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Wrobleski v. De Lara4/30/1998
REPORTED
The main issue presented in this case is whether it was permissible for an attorney to ask an expert witness on cross-examination to reveal the amount of compensation he had earned in the past from participating as an expert witness in other cases. Courts elsewhere have been divided as to this issue. This presents a question of first impression in Maryland.
I. FACTS
Linda Wrobleski, in June of 1994, was a patient of Nora de Lara, M.D., a specialist in obstetrics and gynecology. On June 6, 1994, Dr. de Lara performed laparoscopic gynecological surgery on Ms. Wrobleski at Church Hospital in Baltimore, Maryland. Ms. Wrobleski was discharged from the hospital two days after surgery, but on June 11, 1994, she was rehospitalized and diagnosed as having peritonitis due to a perforation of the small bowel. A second operation followed, as did significant pain, discomfort, and disability caused by the peritonitis.
Ms. Wrobleski sued Dr. de Lara in the Circuit Court for Baltimore City for medical malpractice. In her complaint, she alleged, inter alia, that during the June 6th medical procedure, Dr. de Lara negligently perforated the small bowel. She further alleged that the operation should never have been performed in the first place due to her (plaintiff's) history of prior pelvic surgery, which made the potential for surgical injury unacceptably high. In her answer to the complaint, Dr. de Lara denied all allegations of negligence.
A five-day jury trial commenced on January 28, 1997 (Strausberg, J., presiding). The trial, in essence, was a battle of the experts. Ms. Wrobleski called Dr. William Battle, a surgeon, and Dr. Max Lilling, an obstetrician and gynecologist (OB/GYN) as her experts. Dr. de Lara countered with the testimony of Drs. James Dorsey and Donald Chambers, both OB/GYNs.
Dr. Battle testified that in his opinion Dr. de Lara either punctured the bowel during the June 6th operative procedure or devascularized a portion of the bowel during the operation. He further opined that Dr. de Lara acted below the applicable standard of care in failing to recognize during the procedure that the bowel was in fact either punctured or devascularized. According to Dr. Battle, damage caused by the operation required immediate surgical follow-up; but because the injury to the bowel was not recognized, corrective surgery was delayed for five days, and as a consequence, Ms. Wrobleski developed peritonitis.
Dr. Lilling was of the view that Dr. de Lara fell below the applicable standard of care in performing the laparoscopy because, as she admitted in her operative notes, she proceeded to slice or cut during the operation even though her vision was obstructed. In Dr. Lilling's words, "If we can't see, then we can't cut." He opined that "to continue on is to markedly increase the possibility that the unseen portion of the blade . . . will . . . cut something . . . and it was at this time in trying to do that that the injury to the small bowel was caused." Dr. Lilling also testified that, based on Dr. de Lara's surgical notes, during the operation she saw a "pinpoint opening" - a sharply made cut or incision through the bowel. Having seen such an opening, Dr. de Lara should have either immediately closed it, or if she was not qualified to make the repair, she should have called an abdominal surgeon "to evaluate and identify the needs of the bowel."
As might be expected, the two experts called by Dr. de Lara disagreed in all material respects with the expert opinions of Drs. Lilling and Battle. Dr. de Lara's experts opined that the bowel perforation was the result of abrasions to the serosa (the outer surface of the bo
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