I. Did the trial court err in permitting Ronald William Luethke, M.D., to testify as an expert witness for appellees, over appellant’s objection, although he had originally been consulted by appellant for a medical evaluation and possible treatment?
II. Did the trial court err in instructing the jury on intervening and superseding cause?
III. Did the trial court err in stating, during the coursе of instructing the jury on the applicable standard of care, that “[tjhere is a presumption that health care providers perform their medical duties with the requisite care and skill?”
IV. Did the trial court err in failing to instruct the jury on the doctrine of res ipsa loquitur?
V. Did the trial court err in failing to instruct the jury as to the “borrowed servant” or “captain of the ship” doctrines?
For the reasons that follow, we shall affirm the judgment of the trial court.
BACKGROUND
On August 19, 1991, appellant accidentally cut the wrist of her right arm while she was performing a household chore. She subsequently sought medical attention at appellee Prince George’s Hospital Center. There, the cut was sutured in appellee’s emergency room.
When appellant continued to experience pain and numbness in her right hand, she was referred to appellee, Carlton Henry Scroggins, M.D. After examining appellant, Dr. Scroggins concluded that she had suffered an injury to the median nerve, and scheduled her for surgery.
On September 12, 1991, Dr. Scroggins performed surgery on appellant’s wrist at Prince Gеorge’s Hospital Center. On the median nerve, he found a neuroma, a nodule made up of nerve and scar tissue, and removed it. During that operation, he was assisted by another surgeon, a scrub technician, and two circulating nurses.
The nurses were employees of Prince George’s Hospital Center. Among other things, they were responsible for counting the needles and recording whether the count was “correct” on the “Operation Room Data Form.” During appellant’s operation, two counts were performed and recorded as “correct” on that form.
Following surgery, appellant continued to complain of pain. Dr. Scroggins referred her to the Raymond Curtis Hand Center at Union Memorial Hospital (“Union Memorial”). At Union Memorial, on December 15, 1992, Clara Belle Wheeler, M.D., performed another surgery on appellant’s wrist. In her operative notes, Dr. Wheeler indicated that she found “a shiny object ... lying over the tendinous portion of the palmaris longus 3 as it splayed into the palmar fascia.” 4 Under loupe 5 magnification, Dr. Wheeler identified the оbject as a “surgical suture needle.” The surgical pathology report identified the same object as a “metallic splinter,” which was six-tenths of a centimeter in length and less than one-tenth of a centimeter in diameter.
On January 12, 1995, appellant was examined by Ronald William Luethke, M.D., a plastic surgeon. Appellant told Dr. Luethke that she had cut her hand on a piece of glass in 1991, and that Dr. Scroggins had performed surgery a few weeks after the injury. She complained of weakness in her hand, abnormal sensations in her thumb and fingers, and difficulty in bending her hand back. After examining appellant’s hand and wrist, Dr. Luethke concluded that appellant was suffering from a “low median nerve injury,” but advised against further surgery. Instead, he recommended only symptomatic treatment.
At the end of the examination, appellant asked Dr. Luethke if he “could support her claim of negligence” against appellees. In
Two years later, on January 10, 1997, appellant filed a complaint in the Circuit Court for Prince George’s County against Dr. Scroggins and the Prince George’s Hospital Center, alleging, among other things, that appellees were negligent in leaving a foreign object in her wrist during surgery.
Trial
At trial, appellant called two expert witnesses: Joseph Anthony Mead, Jr., M.D. and Carol M. Mennich, R.N. Dr. Mead opined that Dr. Scroggins had violated the standard of care owed appellant by leaving “a needle or part of the needle” in the wound, by later failing to discover that “the needle part” had been left there, and by failing to recognize that that was the cause of appellant’s continued pain and disability.
Dr. Mead further testified that, in his opinion, the “needle” left in the wound was the cause of appellant’s “pain and injury.” But he declined to express an opinion as to how a part of that needle had broken off or how it had found its way into the wound site. Moreover, he declined to state that Dr. Scroggins was responsible for breaking the needle in the first place.
