Radman v. Harold, 34

Citation367 A.2d 472,279 Md. 167
Decision Date07 January 1977
Docket NumberNo. 34,34
PartiesH. Melvin RADMAN v. Mary F. HAROLD et vir.
CourtCourt of Appeals of Maryland

John H. Bolgiano, Baltimore (Smith, Somerville & Case, Baltimore, on the brief), for appellant.

Richard B. Jacobs, Baltimore (Joseph F. Lentz, Jr., Baltimore, on the brief), for appellees.


DIGGES, Judge.

In this medical malpractice case, we must determine the propriety of the trial court's refusal to permit an expert witness to express an opinion regarding the manner in which the defendant surgeon rendered his professional services. We conclude that, although the qualitification of an expert witness ordinarily is a matter within the sound discretion of the trial court, because the judge here applied an erroneous legal standard in excluding the witness' testimony, the judgment was properly reversed by the Court of Special Appeals.

In the autumn of 1970, petitioner H. Melvin Radman, M.D., a gynecologist and surgeon, performed a total abdominal hysterectomy upon respondent Mary F. Harold at the Sinai Hospital in Baltimore. During the course of the operation, Dr. Radman unintentionally knicked the patient's bladder, and upon observing this condition, attempted to repair it. This procedure, however, was unsuccessful, and the following week, the petitioner again operated to repair the damaged area, but this endeavor also failed. It was not until April of 1971, when Mrs. Harold re-entered the hospital and underwent a third operation-this time by the petitioner together with Dr. Stephen Cohen, a urologist-that the problem was finally eliminated. Nearly three years after the hysterectomy, Mrs. Harold and her husband initiated this malpractice suit against Dr. Radman, alleging that during the operation he negligently punctured his patient's bladder. At trial in May of 1975, before Judge Anselm Sodaro and a jury in the Baltimore City Court, Mrs. Harold proffered Harold L. Hirsh, M.D., an internal medicine specialist, as an expert witness qualified to express an opinion as to the standard of care required of a surgeon in the performance of a hysterectomy. The trial court, however, ruled that Dr. Hirsh did not have the necessary qualifications to express such an opinion. Other than this witness' excluded testimony, the plaintiffs failed to produce any evidence tending to support their claim of Dr. Radman's negligence, and at the close of their case, the court directed a verdict for the defendant. When the Harolds' motion for a new trial was denied and a final judgment was entered, the plaintiffs noted an appeal to the Court of Special Appeals. That court, though recognizing that the qualification of an expert witness rests largely in the discretion of the trial court, nonetheless concluded that in this case the failure of the court to permit Dr. Hirsh to render an opinion constituted an abuse of its discretion. Accordingly, it reversed the judgment and ordered a new trial. Harold v. Radman, 31 Md.App. 184, 355 A.2d 477 (1976).

We begin our consideration of this case by examining the standards which we conclude should control the exercise of a trial court's discretion in its determination of whether a witness is qualified to express an expert opinion. Although this Court has never been faced with this issue in the context of a medical malpractice case, 1 our earlier decisions in other areas provide support for the view that a witness may be competent to express an expert opinion if he is reasonably familiar with the subject under investigation, regardless of whether this special knowledge is based upon professional training, observation, actual experience, or any combination of these factors. The classic formulation of this Court's views on the subject of the qualification of experts appears in Casualty Ins. Co. v. Messenger, 181 Md. 295, 298-99, 29 A.2d 653, 655 (1943), wherein it is stated:

It is a familiar rule of evidence that a witness, in order to qualify as an expert, should have such special knowledge of the subject on which he is to testify that he can give the jury assistance in solving a problem for which their equipment of average knowledge is inadequate. It is sufficient if the court is satisfied that the expert has in some way gained such experience in the matter as would entitle his evidence to credit. Wilson v. State, 181 Md. 1, 26 A.2d 770, 773. It is not a ground for excluding the testimony of an expert that he bases his statements in whole or in part upon what he has read, provided that his reading can be assumed to constitute part of his general knowledge adequate to enable him to form a reasonable opinion of his own. A witness is qualified to testify as an expert when he exhibits such a degree of knowledge as to make it appear that his opinion is of some value, whether such knowledge has been gained from observation or experience, standard books, maps of recognized authority, or any other reliable sources. The knowledge of an expert in any science or art would be extremely limited if it extended no further than inferences from happenings within his own experience. His testimony is admitted because it is based on his special knowledge derived not only from his own experience, but also from the experiments and reasoning of others, communicated by personal association or through books or other sources.

