Peirce v. Fazenbaker

HEATHER P. PEIRCE v. LINDA FAZENBAKER

No. 1293

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

November 28, 2016

UNREPORTED

Meredith, Kehoe, Moylan, Charles E. Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Meredith, J.

This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

At the conclusion of a trial in the Circuit Court for Alleghany County, the jury returned a verdict in favor of Linda Fazenbaker, appellee, and against Heather P. Peirce, M.D., appellant. In that action, Ms. Fazenbaker alleged, inter alia, that Dr. Peirce committed malpractice when she failed to appreciate that Ms. Fazenbaker was having an allergic reaction to a drug called PTU, and that Dr. Peirce made matters worse by failing to discontinue the medication. Ms. Fazenbaker's expert witness testified that her allergic reaction was caused by PTU. Dr. Peirce's expert witnesses did not testify that Ms. Fazenbaker's cataclysmic allergic reaction was to a cephalosporin; rather, their testimony was that they did not have an opinion, to a reasonable degree of medical probability, whether it was the PTU or the cephalosporin. Dr. Peirce's defense relied on the suggestion, made in her testimony and that of her experts, that it was possible that Ms. Fazenbaker actually had an allergic reaction to a cephalosporin. After defense witnesses suggested the allergic reaction might have been caused by a cephalosporin, Ms. Fazenbaker asked the trial court to take judicial notice that a certain drug, Cephalexin, belongs to a class of drugs called cephalosporins. On appeal, Dr. Peirce contends that the trial court erred in taking judicial notice.

QUESTIONS PRESENTED

Dr. Peirce presents one question:

Did the trial court err:

A. in taking judicial notice,

B. doing so as rebuttal evidence, and

C. in permitting an improper inference to be drawn from the judicially noticed matter during closing argument?

For the reasons that follow, we answer "no" to subparts A and B, find the issue presented in subpart C to be unpreserved, and affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

On January 8, 2009, Linda Fazenbaker had an appointment with her primary-care physician, Dr. Robin Bissell, a general-practice physician in Grantsville, Maryland. The medical records document that among Ms. Fazenbaker's complaints was a "rash to neck, arms x 3 days[,] 'knots' to bilat. [lower] legs[,] started in October but last couple weeks has gotten worse - the 'knots'[,] Also had/has H2O blisters to arms, neck, legs[.]" One of Ms. Fazenbaker's known medical conditions was hyperthyroidism, for which she previously had been treated by a Dr. Nawab, who was evidently no longer practicing in the area as of January 2009. To address the hyperthyroidism, Dr. Nawab had prescribed for Ms. Fazenbaker a drug called propylthiouracil, or PTU. As of January 8, 2009, Ms. Fazenbaker had been taking PTU for six months. Dr. Bissell ran lab tests that showed that Ms. Fazenbaker's thyroid levels were "mildly elevated," and on physical examination, Dr. Bissell discovered that Ms. Fazenbaker had an enlarged thyroid gland, or goiter. Dr. Bissell was not familiar with PTU or its side effects, and referred Ms. Fazenbaker to the only endocrinologist in the area, Dr. Peirce. Dr. Bissell testified:

Actually on January 8th before I knew the, the test results, I told her she needed to go to an endocrinologist, because regardless of the results I still would want her to go to a um, an endocrinologist. For one thing I knew she was on PTU, so that's a, that's a medication I don't prescribe, and I'm not familiar with it, and it made me uncomfortable that she was no longer seeing the doctor that had prescribed it, who was an internal medicine doctor in Grantsville.

* * *

. . . I was very concerned that she was basically without care of her thyroid condition by someone who knew how to treat it.

The medical records from Dr. Bissell's office reflect that, on January 20, 2009, "Dr. Peirce's office called, [Ms. Fazenbaker] to stop taking PTU 50 mg BID. [Ms. Fazenbaker] was made aware and that Dr. Peirce's office is trying to reach her. [Ms. Fazenbaker] stated she would call them." Dr. Bissell testified that she agreed with the proposition that a medication allergy would be reasonable to consider in a patient presenting to the office with a rash.

Ms. Fazenbaker returned to Dr. Bissell's office on January 21, 2009, still complaining of "rash from 1/8/09 - still has H2O blisters[,] mostly to feet/legs[,] very itchy[.]" She apparently had been told by a family member, sometime after the January 8 appointment, that the family member had been exposed to scabies. Ms. Fazenbaker informed Dr. Bissell of this, and Dr. Bissell treated the rash as if it was caused by scabies, although Dr. Bissell did not run any tests confirming that diagnosis. She prescribed for Ms. Fazenbaker a topical cream, Elimite, and instructed her to "wash everything." Ms. Fazenbaker also had a urinary tract infection at that time, for which Dr. Bissell prescribed Bactrim.