Appellant’s other expert witness was Carol Mennich, a registered nurse. She testified that needle counts were performed during appellant’s surgery at Prince George’s Hospital Center, and that those counts were the responsibility of the operating room nurses. The purpose of such counts, according to Mennich, is to “insure there are no foreign objects left in the body cavity.” She opined that the nurses, who assisted Dr. Scroggins, failed to properly account for the needles because they indicated twice on the operating room data form that the needle count was correct when a portion of one of the needles was missing.
Appellees’ expert witness was Dr. Luethke, the plastic surgeon consulted by appellant two years earlier. Dr. Luethke had not been named as either a fact or expert witness by appellant.
After describing his examination of appellant, Dr. Luethke testified that leaving a microsurgical needle in the wound is not a violation of the standard of care, and that it “[i]n fact ... happens all the time.” He further opined that there are “many ways ... a microsurgical needle could ... find its way into an operative wound by no fault of anyone’s.” According to Dr. Luethke, “[t]he needle was found well away from the area of the previous median nerve repair,” and, the metallic sliver or microsurgical needle had “nothing to do” with appellant’s injury or the pain in her wrist and hand.
He further stated that, at the conclusion of her examination, appellant had asked him whether he could support her claim of negligence. In response, Dr. Luethke stated that he could not as there was no evidence that either appellee had “brеachfed] the standard of care.” When defense counsel asked Dr. Luethke why he thought appellant had come to see him, Dr. Luethke responded that he “came away [from the consultation] with the distinct impression that [appellant] was hoping for someone or a physician to support her claim of negligence.”
DISCUSSION
Appellant contends that the trial court erred in allowing Dr. Luethke, who had previously examined appellant at her request, to testify as an expert witness for appellees, over appellant’s objection. In support of that contention, appellant advances four reasons why the doctor’s testimony should have been excluded: First, as a “treating physician,” Dr. Luethke violated a fiduciary duty when he gave expert testimony against appellant. That duty, according to appеllant, arose out of their physician-patient relationship. Second, “the probative value of [Dr. Luethke’s] testimony ... was outweighed by its prejudicial effect.” Third, allowing a treating physician to testify as an expert witness against a patient in a medical malpractice case, as Dr. Luethke was permitted to do, “threaten[s] the integrity of the judicial process.” And fourth, “Dr. Luethke’s testimony should have been excluded because he participated in ex parte contacts with [appellees’] attorneys.” After carefully considering each ground, we remain unpersuaded that the trial court erred in permitting Dr. Luethke to testify as a defense expert.
Before addressing the merits of appellant’s claims, we note that, in deciding whether to admit or exclude expert testimony, a trial judge is “vest[ed] ... with [a] wide latitude” of discretion.
Massie v. State,
A Physician’s Fiduciary Duty
We begin our analysis by observing that there is no physician-patient privilege in Maryland. “Communications made to a physician in his professional capacity by a patient are neither privileged under the common law of Maryland, nor have they been made so by statute.”
Rubin v. Weissman,
Given the settled nature of Maryland law on that point, appellant takes a novel tact: conceding that no physician-patient privilege exists in Maryland law and that, even if one did, it was waived when appellant put her medical condition in issue, appellant claims Dr. Luethke’s expert testimony should have nonetheless been
Before reaching that issue, however, we feel compelled to note that the record does not fully support the conclusion that Dr. Luethke was in fact appellant’s “treating physician.” Although we have not addressed this issue in this context before, we have considered the question of what is a “treating physician” in the context of determining when a patient’s state ments to his or her doctor are admissible as an exception to the rule against hearsay.
In
Low v. State,
In
Low,
we held that because the doctor saw the victim “for the sole purpose of examining and detecting child abuse,” she was not a treating physician under Rule 5 — 803(b)(4) and therefore any statements made to her by the victim were not admissible as substantive evidence under that exception to the hearsay rule.
Id.
at 425,
As in Low, appellant met with Dr. Luethke on only one occasion and, as in Low, it was for a medical evaluation. At the conclusion of her examination, appellant asked the doctor whether he could support her claim of negligence against appellees. He indicated that he could not, and she did not return for further treatment. At trial, Dr. Luethke testified that he “came away [from their consultation] with the distinct impression that she was hoping for someone ... to support her claim of negligence.” Because appellant did not testify on this point — as the issue of her “subjective intent” was not raised by either party before or during trial — we do not know what explanation she would have given at trial for seeing Dr. Luethke.
