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This Memorandum was filed in a blameworthy afterlife and adaptation assortment activity in abutment of plaintiff's motion in limine to exclude the affidavit of a actor physician beneath Maryland's Asleep Man Statute, which precludes a activity to an activity by or adjoin a claimed adumbrative from testifying as to any transaction with or account bogus by the decedent.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JEFFREY HOBRATH et al ) ) Plaintiffs ) ) v. ) Civ. No. DKC 12-cv-0226 ) YOUNGSIK MOON, M.D. (P.A.) et al ) ) Defendants ) ____________________________________ MEMORANDUM OF LAW IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE TESTIMONY OF MARYAM MERATEE, M.D. Jeffrey Hobrath, Plaintiff, through counsel, submits the afterward Memorandum of Law in abutment of his Motion in Limine to exclude any affidavit of Maryam Meratee, M.D., Defendant, that refers to her affairs with or statements by Marion Hobrath, Decedent. The acknowledged base for the Motion in Limine is the Maryland Asleep Man’s Statute, Md. Cts & Jud. Proc. Code Ann., §9-116. Introduction The case afore this Cloister is a assortment activity involving issues of medical negligence. The Complaint asserts a adaptation activity pursuant to §7-401 of the Maryland Estates & Trusts Code and a blameworthy afterlife activity pursuant to §3-904 of the Maryland Courts & Judicial Proceedings Code. On 4/10/2010, Maryam Meratee, M.D., Defendant, ordered a analytic chest xray for Marion Hobrath, Decedent, aloft her acceptance to St. Mary’s Hospital for analysis of hyponatremia (i.e., low sodium). The x-ray incidentally appear a baby birthmark superimposed on a pneumatocele (i.e., a cyst) in the adapted high lobe. The 2 radiologist who interpreted the x-ray recommended in his abode that Dr. Meratee access a chase up CT browse to appraise the pneumatocele. Plaintiff alleges that Dr. Meratee bootless to admonish Decedent apropos the aberrant x-ray results, and bootless to access a chase up CT scan. Plaintiff added alleges that Dr. Meratee’s abortion to acquaint the after-effects of the x-ray led to a fourteen (14) ages adjournment in the analysis and analysis of Decedent’s lung cancer. Plaintiff alleges that the adjournment is the almost account of Decedent’s death. Dr. Meratee’s Affidavit Dr. Meratee’s undated signature appears on the chest x-ray report. At her deposition, she testified that her signature on the abode agency that she brash the abode and that she discussed the after-effects with Decedent [Meratee Depo. 35:15 -18]. 1 Dr. Meratee has added testified that she has an absolute bond of her 2010 arrangement visits with Ms. Hobrath. She contends that she discussed the aberrant x-ray after-effects with Ms. Hobrath, instructed her to access an actual CT scan, and wrote an adjustment for this test. Dr. Meratee testified that Decedent bootless to accede with her instructions to access a chase up CT scan. [Meratee Depo. 38:11 – 43:11]. In her answers to interrogatories, Dr. Meratee provided the afterward anecdotal apropos her analysis of the aberrant chest x-ray and her instructions to Decedent to access a chase up CT scan: … On April 16, 2010, Ms. Hobrath was apparent by Dr. Meratee at Hollywood Medical Center for chase up. Dr. Meratee has an absolute bond of this arrangement visit. At this appointment, Dr. Meratee brash the radiology abode with Mrs. Hobrath, including the risks associated with the pneumatocele and nodule, 1 Excerpts from Dr. Meratee’s degradation archetype cited herein are absorbed hereto as Exhibit A. 3 and recommended that the accommodating beneath go a CT browse of the chest anon with a chase up CT browse of the chest aural about three (3) months. Dr. Meratee added brash Mrs. Hobrath the birthmark had about a 20% adventitious of actuality malignant. Dr. Meratee’s convenance was to accommodate a St. Mary’s Hospital Radiology Adjustment anatomy to her patients who bare chase up chest CT scans. Mrs. Hobrath would accept accustomed such a form. Mrs. Hobrath adumbrated that she was pre-occupied with issues in her claimed activity and would go for a CT browse soon. On May 14, 2010, Mrs. Hobrath alternate to Holywood Medical Center to see Dr. Meratee. Dr. Meratee has an absolute bond of this arrangement visit. Dr. Meratee inquired whether the accommodating had acquired the chase up chest CT scan. The accommodating abreast Dr. Meratee that the chest CT had not been acquired but would be acquired soon. 2 Dr. Meratee has testified that Ms. Hobrath did not accede with her apprenticeship to access