Patricia LAMALFA v. Janis HEARN, et al.
No. 87, Sept. Term, 2016
Court of Special Appeals of Maryland.
June 28, 2017
163 A.3d 205
Argued by: Ryan Richie (Wilson & Parlett on the brief) all of Upper Marlboro, MD, for Appellant
Panel: Deborah S. Eyler, Kehoe, Lawrence A. Rodowsky (Senior Judge, Specially Assigned), JJ.
Deborah S. Eyler, J.
In the Circuit Court for Baltimore City, Patricia Lamalfa, the appellant, sued Janis Hearn, the appellee, for automobile negligence. The case was tried to a jury over two days. During the testimony of Ms. Hearn‘s medical expert, the court admitted into evidence, over objection, four of Ms. Lamalfa‘s post-accident medical treatment records that the expert relied upon in forming his opinions. At the close of all the evidence, the court granted a motion for judgment in favor Ms. Lamalfa on “negligence” and ruled that the case would go to the jury “for its determination as to the amount of damages, if any that should be awarded.” The jury deliberated and returned a verdict in favor of Ms. Lamalfa for $10,576.05, comprising the full amount of her medical bills and $650 for pain and suffering.
On appeal, Ms. Lamalfa presents two questions, which we have combined and rephrased as:
Did the circuit court err by admitting Ms. Lamalfa‘s medical records into evidence?1
For the following reasons, we shall affirm the judgment of the circuit court.
FACTS AND PROCEEDINGS
On October 14, 2011, Ms. Lamalfa, who lives in Brooklyn, New York, was in Maryland to attend a family wedding. On the way to the wedding, she was sitting in the rear passenger seat of a small SUV, which was being driven by her son Steven Lamalfa (“Steven“). Steven drove the SUV southbound on Interstate 95, near Pulaski Highway, and onto an exit ramp, where it came to a complete stop because of heavy traffic. The SUV was rear-ended by a vehicle being driven by Ms. Hearn.
Police and ambulances responded to the scene. Ms. Lamalfa did not seek medical treatment. She and the other occupants of the SUV continued on to the wedding. They returned to their hotel in Baltimore that night. The next morning, Ms. Lamalfa went to the emergency room at Mercy Medical Center (“Mercy“) in Baltimore with complaints of low back pain and some tenderness in her left forearm. She was treated and released. She returned to New York that night.
A week after the accident, on October 21, 2011, Ms. Lamalfa sought treatment from Yury Koyen, M.D., a specialist in physical medicine and rehabilitation who practices at Relief Medical, P.C., in Brooklyn. She complained of upper and lower back pain, pain in both arms, left hip pain, periodic numbness in her right hand, right shoulder pain, weakness in her left arm, tailbone pain, and emotional distress related to the accident. Dr. Koyen recommended that Ms. Lamalfa undergo physical therapy and chiropractic treatment, as well as diagnostic testing.
Meanwhile, on November 7, 2011, Ms. Lamalfa underwent an MRI of her right shoulder that revealed a rotator cuff injury. More than three years later, in December 2014, Ms. Lamalfa went to see Jaspreet Sekhon, M.D., an orthopedic surgeon. Dr. Sekhon sent Ms. Lamalfa for another MRI, which revealed a rotator cuff tear. In 2015, Dr. Sekhon operated on Ms. Lamalfa‘s right shoulder.2
Ms. Lamalfa filed suit against Ms. Hearn on September 23, 2014.3 The case was tried to a jury from February 16 to 18, 2016. In the plaintiffs’ case, Ms. Lamalfa and Steven testified and the de bene esse depositions of Drs. Koyen, Kumar, and Sekhon were played for the jury.4
Ms. Lamalfa, then age 54, testified about the accident and about her medical treatment following the accident. She had worked as a hairdresser from the age of 18 until about a year before the accident. Shortly after the accident, her abdomen began to feel “weak” and she noticed a “protrusion” between her stomach and her ribcage. She went to see Dr. Kumar and he diagnosed her with an epigastric hernia.
Ms. Lamalfa also began experiencing right shoulder pain in the weeks following the accident that got “progressively worse.” She could not hold her grandchildren, lift pots and pans, or reach up to high shelves. She had not experienced right shoulder pain prior to the accident. She did not seek immediate medical treatment for her shoulder pain, however, because she had moved in with her parents and her mother was already providing care for her father following a knee replacement surgery. In December 2014, she went to see Dr. Sekhon and he recommended surgery. Ms. Lamalfa described the recovery following her surgery as “[l]ong and arduous.” For more than three months, she had to wear a sling and a bolster on her arm at all times except when she bathed. This made “[s]leeping ... horrendous.” She was still having difficulty sleeping and her shoulder movement remained “impaired.”