As this brief summary of the testimony on this issue reveals, the evidence is, to be sure, ambiguous as to whether Dr. Luethke was a “treating” physician. As appellant’s entire argument for finding that Dr. Luethke had breached a fiduciary duty by testifying against appellant is based on the assumption that he was a “treating” physician, this issue would not be, under a different set of circumstances, inconsequential. But because we find no fiduciary duty in Maryland that would prohibit a physician, treating or otherwise, from giving expert testimony against a patient, we do not reach that issue here.
In support of her argument that Dr. Luethke should not have been permitted to testify, appellant cites three Maryland cases, Maryland’s Confidentiality of Medical Records Act, and several decisions rendered by trial and intermediate appellate courts in other jurisdictions. The Maryland cases and statute cited by appellant, hоwever, lend no support to the proposition that a treating physician should not be permitted to testify as a medical expert against a patient, and the out-of-state cases relied upon by appellant run counter to Maryland law.
The first Maryland case that appellant relies on is
Lemon v. Stewart,
Appellant’s reliance on
Lemon
is manifestly misplaced. In
Lemon,
we reasoned that “[t]o recognize a common-law duty on the part of health care providers to inform persons such as appellants would not only be thoroughly impractical but would constitute a wholly unwarranted invasion of the patient’s privacy.”
Id.
at 524,
Appellant cites two other Maryland cases to buttress her “fiduciary duty” claim. They are
Dr. K v. State Board of Physician Quality Assurance,
Neither Dr. K nor Suburban Trust bolsters appellant’s claim. In both of those cases, as in Lemon, this Court found a confidential relationship but only in the context of a right to privacy, where that right had not been waived, expressly or impliedly, by the party invoking it. Because none of the Maryland cases cited by appellant are relevant to the issue now before us, they serve only to underscore the unprecedented nature of appellant’s claim.
Appellant next invokes Maryland’s Confidentiality of Medical Records Act (“Act”), 10 claiming to find support in section 4-302(a) of the Act for prohibiting a treating physician from testifying as an expert witness against a patient. That section provides that “[a] health care provider shall: (1) Keep the medical record of a patient or recipient confidential; and (2) Disclose the medical record only: (i) As provided by this subtitle; or (ii) As otherwise provided by law.” Md.Code Ann. (1982, 2000 RepLVol., 2000 Cum.Supp.), § 4-302(a) of the Health-Gen. I Article. An express exception to the confidentiality established by that Act, however, is when a patient puts his or her medical condition at issue in a civil action. Then, a health care provider must disclose, in accordance with § 4-306(b)(3), all medical information, that forms the basis of the patient’s claim, regardless of whether the patient consents to that disclosure. 11
Ultimately, appellant turns to cases from other jurisdictions to bolster her claim of the existence of a fiduciary duty that bars adverse expert testimony by a treating physician. These cases, however, are plainly at variance with Maryland law.
The first case appellant cites is
Piller v. Kovarsky,
In
Alexander,
the Superior Court of Pennsylvania, an intermediate appellate court, declared that physicians “stand in a confidential or fiduciary capacity as to their patients.”
Alexander,
Unfortunately for appellant, this Court flatly rejected that reasoning in
Stevens v. Barnhart,
To bolster that claim, Stevens cited the foregoing statements from
Alexander v. Knight, supra.
Declaring that that language does not “represent ] the law of Maryland,” this Court stated that “ ‘[cjommunications made to a physician in his professional capacity are not privileged under the common law of Maryland, nor, with some exceptions in the case of psychiatrists, have they been made so by statute.’ ”
Id.
at 295,
Nor is Maryland alone in rejecting such a duty.