a chase up CT browse because she was anxious that her bedmate was “having an affair” [Meratee Depo. 64:19 – 65:11]. According to Dr. Meratee, Ms. Hobrath’s conjugal problems had acquired her to acquaintance “overwhelming” anxiety, which was her “major problem” at the time [Meratee Depo. 79:1 -21]. It is acknowledged that there were no assemblage to any of the affairs or statements declared by Dr. Meratee in her affidavit or answers to interrogatories [Meratee Depo. 39:16-20; 74:14-17]. Argument The Maryland Asleep Man’s Statute provides, inter alia, that a activity to activity by or adjoin a claimed adumbrative may not affirm apropos any transaction with or account by the decedent: A activity to a proceeding by or adjoin a claimed representative, heir, devisee, distributee, or almsman as such, in which a acumen or decree may be rendered for or adjoin them, or by or adjoin an amateur person, may not affirm 2 At her deposition, Dr. Meratee testified that there was a 30 – 35% anticipation that the birthmark apparent on the x-ray was cancerous [Meratee Depo. 52:3]. 4 apropos any transaction with or account bogus by the asleep or amateur person, alone or through an abettor back asleep unless alleged to affirm by the adverse party, or unless the affidavit of the asleep or amateur being has been accustomed already in affirmation in the aforementioned proceeding apropos the aforementioned transaction or statement. Md. Cts & Jud. Proc. Code Ann., §9-116. 3 The Asleep Man’s Statute is an barring to the accepted aphorism that every being is competent to testify. Reddy v. Mody, 39 Md. App. 675, 388 A.2d 555 (1978). In a assortment activity in federal court, accompaniment law governs the assurance of attestant adequacy to testify, F.R.Evid. 601. Accordingly, the Asleep Man’s Statute is applicative in the assortment activity afore this Cloister to the assurance of Dr. Meratee’s adequacy to affirm apropos her affairs with and statements bogus by Marion Hobrath, Decedent. See Maltas v . Maltas, 197 F. Supp.2d 409 (D. Md. 2002). The purpose of the Asleep Man’s Statute is “to adjust the position of the parties by arty blackout on the survivor as to affairs with or statements by the decedent.” Reddy v. Mody, above-mentioned at 679. The aphorism recognizes the abundant crisis that a actual party’s affidavit is acceptable to accommodate “self absorbed perjury” back her antagonist has no adeptness to present the decedent’s adaptation of the transaction or statement. Id. at 681. In a adaptation activity arising out of medical negligence, the Maryland Cloister of Special Appeals has captivated that the Asleep Man’s Statute precludes a actor doctor from testifying as to affairs with and statements by his asleep patient. Reddy v. Mody, 3 The analysis for free whether there has been a transaction aural the acceptation of the asleep man’s statute is “[w]hether, in case the attestant affirm falsely, the deceased, if living, could belie it of his own knowledge.” Schifanelli v. Wallace, 271 Md. 177, 184, 315 A.2d 513 (1974)(quoting Ridgley v. Beatty, 222 Md. 76, 83, 159 A.2d 651 (1960)); Boyd v. Bowen, 145 Md. App. 635, 806 A.2d 314 (2002). 5 supra. The Asleep Man’s Statute is inapplicable, though, in a blameworthy afterlife action, because amercement are awarded to blameworthy afterlife beneficiaries in their own right, not as heirs, devisees, distributees, or legatees as such. State, Use of Miles v. Brainin, 224 Md. 256, 167 A.2d 117 (1960)(medical apathy case); Robinson v. Lewis, 20 Md. App. 710, 317 A.2d 854 (1974). In Reddy v. Mody, supra, the board alternate a aegis adjudication in both the blameworthy afterlife and adaptation actions. On appeal, plaintiff aloft the activity whether the balloon cloister erred by acceptance the affidavit of the actor doctor apropos affairs with and statements by the asleep patient. The appellate cloister captivated that the Asleep Man’s Statute activated to the adaptation action, and that it was capricious absurdity for the balloon cloister to accept accustomed the actor doctor’s affidavit in that action. Citing Brainin, the cloister added captivated that it was not absurdity for the balloon cloister to accept accustomed the defendant’s affidavit as to the blameworthy afterlife action. Accordingly, the cloister in Reddy ordered a retrial of the adaptation action, but affirmed the acumen in the blameworthy afterlife action. In a case in which adaptation and blameworthy afterlife accomplishments are abutting at trial, as in the case sub judice, Reddy does not abode the catechism how procedurally the balloon cloister can, back applying the Asleep Man’s Statute, accompanying acquiesce defendant’s affidavit in the blameworthy afterlife activity and abjure the aforementioned affidavit in the adaptation action. 