Thimatariga v. Chambers
| Decision Date | 11 July 1980 |
| Docket Number | No. 1348,1348 |
| Citation | 46 Md.App. 260,416 A.2d 1326 |
| Parties | Manu THIMATARIGA v. Belinda C. CHAMBERS et al. |
| Court | Court of Special Appeals of Maryland |
John F. King and Frederick G. Savage, Baltimore, with whom were Anderson, Coe & King, Baltimore, on the brief, for appellant.
Marvin Ellin, Baltimore, with whom were Donald F. Oakley and Ellin & Baker, Baltimore, on the brief for appellee, Belinda C. Chambers.
Edward C. Mackie, Baltimore, with whom were Robet W. Fox and Rollins, Smalkin, Weston, Richards & Mackie, Baltimore, on the brief for appellee, Edmondson Village Medical Center, Inc.
Argued before MORTON, THOMPSON and COUCH, JJ.
The appellee, Belinda C. Chambers, brought suit in the Baltimore City Court against the appellant, Manu Thimatariga, a medical doctor, and Edmondson Village Medical Center, Inc. (Medical Center), for alleged negligence in performing a surgical operation upon Ms. Chambers during which Dr. Thimatariga removed her right Fallopian tube, her right ovary and her uterus. During the same operation he removed her left Fallopian tube and her left ovary. No complaint was made as to this phase of the operation.
Count I of the declaration claimed compensatory damages for injuries resulting from the alleged negligence and for failure to obtain Ms. Chambers' informed consent to the removal of those reproductive organs. Count II was a claim for punitive damages. At the conclusion of Ms. Chambers' case, Dr. Thimatariga's motion for a directed verdict in his favor was granted as to Count II and denied as to Count I. The Medical Center's motion for a directed verdict in its favor was granted. The jury returned a verdict in favor of Ms. Chambers in the amount of $1,500,000 which was reduced by the trial judge to $1,200,000.
The record indicates that on December 16, 1975, appellee visited the Medical Center to seek an abortion. At the time she was a twenty-five year old, unmarried mother of two boys. After going through certain routine procedures conducted in the Medical Center, she was introduced to the appellant. After reviewing the history she had given and examining her, he performed the abortion by dilatation and curettage (D&C), a procedure, according to appellant's brief, "that involves suctioning out the contents of the uterus through a vacuum tube." Tissue obtained from the uterus was compatible with the size of a four to six week's fetus, according to Dr. Thimatariga.
On December 26, 1975, the appellee returned to the Medical Center and was examined by the appellant. He was of the opinion that the abdominal pains and cramps she complained of were caused by a cyst upon her left ovary and he scheduled her for an operation on January 6, 1976, to remove the cyst.
On January 3, 1976, according to the appellee, she was suffering severe abdominal pains to an extent that She endeavored to contact the appellant by telephone and finally reached him about 1 a.m. on January 4, 1976. He advised her to go immediately to the emergency room of the Lutheran Hospital and he agreed to meet her there. The hospital records indicate she was transferred from the emergency room and formally admitted as an in-patient at 3:30 a.m. She was taken to the operating room about 9 a.m. and there the operation was performed by the appellant.
As he proceeded with the operation, according to the appellant, he observed that her left Fallopian tube had ruptured as a result of a tubal pregnancy and her left ovary had a large cyst. He removed both the left tube and the left ovary. Appellant further testified that in his opinion the condition of the right tube and the right ovary was such that the appellee would never be able to conceive a child and he decided it would be good surgical practice to remove them at that time. He thereupon removed the right tube, the right ovary and the uterus.
The appellee testified that after the operation she was She then went on to state: She further testified that "he told me that I had had a pregnancy in one tube and the other tube was badly infected, and then he told me that I shouldn't discuss this type of operation because most people don't understand it." When the appellee was asked: "(D)id you ever at any time before this operation was performed, either verbally or in writing, ever authorize Dr. Thimatariga to remove your reproductive organs?," she replied:
On the other hand, the appellant testified that when he got to the hospital he immediately went to see the appellee and discussed with her the necessity for surgery and the possible need to remove all her reproductive organs. The appellee conceded that she signed some forms before the operation, but stated that
Testifying on behalf of the appellee, Dr. Marshall Klavan, an obstetrician and gynecologist, and Dr. John W. Combs, a pathologist, were of the opinion that appellant acted negligently in failing to have certain tests made in the course of his examination of the appellee on December 26, 1975. They testified that had the tests been made the results would have apprised the appellant that the abortion procedure he performed on that date could not have been successful. The tests would have indicated that the fetus was in appellee's Fallopian tube rather than in her uterus.
They testified further that the right Fallopian tube, the right ovary and the uterus were normal based upon their review of the pathology results. They asserted that had the right tube, the right ovary and the uterus not been removed, the appellee would have been able to bear more children. They pointed out that the loss of estrogen from her ovaries would cause the appellee to undergo physical changes, although the use of Premarin would minimize such changes. They did say that the use of Premarin increased the risk of breast cancer, gall bladder diseases and caused thickening of the blood.
On behalf of the appellant, Dr. James Donald Woodruff, the author of a textbook on gynecologic pathology, testified that because of the condition of the right tube and right ovary, which he observed during his examination of the pathology slides, the appellant had acted in accordance with accepted medical standards when he removed the right tube, the right ovary and the uterus.
Dr. Firooz Beheshti testified on behalf of the appellant and said he was the pathologist at Lutheran Hospital who examined the tissues of the appellee after the operation on January 4, 1976. In his original report, he found that the appellee's right tube and right ovary, which had just been surgically removed by the appellant, were normal. In March of 1978, which was after suit had been filed by the appellee, he was asked by appellant to review his original findings. Dr. Beheshti testified that after reviewing his original report he discovered he was in error in finding that the appellee's right tube and right ovary were normal. In fact, he stated, his subsequent findings indicated evidence of chronic pelvic inflammation of the right tube and right ovary.
Dr. Frank Baker, called by the defense, testified that it was not normal practice to conduct the tests which appellee's expert witnesses said should have been performed at the time of her examination by the appellant on December 26, 1975. Based on the hospital records, the Medical Center records and appellant's records, as well as the testimony of Dr. Beheshti, he was of the opinion that the removal of the right tube and the right ovary and the uterus was within the acceptable standards of medical care.
In his brief the appellant raises eight issues which we shall address in the order they were presented.
It is first contended that the comments of appellee's counsel in his opening statement were so prejudicial that it was error to deny appellant's motion for a mistrial.
It appears that in the course of his opening statement, counsel for appellee advised the jury that since the suit against appellant had been filed, "there has been an effort to cover up facts"; that counsel for appellant had gotten expert medical witnesses to persuade the hospital to send them the pathology slides of the appellee, although the appellee never gave her consent to their transmission to the experts; and that such conduct was contrary to Maryland law. Appellant's counsel then objected and all counsel approached the bench where appellant's counsel asked for a mistrial on the ground that he had been accused in front of the jury of committing a crime. After considerable discussion the trial judge announced that he did not think
While we think that the course of conduct followed by counsel for appellee in this regard approached the borders of unfairness and prejudicial misconduct, we are not prepared to say that the trial judge, who had the feel of the courtroom atmosphere at the time, abused his judicial discretion in denying appellant's motion for a mistrial. See Bailey v. Wray, 230 Md. 359, 362-63, 187 A.2d 101 (1963).
Prior to the giving of the opening statements, the trial judge had advised the jury:
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