See, e.g., Torres v. Superior Court, County of San Diego,
In
Richbow v. District of Columbia,
In
Torres v. Superior Court, County of San Diego,
Similarly, in
Carson v. Fine,
Finally, in
Orr v. Sievert,
Probative Value v. Prejudicial Effect
Appellant next claims that the trial court should have excluded Dr. Luethke’s testimony because its probative value was substantially outweighed by its prejudicial effect. Specifically, appellant asserts that there is an “unfair prejudice that inherently derives from the physician’s breech [sic] of trust in testifying as part of the adversary party’s team.” Such testimony, appellant explains, is unfairly prejudicial as “[j]urors are inclined to give great weight to a treating physician’s testimony because they recognize the special nature of a physician-patient relationship.” Thus, appellant maintains that the trial court erred in permitting Dr. Luethke to testify as a defense expert and thereby exposing her to unfair prejudice.
Maryland Rule 5-403 provides in part that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” The determination of whether relevant evidence should be excluded because its probative value is substantially outweighed by its prejudicial effect is “ ‘committed to the considerable and sound discretion of the trial court’ ” and will not be set aside unless “ ‘there is a clear showing of an abuse of discretion.’”
Dorsey v. Nold,
In
Rubin v. Weissman,
As in Rubin, appellant did not name Dr. Luethke as an expert witness. In fact, she never retained him as an expert witness in the first place. Thus, the trial court acted well within its discretion in permitting appellees to use Dr. Luethke as a defense expert and tо disclose his previous contact with appellant.
Integrity Of The Judicial Process
Appellant further contends that Dr. Luethke’s testimony should have been excluded because it threatened the “integrity of the judicial process.” In support of that claim, appellant relies on the decisions of two federal district courts:
W.R. Grace & Co. v. Gracecare, Inc.,
In W.R. Grace, the corporate counsel for plaintiff, W.R. Grace, telephoned David B. Allen, a well-known trademark attorney, “ ‘to retain him to render advice to Grace in connection with [pending] litigation and in connection with a trademark application.’ ” Id. at 63. During the course of that telephone conversation, corporate counsel discussed with Allen “ ‘the marks at issue, some of the issues of trademark law that had arisen in the case, including the possibility and appropriateness of expert testimony on legal issues, and some of the arguments defendants were making.’ ” Id. Also, “ ‘[t]he discussion included a disclosure of some of ” lead outside counsel’s and corporate counsel’s thoughts “ ‘on certain issues in thе case.’ ” Id. Corporate counsel believed he had established an “ ‘attorney-client relationship ... between Mr. Allen and Grace’ ” and, in fact, Allen billed for that conversation as well as a second telephone conversation and the research he was then asked to perform. Id.
Defense counsel, however, subsequently contacted Allen and retained him as a defense expert. Id. at 64. The plaintiffs then filed a motion to disqualify Allen as an expert witness. Id. at 63. In granting that motion, the district court stated that “[t]he appropriate standard of review for disqualification motions directed toward experts is two-fold:”
“the [cjourt must determine ‘whether the attorney or client acted reasonably in assuming that a confidential relationship of some sort existed [with the expert], and, if so, whether the relationship developed into a matter sufficiently substantial to make disqualification or some other judicial remedy appropriate.’ ”
Id.
at 64 (quoting
Palmer v. Ozbek,
The court declared that “[a]n attorney may not represеnt a client against a former client if the subject matter of the litigation is substantially related.”
Id.
at 65. “A substantial relationship is presumed,” the court continued, “where there is ‘a reasonable probability that confidences were disclosed’ which could be used adversely later.”
Id.
(quoting
Stitz v. Bethlehem Steel Corp.,
Needless to say, the holding of that court in W.R. Grace is not binding upon this Court. In that case, moreover, the district court stressed the limited nature of its holding by observing that it was the expert’s “status as an attorney” that “counseled] resolving all doubts in favor of disqualification.” Id. By arguing that the reasoning that led to a disqualification of a legal expert in W. R. Grace should now be applied to a medical expert in the instant case, appellant would have us give a much broader reading of the holding of that case than the district court ever intended.
In
Cordy
the plaintiff was injured while riding a bicycle on a railroad crossing allegedly owned by the defendant.
Id.
at 576. The plaintiff retained a forensic engineer specializing in “accidents involving bicycles.”
Id.
Among other things, the expert reviewed a “three ring binder containing the investigation conducted by plaintiffs counsel.”
Id.
at 577. That binder included “a cover letter with counsel’s impression of the case, a police report, witness interview, summary memorandum
Ultimately, the court granted the plaintiffs motion, finding that the plaintiff had retained the forensic engineer as an expert, that the plaintiff had reasonably assumed that a confidential relationship existed, and that confidential information was disclosed.