On February 3, 2009, Ms. Fazenbaker had a follow-up appointment with Dr. Bissell. The medical records reflect that the rash was "now gone," and "scabies resolved." Dr. Bissell's office also gave Ms. Fazenbaker a note to give to Dr. Peirce, informing Dr. Peirce that Ms. Fazenbaker's "scabies" was now resolved and she was no longer contagious. Dr.Peirce's office would not see Ms. Fazenbaker without the note. Dr. Bissell's records also reflect that, on "4/22/09 - Note faxed to Dr. Peirce's office - scabies resolved."

Dr. Bissell agreed in her testimony that, if left untreated, Ms. Fazenbaker's thyroid levels would rise, but disagreed that serious medical consequences naturally would result. Specifically, Dr. Bissell testified:

[BY APPELLEE'S COUNSEL]: Not everybody with high thyroid hormone levels has a serious medical question, uh, medical problem, right?

[BY DR. BISSELL]: They don't have serious medical consequences or symptoms.

Q. Right, but some people do, right?

A. Yes.

Q. Okay. So my question was if you take her off the medication that's trying to keep her thyroid hormone level normal, when you do that you know that doing that could cause harm to her, agree or disagree?

A. Yes.

Q. Okay. And we could agree that one of those harms that could have been caused to her is that she could go into congestive heart failure. Isn't that also correct?

A. Yes. If she didn't go to the specialist as she was instructed to.

[BENCH CONFERENCE BETWEEN COURT AND COUNSEL]

Q. Doctor if the patient has elevated thyroid hormone levels in their blood, that can lead to them going into congestive heart failure, can we agree?

A. Yes that's true especially if there's a uh, something that happens on top of it like a, an infection of some kind, pneumonia or a virus.

Q. Can we agree that you never told Linda Fazenbaker that if she remained off of PTU for any length of time she was potentially injuring her health?

[OBJECTION BY APPELLANT'S COUNSEL. OVERRULED.]

A. I think I probably did say something to her about that because even when I talked to her in 2005 and I was concerned about her thyroid and I told her how important it was to get testing, and then when I saw her in 2009 I told her she had to get testing and she had to see a specialist. I'm sure - you know, I usually spend about a half hour with each patient, and um, I'm sure in the course of sitting and talking with her I probably told her just about everything I did know, and uh, you know, I can't - because of my documentation I can't prove that, but it would've been my customary practice to inform the patient of, of what I knew, and I, I pretty much — when I'm sitting with a patient with my chart here, I'm like reading through my notes, and uh, you know, talking about what I know about her and what my, what my thinking is about what the next step would be, and uh, I probably did tell her. I, but I can't prove that.

Ms. Fazenbaker testified that Dr. Bissell's office called her on January 20, 2009, and told her she needed to stop taking the PTU. She also testified that no one told her why, or that it was dangerous to be off PTU for any period of time.

As it turned out, the first time Ms. Fazenbaker traveled to Dr. Peirce's office, she was not seen by Dr. Peirce. Ms. Fazenbaker testified that she made an appointment with Dr. Peirce, and drove to her office in Cumberland with a friend, Nancy Kitzmiller, who also testified. Ms. Fazenbaker described Dr. Peirce's office in detail, and testified that she checked in and was given new patient forms to complete:

[BY APPELLEE]: It wasn't too long they came and got me. I went back in. I sit down at a desk across from Dr. Peirce. Uh, I looked down and I seen this file, and it was pretty thick, and I, and I knew I'm a new patient so I shouldn't have a file, and I, it did not have my name on it [sic]. It had another Linda Fazenbaker on it, and I had said that to her, and she says, "Well I can'tsee you right now. I got to get this cleared up." She says, "Make another appointment and we'll, when I'm, when I get this done then we'll, I'll see you again." And I went back out.

Ms. Fazenbaker testified that she made another appointment to see Dr. Peirce in June, but, by then, she was too sick to attend the appointment before being admitted to Western Maryland Health System late in June.

Dr. Peirce testified that she had no recollection of Ms. Fazenbaker ever coming to her office, or of ever seeing her prior to her hospitalization later in June 2009. It apparently was confirmed during discovery that Dr. Peirce did, in fact, have a different patient named Linda Fazenbaker, a circumstance about which Dr. Peirce testified, "I can't even explain to you, cause I, it's beyond my explanation." Dr. Peirce testified that she had no recollection of...