Sabatier v. State Farm Mut. Auto. Ins. Co.

• Citation: 592 A.2d 1098,323 Md. 232
• Decision Date: 01 September 1990
• Docket Number: No. 106,106
• Parties: , 60 USLW 2082 Henry S. SABATIER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al. ,
• Court: Maryland Court of Appeals

Page 232

323 Md. 232

592 A.2d 1098, 60 USLW 2082

Henry S. SABATIER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.

No. 106, Sept. Term, 1990.

Court of Appeals of Maryland.

July 23, 1991.

Richard D. Rosenthal, Baltimore, for petitioner.

Leonard C. Redmond, III (Louise McB. Simpson, Redmond, Cherry & Burgin, P.A., Baltimore, Steven C. McAliley, West Palm Beach, Fla.), all on brief, for respondents. Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (retired), specially assigned.

MURPHY, Chief Judge.

The primary question presented is whether thermography is a valid diagnostic tool for medical use in the diagnosis and treatment of musculoligamentous injuries, musculoskeletal disease, or nerve root impingement and is therefore compensable as a "necessary" medical service within the coverage of Maryland Code (1991 Repl.Vol.), Article 48A, § 539 (the Personal Injury Protection or PIP statute). This section of the Maryland Insurance Code provides that, unless waived by the insured, every policy of motor vehicle liability insurance shall afford, inter alia, medical benefits for the named insured and family members residing in the household who are injured in an automobile accident. The medical benefits under this section are in an amount up to $2,500, and must be for "reasonable" expenses for "[n]ecessary medical ... services."

I.

Dr. Henry S. Sabatier, a physician licensed to practice in Maryland, sued State Farm Mutual Automobile Insurance Company in the District Court, sitting in Baltimore City, to recover for thermography services rendered to a number of State Farm's policyholders who were covered for PIP medical benefits. ¹ State Farm denied payment, claiming that thermography examinations in the diagnosis and treatment of musculoligamentous injuries, musculoskeletal disease and/or nerve root impingement, as performed by Dr. Sabatier, were not necessary medical treatments as defined in § 539 and, therefore, were not reimbursable under the PIP statute. Upon demand for a jury trial filed by State Farm, the cases were removed to the Circuit Court for Baltimore City. Subsequently, State Farm filed a counterclaim seeking a declaratory judgment that the services in question were not within the coverage of § 539. ²

By order dated September 14, 1989, the trial court bifurcated the issues before it. The order provided that the "threshold issue [concerned] the validity of [the] thermographic examinations" performed by Dr. Sabatier and that this issue would be decided in a separate trial. The order further provided "that only in the event that this court determines that thermography is valid ... shall the other issues presented by this case be tried." The court said that if validity is shown by a preponderance of the evidence, it would then consider thermography in the context of the "reasonable and necessary" language of § 539.

At the trial, evidence was adduced that clinical thermography is a medical diagnostic technique that measures and maps infrared radiation emanating from the skin surface to show skin temperature. There was evidence that in a normal patient's thermogram, one side of the patient's body will match the other side, reflecting a symmetry of temperature, while patients with an injury or pathology will show an asymmetrical measurement of the injured body part with its corresponding side. Eleven medical expert witnesses testified and approximately 200 exhibits were received in evidence. The proponents of thermography testified that it is a reliable, objective, non-invasive diagnostic test, while its detractors testified that it is virtually useless as a diagnostic aid.

The court made detailed factual findings from the evidence before it. In weighing the validity of thermography, the court followed the criteria for admissibility of scientific evidence as articulated under the so-called Frye- Reed test. While noting that this standard governed the admissibility of scientific evidence in criminal cases, the court nevertheless found it to be instructive in the present case. It explained that Frye v. United States, 293 F. 1013 (D.C.Cir.1923), held "that expert testimony on the proof of scientific results would not be admitted in criminal cases unless the underlying principle was 'sufficiently established to have gained general acceptance in the particular field in which it belongs.' " Frye, supra, 293 F. at 1014. The court noted that this Court later adopted the Frye test in Reed v. State, 283 Md. 374, 391 A.2d 364 (1978), a criminal case involving the admissibility of spectrograms, commonly described as "voiceprints."

