Schwartz v. Johnson, 2556

• Decision Date: 04 September 2012
• Docket Number: Sept. Term, 2009.,No. 2556,2556
• Citation: 206 Md.App. 458,49 A.3d 359
• Parties: H. Jeffrey SCHWARTZ, et al. v. Arvia JOHNSON.
• Court: Court of Special Appeals of Maryland

206 Md.App. 458

49 A.3d 359

H. Jeffrey SCHWARTZ, et al.

v.Arvia JOHNSON.

No. 2556, Sept. Term, 2009.

Court of Special Appeals of Maryland.

June 27, 2012.

Reconsideration Denied Sept. 4, 2012.

Michael J. Baxter (Tara M. Clary, Baxter, Baker, Sidle, Conn & Jones, PA, on the brief), Towson, MD, for Appellant.

Stephen J. Hughes & Gregory L. Lockwood (Treanor Pope & Hughes, PA, on the brief), Towson, MD, for Appellee.

Panel: WOODWARD, HOTTEN and LAWRENCE F. RODOWSKY, (Retired, Specially Assigned).

WOODWARD, J.

This appeal arises from a medical malpractice case in which appellee, Arvia Johnson, claimed negligence against appellant, H. Jeffrey Schwartz, M.D., and vicarious liability against appellant, H. Jeffrey Schwartz, M.D., P.A. Prior to trial, Johnson filed a motion in limine to bar the introduction of informed consent evidence, which the Circuit Court for Baltimore City granted, thus excluding any evidence or mention of informed consent. The case proceeded to a five-day jury trial. During the trial, appellants objected to the testimony of Johnson's expert witness, arguing that the expert presented new opinions not previously disclosed in discovery. The trial court overruled the objection and then allowed the testimony as rebuttal evidence in response to appellants' defense theory. Appellants also made a motion to strike a juror for bias and then another motion to strike the same juror for juror misconduct; the trial court denied both motions. At the end of the trial, the jury found that Dr. Schwartz's negligence caused Johnson's injuries and awarded Johnson past medical expenses in the amount of $23,791.19 and non-economic damages in the amount of $650,000.00.

On appeal, appellants present three questions for review by this Court, which we have rephrased: ¹

1. Did the trial court err or abuse its discretion by excluding evidence that appellants advised Johnson of the risks and complications of a colonoscopy, which evidence was offered by appellants in support of its defense of assumption of the risk and of compliance with the standard of care?

2. Did the trial court abuse its discretion by refusing to strike a juror for alleged bias and misconduct?

3. Did the trial court abuse its discretion in allowing Johnson's expert witness to present an expert medical opinion as rebuttal evidence that had not been disclosed in discovery?

For the reasons set forth herein, we shall answer questions 1, 2, and 3 in the negative and thus shall affirm the judgment of the trial court.

BACKGROUND

On September 12, 2008, Johnson filed a complaint against appellants, claiming that Dr. Schwartz was negligent by “failing to properly perform the elective outpatient colonoscopy to ensure that [ ] Johnson's colon was not perforated [and] failing to employ an appropriate and careful technique.” Johnson alleged that, as a result of Dr. Schwartz's negligence, he “suffered and continues to suffer severe conscious pain and suffering, has required multiple medical treatments and surgeries to correct this condition, has ongoing symptoms of Short Bowel Syndrome which are permanent, and has otherwise been injured and damaged.” Johnson also claimed that H. Jeffrey Schwartz, P.A., was vicariously liable for Dr. Schwartz' negligence.

On October 16, 2009, Johnson filed a “Motion in Limine to Bar Introduction of Informed Consent Form or Mention of Doctrine of Informed Consent by Defendant.” Johnson argued that, because he had not pled a claim of lack of informed consent, “any testimony or documentary evidence pertaining to that issue would be legally irrelevant, and could only serve to confuse the jury on the relevant issue of [appellants'] medical and surgical negligence.” Appellants responded that evidence of informed consent was relevant to their affirmative defense of assumption of the risk, and thus “[a]t a minimum the jury should not be prevented of considering evidence supporting such a defense.” On November 2, 2009, the trial court granted Johnson's motion in limine.

A five-day jury trial was held from November 2, 2009 through November 6, 2009. Evidence was presented through the testimony of Dr. Schwartz, Dr. Richard Dwoskin, Johnson's expert in internal medicine and gastroenterology, Johnson, Dr. Kenneth Maxwell Brown, appellants' internal medicine expert, and Dr. David Kafonek, appellants' gastroenterology expert.

On the first day of trial, appellants' counsel explained during his opening statement that “part of the dispute is, did [the injury] happen when the tip was going in and cut a hole on the way in or cut a hole on the way out with the tip or did it happen a different way; a way called bowing.” Counsel set forth appellants' theory of the case, namely that Dr. Schwartz performed the colonoscopy “correctly” and that the “tear or perforation resulted from a complication or risk called bowing.”