Id.
at 581-83. The court went on to state that this was “ ‘a clear case for disqualification’ ” because the forensic engineer “ ‘was previously retained as an expert by the adverse party.’ ”
Id.
at 582 (quoting
Wang Labs. Inc. v. Toshiba Corp.,
The instant case, however, is distinguishable. Dr. Luethke was not “previously retained as an expert by the adverse party.” Moreover, unlike the expert in Cordy, who was given a substantial amount of confidential information about plain tiffs case, Dr. Luethke was given only a bare bones medical history and description of appellant’s claim. Finally, having placed her medical condition at issue, appellant had no reason to believe that the results of Dr. Luethke’s examinаtion would be kept confidential.
Ex parte Contacts
Appellant claims that Dr. Luethke’s testimony should have been excluded because he participated in “ex parte ” contacts with attorneys for appellees. This claim, however, has not been preserved for our review.
Maryland Rule 8-131 states that, “[ojrdinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court.” Md. Rule 8-131(a). “The clear meaning of this Rule is that no unpreserved issue may serve as the basis for reversal.”
Harwood v. Johns Hopkins Univ.,
In any event, in support of her contention, appellant relies on
Petrillo v. Syntex Lab., Inc.,
Appellant, however, does not cite any specific instances of so called “ex parte contacts” between appellees and Dr. Luethke. Instead, appellant asks us to assume such contacts occurred because defense counsel knew what Dr. Luethke’s testimony would be without deposing him.
That information, we note, could have been obtained by other legitimate discovery tools. Moreover, Rule 4.2 of the Maryland Rules of Professional Conduct bars only unconsented to ex parte contacts between a lawyer and a party represented by another lawyer: That rule provides that, “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” There is, however, no such prohibition in Maryland against what appellant describes as “ex parte contacts” between a lawyer and the treating physician of an adverse party who has placed her medical condition in issue.
Jury Instructions
Appellant contends that the trial court committed several errors in instructing the jury. Specifically, appellant argues that the trial court’s jury instructions confused the concepts of intervening cause and superseding cause, and that it erred by using the word “presumption” in describing the standard of care for health care providers. Appellant also asserts that the trial court erred in failing to instruct the jury as to res ipsa loquitur as well as the “borrowed servant” and “captain of the ship” doctrines. Unfortunately for appellant, her objections were never preserved for appeal.
Maryland Rule 2-520(e) states in part:
No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.
This rule requires “parties to be precise in stating objections to jury instructions at trial, for the plain reason that the trial court has no opportunity to correct or amplify the instructions for the benefit of the jury if the judge is not informed of the exact nature and grounds of the objection.”
See Fearnow v. Chesapeake & Potomac Tel. Co. of Maryland,
In objecting to the jury instructions, appellant only referred to instruction numbers and gave no specific grounds. In
[THE COURT]: I’ll take the plaintiff first. First of all, is there anything else you want me to tell the jury?
[APPELLANT’S COUNSEL]: No, your Honor, not to tell the jury.
[THE COURT]: Not to tell them?
[APPELLANT’S COUNSEL]: No.
[THE COURT]: But [do] you have [any] exceptions?
[APPELLANT’S COUNSEL]: Yes, I do.
[THE COURT]: Good.
[APPELLANT’S COUNSEL]: The instructions I will except to, Your Honor, will be the standard of care for health care providers. I take exception to that, which I believe is the tenth instruction-
[THE COURT]: Uh-huh.
[APPELLANT’S COUNSEL]: ... The next exception will be the standard of care for physicians which was the eleventh instruction-
[THE COURT]: Uh-huh.
[APPELLANT’S COUNSEL]: ... And the next would be the jury instruction on proximate slash contrary cause which will be the twelfth instruction which you gave.
The next that I will except to is causal connection which I believe was the thirtеenth instruction which you gave.
The next would be the mitigation of damages which will be the seventh instruction I believe you gave. I will except to that, Your Honor. Those will be the specific instructions that I will except to. In the whole I thought the instructions were more favorable to the defendants than the plaintiff as well.
