State to Use and Benefit of Miles v. Brainin

• Decision Date: 17 January 1961
• Docket Number: No. 100,100
• Citation: 167 A.2d 117,224 Md. 156,88 A.L.R.2d 1178
• Parties: , 88 A.L.R.2d 1178 STATE of Maryland, to Use and Benefit of William M. MILES et al., v. William E. BRAININ, M.D.
• Court: Maryland Court of Appeals

Page 156

224 Md. 156

167 A.2d 117, 88 A.L.R.2d 1178

STATE of Maryland, to Use and Benefit of William M. MILES et al., v. William E. BRAININ, M.D.

No. 100.

Court of Appeals of Maryland.

Jan. 17, 1961.

James E. Hogan, Washington, D. C. (Arthur J. Hilland, Rockville, on the brief), for appellants.

Arthur V. Butler, Washington, D. C. (Welch, Daily & Welch, J. Harry Welch, H. Mason Welch and J. Joseph Barse, Washington, D. C., on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

Claiming error in rulings on the admissibility of evidence in a wrongful death action for alleged malpractice, the equitable plaintiffs below (William M. Miles, et al., the husband and children of Lucy M. Miles, deceased, the appellants here) appealed from the direction by the trial court of a verdict in favor of the defendant (William E. Brainin, M. D., the appellee).

The action was based on the following circumstances:

In April of 1956, the deceased, a woman in her late fifties, after having previously enjoyed excellent health, began losing weight and developed excessive thirst accompanied by excessive urination. On May 31, 1956, she suffered a severe attack of the illness and was rushed to the office of the defendant. The doctor who ordered the patient to bed and visited her at home on the two following days, concluded that the patient apparently had had a virus infection. She recovered and remained comparatively well until December of 1956 when she was again stricken. Dr. Brainin treated her again and reached the same diagnosis as before. Thereafter, in February and March of 1957, the patient suffered similar attacks, the latter of which caused the doctor to order her to a hospital, where she died on March 7, of what was described in the death certificate as 'diabetic coma and viral enteritis.' No autopsy was performed apparently because of family opposition.

The suit was filed on the theory that Dr. Brainin was negligent in failing to diagnose the disease as diabetes until it was too late to alleviate it by the administration of insulin injections. The defense was that the attending physician did not know, and had no reason to know, the true nature of the disease until less than twenty-four hours before death, and that when he did discover the diabetic condition, he immediately prescribed insulin in a vain attempt to save the life of the patient. Dr. Brainin denied that he had ever been informed of the symptoms of weight loss and excessive thirst and urination; a denial the plaintiffs sought to contradict with evidence, excluded below, to the effect that both the husband and a daughter were present when the patient told the doctor of the symptoms which the plaintiffs say are generally recognized as indicative of diabetes in a woman of the age of the deceased.

The bases for the several assignments of error will be stated as each claim is hereinafter considered.

(i)

The first assignment of error involves a construction of Code (1957), Art. 35, § 9, which in pertinent part provides: [A]ny party may call as a witness any adverse party * * * and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party.'

Dr. Brainin, who was called as an adverse witness by the plaintiffs pursuant to the statute, was asked what were the usual symptoms of diabetes. When an objection on his part was overruled, the defendant testified that the symptoms were excessive thirst, excessive urination and loss of weight. Following the answer, counsel for the defendant requested, and was granted, a conference with the court. As a result the trial court reversed its prior ruling, ordered the answer stricken and limited the scope of examination to factual questions. Objections to all succeeding questions seeking to elicit the expert knowledge of the defendant as to the issues involved were likewise sustained. The effect of these rulings was to hold that § 9 does not allow an examining party to elicit any expert testimony from an adverse witness.

On the problem presented, there is a dearth of authority elsewhere and there is none directly on point in Maryland. Moreover, there are divergent opinions on the question in malpractice cases. In some jurisdictions, when a defendant doctor is called by the plaintiff as an adverse witness for cross-examination, he may be used as a medical expert. In other jurisdictions, the plaintiff is limited to eliciting facts and the doctor may not be required to give an expert opinion. See 98 C.J.S. Witnesses § 367. In 4 Jones, Evidence, § 927, the author states positively that the adverse party may not be subjected to an examination as an expert witness, citing Hunder v. Rindlaub, 1931, 61 N.D. 389, 237 N.W. 915, a case characterized in 3 Wigmore, Evidence (3rd ed.), § 916, as being 'unsound.'

