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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 00790

September Term, 1999 ___________________________________

HUGH F. HILL, III, et al. v. KEVIN H. WILSON ___________________________________ Murphy, C.J., Davis, Hollander, JJ. _________________________________ Opinion by Murphy, C.J. Dissenting Opinion by Hollander, J. ____________________________________ Filed: October 4, 2000

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In the Circuit Court for Baltimore City, Kevin Wilson, appellee, filed a medical malpractice action against Dr. Hugh Hill and Emergency Associates, Inc., appellants.1 A jury

(Hon. Thomas Noel presiding) returned a verdict in favor of appellee, and appellants now present the following questions for our review: I. Did the trial court err in permitting impeachment testimony by Dr. Hill regarding Dr. Hill's lectures and writings related to risk management and did the trial court err by denying a new trial on that basis?

II.

Did the trial court err by excluding testimony of appellants' expert witness, Dr. Orlando, regarding appellee's broken chair, because the

Appellee originally filed a claim with the Health Claims Arbitration Office, asserting that appellants and Good Samaritan Hospital of Maryland, Inc. ("Good Samaritan") were negligent during his August 30, 1994 trip to the emergency room. The complaint asserted that Dr. Hill was the agent, actual or apparent, of Emergency Physicians Associates, P.A. and Good Samaritan Hospital. The parties agreed to "opt out" of the arbitration. In the circuit court, Good Samaritan filed a Motion for Summary Judgment on the basis that appellants were not its agents. That motion was granted.

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trial court erroneously determined that the matter had not been discussed in Dr. Orlando's deposition, and did the trial court err by denying appellants' motion for a new trial?

III.

Did the trial court err by failing to grant appellants' motion for summary judgment regarding appellee's contributory negligence, and did it further err by denying appellants' motion for judgment, motion for a new trial and judgment notwithstanding the verdict on the issue?

IV.

Did the trial court err by giving a jury instruction regarding the patient's ability to rely on statements by a doctor that were not a complete statement of the law, because

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it did not state that a patient's reliance must be reasonable and justified in order for a patient to satisfy his obligation to exercise reasonable care in safeguarding his own health and safety?

For the reasons that follow, we shall answer "no" to each question and affirm the judgment of the circuit court. Factual Background Appellee has been paralyzed from the waist down since 1987. On August 30, 1994, he went to the emergency room at

Good Samaritan Hospital, complaining of nausea, cloudy urine, and an ulcer on his lower back. room physician. Dr. Hill was his emergency

According to appellee, Dr. Hill did not

inquire about the duration or history of the ulcer, did not "manually palpate or otherwise touch the ulcer," and made an incorrect diagnosis on the basis of an inadequate examination. Appellee testified that Dr. Hill merely lifted the bandage that appellee had placed on the ulcer at home, glanced at the sore and placed the bandage back on, commenting to appellee that the ulcer was "not your problem." Dr. Hill had no independent recollection of appellee's

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visit, and his testimony was based on the notes he wrote on appellee's chart at that time. According to Dr. Hill, his

examination revealed that appellee had a "large sacral ulcer without surrounding erythema," and he diagnosed appellee as suffering from a urinary tract infection. He prescribed

antibiotics to last 10 days, and instructed appellee to (1) make an appointment with a plastic surgeon "when available" for treatment of the ulcer, (2) obtain a reculture of the urine in two weeks, and (3) "see your doctor if worse." though Even

appellee's record contained no express reference to

what kind of examination was performed, Dr. Hill testified that he performed a complete evaluation of appellee because his standard practice is to perform such an evaluation. Appellee testified that he followed Dr. Hill's advice. When he got home, he made an appointment with a plastic surgeon, Dr. Orlando, whose first available appointment was two weeks away. He also took the prescribed medicine and Approximately a week

cleaned and dressed the ulcer every day.

after his emergency room visit,2 appellee noticed that an unusual odor was coming from the ulcer.3
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He returned to the

At his deposition, appellee stated that he was unsure of the exact dates. During trial, he claimed that the drainage began after the first week and that he noticed the odor on September 13th. Appellee testified that, before detecting the odor, he noticed that a clear liquid was draining from the ulcer. Because he had previous experience
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hospital on September 14, 1994. Upon his arrival, appellee was diagnosed as suffering from a severe infection,4 and was then admitted. Due to complications from the infection, above the knee amputations had to be performed on both of appellee's legs. Discussion I. Impeachment of Dr. Hill

