Appellate Decisions Edited by Mark E. Herman
Mark E. Herman, of the Law Office of William G. Koldner, PA of Baltimore is a member of MTLA’s Board of Governors and is a member of its President’s Club as a Supporter. Mr. Herman is certified in trial advocacy by the National Board of Trial Advocates. He is also a member of the Baltimore City Bar Association and is an arbiter/mediator on its Fee Arbitration Committee.
Appeals
Preserving issues for review – when trial court cut off appellant’s opportunity to present particularized reasoning support- ing motion for judgment under Maryland Rule 2-519 (a), his appeal of court’s denial of his motion for judgment and of his later motions for judgment N.O.V., or, in the alternative, a new trial do not fail under rules 2-519(a) and 2- 532(a).
Insurance Law
Uninsured motor vehicle – driver’s own- ership of registered but uninsured auto does not preclude same driver from re- covering PIP benefits provided for in insurance policy where injury occurred while driving insured car.
Maryland Automobile Insurance Fund v. Perry, Case No. 43, Sept. Term 1999. Opinion by Wilner, J.
Medical Malpractice
Facts: Appellant, Christine Ann Bentley, filed suit against Appellees, Alan Carroll, M.D., and the estate of George L. Morningstar, alleging medical malpractice by the defendants based upon their fail- ure to prevent the continual, long tern abuse suffered by Bentley at the hands of persons within her household. Appellees treated Bentley on approximately twenty occasions from 1978 to 1988. During this period, Bentley was sexually abused on a regular basis by Luther Burrier, her mother’s boyfriend, at times by Etheline Burrier, her mother, and at least once by Luther’s nephew. Bentley argued that the defendant doctors could have prevented the continuation of this abuse had they acted in accordance with the standard of medical care at that time, which included a mandatory statutory obligation for phy- sicians to report to social service or law enforcement authorities what they be-
Spring 2000
lieved, or had reason to believe, consti- tuted child physical or sexual abuse.
Held: The Court of Appeals held that the trial court was obligated in this case to instruct the jury in some manner as to the legal propositions that (1) Maryland statutory law, during the relevant period, required every physician who treated a child and believed or had reason to be- lieve that the child had been abused was required to make a report as to the exist- ence of such suspected abuse to the local department of social service or to the ap- propriate law enforcement agency, which would then investigate and intervene to the extent necessary to redress prior abuse and prevent future occurrences, and (2) the violation of such a statute by a physi- cian constitutes evidence of negligence. Appellant was additionally entitled to have the jury instructed that the statute pro- vided immunity to a physician who in good faith reported suspected sexual abuse of a child patient. Moreover, a finding that the statute was not violated did not preclude a finding of negligence. The Court thus concluded that the trial court erred by refusing to instruct the jury in any manner pursuant to Appellant’s re- quests relative to those issues. The Court therefore remanded the case to the circuit court for a new trial based upon its error in charging the jury. The Court of Appeals also addressed whether the circuit court erred in twice charging the jury, over Appellant’s objec- tions, that it must make its judgment as to whether Appellant’s claimed injuries
were caused by the alleged negligence of Appellees only on the basis of expert medi- cal testimony which speaks in terms of reasonable probability or reasonable cer- tainty. The Court held that the trial court improperly restricted the jury in its de- termination of causation to the bare consideration of three witnesses’ testi- mony, thus precluding consideration of all the other voluminous evidence admit- ted at trial. In particular, the testimony of the plaintiff patient and the defendant doctor in the present case might have had some evidentiary value relative to causa- tion. To the extent that the trial court’s instruction rendered all non-expert evi- dence irrelevant to the issue of causation, the jury was misguided in its task, and the court erred. Appellant also objected to the admis- sion of the testimony of a psychiatrist testifying for the defense as an expert that his pretrial testing of Appellant by use of the Minnesota Multiphasic Personality Inventory (MMPI) demonstrated that she had exaggerated her complaints for pur- poses of litigation. The Court of Appeals concluded that, contrary to the trial court’s assessment, the witness went be- yond a mere expression of opinion as to Appellant’s “honesty . . . while taking the test.” Moreover, the Court commented that the expert’s reference to the MMPI as a “mini-truth, or lie detector” was in- admissible, highly inflammable and prejudicial. The Court therefore held that, even were the expert’s testimony re-
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Trial Reporter
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