*1 525 A.2d Stanley R. WEIMER Jody et Ann HETRICK al. Term, Sept. 1986. No. Appeals Maryland. Court
28,May 1987. *2 Franch, David R. B. Jr. and Thompson (Roy Cowdrey, P.A., brief), Easton, appel- Earnest & on the Cowdrey, lant. Anderson, &Coe Plante, and A. King, F. Jeanette
John and Medical curiae the brief, for amicus Baltimore, on King, Maryland. of State Faculty Chirurgical Piper Marbury, H. Mark and & Magee, E. Fremont Stichel brief, Baltimore, Physi- curiae Chesapeake for amicus cians, P.A. Semmes, Jr., DeVries, Mitchell and
Donald L. J. Lambros Baltimore, Semmes, on brief for amicus curiae & Bowen Cen- Greater Baltimore Medical Square Hospital, Franklin Inc., Hospital, Dorchester Gen- ter, Baltimore General South University Maryland Systems Medical Hospital, eral Management Healthcare Risk Society for Corp., Maryland R.I.S.C., Inc. Robinette, (Gilbert H. Robinette Dugan, Jr. Henry E. Baltimore, Jakubowski, P.A., brief), on the Dugan, Seiden & for appellees. COLE, RODOWSKY, COUCH before
Argued McAULIFFE, JJ., MARVIN H. SMITH and CHARLES *3 ORTH, Jr., Judges Appeals Associate Court E. and W. (retired), Specially Assigned Maryland MENCHINE, Judge of the Court of Associate ALBERT (retired), Specially Assigned. Appeals Special MENCHINE, Assigned. Specially Judge, W. ALBERT Hetrick, Cary and Michael Ann Hetrick Jody Appellees, Care claim, to the Health pursuant malpractice filed a Proceedings (Courts and Judicial Act Malpractice Claims Health Claims 2A, with the Article, Repl.Vol.) Subtitle Office, alleging Appellant, August Arbitration Moeser; R. Dr. John S. Weimer; Dr. Thomas R. Stanley Dr. Hos- Anne Arundel and the Harris;1 Hospital;2 Agnes St. of Jason and treatment in the care negligent were pital attending the 1. Drs. Moeser and Harris were obstetricians mother during pregnancy. against claims The settled them contended that they cholecystitis life-threatening misdiagnosed had condition eclampsia. known as Eclampsia etiology, occurring during is a of uncertain condition pregnancies, compromises placenta, through some which the passes through body blood of the mother to fetus through purification. returns stream of it the blood the mother for life-threatening and child. condition mother Agnes Hospital joined party 2. St. was not as a defendant in the circuit court. Hetrick, son, Michael their who was delivered caesarean section but died who hours after birth.
The Health panel Claims Arbitration found no liability part of the Health Care against Providers whom the litigated, claim was liability part but found on the of Dr. Moeser, although he had settled the claim him against prior hearing. Appellees rejected panel pursuant decision judicial provisions (Cts. to the review of the Act & Jud.Proc. for Anne 3-2A-06) filed suit in the Circuit Court Art. § Weimer, and Anne against Dr. Dr. Harris County Arundel Appel- Dr. Harris settled with Hospital. Arundel General Anne Arundel to trial in the Circuit Court for prior lees directed as to Anne Arundel County. Motion for verdict of- granted was at the end evidence Hospital General proceeded against The case then plaintiffs. fered I and III. alone, to the under Counts going jury Dr. Weimer Anne County The mother had been admitted to Arundel September on the of Dr. Thomas Moeser on Hospital service versus diagnosis gastroenteritis 1978 with a of “severe September Her condition and on choleeystitus.” worsened It was exploratory laparotomy. 1978 she underwent normal but she gall completely noted that bladder great had a deal of edema of the liver and it was felt that The incision was very early pre-eclamptic. she was a severe stormy done. A cholecystectomy being very closed without operation. Within twelve exploratory course followed the hours, could not pre-eclampsia it was felt that the severe be pregnancy was neces- controlled and that termination *4 section, agreed delivery by The mother to caesarian sary. gestation might only infant knowing that the 32-week lb., boy A 3 6 oz. was delivered poor chance of survival. Drs. Moeser and procedure performed by operative operative no role in either occupied Harris. Dr. Weimer operating in the room received the infant procedure but p.m. at 6:43 delivery after the Dr. Kenneth L. Harkavy, physician neonatologist, testified that Dr. Weimer’s medical services for the infant (1) were not in keeping required with standard care: efforts; (2) inadequate improper resuscitative use and dos- (3) age bicarbonate; premature removal of the umbilical venous line only that was the route for administration of medicines and nourishment—removal should not have oc- I.V.; prior starting (4) flushing curred to an the umbilical (5) venous line with an of Heparen; excessive concentration progressive failure to observe the from baby’s fatigue his (6) trying lungs expanded; to his to keep failure monitor Dr. sugar Harkavy the infant. conceded that blood by history hospital symptoms shown many for ec- original findings admission were classic record concluded, however, He lampsia. birth, are able baby you
“Given the condition of the this say probability with reasonable medical whether if had the resuscitation baby would have survived inadequate?” been weight “I can tell that at the birth you
Answer:
that baby’s
an
of two that
survival chances
Apgar
with
fact,
the likelihood of
good.