Appellants assert that Judge Noel erred in allowing appellee's counsel to cross-examine Dr. Hill about certain of his writings and lectures.5 Dr. Hill is the author of a

chapter in a risk management manual for doctors, and has also lectured on how emergency room medical charts should be prepared and documented from a "risk management or a legal perspective." Appellants filed a Motion in Limine to prohibit

the admission of these materials, asserting that the materials were (1) not relevant, and (2) prejudicial to appellants'

with draining ulcers that were not infected, appellee realized that liquid draining from the ulcer was part of the healing process. The parties dispute the precise condition of appellee on that date; appellee asserts that he had one ulcer on the lower back, while appellants assert that appellee had two ulcers, one on the base of the spine and the other on the lumbar region of the back. Dr. Hill conceded during cross-examination that he has lectured and written on such subjects as (1) "how a careful and prudent emergency room physician should handle a patient's discharge from the emergency room," and (2) "how a careful and prudent emergency room physician should document an emergency room record."
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case.

Judge Noel concluded that the materials would be

admissible for impeachment purposes, and perhaps on the issue of appellee's contributory negligence, but could not to be used to prove that Dr. Hill breached the standard of care in his treatment of appellee. During Dr. Hill's cross-examination, several bench conferences took place, the first occurring when Dr. Hill was being cross-examined with respect to his medical credentials. Judge Noel concluded that (1) he was going to deal with the issues raised by the materials on a question to question basis, and (2) appellee's counsel could inquire about the contents of the writings. Appellee's counsel could not,

however, use the writings to establish the requisite standard of care, and could not inform the jury that the writings were primarily directed at the goal of avoiding lawsuits. Counsel for appellee also used the materials to question Dr. Hill on the issue of contributory negligence.6 In the

materials, Dr. Hill had commented that directions to the patient to see your physician for follow-up "as necessary" or "as worse" were insufficient because of a lack of understanding by the patient as to the specific time frame.

Appellants asserted that appellee was contributorily negligent because he did not seek medical attention as soon as his condition worsened.

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Because of the notes that Dr. Hill made in appellee's chart, Judge Noel allowed Dr. Hill to be questioned on the apparent inconsistency between what he had documented and what he had advised others to document. Judge Noel explained:

I cannot let this jury not hear this examination. I think it would be patently unfair to just say that it was written based upon a theory of risk management; therefore, the jury should not hear it. If for no other bottom line reason is that it would demonstrate the defendant's knowledge in this area alone. And on that basis alone, I think it becomes admissible...Also, when someone writes something in an area, I think it only fair that they be held accountable to what they write. Now, if [counsel for appellants] wants to have this jury advised of the purpose of the writing, its intent, the fact that it was written for risk management, and have your client or witness explain it, you can do so. If you prefer the jury not hear anything about the distinction between risk management and standard of care, then I can advise counsel not to delve into that area. But I don't see that once someone writes something that they can say, `Well, I am not going to have a trier of fact be privy to my writings because I wrote it with a different intent in my mind.' It is the doctor's own writing, and I think it only appropriate that he be permitted to be cross-examined on what he has written. (Emphasis added). We agree with that analysis. During her closing

argument, counsel for appellee stated:

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Frankly, what I really think Dr. Hill is saying is that he hopes he gave more elaborate discharge instructions than what are written on this record because that is what he should have done. He testified, you'll remember, that he gives lectures and talks to other doctors, and what he tells them is that no patient understands the instruction, `see your doctor if worse,' or `see your doctor if not better.' He tells them that discharge instructions must be time and action specific, and he tells them that they should document these time and action specific instructions. But though he tells other doctors that no patient can be expected to understand instructions of the type he gave in this case, he asks you to impose that expectation on Mr. Wilson. There is nothing unfair in that argument. Appellants claim that the materials were not relevant. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Md.Rule 5-401. materials were relevant to the issue of credibility. A witness generally may be cross-examined on any matter relevant to the issues, and the witness's credibility is always relevant. DeLilly v. State, 11 Md.App. 676, 681 (1971). The DeLilly The

