative treatment after he was told of the leakage; and finally, that appellee was negligent in failing to inform her adequately of the possible risks of and alternatives to the operation.

At trial both sides agreed, as they should, that Dr. Holz was required to adhere to the same standard of care in treating his patients as was practiced by other physicians engaged in this specialty in the community. Tempchin v. Sampson, 262 Md. 156, 159, 277 A.2d 67 (1971); Johns Hopkins Hospital v. Genda, 255 Md. 616, 258 A.2d 595 (1969). There is disagreement, however, as to what is necessary to satisfy that standard. Appellant's expert, Dr. Harvey Jorgenson, testified that a physician would be negligent if he placed a suture in the bladder during a hysterectomy and failed to recognize and correct the error immediately. He further stated that, in his opinion, Dr. Holz did not adhere to the standard of care normally exercised by physicians because he did not completely inform his patient of all possible complications and risks involved prior to obtaining her consent to perform the hysterectomy. Appellee's experts, Drs. Dumler and Novak, agreed that it would be negligent for a physician to unintentionally place a suture in the bladder and leave it uncorrected after an operation but they testified that, in their estimation, such was not the case here. These experts also testified that the probable cause of the urine leakage was a thin bladder wall further weakened by the operation and was not the fault of appellee. Additionally, they stated that it was not standard procedure for a physician in Dr. Holz's community to do more than advise his patient that a hysterectomy is major surgery with possible risks and complications attendant.

The trial judge submitted the case to the jury on five special issues all of which were answered in the negative against appellant. On appeal Mrs. Kruszewski claims that reversible error was committed in the following instances:

(i) when Judge Barrick refused to permit appellant to cross-examine Dr. Thomas, a major defense witness, about possible prejudice, while allowing appellee to extensively interrogate her witness, Dr. Jorgenson, concerning his past participation in other malpractice litigations;

(ii) when the court refused to allow Mrs. Kruszewski during the trial to remove an exhibit so that it could be scientifically analyzed;

(iii) when the trial judge erroneously summarized the facts during his jury instructions;

(iv) when the court allowed the appellee's experts to answer improper hypothetical questions;

(v) when Judge Barrick presented in an incorrect manner the special issues which were submitted to the jury.

We shall discuss these arguments in order but let us state at the outset that we find no reversible error was committed.

(i)

Mrs. Kruszewski's first contention is that the trial court erred when it permitted the defense to cross-examine a witness for the purpose of showing his possible bias while arbitrarily denying her this same right. Specifically, appellant argues that though counsel for Dr. Holz, over objection, had been allowed to extensively interrogate her witness, Dr. Jorgenson, concerning his recent participation in several malpractice cases, this same leeway was not extended to her when she sought to question Dr. Thomas, a defense witness, about his previously being a party to a malpractice suit in which appellee's counsel was his attorney. It is claimed that these two rulings in combination constituted an abuse of discretion. It is well settled law in this State that exploratory questions on cross-examination are proper when they are designed to affect a witness' credibility, test his memory or exhibit bias. Shupe v. State, 238 Md. 307, 311, 208 A.2d 590 (1965); Kantor v. Ash, 215 Md. 285, 290, 137 A.2d 661 (1958); Ager v. Baltimore Transit Co., 213 Md. 414, 427-428, 132 A.2d 469 (1957). But it is recognized that the scope, range and extent of such interrogation rests in the sound discretion of the trial court. Shields v. State, 257 Md. 384, 392, 263 A.2d 565 (1970); Ridgeway Shopping Center, Inc. v. Seidman, 243 Md. 358, 364, 221 A.2d 393 (1966); Mezzanotte Const. Co. v. Gibons, 219 Md. 178, 181, 148 A.2d 399 (1959). Here, it was unnecessary for Dr. Thomas to be further questioned in order to demonstrate his prejudice in favor of appellee. The jury was already cognizant of a possible bias since it had been shown that the two physicians were colleagues who had collaborated in the treatment of Mrs. Kruszewski. While not necessarily improper, this proffered testimony, assuming its relevancy, would merely have been cumulative. We do not find that there was an abuse of discretion when the trial court prohibited this interrogation.

(ii)

At the close of the second day of this three day trial appellant asked permission to remove an exhibit that Dr. Thomas claimed was his office record listing three of the dates and reasons he treated Mrs. Kruszewski. Appellant contends that she should have been permitted to subject this exhibit, a single note card, to scientific analysis to determine if its entries were actually made on the dates indicated. This request was apparently made in the hope that such analysis would buttress her post-operative negligence claim and discredit Dr. Thomas' testimony which tended to support appellee's contention that he was not informed...