Mahler v. Johns Hopkins

• Decision Date: 12 September 2006
• Docket Number: No. 578, September Term, 2005.,578, September Term, 2005.
• Citation: 907 A.2d 276,170 Md. App. 293
• Parties: Mark MAHLER v. The JOHNS HOPKINS HOSPITAL, INC.
• Court: Court of Special Appeals of Maryland

907 A.2d 276

170 Md. App. 293

Mark MAHLER v. The JOHNS HOPKINS HOSPITAL, INC.

No. 578, September Term, 2005.

Court of Special Appeals of Maryland.

September 12, 2006.

COPYRIGHT MATERIAL OMITTED

Alan J. Belsky, Baltimore, for appellant.

Anthony J. Breschi, Towson, for appellee.

Panel KRAUSER, BARBERA, CHARLES E. MOYLAN, JR. (Retired, specially assigned), JJ.

KRAUSER, J.

Appellant, Mark Mahler, underwent elective plastic surgery to improve the appearance of his chin. The surgery was performed by Anthony Tufaro, M.D., at The Johns Hopkins Hospital. As a result of that surgery, his lower lip purportedly "dropped," and he now experiences numbness in his chin.

Appellant claims that Dr. Tufaro never disclosed the material risks of the surgery to him, and, based on that claim, he brought suit against appellee, The Johns Hopkins Hospital, Inc. ("Johns Hopkins") in the Circuit Court for Baltimore City. Two consecutive trials ensued. After the first ended in a judgment in favor of appellant, a new trial was granted when appellant rejected a remittitur proposed by the circuit court. After the second trial ended in a hung jury, the circuit court granted Johns Hopkins's motion for judgment notwithstanding the verdict (JNOV), prompting this appeal.¹

Appellant presents four questions for our review. Reordered to facilitate analysis, they are:

I. Did the circuit court err in failing to allow appellant to designate a treating physician as an expert in the second trial after his expert in the first trial was excluded on qualification grounds?

II. Did the circuit court err in granting a judgment notwithstanding the verdict in appellant's informed consent case in light of the trial evidence presented by appellant?

III. Did the circuit court abuse its discretion in denying appellant a new trial which was based on appellant's inability to present to the jury expert testimony on essential elements of his informed consent case?

IV. Did the circuit court err in failing to afford appellant the opportunity to read into the record the trial testimony of Barry M. Zide, M.D. on the basis of his unavailability pursuant to Maryland Rule 5-804?

For the reasons set forth below, we hold that the circuit court did not abuse its discretion in prohibiting appellant from designating a new expert witness in the second trial but that it did err in granting Johns Hopkins's motion for a JNOV. Accordingly, we vacate the circuit court's judgment and remand this case to that court for a new trial.

BACKGROUND

In 1993, appellant, then twenty-six years old, underwent a chin augmentation surgery, performed by Steven Denenberg, M.D., during which a chin implant was inserted into his lower jaw. Two years later, liposuction was performed on his neck.² The next year, appellant consulted with Paul Manson, M.D., a plastic surgeon at The Johns Hopkins Hospital, seeking, according to Dr. Manson, "improvement in neck redundancy and improvement in the appearance of his chin." Although Dr. Manson concluded that appellant was "not a candidate for any revisional procedure on either the chin or the neck," he referred appellant to Anthony Tufaro, M.D.

When appellant met with Dr. Tufaro, Tufaro outlined four possible procedures: sliding genioplasty, platysma plication, removal of appellant's chin implant, and insertion of cheek implants. He recommended a sliding genioplasty coupled with the removal of appellant's chin implant and the placement of cheek implants. A "sliding genioplasty" involves cutting the patient's mandible in half horizontally with a reciprocating saw and separating the halves. The lower section is then moved down or forward or a combination of both to achieve the desired change in jaw appearance. Hydroxylapatite is used to fill any gaps between the two halves of the patient's mandible, and the halves are then screwed together. During that visit and those that followed, appellant was accompanied by his friend, Frances Bloom.

When appellant and Ms. Bloom next met with Dr. Tufaro to discuss undergoing the sliding genioplasty, appellant brought with him a list of approximately thirty questions about the procedure. After discussing the questions with Dr. Tufaro, he was given a consent form by the doctor. Appellant read the consent form, discussed its contents with Dr. Tufaro, and then signed it. That form warned of the major risks of the operation, stating, in part:

MAJOR RISKS OF THE OPERATION OR OTHER PROCEDURE AND ANESTHESIA (including such items as failure to obtain the desired result, discomfort, injury, additional therapy and death):

Bleeding. Infection. Loss of implant. Change in sensation (Numbness).