Court went on to state that it is proper to allow "any question which reasonably tends to explain, contradict, or 9

discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity, character or credibility." Id. Furthermore, the "scope, range and extent of such interrogation rests in the sound discretion of the trial court." Kruszewski v. Holz, 265 Md. 434, 440 (1972) (citing Shupe v. State, 238 Md. 307, 311 (1965)). We "will

only reverse upon finding that the trial judge's determination was `both manifestly wrong and substantially injurous.'" Lomax v. Comptroller of Treasury, 88 Md.App. 50, 54 (1991) (internal citations omitted). Judge Noel did not err or abuse his discretion in allowing Dr. Hill to be impeached by his own prior statements, as they were relevant to his credibility as a witness. Maryland law provides that ...upon the laying of a proper foundation... the credit of a witness may be impeached by showing that he has made statements which contradict his testimony in respect to material facts. Jenkins v. State, 14 Md.App. at 5. As Dr. Hill wrote the

manual and lectured accordingly, there was nothing unfair about impeaching him with his own words. II. The "Broken" Wheelchair Testimony

Dr. Orlando examined appellee on September 16, 1994. During that examination, Dr. Orlando noticed that several 10

ulcers had developed at numerous locations on appellee's body.7 During his deposition, Dr. Orlando opined that the

infected ulcer that necessitated the amputations "developed from a bar which ran across the back of [appellee's] wheelchair." Dr. Orlando was prepared to testify at trial Judge Noel ruled,

that appellee's wheelchair was "broken."

however, that Dr. Orlando "may comment that the bar rubbed [appellee's] back causing the lumbar ulcer [but could not opine] that the chair was broke." Appellants contend that Judge Noel should not have prohibited Dr. Orlando from testifying that appellee's wheelchair was "broken." They recognize the well established

rule that a trial judge has the power to exclude trial testimony that constitutes a material departure from what the witness testified to at deposition. They argue, however, that

this rule does not apply to the "broken" wheelchair testimony because (1) appellee never filed a motion to compel discovery of the basis for Dr. Orlando's opinions, and/or (2) although Dr. Orlando did not use the word "broken" during his deposition, "he did tell [appellee's counsel] that the wheelchair was broken." Judge Noel did not agree with those

Appellee contends that these ulcers did not develop until he had been admitted to the hospital.

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arguments.

Neither do we.

Appellee's interrogatories requested that appellants provide the factual basis for any contentions that "any act or omission of Kevin Wilson in any way contributed to the damages he now complains of in this action." asserted Appellants' response

that appellee "caused and /or contributed to his

alleged injuries by his failure to follow the instructions given to him by his physicians." This answer was never

supplemented to include a contention that appellee's injuries were caused by a broken wheelchair.8 Appellees also

propounded the following interrogatory to Dr. Hill: Interrogatory No. 11: The Defendant is to state the name and professional address of each expert who may be called at the hearing and/or trial hereof, attaching to these Answers copies of each experts curriculum vitae, as well as copies of all reports received. Further, the Defendant is to indicate the specialty and/or subspecialty of each expert named. With respect to each and every expert named, the Defendant is to state in detail the subject matter on which each such witness will testify, the substance of the facts considered and opinions held by each such expert, and the ground/or basis for each opinion. Dr. Hill answered that [t]he naming of expert witnesses will be

The Interrogatories contained a continuing duty on appellants' part to supplement. See Md.Rule 2-401.

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done in accordance with the Scheduling Order of this Court. Thereafter Dr. Hill filed a DESIGNATION OF EXPERT WITNESSES in which he advised that Dr. Orlando is a plastic surgeon who is expected to provide factual testimony and offer opinions on causation. He is expected to testify that there were two separate wounds on Plaintiff's back, that the wounds were not connecting with one another and that the sacral ulcer present on 8/30/94 was not in the same location as the Stage V ulcer found in September, 1994. He will additionally opine that the second ulcer on the iliac crest could have developed between the period when the Plaintiff was seen by Dr. Hill on 8/30/94 and his presentation in September of 1994. Rather than move for an order compelling discovery of the "ground and/or basis for" Dr. Orlando's opinions, appellee noted Dr. Orlando's deposition. During his discovery

deposition, however, Dr. Orlando never testified that the wheelchair was
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"broken" or in poor condition.9

The specific questioning regarding the chair at the deposition was as follows: [COUNSEL FOR APPELLEE]: Would you agree with me, Doctor, that given the fact that we have documented on August 30, 1994, a three-inch decubitus ulcer, albeit said in the sacrum, but in the low back area, and we have descriptions until at least the 17th of September of a single large ulcer in the low back area, variously described as lumbar, sacrum and low back, would you disagree with me, Doctor, that those two ulcers are most likely one and the same...? [DOCTOR]: Why would it be that the three-inch sacral ulcer improved and maybe it wasn't three inches, but two and a half, and it was truly a sacral ulcer as described by Dr. Hill and it was noted later to be two, maybe three or four centimeters by the nurses, and that's separate from

