Preview:

Circuit Court for Baltimore County Case No. 03-C-97-1511

IN THE COURT OF APPEALS OF MARYLAND No. 47 September Term, 1999 _________________________________________ MARK SHPIGEL et al.

v.

DOREEN ELIZABETH WHITE _________________________________________ Bell, C.J. Eldridge Rodowsky Raker Wilner Cathell Harrell, JJ. _________________________________________ Opinion by Rodowsky, J. ________________________________________ Filed: December 10, 1999

This appeal is taken by plaintiffs from a summary judgment for the defendant in a personal injury action based on a motor vehicle tort. The appeal arises out of an

unsuccessful effort to prove causation and damages through medical records and bills without live witness sponsorship or amplification. The plaintiffs-appellants are Mark Shpigel (Shpigel) and his children, Benjamin and Daniela, who were respectively five and four years of age on May 21, 1996, the date of the subject accident. Shpigel owns and operates a 1991 Chevrolet taxicab. The accident occurred at the intersection of Painters Mill and Reisterstown Roads in Baltimore County at approximately 8:45 a.m. while Shpigel was driving Benjamin and Daniela in his cab to daycare. Shpigel was in the merge lane from Painters Mill Road for traffic seeking to proceed in a southerly direction on Reisterstown Road. Unable to merge, he had come to a full stop when a vehicle operated by the defendant-appellee, Doreen Elizabeth White (White), made contact with the rear of Shpigel's cab. There is no claim for property damage to Shpigel's taxicab in the record before us, and none of the plaintiffs, all of whom were wearing their seatbelts, suffered any impact against any portion of the interior of the cab. The plaintiffs were transported by ambulance to Northwest Hospital Center in Randallstown where they were examined in the emergency room by a Dr. Matheus. Each plaintiff was discharged that morning, and, on discharge, computer generated discharge instructions were furnished for each plaintiff between 11:20 a.m. and 11:32 a.m. These discharge instructions were signed by a member of the emergency room staff. Shpigel's set

-2of instructions estimated that his complaints would subside in three days. His hospital bill was $146.30, and those of the children were $51.04, each. On the day immediately following the accident Shpigel presented at the offices of Drs. Braeger, Gaber and Associates, P.A. (the P.A.). Following the initial examination there were four follow-up visits. The P.A. also administered physical therapy on eight occasions between May 24 and July 25, 1996. Records generated by the P.A. which Shpigel sought to introduce consisted of a bill totaling $867, notes of office visits, and three "disability certificates" that collectively state that Shpigel was "totally incapacitated" from May 22 through June 14 and that he had "recovered sufficiently to be able to return to regular work duties on June 17, 1996." Also on the day immediately following the accident Benjamin and Daniela were examined by a pediatrician, Dr. Allen Stambler, who found nothing wrong with either child. Dr. Stambler billed $450 per child, a figure that includes $75 per child for the preparation of reports to plaintiff's counsel. On May 28, 1996, William D. Petok, Ph.D. conducted a "diagnostic interview exam" of Benjamin and Daniela, followed by four "family psychotherapy" sessions, the last of which was on August 19, 1996. Dr. Petok billed $475. The record does not contain any written report from him. The instant action was filed on February 13, 1997, and the summary judgment from which this appeal is taken was entered on November 30, 1998, the day on which trial was scheduled. During discovery the plaintiffs furnished copies of the reports of the P.A. and of Dr. Stambler to White by attaching them to answers to interrogatories. On February 12,