Dr. Koyen testified by video deposition that to a reasonable degree of medical certainty Ms. Lamalfa‘s hernia and rotator cuff tear were caused by the October 14, 2011 accident. He opined that the rotator cuff tear to Ms. Lamalfa‘s right shoulder, as seen on the November 7, 2011 MRI, was consistent with an acute traumatic injury. He acknowledged that the record of Ms. Lamalfa‘s visit to the Mercy emergency room on October 15, 2011 (“Mercy record“), the day after the accident, did not
Dr. Kumar testified by video deposition that Ms. Lamalfa came to see him in February 2012 with complaints of abdominal pain. He palpated her abdomen and diagnosed her with a recurrence of an epigastric hernia. He opined that, given the location of the hernia, it was not surprising that the October 31, 2011 CT scan did not show it. He further opined to a reasonable degree of medical certainty that Ms. Lamalfa‘s epigastric hernia was caused by the pressure of the seat belt against her abdominal wall during the October 14, 2011 accident. After Dr. Kumar repaired the hernia, he saw Ms. Lamalfa for a routine follow-up appointment. He had not seen her since.
Finally, Dr. Sekhon testified in his video deposition that he met with Ms. Lamalfa for the first time in December 2014. He ordered an MRI, which revealed a rotator cuff tear. He did not review her prior MRI results or her other medical records from 2011.
In her case, Ms. Hearn testified and called Louis Halikman, M.D., an orthopedic surgeon practicing at Mercy. Dr. Halikman had examined Ms. Lamalfa on December 28, 2015, relative to the instant litigation. He noted that she was left-handed and that her upper arms each measured the same girth. Dr. Halikman opined that he would have expected Ms. Lamalfa‘s right arm “to have been substantially smaller in girth than the left” given that it was not her dominant arm and because she recently had had surgery on that shoulder. The fact that Ms. Lamalfa‘s arms were equal in girth was evidence that she was “using both of her arms in as close to natural fashion as possible.”
Dr. Halikman explained that in forming his opinions, he relied upon four of Ms. Lamalfa‘s medical records: the Mer-cy record; the Koyen record; an “Initial Chiropractic Examination” report prepared by an unidentified practitioner on October 25, 2011 (“Chiropractic record“); and an “Initial Consultation Report” prepared by Alexsandr Levin, M.D., at Diagnostic Medicine, P.C., on December 13, 2011 (“Levin record“). When defense counsel moved to admit the Mercy record into evidence, plaintiff‘s counsel objected, arguing as follows:
The expert can certainly testify to [the content of the record] and obviously all his testimony is evidence in the case. However, the document itself is a hearsay document. It contains hearsay statements. It contains expert findings opinions [sic], and it contains secondary and probably even tertiary hearsay statements .... I would also, Your Honor, argue that in permitting some records in and not others also is far more prejudice [sic] than probative in that it‘s going to allow certain documents to go back to the jury room without the benefit of having all of the documents. So on all of those grounds, Your Honor, I would object.
Defense counsel responded that the Mercy record was admissible because it was “a document that the Doctor relied on in forming his opinion ... [a]nd I believe that is, you know, allows it to come into evidence.”
Defense counsel subsequently moved to admit the other three medical records that Dr. Halikman had relied upon in forming his opinions. Plaintiff‘s counsel made the “same objection” to each one, and his objections were overruled.
The Mercy record included a narrative “History of Present Illness” section that related that Ms. Lamalfa had been involved in a “rear-ended motor vehicle crash” the day before; that upon impact, she had “immediately ... reached over to the left side of the car to secure her [infant granddaughter‘s car seat]“; that “gradually over the course of the afternoon and evening,” she began experiencing “left-sided lower back pain“; and that she also “complain[ed] of a much lighter pain in the left forearm.” The “Physical Examination: General” section of the Mercy record stated that Ms. Lamalfa “ambulate[d]” with a “slight limp” but without “much difficulty” and did not appear to be in “acute distress.” Her abdomen was “[s]oft.” She exhibited “positive straight leg raising” on the left side and “difficulty with the lateral oblique motion.” She had “full range of motion of all joints.” She was discharged with instructions to rest, apply heat to the affected areas, and take over-the-counter pain medication.
