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Smith v. Delaware North Companies

Court of Appeals of Maryland

August 19, 2016


          Argued: June 1, 2016

         Circuit Court for Baltimore City Case No. 24C-14-002519

          Barbera, C.J. Greene Adkins McDonald Hotten Rodowsky, Lawrence F. (Retired, Specially Assigned) Battaglia, Lynne A. (Retired, Specially Assigned), JJ.


          Greene, J.

         In the instant case, we address whether Md. Code (1981, 2014 Repl. Vol., 2015 Cum. Supp.), § 14-410 of the Health Occupations Article ("HO") bars the admission of a Board of Physicians' consent order as evidence in a civil or criminal proceeding. Brenda Smith ("Smith") filed a workers' compensation claim seeking compensation benefits from Delaware North Companies and its insurer (collectively "Delaware North") for a full knee replacement. At issue was whether the injury Smith sustained at work caused her to need knee replacement surgery. During a jury trial in the Circuit Court for Baltimore City, Smith presented the expert testimony of Dr. Kevin McGovern. To impeach Dr. McGovern's credibility, Delaware North sought to admit a consent order that Dr. McGovern entered into with the Maryland Board of Physicians ("the Board"). Over a timely objection, the trial court admitted into evidence a portion of that consent order. We conclude it was legal error to do so. HO § 14-410 serves generally as a statutory bar to the admission of a Board of Physicians' consent order into evidence in a civil or criminal action.


         On September 7, 2012, Smith slipped on the floor in the course of her employment as a cook at Camden Yards. She landed on her left knee when she fell. A few weeks after the fall, Smith sought medical attention from Dr. Thomas Whitten. An MRI of her left knee revealed that she had torn the posterior horn of the medial meniscus[1] and that she had medial[2] compartment arthritis. Smith initially sought conservative treatment from Dr. Whitten in the form of cortisone shots. Dr. Whitten also recommended that Smith undergo an arthroscopic procedure. After Dr. Whitten's retirement, Smith transferred her care to Dr. Kenneth Tepper. Dr. Tepper recommended that Smith undergo unicompartmental knee arthroplasty.[3] Next, Smith visited Dr. Mark Cohen at Maryland Orthropedics, P.A. on November 11, 2013. Dr. McGovern, another practitioner at Maryland Orthropedics, P.A. saw Smith on February 18, 2014. Both Dr. Cohen and Dr. McGovern recommended Smith undergo a full left knee replacement.

         On January 28, 2014, Smith filed a workers' compensation claim requesting an authorization for a total left knee replacement. The Workers' Compensation Commission denied her claim after it held a hearing on April 4, 2014. Smith filed a petition for judicial review of the Workers' Compensation Commission's denial of her claim in the Circuit Court for Baltimore City and requested a jury trial. On November 24, 2014, Smith filed a "Motion In Limine to Exclude Certain Testimony from Kevin McGovern, M.D." to prevent Delaware North from raising questions at trial about any professional disciplinary action taken against Dr. McGovern.[4] Smith also sought to exclude portions of Dr. McGovern's de bene esse deposition where defense counsel inquired into the disciplinary charges against Dr. McGovern.[5] She argued in her motion that HO § 14-410 "expressly prohibits the introduction of such evidence in any collateral proceeding such as an appeal from a workers' compensation commission claim."[6]

         On December 11, 2014, a jury trial was held in the Circuit Court for Baltimore City to answer the question of whether Smith's knee replacement surgery was causally related to the accidental injury she suffered on September 7, 2012. Prior to jury selection, the trial judge heard the parties' arguments regarding Smith's "Motion In Limine to Exclude Certain Testimony from Kevin McGovern, M.D." Smith argued that the admission of the consent order would violate HO § 14-410(a). The trial judge disagreed and stated, "I do agree with [d]efense counsel that the stating (sic) of the consent order in effect is a stipulation of the parties that it's okay to be used."[7] She explained, "it's an exception to the medical review committee privilege[8] as we're referring to it."

         Once the trial judge determined that the consent order was admissible, she provided Smith with an opportunity to argue whether the admission of the consent order was "more substantially prejudicial than probative of the issue of whether Dr. McGovern is telling us facts that are relevant to Ms. Smith's case."[9] Smith noted that even though Dr. McGovern was on probation pursuant to the consent order, his license to practice medicine was still in good standing and that Dr. McGovern was still qualified to treat patients and offer expert testimony. Smith then argued that questioning on the disciplinary action would confuse and mislead the jury about the merits of the case, which involved the narrow issue of whether Smith's workplace injury caused her need for knee replacement surgery. Therefore, Smith contended that the probative value of the consent order and disciplinary action was substantially outweighed by their prejudicial effect.