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Prior to the introduction of Dr. Orlando's testimony, appellee's counsel expressed concern that the doctor was going to testify to matters not raised in deposition or otherwise disclosed during discovery.10 This request for a ruling that

his lumbar ulcer which was caused by the traverse bar on his wheelchair, and that after he was seen in the emergency room in a debilitated condition with poor nutrition he continued sitting in his wheelchair, and that metal bar that ran across the back of his wheelchair, he rode it right into his back while the other one went on to do reasonably well. I can't say for sure that there aren't two ulcers back there.... [COUNSEL FOR APPELLEE]: Now, Doctor, in the description of your opinions here there's also a notation that it is your belief that a second ulcer on the iliac crest could have developed between August 30 and September 14, right? [DOCTOR]: Yes. [COUNSEL FOR APPELLEE]: Tell me how a large ulcer such as is seen on September 14 could develop over that period of time. [DOCTOR]: Very easily. If you would look at his wheelchair, and I invite you, he had a bar running across the back of his wheelchair that ran right across that area, it ran across the mid to upper lumbar area. [COUNSEL FOR APPELLEE:] And how is it that a pressure ulcer could develop and progress to osteomyelitis eating through the vertebral column, how long does it take that to happen? [DOCTOR:] Two weeks.... or more, or less.... It's hard to say. It depends on the patient's nutrition, blood supply, it depends on other factors. I mean this fellow is already septic from his urinary tract infection, so there's a lot of things that are going against Kevin at this point and he's very susceptible to developing a pressure ulcer, and this ulcer developed from a bar which ran across the back of the wheelchair. I remember completely, I was astounded when I saw his wheelchair, because I couldn't understand why anyone would get a pressure ulcer at about the level of the waist of the back.... (Emphasis added). During her opening statement, appellants' counsel did not mention the opinion that appellee's wheelchair was broken. She summarized Dr. Orlando's testimony as follows: I will be calling a number of witnesses in this case. And two of them are going to be very critical to my case, and I'll tell you that ahead of time.
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would confine the witness to opinions expressed during his deposition was the functional equivalent of a motion to sanction appellants for their failure or refusal to provide discoverable information requested in Interrogatory No. 11.11 "[I]t has long been recognized in Maryland that `substance rather than the form of the pleading is the controlling consideration.'" Payne v. Payne, 132 Md.App. 432, 439 (2000),

(citing Lapp v. Stanton, 116 Md. 197, 199 (1911))(internal

The first one is Dr. Joseph Orlando. I mentioned his name earlier [regarding his involvement with appellee as his plastic surgeon]. Dr. Orlando is and was a doctor who treated Kevin Wilson. He has treated Kevin Wilson for a number of years. He treated Kevin Wilson in 1990. And, interestingly, he is the plastic surgeon who was at the bedside in September when Mr. Wilson returned. And he will provide some very important testimony in this case. He will tell you that there were two ulcers on Mr. Wilson's back when he returned on the 14th. And he will tell you that the sacral ulcer, the ulcer that Dr. Hill saw on the 30th wasn't infected; and, therefore, it wasn't infected on the 30th. He will tell you what type of education program Mr. Wilson has been through his years of treatment. He will tell you what education program he gave to Mr. Wilson himself on how to take care of himself, and what to look for, and what makes an ulcer infected, and what makes an ulcer not infected, and how to care for those ulcers if they exist.

"It is clear, under Maryland Rule 2-433(a)-(b), that the trial court may, when one of the parties violates an order compelling discovery, "prohibit that party from introducing designated matters in evidence." Md.Rule 2433(a)(2)... It is especially crucial for the trial court to exclude such evidence "on the eve of trial... [where] `the injury inherent in failure to make discovery is unfair surprise.'" Beck v. Beck, 112 Md.App. 197, 209 (1996), cert. denied, 344 Md. 717, 345 Md. 456 (1997) (citing Bartholomee v. Casey, 103 Md.App. 34, 48 (1994), cert. denied, 338 Md. 557 (1995)(in turn citing John A. Lynch, Jr. & Richard W. Bourne, Modern Maryland Civil Procedure,

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