[THE COURT]: Thank you.
Appellant made no further effort to clarify or explain her objections to the court’s instructions. Indeed, there is no evidence that the arguments appellant now makes on appeal regarding the court’s confusing intervening and superseding cause instruction, or its use of the word “presumption” in describing the standard of care for health care providers, were ever brought to the attention of the trial court. Consequently, the trial court was “not afforded a fair opportunity ... to correct any error of law and thus avoid a reversal and another trial.”
Fearnow,
Appellant also contends that the trial court erred in failing to instruct the jury as to
res ipsa loquitur
as well as the borrowed servant and captain of the ship doctrines. Because appellant did not object, “on the record promptly after the court instructed] the jury,” she may not now “assign as error the ... failure to give [these] instruction^].” Md. Rule 2-520(e). Although appellant argued the relevance of these doctrines in her motion for judgment at the close of the case and in her motion for judgment notwithstanding the verdict/motion for new trial, there is no evidence that she ever requested jury
Even if appellant’s arguments relating to captain of the ship, borrowed servant, and
res ipsa loquitur
were preserved for our consideration, we would find no error in the trial court’s decision not to instruct the jury as to these doctrines. In reviewing a trial court’s denial of requested jury instructions, we must determine: “(1) [whether] the requested instruction was a correct exposition of the law; (2) [whether] that law was applicable in light of the evidence presented to the jury; and (3) [whether] the requested instruction was fairly covered by the instructions actually given.”
Jacobs v.
Flynn,
The “successful reliance on res ipsa loquitur requires proof of the following three components:
1. A casualty of a sort which usually does not occur in the absence of negligence.
2. Caused by an instrumentality within the defendant’s exclusive control.
3. Under circumstances indicating that the casualty did not result from the act or omission of the plaintiff.”
Dover Elevator Co. v. Swann,
According to appellant, the trial court erred in declining to instruct the jury as to res ipsa loquitur. We disagree. As appellant failed to produce sufficient evidence that either appellee was in “exclusive control” of the vagrant needle, such an instruction could not have been appropriate.
A total of five people participated in appellant’s surgery: Dr. Scroggins, an assisting surgeon, a scrub technician, and two circulating nurses. Dr. Scroggins testified that he was not responsible for needle counts and that after he finished using a microsurgical needle in the wоund, it was passed on “to the scrub tech or to the nurse.” Additionally, Nurse Mennich, an expert witness for appellant, testified that “[n]ee-dles are given on an exchange basis from the nurse to the scrub nurse.” Moreover, Dr. Mead, appellant’s other expert witness, admitted on cross-examination that he could not “say to a reasonable degree of medical probability how the needle portion made its way to Mrs. Tulio’s hand” or whether Dr. Scroggins had ever broken the needle. Furthermore, Dr. Luethke, appellees’ expert, testified that in microsurgery, “we are talking about very small needles” and that there are “many ways that I can imagine how a microsurgical needle could ... find its way into an operative wound.” Thus, there was no evidence that either appellee was in “exclusive control” of the “instrumentality” that allegedly caused appellant’s injury.
In the instant case, there was conflicting expert testimony as to whether leaving a microsurgical suture needle in the wound was a violation of the standard of care. In addition, there were conflicting expert opinions as to whether the leaving of such an object in the location where it was found caused appellant’s injury. Thus, the jury could not have inferred negligence, without the assistance of expert testimony, from the mere fact that an injury occurred. Accordingly, the trial court did not err in finding res ipsa loquitur did not apply to the facts of this case.
Appellant also asserts that the trial court erred in not instructing the jury that appellee Dr. Scroggins could be vicariously liable for the negligence of the employees of appel-lee Prince George’s Hospital Center under the “captain of the ship” and “borrowed servant” doctrines. As stated above, even if this issue had been preserved for review, we would find no error in the triаl court’s decision not to instruct on those doctrines.
In
Franklin v. Gupta,
Under the borrowed servant doctrine, we explained that the trier of fact may find that a surgeon is liable for the negligence of another person’s work or conduct in the operating room if the “evidence suffices to support a finding that the surgeon
in fact
had or exercised the right to control the details of [that] person’s work.”
Id.