still
considered
would
be
talking
is 80
Per-
still that we’re
about
survival
90%.
from the
pre—slightly prejudiced
average
haps somewhat
not significant.”
survival rate but
autopsy
after
was as follows:
expressed
The conclusion
anoxia
this case is un-
“The cause of intrauterine
are examined. Some
certain when the clinical events
during eclampsia,
blood flow
authors have indicated
would,
course,
lead
is decreased which
placenta
to the
a long
to the fetus. Over
oxygen supply
a decreased
time,
growth retardation
may
toxemia
lead to
period
in this case
possibility
fetal size. Another
and decreased
of surgery
the fetus occurred at the time
is that anoxia to
course, the mother
administration. Of
from anesthesia
and caesarean section
cholecystectomy
underwent both
during which intrauterine anoxia
periods
presenting two
history supportive
There
no
might have occurred.
placen-
fetal
as abruptio
main causes of
anoxia
the other
infarct,
shock,
placental
ta, placenta previa, maternal
Thus,
probable
it
most
would seem
interruption.
cord
eclampsia
general
anesthesia
plus
that a combination
changes observed.
pathologic
to fetal anoxia and the
led
*5
eclampsia
in
of
has
mortality
presence
fetal
Although
a
cause of
it still remains
substantial
greatly improved,
to the
frequently secondary
necessity
This is
fetal death.
delivery
these mothers.”
premature
of
Gieske,
the course
pediatrician,
tracing
after
Dr. Judith
death,
that Dr.
delivery
life from
concluded
baby’s
Weimer met the standard
him
expected
nothing
and did
that caused or contributed to the
death.
baby’s
I,
Jody
Count
Ann Hetrick had
as personal
sued
Hetrick,
representative
the estate of Jason Michael
de-
ceased, pursuant
provisions
to the
of Annotated Code of
Article,
Maryland,
Proceedings
Courts
Judicial
Subtitle
Practice,
6-401(a)
General,
Survival
Actions3
§
(1984
Article,
Repl.Vol.) and Estates and Trusts
Subtitle
7-401(x)
Personal Representative
Powers
General
§
(1974).4
Powers
III, Jody
Hetrick,
In Count
Ann Hetrick and
Cary
Michael
father,
Hetrick,
respectively,
mother and
of Jason Michael
deceased,
pursuant
had sued
to the
of Courts and
provisions
Article,
Proceedings
Judicial
Subtitle 9 Wrongful death
3-902(a)
jury
3-904.5 The
returned verdicts in
§
§
Weimer,
defendant,
under
favor of the
Dr.
both counts.