4 Because Dr. Meratee is a activity to the adaptation action, it is bright that the Asleep Man’s Statute precludes her affidavit in the adaptation activity apropos her affairs 4 In Robinson v. Lewis, supra, a claimed abrasion case in which blameworthy afterlife and adaptation accomplishments were abutting at trial, the cloister beneath to abode the “interesting question” whether the affidavit of a blameworthy afterlife almsman should be afar beneath the asleep man’s statute back that activity is additionally the claimed adumbrative of the estate. 6 with and statements bogus by Decedent. Defendant’s exceptionable affidavit apropos her affairs with Decedent includes the following: Dr. Meratee’s undated signature on the chest x-ray abode agency that she discussed the x-ray after-effects with Decedent; After reviewing the chest x-ray after-effects with Decedent, Dr. Meratee recommended that Decedent get an actual CT browse and addition chase up CT browse in three months; Dr. Meratee brash Decedent apropos the anticipation that the birthmark apparent on the chest x-ray was malignant; Dr. Meratee gave Decedent a accounting adjustment to access a chase up CT scan; and After giving Decedent a accounting adjustment to access a chase up CT scan, Dr. Meratee inquired at Decedent’s abutting arrangement appointment whether she had complied with instructions. Defendant’s exceptionable affidavit apropos statements bogus by Decedent includes the following: Decedent was anxious that her bedmate was accepting an activity with addition woman; As the aftereffect of her husband’s declared affair, Decedent had accomplished cutting all-overs which was her above botheration at the time; and Decedent bootless to accede with instructions to access a chase up CT browse because she was absent with issues in her claimed life, including her husband’s declared affair. This Cloister may exclude contrarily accordant affidavit pursuant to F.R.Civ.P. 403 if its probative amount is essentially outweighed by, inter alia, the crisis of arbitrary ageism or ambagious the issues. For the afterward reasons, the dangers of ageism and abashing far outweigh the probative amount of Dr. Meratee’s affidavit recollections apropos her affairs with and statements by Decedent. Such affidavit should accordingly be afar in both the adaptation and blameworthy afterlife actions. 7 In adjustment to exclude Dr. Meratee’s exceptionable affidavit in the adaptation action, as adapted by Reddy, and at the aforementioned time acquiesce the identical affidavit in the blameworthy afterlife action, this Cloister would necessarily accept to appearance a attached apprenticeship pursuant to F.R.Evid.105. Such an apprenticeship would admonish the board that it may alone accede Dr. Meratee’s affidavit back it decides the blameworthy afterlife action, but that it charge apathy her affidavit back it decides the adaptation action. Such an instruction, admitting conceivably technically permissible, would be abstract and incomprehensible to a lay jury. This is because the base of Defendant’s accountability in both accomplishments is identical (i.e., Actor abominably bootless to access a chase up CT scan), and Dr. Meratee’s aegis in both accomplishments is identical (i.e., Actor brash Ms. Hobrath to access a chase up CT scan, but she bootless to comply). No amount how careful the jury, it can not analytic be accepted to accompanying accede and apathy Defendant’s affidavit back it evaluates the asserted apathy claims and defenses thereto. Once it has accustomed Defendant’s testimony, the board will accordingly accede it in both the adaptation and blameworthy afterlife actions. For this reason, a attached apprenticeship beneath F.R.Evid. 105 would be ineffective. Acceptance Dr. Meratee’s affidavit in the blameworthy afterlife activity will accordingly unfairly ageism Plaintiff, because there is a abundant likelihood that the jury, no amount how anxiously this Cloister instructs it on the able appliance of the Asleep Man’s Statute, will accede Defendant’s affidavit in the adaptation action, in abuse of the aldermanic absorbed which underlies the Asleep Man’s Statute, i.e., the aegis of decedents’ estates from affected claims and defenses. 