In
Rivera v. Prince George’s County Health Dep’t,
In the instant case, nurses employed by appellee Prince George’s Hospital Center assisted Dr. Scroggins in appellant’s procedure by, among other tasks, performing needle counts. There was no evidence that Dr. Scroggins had the right or had attempted to control the details of the nurses’ work. Dr. Mead, appellant’s expert, testified that it was not Dr. Scroggins’s responsibility to do needle counts at any time during appellant’s procedure. Nurse Mennich, appellant’s other expert witness, agreed. She testified that it was the responsibility of the operating room nurses to perform needle counts and to insure that those needle counts were correct. In addition, no evidence was adduced that the performance of needle counts was a unique requirement specifically ordered by Dr. Scroggins, and thus not “within the scope” of the
nurses “general
Because the “captain of thе ship” doctrine no longer has any vitality in Maryland, and because there was no evidence that Dr. Scroggins in fact controlled the details of the nurse’s work, the trial court did not err in declining to instruct the jury as to the captain of the ship or borrowed servant theories of liability. Moreover, even if the borrowed servant instruction should have been given, the failure of the trial court to do so was harmless error. That instruction renders the “borrower,” (Dr. Scroggins) vicariously liable for the negligence of the “servants,” (the nurses employed by Prince George’s Hospital Center). Because the jury found that the Hospital Center (in other words, the nurses) was not negligent it could not then have found Dr. Scroggins vicariously liable for negligence that did not occur.
See Benik, v. Hatcher,
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Notes
. The "median nerve” is located in the forearm. W.B. Saunders Company. Harcourt Brace & Company, Dorland’s Illustrated Medical Dictionary 1123 (28th ed.1994); "transected” is defined as "a cutting made across a long axis.” Am.Jur.3d Series, Proof of Facts, Taber’s Cyclopedic Medical Dictionary 1759 (Clayton L. Thomas, ed., 15th ed.1985).
. To aid our analysis, we have reworded and reordered the questions presented by appellant but have otherwise left them substantively intact.
. The "palmaris longus” is a muscle that "flexes [the] wrist joint.” W.B. Saunders Company, Harcourt Brace & Company. Dorland’s Illustrated Medical Dictionary 1080 (28th ed., 1994).
. "Palmar fascia" are "bundles of fibrous tissue radiating toward the bases of the fingers from the tendon of the palmaris longus muscle.” Id. at 107.
. "Loupe" is defined as "a convex lens for low magnification of minute objects at very close range.” Id. at 960.
. Courts and Judicial Proceedings § 9-109 of the Maryland Code Annotated creates a limited privilege for patient-psychiatrist and patient-psychologist communications; § 9-109.1 creates a privilege for communications between a client and a psychiatric-mental health nursing specialist; and § 9-121 creates a privilege for communications between a licensed social worker and a client. Md.Code Ann. (1973, 1998 Repl.Vol., 2000 Cum.Supp.), §§ 9-101, 9-109.1, and 9-121 of the Cts. & Jud. Proc. Article.
. Much of the language appellаnt employs and a significant portion of the argument she espouses in support of that proposition can be found in the dissenting opinion of the Honorable Charles W. Johnson in
Carson v. Fine,
. The full text of Maryland Rule 5 — S03(b)(4) is as follows:
Statements made for purposes of medical treatment or medical diagnosis in contemplation of treatment and describing medical his-toiy, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external sources thereof insofar as reasonably pertinent to treatment or diagnosis in contemplation of treatment.
. "Statements by a patient to a physician consulted for diagnosis and treatment are admissible under the theory that someone who goes to a doctor for diagnosis and treatment is not going to supply false information.”
Choi v. State,
. The Act is codified in part as Md.Code Ann. (1982, 2000 Repl.Vol., 2000 Cum.Supp.), §§ 4-301 to 4-309 of the Health-Gen. I Article.
. Section 4-306(b) of the Act states in part that:
A health care provider shall disclose a medical record without the authorization of a person in interest:
(3) To a health care provider or the provider’s insurer or legal counsel, all information in a medical record relating to a patient or recipient’s health, health care, or treatment which forms the basis for the issues of a claim in a civil action initiated by the patient, recipient, or person in interest.