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Brown v. Contemporary OB/GYN Associates3/27/2002
Hopkins Hosp., 111 Md. App. 49, 76 (1996), aff'd, 346 Md. 679 (1997); see also Buxton v. Buxton, 363 Md. 634, 651 (2001); Radman v. Harold, 279 Md. 167, 173 (1977). "The trial court's determination is reversible [only] `if it is founded on an error of law or some serious mistake, or if the trial court clearly abused its discretion.'" Pepper, 111 Md. App. at 76-77 (citation omitted) "`An appellate court will only reverse upon finding that the trial judge's determination was both manifestly wrong and substantially injurious.'" Commercial Union Ins. Co. v. Porter Hayden Co., 116 Md. App. 605, 641, cert. denied, 348 Md. 205 (1997) (citation omitted); see also Starfish Condo. v. Yorkridge Service, 295 Md. 693 (1983); Klein v. Weiss, 284 Md. 36, 55-56 (1978).
Myers v. Alessi, supra, 80 Md. App. 124, is instructive. There, a patient brought suit against her physician to recover for alleged negligence and failure to diagnose cancer at the base of the patient's tongue. At trial, the patient presented three expert witnesses who testified that the doctor breached the applicable standard of care by failing to conduct an extensive examination of the patient's mouth. In addition, the patient asked the court to permit the jury to hear the transcript of the testimony of another physician, from an earlier arbitration hearing, arguing: "His opinions were the same as the other experts who testified for [the patient] at trial regarding the applicable standard of care." Id. at 130. After the doctor objected, the trial court excluded the transcript. On appeal, we affirmed, stating:
Even if we had determined that the trial court erred in excluding [the other doctor's] transcript, the error was not prejudicial. As noted by the Court of Appeals in Harris v. Harris, 310 Md. 310, 319, 529 A.2d 356 (1987), "to justify reversal two things are essential. There must be error and there must be injury ; and unless it is perceived that the error causes the injury there can be no reversal merely because there is error." (quoting Joseph Bros. Co. v. Schonthal, 99 Md. 382, 400, 58 A. 205 (1904)). The burden of demonstrating both error and prejudice is on the complaining party. Beahm v. Shortall, 279 Md. 321, 330, 368 A.2d 1005 (1977). Here, the substance of [the other doctor's] testimony had been echoed by three other expert witnesses, each of whom testified that he was familiar with the standard of care for a general or family practitioner. Thus, [that] testimony would have been merely cumulative evidence presented to the jury. The exclusion of his testimony, therefore, would not be grounds for reversal. See Hutchison v. Balto. Gas & Elec. Co., 241 Md. 329, 333-34, 216 A.2d 573 (1966); State Roads Comm'n v. Kuenne, 240 Md. 232, 235, 213 A.2d 567 (1965).
Here, Dr. and Mrs. Brown presented the testimony of two experts, both of whom testified as to the psychiatric injuries they sustained as a result of the tragic death of their baby. Any further testimony as to their mental anguish would have been cumulative. Therefore, any error did not prejudice appellants.
IV.
Appellants argue that the trial court erred in its instructions to the jury regarding the law of wrongful death, and therefore erred in denying the motion for new trial. They assert that the trial court "omitted the fact that if Baby Brown had been born alive, a wrongful death claim may have been maintained." Moreover, they suggest that Dr. Donald Levitt intentionally decapitated the baby during birth, so that the baby would not be born alive, in order to avoid a wrongful death suit. They assert: " ad the Trial Court instructed the Jury that Appellants would have had a wrongful death claim if Baby Brown was born alive, the jurors ma
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