(Italics indicates handwritten).

On May 28, 1997, Dr. Tufaro performed the sliding genioplasty; at that time, he removed appellant's chin implant and inserted cheek implants. Approximately a week later, appellant returned to Dr. Tufaro's office to have his bandages removed. According to appellant, after the bandages were removed, he discovered that he was not able to close his mouth, that he drooled, and that his lower lip had dropped. Dr. Tufaro asserted that he just needed to "heal" and that he would be "fine." When, on June 17, 1997, appellant complained that his lower lip had dropped further, Dr. Tufaro told him to massage the area and assured him once again that he would be "fine."

Appellant nonetheless telephoned Dr. Manson and told him that his lip had dropped and that he was having trouble with a cheek implant. On July 9, 1997, appellant saw Dr. Manson and, according to the doctor's report, "express[ed] disappointment in the appearance of his chin and the appearance of his lip." Because appellant was still healing from the surgery, Dr. Manson advised appellant to wait several months to see if matters would improve. On September 15, 1997, appellant returned to Dr. Manson complaining that his right cheek implant was bothering him and that his lip was not as prominent as it had been before the surgery. That day, Dr. Manson surgically removed appellant's right cheek implant.

In late December 1997, appellant saw Dr. Manson again. Although Dr. Manson found that his lip was "better than it was previously," appellant complained that he wanted his chin moved further forward. In his notes of that consultation, Dr. Manson wrote, "I am not sure if any further intervention is indicated and [appellant] was so advised. I personally would have difficulty doing it and feel that he probably should wait before having anything done." On December 29, 1997, Dr. Manson performed surgery on appellant to improve his lower lip position and appearance. He reattached appellant's mentalis muscle and performed a "V-Y advancement of mucosa." He also inserted a small chin implant to improve appellant's appearance.

On January 14, 1998, appellant again saw Dr. Manson, complaining about the position of his chin. At that time, Dr. Manson recorded in his notes that he found appellant's lip position "satisfactory." Fourteen days later, appellant returned, complaining that the right side of his lower lip was drooping; Dr. Manson wrote in his notes, however, that appellant's lip was "of almost normal posture" and that he recommended that several more months elapse before he underwent further treatment.

After several more consultations with Dr. Manson to discuss his chin and lower lip, appellant sought treatment from Louis Belinfante, D.D.S. On May 26, 1998, Dr. Belinfante surgically removed the Hydroxylapatite that had been inserted during appellant's sliding genioplasty procedure.

On July 22, 2003, between the first and second trial, appellant saw Bruce Epker, D.D.S., who, according to his notes, found that appellant had a "fair[ly] classic case of mentalis muscle inferior positioning with lip incompetence." On October 7, 2003, a year before the second trial, appellant underwent surgery performed by Dr. Epker to correct the ptosis³ of his lower lip.

PROCEDURAL HISTORY

On August 27, 2001, appellant filed a complaint in the Circuit Court for Baltimore City against Johns Hopkins, alleging that he had not been told of all of the material risks of the sliding genioplasty and that, if he had been, he would not have gone through with the surgery. Johns Hopkins filed an answer denying liability and pleading the affirmative defenses of assumption of risk, contributory negligence, statute of limitations, and charitable immunity. On September 14, 2001, appellant amended his complaint by changing the relief requested from two million dollars to an amount "in excess of the required jurisdictional amount."

On September 18, 2001, the circuit court entered a pre-trial scheduling order requiring that appellant designate any expert witnesses by December 19, 2001; that Johns Hopkins designate any expert witnesses by March 20, 2002; and that appellant designate any rebuttal expert witnesses by April 20, 2002. On December 20, 2001, appellant designated Daniel Wilkerson, M.D., as an expert witness. According to that designation, which was filed with the court, Dr. Wilkerson was going to testify that Johns Hopkins breached its duty of care "to adequately inform [appellant] of the risks associated with removal of the alloplastic chin implant" performed by Dr. Tufaro. Appellant did not designate any other expert witnesses.

Trial commenced on May 5, 2003, in the circuit court before the Honorable Allen Schwait.⁴ At that trial, the court refused to qualify Dr. Wilkerson as an expert witness, thus leaving appellant without an expert witness to testify as to the risks of a sliding genioplasty. Fortunately for appellant, he was able to extract that information from Johns Hopkins's expert, Dr. Barry Zide, during his case.

The first trial ended in a verdict for appellant and an award of $50,000 in economic damages and $500,000 in non-economic damages. Two days after the verdict, Johns Hopkins filed "Defendant's Motion for a New Trial and/or Remittitur."

After argument on Johns...