         The trial judge ruled that

[i]t appears to this [c]ourt that the probative value of going into the disciplinary action against Dr. McGovern is outweighed by the prejudicial effect of the possible confusion of the jury. However, there's no question in my mind that the question about the status of his license, that should be asked.
Now, how far that question is allowed to go will depend on the answers Dr. McGovern gives. If I understand from the written submissions, Dr. McGovern's license is authorized only in the case that he obey the terms of the consent order.

         Thus, the trial judge granted, in part, Smith's "Motion In Limine to Exclude Certain Testimony from Kevin McGovern, M.D." and excluded the portions of Dr. McGovern's de bene esse deposition that referenced the disciplinary charges against him. She, however, allowed "the Defense to introduce the consent order showing that there are restrictions on [Dr. McGovern's] license." In response, Smith asked that the admission of the consent order "be limited to the conclusions of law and the order that sets forth the conditions in [Dr. McGovern's] probation" rather than the whole consent order which details the facts of each disciplinary charge against Dr. McGovern. The trial judge agreed with Smith and limited the submission of the consent order to the last six pages, excluding the first seventeen pages of the order. The last six pages of the consent order begin with the Board's "Conclusions of Law, " which state:

Based on the foregoing Findings of Fact, the Board concludes as a matter of law that [Dr. McGovern's] actions and inactions, as set forth above, constitute a failure to meet the appropriate standards for the delivery of quality medical care, in violation of H.O. § 14-404(a)(22); and a failure to keep adequate medical records, in violation of H.O. § 14-404(a)(40). The charges under H.O. § 14-404(a)(23), of willfully submitting false statements to collect fees for which services are not provided, and H.O. § 14-404(a)(19), of grossly overutilizing health care services, are dismissed.

         These pages of the consent order also set forth the conditions of Dr. McGovern's two year probation[10] and disclosed that the consent order "is considered a PUBLIC DOCUMENT[.]" The page that contains Dr. McGovern's signature is entitled, "CONSENT" and states:

I, Kevin McGovern, M.D., acknowledge that I am represented by counsel and have consulted with counsel before entering into this Consent Order. By this Consent and for the purpose of resolving the issues raised by the Board, I agree and accept to be bound by the foregoing Consent Order and its conditions.
I acknowledge the validity of this Consent Order as if entered into after the conclusion of a formal evidentiary hearing in which I would have had the right to counsel, to confront witnesses, to give testimony, to call witnesses on my own behalf, and to all other substantive and procedural protections provided by law. I agree to forego my opportunity to challenge these allegations. I acknowledge the legal authority and jurisdiction of the Board to initiate these proceedings and to issue and enforce this Consent Order. I affirm that I am waiving my right to appeal any adverse ruling of the Board that I might have filed after any such hearing.
I sign this Consent Order after having an opportunity to consult with counsel, voluntarily and without reservation, and I fully understand and comprehend the language, meaning and terms of the Consent Order.

         After the court addressed the parties' motions, a jury was selected and trial began. Smith was the first witness to testify. She testified on her own behalf as to the injuries she suffered and the recommendations of her doctors. Next, Smith presented expert witness testimony by playing a redacted version of Dr. McGovern's video deposition for the jury.[11] Dr. McGovern testified as follows:

[Plaintiff's Counsel]: Now, you said you reviewed Dr. Cohen's notes prior to your examination of Ms. Smith; is that correct?
[Dr. McGovern]: Yes.
[Plaintiff's Counsel]: Did you also look at his impression and his diagnosis of what her injury was?
[Dr. McGovern]: Of course.
[Plaintiff's Counsel]: And what was his diagnosis of her injury?
[Dr. McGovern]: Aggravation of pre-existing medial compartment arthritis of her left knee related to the injury of September 7th, 2012.
[Plaintiff's Counsel]: And what were the - what was shown by the x-rays?
[Dr. McGovern]: That she had degenerative arthritis, severe in her left knee and moderate in her right knee.
[Plaintiff's Counsel]: And what were the results of the - when you reviewed the MRI, what were the results of Ms. Smith's MRI?
[Dr. McGovern]: Again, it showed degenerative changes and it showed a tear of her medial meniscus in her left knee . . . . The menisci, the medial and lateral meniscus, the medial is on the inner part of the joint, the lateral is on the outer part of the joint. The medial part is the part of your knee that would touch your other knee if you put your knees together . . . . In this case[, ] there's a tear in the back portion of the meniscus, the posterior horn of the meniscus, which is the most common place for menisci to tear when they tear. The medial is the most common place for it to tear. The lateral meniscus on the outside of the knee doesn't tear nearly as frequently as does the one on the inner aspect of the knee. And most meniscal tears are caused by some sort of twisting injury to the knee.
[Plaintiff's Counsel]: And Ms. Brenda Smith, she would - had both of those positive showings on the MRI as far as her left knee is concerned?
[Dr. McGovern]: It showed that she had a tear of the posterior horn of her medial meniscus as well as arthritis in her knee.
[Plaintiff's Counsel]: And as far as the arthritis is concerned, the MRI classified that as - how did the MRI classify that arthritis in the findings? Would it be correct to say that they said mild degenerative arthritic changes?
[Dr. McGovern]: Well, it says in the lateral meniscus - meniscus it shows mild degenerative change without definite tear. And then in the medial meniscus it shows mild degeneration of the meniscus. That is a little bit different than the arthritis itself. Again that's what they're talking about in the menisci being mildly degenerated. We know from the x-ray that she has fairly significant arthritis in her knee.
[Plaintiff's Counsel]: Can someone have arthritis and not need a knee replacement?
[Dr. McGovern]: Oh absolutely. You're looking at one right now, I have arthritis in one of my knees and I don't need a knee replacement.
[Plaintiff's Counsel]: And can arthritis in someone's knee, can that be aggravated by a trauma?
[Dr. McGovern]: Absolutely.
[Plaintiff's Counsel]: And can you just explain to the ladies and gentlemen of the jury how a trauma could aggravate pre-existing arthritis?
[Dr. McGovern]: Well, in a simplistic way, it's possible that that could just be the straw that breaks the camel's back. At some point something happens that makes a joint become painful and symptomatic. In this particular case the mostly (sic) likely scenario is that she had arthritis in her knee. She had mild degeneration of her menisci, but when she had the fall she ended up tearing her medial meniscus [as] the result of the fall. That tear then aggravates and inflames the joint and causes the knee to become symptomatic, the arthritis to become symptomatic. In a young healthy person with no arthritis you could go in there with the arthroscope and repair or remove the damaged meniscus, and the symptoms would go away. But unfortunately once the knee is arthritic, such as this one, then taking care of the meniscus, fixing it or removing it doesn't solve the problem. Because the arthritis, once it becomes inflamed and symptomatic, stays symptomatic. So she would need something more significant than an arthroscopy for a torn meniscus, she would need a knee replacement to make her symptoms go away.
[Plaintiff's Counsel]: And what is your diagnosis as to after, you know, reviewing the history, reviewing the MRIs, looking at your notes, Dr. Cohen's notes, the x-rays, what is your diagnosis of what the cause of her current condition is and what's the cause of the need for the left knee replacement?
[Dr. McGovern]: Well, it's my belief that she had arthritis in her knee that wasn't symptomatic before this injury. That this injury caused her to tear her medial meniscus which caused an aggravation of her arthritis and has caused her to remain symptomatic as a result of that. The only solution for her problem as a result of this injury of September 7th, 2012 now is to have the knee replacement. Nothing less than that will work. She's already had conservative treatment. She's had Cortisone shots and gel injections into her knee of lubricants, called viscosupplementation, none of which have solved her problem and none of which probably would. And at this point a knee replacement is the only thing that would resolve her symptoms she now has as a result of her injury of September 2012.
[Plaintiff's Counsel]: And that opinion is - diagnosis is based within a reasonable degree of medical probability?
[Dr. McGovern]: Yes or I would haven't (sic) said it.
[Plaintiff's Counsel]: Did you have the opportunity to review a letter from Dr. Cohen dated January 21st, 2014?
[Dr. McGovern]: Yes.
[Plaintiff's Counsel]: In that letter did Dr. Cohen detail his opinion of Ms. Smith's left knee condition in that letter?
[Dr. McGovern]: It did.
[Plaintiff's Counsel]: And what was his opinion?
[Dr. McGovern]: The same as mine.
[Plaintiff's Counsel]: Now, Ms. Smith was also diagnosed or I should say seen by a Dr. Becker; are you familiar with Dr. Becker?[12]
[Dr. McGovern]: I know who Dr. Becker is, yes.
[Plaintiff's Counsel]: And have you had a chance to look at his report and his addendum to his report?
[Dr. McGovern]: I have.
[Plaintiff's Counsel]: And what is your understanding of Dr. Becker's role in this case?
[Dr. McGovern]: He performed an independent medical evaluation for the defense.
[Plaintiff's Counsel]: And in reviewing his report is there anything significant that you disagree with?
[Plaintiff's Counsel]: I think we disagree on the fact that she needs a knee replacement as a result of her injury. We agree that she has arthritis that was aggravated by the accident.

         On cross-examination, defense counsel asked, "can you state to a reasonable degree of professional certainty whether or not Ms. Smith would have needed a knee replacement even if she ...

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