On the second day of trial, Dr. Dwoskin testified that, to a reasonable medical probability, he believed that Dr. Schwartz “departed from standards of care in the manner in which he performed th[e] colonoscopy on [ ] Johnson.” Specifically, Dr. Dwoskin stated that the injury to the colon was caused by “mechanical damage with the instrument itself” namely, “the tip of the colonoscope against the wall of the colon.” Later, Johnson's counsel asked Dr. Dwoskin: “[A]ssume it was a bowing injury [and not a tip injury]. If it were a bowing injury would that mean there was no negligence on the part of Dr. Schwartz?” Appellants' counsel objected, arguing (1) that, when “the doctor was deposed in this case[,] [he] offered no opinions about whether a bowing injury would or would not be a breach of the standard of care,” and (2) that Johnson's counsel had the responsibility to supplement Dr. Dwoskin's expert opinion with his opinion regarding bowing injuries, so that appellants would have had the opportunity to question him about such opinion prior to trial. Johnson's counsel responded that Johnson was not obligated to supplement Dr. Dwoskin's expert opinion, because appellants had not asked for Dr. Dwoskin's opinion on a bowing injury in an interrogatory or at deposition, and instead, had questioned Dr. Dwoskin about his opinion, which related solely to a tip injury. Johnson's counsel further argued that, regardless, “this [wa]s not a new opinion” of Dr. Dwoskin, because he “still doesn't believe this [wa]s a bowing injury,” and that “this [wa]s really rebuttal testimony,” because Dr. Dwoskin would not be available for rebuttal “after [appellants'] experts testify to say this bowing nonsense is just that.” The trial court agreed with Johnson's counsel, overruled appellants' objection, and allowed Johnson's counsel to “ask it essentially as rebuttal testimony.”

That same day, during Dr. Dwoskin's cross-examination and before the presentation of appellants' case, Alternate Juror Number 2 (“Alternate Juror 2”) passed a note to the court, which stated that Alternate Juror 2 heard Juror Number 4 (“Juror 4”) say: “I know we shouldn't discuss it, but I'm ready to finish this.” When the court questioned Alternate Juror 2 about the note, Alternate Juror 2 stated that he also heard Juror 4 also say: “He cut him, he should get paid.” Juror 4 denied having come to any conclusive opinions about the case and denied having told anyone any of his opinions about the case. Appellants' counsel moved to strike Juror 4. The court then questioned the remaining jurors; two jurors heard a juror either comment that the trial was going to take three or four days or asked why the trial was taking three or four days, but each juror stated that they were not influenced by the comment or question; the remaining jurors stated that they had not heard any such comment or question and that they had not formed any opinions about the case. Subsequently, the court denied appellants' motion to strike Juror 4.

On the fourth day of trial, during the direct examination of Dr. Kafonek, Juror 4 requested a break. At this point, appellants' counsel requested to approach the bench and expressed his concern that Juror 4 was “observed on multiple occasions” to be “nodding and his eyes looking like he's getting sleepy and ready to fall asleep.” Appellants' counsel asked that everyone “watch that as well,” but did not ask for any further relief.

During the cross examination of Dr. Kafonek, appellants' counsel again asked to approach the bench. Appellant's counsel asserted that Juror 4 had fallen asleep for the fifth time that day, had to ask for a recess, and had been “late almost everyday.” Appellants' counsel stated that he did not want a mistrial, but that he thought Juror 4 needed to be “replaced” and requested that Juror 4 be “excused.” The court denied the request, explaining that the court had observed that Juror 4 had been “particularly attenti[ve],” “very keen as to what's going on,” and “d[id]n't look anymore drowsy than anyone else looks and anymore alert than anyone else looks.”

As previously stated, at the conclusion of trial, the jury found that Dr. Schwartz was negligent and that his negligence was the cause of Johnson's injuries. The jury awarded damages to Johnson in the amount of $23,791.19 for past medical expenses and in the amount of $650,000.00 for non-economic damages.

On November 13, 2009, appellants filed a motion for new trial, which the court denied in an order entered on January 13, 2010. On January 14, 2010, appellants filed a notice of appeal to this Court. Additional facts will be set forth below as necessary to resolve the questions presented.

DISCUSSION

I.MOTION IN LIMINE REGARDING INFORMED CONSENT EVIDENCE

On October 16, 2009, Johnson filed a “Motion in Limine to Bar Introduction of Informed Consent Form or Mention of Doctrine of Informed Consent by Defendant.” Johnson argued that, because he had not “asserted a cause of action claiming violation of informed consent,” the informed consent form was “irrelevant.” He further contended that “any mention by [app...