Relying upon Windmere, Inc. v. International Ins. Co., 105 N.J. 373, 379, 522 A.2d 405 (1987), the trial court looked to three sources to determine the general acceptability required under the Frye- Reed standard. It first considered the expert witness testimony. It then reviewed the scientific literature presented at trial. Finally, it evaluated other persuasive judicial authority that considered the general acceptability of thermography.

As to the expert testimony, the court concluded:

"The testimony presented favors the defendants under the Reed/ Frye general acceptability standard.... The defendants established (and the plaintiffs concurred) that thermography was not widely accepted within the relevant medical community. Moreover, through a preponderance of the evidence, the testimony offered by the defendants' experts was of greater persuasive value. Thus, under the Reed/ Frye test, the first leg of the analysis, the expert testimony, is satisfied. Second, even without Reed/ Frye, the balance of the evidence presented by the witnesses decisively favors the defendants."

The court further found:

"The general acceptability of thermography is not demonstrated by the available scientific literature. Plaintiff has offered some evidence of valid testing. However, because the testing was outside reliable protocol ..., the results are suspect. The testing offered by the defendants, while certainly not conclusive, has the benefit of a measure of objectivity. As such, this literature is afforded greater weight."

Finally, after considering the relevant judicial decisions of other jurisdictions, the court stated that

"the opportunity to consider thermography has not arisen for the majority of states. The few jurisdictions that have adjudicated the issue of admissibility of thermography are split. Thus, the persuasive value of these cases, within the Windmere parameters, is inconclusive as a result."

Based on these findings, the court concluded:

"[T]hermography, as a medical diagnostic procedure for the treatment of musculoligamentous injuries, musculoskeletal disease and nerve root impingement, is an invalid medical procedure. Pursuant to a review of the relevant evidentiary standards as presented at trial, this Court finds that the plaintiff has failed to meet his threshold burden of validity. Accordingly, this Court does not reach the questions of whether thermography, under Section 539, is a necessary service or involves a reasonable expense."

Dr. Sabatier appealed to the Court of Special Appeals. We granted certiorari prior to consideration of the case by the intermediate appellate court to consider the significant issue of public importance presented in the case.

II.

Dr. Sabatier contends that the Frye- Reed standard for determining the admissibility of scientific evidence in a criminal case is not an appropriate standard by which to ascertain whether a particular diagnostic technique is fundamentally valid and constitutes a reasonable and necessary medical procedure compensable under § 539. He argues that the standard of proof as to the medical efficacy of thermography as a diagnostic test ought to be reasonable medical proof by medical practitioners. Specifically, he suggests that this Court adopt a standard which gives credence to the acceptance of a medical procedure by physicians who are (1) trained and knowledgeable in the procedure, its intended use and clinical benefit; (2) familiar with the literature and procedure; and (3) accepted by sufficient physicians utilizing the procedure so as to demonstrate that said procedure has probative medical value and efficacy. Dr. Sabatier, alternatively, suggests that even if the Frye- Reed test is applicable, the evidence is sufficient to satisfy that standard. He also contends that the lower court improperly discredited the testimony of his expert witnesses based on their personal and financial stake in the use of thermography. Moreover, he says that the fact that State Farm's witnesses were not trained and skilled in the clinical use of thermography entitles their testimony to little weight.

State Farm maintains that the trial court's reliance on the Frye- Reed test was appropriate. It asserts that while this standard is typically applied in an evidentiary context, its purpose--the determination of whether a scientific technique is of such general acceptance as to permit the trier of fact to rely upon it in resolving an issue before it--coincides with its fact-finding function in the present case. State Farm further argues that adoption of Dr. Sabatier's test, with its reliance upon the views of only those practitioners who utilize a procedure, rather than establishing any sort of objective standard of general acceptance, provides an almost fool-proof means of establishing validity. Thus, it urges that failure to consider the testimony of knowledgeable experts who do not utilize the procedure is to limit the court's determination to those with only favorable views as to a technique's purported validity.

III.

In a forty-one page memorandum opinion supporting its resolution of the case, the trial court (Kaplan, J.) chronicled the evidence adduced before it. It first observed that, as early as 1938, researchers recognized...