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Green v. Alfred A.8/9/2000
Submitted: June 13, 2000
Appeal from Superior Court. REVERSED and REMANDED.
In this appeal from the Superior Court following an adverse jury verdict in a medical malpractice action, the plaintiff-appellant contends that the trial court erred in refusing to permit the presentation at trial of a videotaped deposition of an expert originally retained by the defendants-appellees. We conclude that it was an abuse of discretion to prevent the use of such evidence at trial when the deposition, at the time it was taken, was intended for use at trial, and the pretrial order acknowledged its potential use by either party. Accordingly, we reverse.
I.
On August 24, 1992, plaintiff-below Timeka Green ("Green"), then fourteen years of age, was admitted to the Alfred A.I. DuPont Institute of the Nemours Foundation ("the Hospital") with pain in her right hip. Upon X-ray examination, doctors detected a slipped capital femoral epiphysis grade II, a condition where the ball at the top of the femur bone slips from its usual place because of a weakened epiphyseal plate. Freeman Miller, M.D. ("Dr. Miller") oversaw Green's reconstructive surgery that involved inserting a cannulated screw (the "pin") into the epiphyseal plate.
In November 1992, Green returned to the hospital complaining of additional pain in her hip. X-ray examination revealed a re-slippage of Green's right capital femoral epiphysis. On November 27, 1992, Dr. Miller performed additional surgery on Green to correct the problem of hip rotation about the screw. The first pin was removed and replaced with a new pin.
Green contends that the initial "pinning" was misaligned and that post-operative x-rays failed to detect the pin misplacement. As a result, Green claims that she has been required to undergo additional surgery and suffers from permanent hip impairment.
Green filed her initial complaint in this action in August 1994, naming radiologist Gerald Mandell, M.D. ("Dr. Mandell"), Dr. Miller, and the Hospital as defendants. At the outset of litigation, the defendants designated as their principal medical expert, Paul Sponseller, M.D. ("Dr. Sponseller"), Chief of Pediatric Orthopedic Surgery at the Johns Hopkins University Hospital. Dr. Sponseller prepared a written report dated August 3, 1998, setting forth his medical opinion concerning the standard of care and Green's medical prognosis.
Trial of the matter was originally scheduled for January 19, 1999. The defendants noticed the videotaped deposition of Dr. Sponseller for January 9, 1999 in Baltimore, anticipating its use at trial due to Dr. Sponseller's unavailability. Although Dr. Sponseller's testimony was generally supportive of the defendants, he made certain significant concessions that could be viewed as critical of Dr. Miller. At the pretrial conference held on January 12, 1999, the signed pretrial stipulation submitted by the parties provided, inter alia, " ll parties reserve the right to call witnesses listed by the other parties." Dr. Sponseller was listed as a witness to be called by the defendants.
For reasons not clear from the record, the January scheduled trial was rescheduled and a new trial date of June 7, 1999 was fixed. A second pretrial conference was held on April 19, 1999, and again by stipulation Dr. Sponseller was listed as a defense expert witness. Green also included in her list of experts "Paul Sponseller, M.D. Videotaped deposition of 1/9/99." The defendants had changed counsel following the rescheduling of the January trial, but successor counsel took no exception to Green's designation of Dr. Sponseller as a potential expert witness.
At trial, Green relie
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