-31998, the plaintiffs also furnished copies of all of the bills and reports in issue here in response to the defendant's request for production of documents. In June 1998 the plaintiffs sought voluntarily to dismiss this action in order to refile in the District Court of Maryland. White opposed that dismissal on the ground that she was entitled to a jury trial, and the circuit court refused leave to dismiss. See Maryland Rule 2-506(b). The trial date of November 30, 1998 was set on June 11, 1998. On October 21, the plaintiffs served a request for admissions on White to which the medical reports and bills were attached. The plaintiffs sought an admission that the documents were business records and that the amounts charged were fair, reasonable, and necessary. White denied the request for admissions. The plaintiffs also served the following notice on White on October 21: "Plaintiffs ... hereby give notice of their intent to place in evidence at the trial of this case pursuant to Maryland Rules including, but not limited to, Rules 5-803(b)(3), (4) and (6), copies of the documents designated EXHIBITS A-T appended to the Plaintiffs' Request For Admissions previously served on Defendant's counsel, authenticated by a custodian of records." Exhibits A through T include all of the medical records, reports, and bills in issue here. On the morning of trial the court and counsel met in chambers. Although that meeting is unrecorded, it seems to have considered, in effect, a motion in limine by White. It is clear that the discussion focused on the plaintiffs' intent to proceed without producing any live expert medical testimony and on White's objection that the records were not admissible, or if admissible, legally insufficient. At the conclusion of the discussion, proceedings were

-4conducted in open court for the purpose of giving the plaintiffs the opportunity to make by proffer a record for appeal. Counsel for the plaintiffs explained that the clients could not afford to pay the fees charged by the experts to testify in court. After describing the way in which the accident happened, counsel proffered that Shpigel would testify that, following the impact, he "felt an immediate pain in his neck landing on the right side. The children were also shaken on the impact and were frightened and crying." Shpigel further would testify "that the pain in his neck worsened over the next several hours, he developed headaches, general stiffness and aching, [and] had difficulty sleeping because of the pain." In addition, Shpigel would have testified that he lost income while he continued to carry certain business expenses during the period he was disabled from working. The children were examined by Dr. Stambler, it was proffered, because the instructions from the hospital were that "they should be followed up on by their pediatrician." Dr. Petok was consulted because "the children became extremely fearful about riding in a vehicle. Their parents' efforts to reassure them ha[d] very little effect. They also had sleep disturbances ...." The plaintiffs then tendered the records and bills, with accompanying affidavits by the custodians of those records. The affidavits stated as fact all of the elements required for admissibility of a business record under Maryland Rule 5-803(b)(6).1 With respect to the

1

Maryland Rule 5-803(b)(6) reads: "The following are not excluded by the hearsay rule, even though the (continued...)

-5bills for services, a lay custodian for Northwest Hospital Center, a lay custodian for the P.A., and Drs. Stambler and Petok respectively made affidavit that their bills were fair and reasonable and that the services were incurred as a direct result of the automobile accident of May 21, 1996. White argued, inter alia, "that Mr. Shpigel himself has had multiple prior accidents and there is documentation indicating that there are residuals. It's our position that we are entitled to cross-examine those individuals on the fairness, reasonableness of treatment, billing and causal connection."

1

(...continued) declarant is available as a witness: .... "(b) .... "(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation of acts, events, conditions, opinions, or diagnoses if (A) it was made at or near the time of the act, event, or condition, or the rendition of the diagnosis, (B) it was made by a person with knowledge or from information transmitted by a person with knowledge, (C) it was made and kept in the course of a regularly conducted business activity, and (D) the regular practice of that business was to make and keep the memorandum, report, record, or data compilation. A record of this kind may be excluded if the source of information or the method or circumstances of the preparation of the record indicate that the information in the record lacks trustworthiness. In this paragraph, 'business' includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit." Other exceptions. ...

-6From a procedural standpoint, the circuit court treated the issue before it as one raised by a motion for summary judgment in favor of the defendant. The court granted the motion, stating that it was "this court's view that in a case such as this, the issue of causation requires an expert opinion." The court then explained why "as a practical matter" the records would not be admitted "in a case such as this," saying: "The defense alleges that these injuries are not caused by this accident. That the plaintiff's condition is not as a result of the occurrence that happened on May 21st involving Miss White, that it's related to some other occurrence or other occurrences. That the treatment was not reasonable. That the medical expenses the plaintiff incurred were not reasonable. And the defense wants the opportunity to cross-examine and to see if some expert will say that they are reasonable, will say that it's causally connected in court. Without such testimony put on by the plaintiff that, in fact, there is a causal connection between the negligence the breach of the duty and the damages then the jury cannot hear the case." After referring to Maryland Code (1974, 1998 Repl. Vol.),

Download Shpigel v. White.pdf

Maryland Law