5 5 Courts in added jurisdictions which accept grappled with this activity accept captivated that the survivor’s affidavit should be afar back blameworthy afterlife and adaptation accomplishments are abutting in one proceeding. See National Accompaniment Bank of Boulder v. Brayman, 497 P.2d 710 8 Furthermore, Dr. Meratee’s affidavit has little or no probative amount beneath the affairs of this case. As the cloister credibility out in Reddy, the allurement of a actual activity to assemble a affirmation or aegis is “obvious” in cases in which her antagonist has no adeptness to present the decedent’s adaptation of the transaction or statement, 39 Md App. at 681. Thus, the aldermanic purpose which underlies the Asleep Man’s Statute is to anticipate “self absorbed perjury”, id. at 679. Merely because Dr. Meratee’s affidavit recollections are acceptable in the blameworthy afterlife activity does not abate the accustomed crisis that her affidavit is fabricated. The crisis of artifact abundantly diminishes the probative amount of Dr. Meratee’s testimony. The exclusion of Dr. Meratee’s affidavit apropos her affairs with and statements by Ms. Hobrath does not anticipate Actor from introducing added affirmation in abutment of her altercation that she brash Decedent to access a chase up CT scan, and that Decedent bootless to accede with medical advice. Such added affirmation includes Decedent’s medical records, which certificate Defendant’s ancillary appraisal of Decedent’s medical needs, as able-bodied as Decedent’s analysis plan and cogent contest during the advance of treatment. Because Ms. Hobrath was a Medicare beneficiary, Dr. Meratee was answerable to accede with Medicare activity guidelines which adapted her to acutely certificate in (Colo. App. 1972)(where apathy was base of both adaptation and blameworthy afterlife accomplishments approved to aforementioned jury, cloister alone defendant’s position that affidavit could be accepted for purposes of blameworthy afterlife affirmation and at aforementioned time afar for purposes of adaptation action); Groce v. South Chicago Community Hospital, 669 N.E.2d 596 (Ill. App. 1996)(defendant doctor banned from testifying on his own account as to referrals of decedent to oncologist and her abnegation to abide to treatment). But see Gibbs v. Herman, 714 A.2d 432 (Pa. Super. 1998)(court accustomed defendant’s affidavit because “to acquaint board to accept to actor in one affirmation and abutting its ear in added ability possibly be technically actual but about senseless”). 9 Decedent’s medical records, inter alia, all orders for analytic testing, including CT scans. [Ex. B, Medicare Benefit Activity Manual, §80.6.1, CMS Documentation Guidelines for Evaluation and Management Services]. Moreover, Dr. Meratee has testified that it was her approved convenance to certificate her medical admonition and instructions in the patient’s medical record. Q. Let me ask you generally, Doctor. Back you accord a accommodating medical admonition or instructions, do you commonly certificate this in the patient’s chart? A. I try to do as abundant as I can. Q. Okay. Is there any added abode or adjustment that you use to certificate admonition or instructions you accord to a accommodating added than in the patient’s chart? A. No. * * * * * Q. Are there any exceptions to your accepted aphorism of documenting in the patient’s blueprint the medical admonition and instructions? A. No. [Meratee Depo. 20:11 – 21:21]. Because Dr. Meratee had an obligation to certificate her medical admonition and instructions apropos analytic testing, and inasmuch as it was her approved convenance to do so, Decedent’s ancillary medical annal accommodate the best probative affirmation of the actions, if any, taken by Dr. Meratee to chase up on Decedent’s aberrant chest xray. Compared to the ancillary medical records, Defendant’s affidavit recollections -developed for the purpose of activity and doubtable of absolute “self absorbed perjury” -have slight probative value. Beneath the circumstances, the probative 10 amount of Defendant’s affidavit apropos her affairs with and statements by Decedent is outweighed by the dangers of ambagious the issues and arbitrary prejudice. 6 For all of these reasons, Plaintiff respectfully requests that this Cloister exclude any and all of Defendant’s affidavit apropos her affairs with and statements by Decedent. Date: 2/22/13 /s/James P Koch _____________________ 1101 St. Paul St. Suite 404 Baltimore, MD 21202 410 539 7816 Attorney for Plaintiffs 6 Section 14-404(a) of the Maryland Health Occupations Code capacity a physician to conduct for abortion “to accumulate able medical annal as bent by adapted associate review”.
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