Lamalfa v. Hearn

233 Md.App. 141

163 A.3d 205

Patricia LAMALFA

v.Janis HEARN, et al.

No. 87, Sept. Term, 2016

Court of Special Appeals of Maryland.

June 28, 2017

Argued by: Ryan Richie (Wilson & Parlett on the brief) all of Upper Marlboro, MD, for AppellantArgued by: George W. Fanshaw (Simmons, Fields & Fanshaw PA on the brief) all of Timonium, MD, for Appellee

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.

Also in October 2011, Ms. Lamalfa began experiencing severe abdominal pain. An October 31, 2011 CT scan of her abdomen was normal, however. In February 2012, Sampath Kumar, M.D., a general surgeon, diagnosed Ms. Lamalfa with an epigastric hernia. In March 2012, he operated on her to repair it. Ms. Lamalfa previously had had surgery to repair an epigastric hernia in 1984.

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 include any notation of complaints of right shoulder pain or abdominal pain. Dr. Koyen testified that on November 22, 2011, he prepared a report of his treatment of Ms. Lamalfa on October 21, 2011, and up until the date of the report ("Koyen record"). In the report, he did not note that Ms. Lamalfa had complained of any abdominal pain during her initial appointment. His report reflected that she later complained of "severe pains in the abdominal and pelvis area" and, as a result, a CT scan of her abdomen was performed on October 31, 2011.

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 Mercy 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."

The court overruled the objection and admitted the Mercy record.

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...