A careful examination of the cases in other jurisdictions, and the several statutes construed by the courts in deciding them, leads us to the conclusion that the ruling of the lower court was erroneous. The defendant cites cases ¹ from at least four jurisdictions holding--under the particular 'adverse witness' statutes there involved--that an adverse party may be examined as if he were under cross-examination, but may not be requested to express an opinion based on his expert knowledge. However, the local statutes under consideration in the cases referred to were, without exception, much narrower in scope than the statute (§ 9 of Art. 35) in this State, ² and we decline to follow the reasons adduced for the conclusions reached in these decisions.

On the contrary, in Lawless v. Calaway, 1949, 24 Cal.2d 81, 147 P.2d 604, the Supreme Court of California, in a well reasoned opinion, held that under the terms of the California statute (which is likewise similar to those in Ohio, Idaho and New Jersey referred to in the second footnote) a party could be examined to the extent of the knowledge he actually possessed. The Court said at page 609 of 147 P.2d:

'Neither the letter nor the spirit of the statute [§ 2055 of the California Code of Civil Procedure] suggests any reason why the defendant in such an action [a malpractice suit] should not be examined with regard to the standard of skill and care ordinarily exercised * * * under like circumstances and with respect to whether his conduct conformed thereto. We are of the opinion that such examination should be permitted under * * * [the statute] even though it calls for expert testimony.'

We think the reasoning in the Lawless case is persuasive. The obvious purpose of 'adverse witness' statutes is to permit the production in each case of all pertinent and relevant evidence that is available from the parties to the action. Furthermore, it seems plain that the statute in this State is broad enough to encompass whatever expert knowledge the party called as an adverse witness may possess. That this is the case is further buttressed by the striking similarity between the provisions of our statute and Rule 43(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Under that rule, in cases involving pretrial depositions, the federal cases require the deponent to answer questions involving expert testimony. See Russo v. Merck & Co., D.C.R.I.1957, 21 F.R.D. 237 and Broadway & Ninety-Sixth Street Realty Company v. Loews, Inc., D.C.S.D.N.Y.1958, 21 F.R.D. 347.

We conclude that the questions asked of Dr. Brainin by the plaintiffs were proper even though an answer would involve the expertise of the witness. A contrary holding would only tend to introduce another artificial distinction in the evidentiary rules of this State that should not be countenanced.

(ii)

When the trial court refused to allow Dr. Brainin to answer any question framed to elicit such expert knowledge as he had, the plaintiffs were without a medical expert to establish the fact that the symptoms displayed by the deceased were those of a diabetic. While the record is clear that the plaintiffs intended to rely only on Dr. Brainin's own testimony to furnish the requisite evidence, it is equally certain that they had no intention of foreclosing their right to call another medical expert should it become necessary. Consequently, when the ruling of the court made the defendant's expertise unavailable to them, the plaintiffs promptly procured Dr. Belden R. Reap to give the necessary medical testimony. But when he was called, the defendant objected to his use as an expert on two grounds. First, because the plaintiffs before trial had stated that they intended to use only the testimony of the defendant, and, second, because the plaintiffs had failed to answer all of the interrogatories submitted by the defendant. The court, in ruling that the plaintiffs had lost their opportunity to call another medical expert, sustained the objection on the first ground suggested by the defendant. The second ground was clearly tenuous and the first likewise lacked substance as the colloquy between counsel for both parties and the court clearly demonstrated. An analysis of the colloquy makes it fairly certain that the plaintiffs never intended to completely foreclose their right to produce other expert medical testimony than that of the defendant. In response to a question from the bench earlier in the trial as to whether the plaintiffs were going to call other medical witnesses--even though pressed by defense counsel to make an immediate decision and the thought of the court that a straightforward answer ought to be given forthwith--counsel for the plaintiffs consistently maintained that whether he would call another medical expert would 'depend on how the case developed' and what he could do 'about other testimony.' He did not want to foreclose his clients 'from that opportunity.' At that time he did not think it would 'be necessary, but it [might] become necessary'; his clients had 'not consulted any medical...