Tina A. Hall v. UMMS (Ct. of Appeals)

Filed March 21, 2007 -- Opinion by Judge Robert Bell.

Issue: Whether notes contained in the hospital record of a pregnant mother were hearsay and/or not pathologically germane in a medical malpractice case brought by the child who was born of the pregnancy.

Held: The Circuit Court erred in excluding the records because they were admissible under the business records exception to the hearsay rule and because they were pathologically germane.

Facts/Court Analysis: Plaintiff "Teonna" is the minor biological daughter of Joyce Boyce. Plaintiff was born on November 12, 1992 with, among other things, cerebral palsy, mental retardation, and developmental delay. Teonna claimed that her conditions were caused by defendant's delay in performing a c-section on her mother. "The parties agreed that liability was dependent on one factor - when appellant's mother presented and was treated at the hospital." Teonna claimed that her mother had first arrived at defendant hospital at 12:30 am on November 12, 1992, complaining of abdominal pain. Defendant UMMS claimed that Teonna's mother first presented at 6:45 am.

In attempting to establish her case, plaintiff sought to introduce records from defendant hospital indicating that her mother had presented to defendant hospital at 2:00 am on November 12, 1992. These records were prepared by physicians at the end of their shift on November 12 (at approximately 4:45 pm and at approximately 5:00 pm). The recording physicians each testified at deposition that the information in their notes came from a person with personal knowledge of Teonna's history. The lower court held that the records were inadmissible as hearsay and that they were not pathologically germane.

The Court of Appeals reversed, holding that the records were admissible under the business record exception to the hearsay rule. While generally a determination of admissibility is left to sound discretion of the trial court, where it involves a legal determination, the decision will be reviewed de novo. A trial court's decision to exclude evidence based on hearsay is generally a decision of law and is to be reviewed de novo. Ordinarily, hospital records will be admitted as an exception to the hearsay rule. Notes made at the end of a doctor's shift "are within the meaning contemplated by the words in Rule 5-803(B)(6)(A) 'at or near the time.'" Any issues regarding the recording physicians personal knowledge of the facts contained in the notes goes to the weight of the evidence and not its admissibility. Finally, the discrepancy between the mother's testimony of arriving at the hospital at 12:30 am and the information in the notes that the mother arrived at 2:00 am was not so serious as to indicate a lack of trustworthiness sufficient to exclude the evidence.

The Court of Appeals also found that the information in the notes was pathologically germane. To be pathologically germane, information "'must fall within the broad range of facts which under hospital pracitice are considered relevant to the diagnosis or treatment of the patient's condition.'" "As a general proposition, we fail to understand how the medical treatment of the mother of an unborn baby within hours before delivery is not pathologically germane to the treatment of an unborn (or newborn) baby."

Swam v. Upper Chesapeake Medical Center (Ct. of Appeals)

Filed March 16, 2007 -- Opinion by Judge John Eldridge (Judges Cathell and Harrell Concur)

The Court of Appeals held that the general statute of limitations did not bar a claim initially filed in the wrong forum, the Health Care Alternative Dispute Resolution Office ("Health Care Office"), and subsequently filed in the appropriate forum, the Circuit Court for Harford County. Plaintiffs-appellants, Mary C. Swam and Scott Swam, filed a claim with the Health Care Office for alleged personal injury resulting from an abandoned hypodermic syringe on the premises of Upper Chesapeake Medical Center, Inc. Although Swam’s injury was not a medical injury within the meaning of the Health Claims Act and thus was not properly filed with the Health Care Office, the Court held that the claim was not time-barred even though it was not filed in the circuit court until after the general statute of limitations had run. According to the Court, the policy supporting the tolling exception rule was satisfied by the ambiguity regarding the appropriate forum for a medically-related claim and basic fairness to the parties. The Court noted that Upper Chesapeake would suffer no unfairness because it already had notice of the claim prior to the expiration of the limitations period.

In a concurring opinion, Judge Cathell expressly disavowed any holding that an action begun in an executive branch agency could toll the running of a statute of limitations applicable to judicial branch proceedings. Judge Cathell would reach the same result based on holding that Upper Chesapeake waived the defense of limitations by not raising it prior to or in its answer. Judge Harrell joined in the concurring opinion.

The opinion can be found in PDF here.

Goldberg v. Boone (Ct. of Appeals)

Filed December 12, 2006--Opinion by Judge Lynn A. Battaglia. Dissenting Opinion by Judge Irma Raker in which Chief Judge Robert M. Bell and Judge Clayton Greene, Jr., join.

Petitioner, Seth M. Goldberg, M.D., sought review of the Court of Special Appeals' judgment determining that the Circuit Court for Montgomery County erred in submitting an informed consent instruction to the jury because physicians in Maryland do not have a duty to inform their patients that there are other, more experienced surgeons in the region, but that the error did not warrant a new trial on the issue of negligence. Dr. Goldberg also sought review of the intermediate appellate court's conclusion that the cross-examination questions regarding one of the D.C. snipers asked of one of Dr. Goldberg's expert witnesses was so prejudicial as to warrant a new trial on the sole issue of damages.

The Court of Appeals reversed the judgment of the Court of Special Appeals, concluding that, although the line of questioning about the sniper case was improper, its prejudicial effects did not transcend the trial judge's curative measures so as to warrant a new trial. The Court also determined that the trial judge had properly instructed the jury on the issue of informed consent because whether a reasonable person, in Mr. Boone's position, would have deemed the fact that there were other, more experienced surgeons in the region as material to the decision whether to risk having the revisionary mastoidectomy undertaken by Dr. Goldberg was a factual issue for the jury to determine.

The full opinion is available in WordPerfect and PDF.