The Koyen record, completed on November 22, 2011, was five pages long. In it, Dr. Koyen noted that he had examined Ms. Lamalfa for the first time on October 21, 2011, one week after the accident. At that time, she reported having sustained “injuries to the head, left shoulder and coccyx.” In a section entitled “Chief Complaints,” Dr. Koyen stated that Ms. Lamalfa had reported
flashbacks of the accident; neck pains radiating to the right arm and upper back, and to the left arm and forearm; low back pains; left hip pains; periodical [sic] numbness in the right hand; right shoulder pains; weakness in the left arm; fear of sitting in a car; coccyx pains worsened by sitting; [and] claustrophobia after accident.
In the “Review of Systems” section, Dr. Koyen noted “sharp neck pains radiating to the left upper extremity and associated with numbness” and “sharp lumbosacral pains provoked by sitting.” Ms. Lamalfa was in “acute pain distress” and had pain upon getting on and off the exam table. Dr. Koyen‘s examination of her shoulders revealed “[r]ight rotator cuff area tenderness” and “[r]ight shoulder joint ... tenderness,” with pain upon motion. Her shoulder motion was more limited on the right side, and she was positive for several tests of nerve impingement in her right shoulder. Her abdomen was not tender.
As pertinent, Dr. Koyen recommended that Ms. Lamalfa begin physical therapy for her right shoulder pain; continue taking Aleve; have an x-ray taken of her right shoulder; and consider undergoing an MRI of her right shoulder if the problems persisted. In the “Treatment” section of the report, Dr. Koyen set out the various treatments, tests, and procedures Ms. Lamalfa had undergone following her initial appointment and the results. He noted that due to “severe pains in the abdominal and pelvis area,” he had ordered a CT scan; it revealed “no acute inflammatory processes.” Due to “severe pains in the right shoulder,” he had ordered an MRI; it revealed “possible impingement of the supraspinatus muscle and rotator cuff instrasubstance tear involving supraspinatus and infraspinatus tendons.” Dr. Koyen‘s diagnoses were, as pertinent, “[r]ight shoulder trauma with rotator cuff tear and impingement” and “abdominal trauma.”
The Chiropractic record was completed on October 25, 2011. It is a five-page form
The Levin record, completed on December 13, 2011, is a three-page initial consultation report addressed to Dr. Koyen. Dr. Levin noted that Ms. Lamalfa complained of “right shoulder pain, lower back pain radiating to the left leg, left knee pain, and weakness in the left leg.” On physical examination she was in “no acute distress.” She had “no tenderness on palpation or decreased range of motion” in her shoulders. Her abdomen was “[s]oft, not distended” and was not tender. Dr. Levin noted tenderness of the lumbar spine and diagnosed Ms. Lamalfa with “[p]ost-traumatic lumbosacral sprain/strain.” He recommended nerve conduction tests to rule out “lumbar radiculitis.”
Dr. Halikman opined, based upon a review of these records, his physical examination of Ms. Lamalfa, and his education and experience, that Ms. Lamalfa “did not sustain an injury to her right shoulder as a result of [the automobile accident].” He explained that if Ms. Lamalfa had torn her rotator cuff during the accident, she would have been in severe pain on October 14, 2011, and thereafter would not have waited more than three years to seek out a surgical consultation. He further opined that if she had complained of any shoulder pain at Mercy on October 15, 2011, x-rays would have been ordered. The fact that x-rays were not ordered confirmed the narrative aspects of the report, in his view, that reflected that Ms. Lamalfa did not complain of shoulder pain. He further opined that the October 2011 MRI of Ms. Lamalfa‘s shoulder showed degenerative fraying of the tendons, not a tear consistent with an acute injury to the shoulder caused by an impact. The degeneration of the rotator cuff muscles was not unusual given that Ms. Lamalfa‘s profession required her to hold her arms up continuously.
Dr. Halikman also commented that the medical records reflected that Ms. Lamalfa‘s abdomen was soft and not tender in December 2011. He opined that had Ms. Lamalfa had a “problem referable to [that] area,” it “would have been evident” by December 2011, when she saw Dr. Levin.