See Raitt v. Johns Hopkins Hospital, 274 Md. 489, 500-01, 336 A.2d 90, 96 (1975); Scott v. Hampshire, Inc., 246 Md. 171, 176-77, 227 A.2d 751, 754 (1967) (citing cases). See generally 2 Jones on Evidence § 14:12 (6th ed. S. Gard 1972); McCormick on Evidence § 13 (2d ed. E. Clearly 1972); 31 Am.Jur.2d Expert and Opinion Evidence § 27 (1967). Moreover, in two cases, we have specifically noted that the mere fact that a person offered as a witness has not been personally involved in the activity about which he is to testify does not, as such, destroy his competency as an expert. In Air Lift, Ltd. v. Bd. of Co. Comm'rs, 262 Md. 368, 402, 278 A.2d 244, 261-62 (1971), we held that an experienced law enforcement officer who had never been personally involved in policing a rock festival or concert could nonetheless qualify as an expert witness and testify with respect to the security problems associated with such events. And in Rotwein v. Bogart, 227 Md. 434, 437, 177 A.2d 258, 260 (1962), our predecessors made the following observation with respect to the trial court's determination in that case that a person could not qualify as an expert unless he had engaged in the activity in question:

We do not agree entirely with the court's first reason, that the witness could not qualify as an expert in the flooring trade as he had never previously laid a floor. A witness may qualify if he possesses special and sufficient knowledge regardless of whether such knowledge was obtained from study, observation or experience. Penn., etc., Casualty Ins. Co. v. Messenger, 181 Md. 295, 29 A.2d 653. A law professor may be an expert on trial procedure even though he has never tried a case. There are many expert astronauts who have yet to make a space flight.

In light of the fact that we have never treated expert medical testimony any differently than other types of expert testimony, See Crews v. Director, 245 Md. 174, 179, 225 A.2d 436, 439 (1967); Ager v. Baltimore Transit Co., 213 Md. 414, 420, 132 A.2d 469, 472 (1957); cf. Shilkret v. Annapolis Emergency Hosp., 276 Md. 187, 190, 349 A.2d 245, 247 (1975), we perceive no reason why a person who has acquired sufficient knowledge in an area should be disqualified as a medical expert merely because he is not a specialist or merely because he has never personally performed a particular procedure. 2 Consequently, we are in substantial agreement with the reasoning of the Supreme Court of Connecticut as expressed in the following succinct statement from the recent case of Fitzmaurice v. Flynn, 167 Conn. 609, 356 A.2d 887, 892 (1975):

Recognizing the complexity of knowledge required in the various medical specialities, more than a casual familiarity with the specialty of the defendant physician is required. The witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him to give an expert opinion as to the conformity of the defendant's conduct to those particular standards, and not to the standards of the witness' particular specialty if it differs from that of the defendant. It is the scope of the witness' knowledge and not the artificial classification by title that should govern the threshhold question of admissibility.

We note that the great majority of courts in other jurisdictions which have considered the issue also have concluded that while the witness must have sufficient familiarity with the particular medical technique involved in the suit, he need not have personally performed the procedure or be a specialist in the area. See, e. g.$, Harris v. Smith, 372 F.2d 806, 813-14 (8th Cir. 1967) (presumably applying Nebraska law); Arnold v. Loose, 352 F.2d 959, 962 (3d Cir. 1965) (applying Pennsylvania law); Hunt v. Bradshaw, 251 F.2d 103, 107 (4th Cir. 1958) (applying North Carolina law); Frost v. Mayo Clinic, 304 F.Supp. 285, 288 (D.Minn.1969); Brown v. Colm, 11 Cal.3d 639, 646, 114 Cal.Rptr. 128, 132, 522 P.2d 688, 692 (1974); Copeland v. State, 58 Fla. 26, 50 So. 621, 624 (1909); Carbone v. Warburton, 11 N.J. 418, 94 A.2d 680, 683-84 (1953); Benzmiller v. Swanson, 117 N.W.2d 281, 288 (N.D.1962). But cf. Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724, 728 (1974) (surgeon qualified to testify as expert despite fact that he was unfamiliar with radiological procedures at issue). See generally 2 Jones on Evidence, supra, § 14:13; 2 J. Wigmore, Evidence § 569 (3d ed. 1940); 31 Am.Jur.2d Expert and Opinion Evidence § 106 (1967); 61 Am.Jur.2d Physicians, Surgeons,...

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