As noted, the court granted a motion for judgment in favor of Ms. Lamalfa for “negligence” and sent the case to the jury on damages only, although the lawyers addressed causation in their closing arguments. Ms. Lamalfa‘s lawyer asked the jurors to award her all of her past medical expenses ($9,926.05) and non-economic damages in the range of $50,000 to $150,000. Defense counsel argued that the evidence did not show that Ms. Lamalfa‘s hernia and rotator cuff tear were caused by the accident. She pointed to the four medical records admitted into evidence to show that Ms. Lamalfa did not complain of right shoulder pain or abdominal pain during her Mercy visit; did not complain of abdominal pain during her initial visit to Dr. Koyen a week later; did not complain of right shoulder pain during her chiropractic
The case was sent to the jury on a special verdict sheet asking the jurors to find “[w]hat measure of damages, if any, do you find that the Plaintiff, Patricia Lamalfa, is entitled?” followed by blanks for “Past Medical Expenses,” “Non-Economic Damages (Pain, Suffering, Physical Impairment, etc.),” and for the total damages. The jury awarded Ms. Lamalfa all her past medical expenses ($9,926.05) and $650 in non-economic damages, for a total award of $10,576.05. This timely appeal followed.
DISCUSSION
Ms. Lamalfa contends the trial court erred as a matter of law by admitting into evidence the four medical records at issue and that she was prejudiced by their admission. First, and as a threshold matter, she argues that Ms. Hearn failed to authenticate the records pursuant to
Ms. Hearn responds that Ms. Lamalfa failed to preserve her authentication challenge because she did not make that argument at trial. She maintains, moreover, that the admission of the medical records was proper under
Authentication is a “condition precedent to admissibility” and may be “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
Ms. Hearn moved for the admission of the medical records pursuant to
If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data reasonably relied
upon by an expert pursuant to section (a) may, in the discretion of the court, be disclosed to the jury even if those facts and data are not admissible in evidence. Upon request, the court shall instruct the jury to use those facts and data only for the purpose of evaluating the validity and probative value of the expert‘s opinion or inference.
In Alban v. Fiels, 210 Md.App. 1, 21, 61 A.3d 867 (2013), we explained the effect of
In other words,
As the rule itself makes clear, for “facts or data” to qualify, they “must be (1) trustworthy, (2) unprivileged, (3) reasonably relied upon by an expert in forming her or his opinion, and (4) necessary to illuminate that expert‘s testimony.” Brown v. Daniel Realty Co., 409 Md. 565, 601, 976 A.2d 300 (2009). Ms. Lamalfa concedes that the medical records were not privileged and that Dr. Halikman reasonably relied upon them. She argues that Ms. Hearn failed to establish the trustworthiness of the medical records or that they were necessary to illuminate Dr. Halikman‘s testimony. Ms. Lamalfa did not make either such argument below, even though she did offer reasons for her objection. This argument is not preserved for review.
The argument lacks merit in any event because it is plain that medical records prepared by Ms. Lamalfa‘s treating health care providers in the immediate aftermath of the accident were sufficiently trustworthy to satisfy
Ms. Lamalfa further argues that the court abused its discretion by admitting
To be sure, section (b) of the rule permits “disclosure” to the jurors, not “admission,” of “facts or data” reasonably relied upon by a testifying expert witness. In cases in which the facts or data the expert relied upon are contained in a written document, the Court of Appeals and this Court have not drawn a distinction between disclosing the writing to the jury and admitting the writing in evidence. In Brown, 409 Md. at 601, the Court upheld a ruling by the circuit court admitting in evidence a lead inspection report of the subject property in a lead paint case that had been relied upon by a testifying expert witness in forming his opinions. The Court explained that “four elements must be satisfied for a document to be admissible under [
There is no significant difference between disclosure and admission of a writing under
Here, the essence of Ms. Lamalfa‘s complaint is that the jurors could have misused the contents of the medical reports because the reports were with them in the jury room during deliberations. Any problem with how the jurors might have used the reports was not a function of their being in the jury room but of Ms. Lamalfa‘s failure to request a limiting instruction under
For these reasons, the trial court did not abuse its discretion by admitting the medical records in evidence under
JUDGMENT AFFIRMED. COSTS TO BE PAID BY THE APPELLANT.
Notes
- Were Defense Exhibits 2-5 inadmissible hearsay due to the failure of authentication as a condition precedent to the business records exception to the hearsay rule?
- Did the trial court err by admitting medical records pursuant to
Maryland Rule 5-703 without an appropriate foundation for establishing the truthfulness of the records?
The plaintiffs originally included John B. Hearn, Jr., Ms. Hearn‘s husband, as a defendant, suing him for negligence and negligent entrustment. Those claims were dismissed with prejudice on the first day of trial.