Special
Appellees appealed
Appeals.
the Court
court,
rights
That
distinguishing
respective
between
Ann., 6-401,
actions,
part
3. Cts. & Jud.Proc.Code
Survival
here
§
"(a)
law,
pertinent, reads as follows:
At law—A
of action at
cause
real,
mixed,
slander,
personal,
except
whether
or
survives the death of
party.”
either
Ann.,
7-401,
Powers,
part
4. Est.
§
& Trusts Code
General
here
"(x)
pertinent,
litigation.—He may prose-
reads:
Prosecute or defend
cute, defend,
actions, claims,
proceedings
or submit
arbitration
any
jurisdiction
appropriate
protection or
for the
benefit of the
estate, including
personal
the commencement of a
action which the
”
might
prosecuted....
decedent
have commenced or
3-902(a) Liability notwithstanding
5. Section
death reads as follows:
"(a)
against
causing
may
person
Action
another.—An action
against
wrongful
person
be maintained
whose
act caused the death
of another.”
3-904(a)
"(a)
wrongful
Section
Action
death reads as follows:
Primary
action under this subtitle shall be for the
Beneficiaries.—An
wife, husband, parent,
benefit of the
and child
the deceased
person.”
litigants
III,
under Count and under Count
affirmed
*6
(Hetrick Weimer,
in part.
and reversed
part
(1986)), holding
“To hold Weimer medically clearly recognizable not as that his conduct was chargeable no is with the pediatrician And acceptable. of skill degree if he has applied of his efforts results in the pediatrician of a required expected to be ordinarily required. you And of the services performance at the they as existed mind the circumstances keep and complexity and the nature time of the treatment time. pediatrician at that problems facing the medical Weimer, those circumstances Dr. under If find that you exercised by hindsight, than they then existed rather skill, you then must degree of care that reasonable find in of the doctor. favor cause of only likely the most prove
Now need plaintiffs that I’ve everything else addition baby’s exclude negate required are not plaintiffs said. The However, if there are two or possible other cause. every in the causes, have resulted either of which could more death, pediatrician for which one which baby’s and the others for responsible, not, which he is then the have to prove by evidence plaintiffs more likely so than that the acts for which the pediatrician is responsible in fact caused the death. baby’s Now there I’ve used that phrase by evidence more so likely than not. case, strictly an and it is this example
Take are the infer that these mean to don’t example, just I’ve doing clarify this to what only I’m Again, facts. if you are. But the facts to decide what You have said. lack for the responsible Dr. Weimer was find that should cause of the death and that was oxygen 50% the cause of prematurity if feel that the 50% you got two causes again. We death, that’s the standoff then *7 that causes of death possible two There are of action. case, hasn’t plaintiff If that’s the equal. are both in favor of must find requires you the law done what that the act for has to show plaintiff The the doctor. 50%, is than better responsible the doctor is which That’s better.” 51%. as charge was of the court’s part to that exception
The follows: the, to Honor, give failed you in the instructions
“Your it, on Thomas v. I the instruction least didn’t hear or at is plaintiff prove need that all that to the effect Corso away a substantial of Dr. took the actions Weimer appro- have survived with baby that this would possibility Honor, I And, object Your thirdly, resuscitation. priate for that Cowdrey Mr. asked giving to instruction said example you where your that and with 50% said resuscitation, I don’t of appropriate lack prematurity, 50% I plaintiff. upon that’s think that that is the burden plaintiff prove need that the think all that the burden—all away a sub- resuscitate took properly is that to failure survived. child would have that this possibility stantial Corso, even case, as in specific Thomas So this probability, as to we offered evidence though we have which was less possibility prove substantial only need Honor.” Thank Your you, than 50%. grounded holding court had its intermediate in Hicks v. Judge the late Sobeloff used
language Cir.1966) (4th that had States, F.2d United quoted by Judge Barnes our decision Thomas v. been 84, 102, (1972). Corso, 389-90 265 Md. negligent action or inaction has “When defendant’s survival, it person’s terminated a chance effectively to conjectures lie the defendant’s mouth raise does not put beyond that he has to the measure the chances any of realization. If there was substan- possibility the defendant has de- possibility of survival and tial it, possible it Rarely he is answerable. stroyed certainty to an absolute what would have demonstrate did wrongdoer in circumstances that the happened existing to come The law does not pass. allow to a plaintiff to show require certainty circumstances hospital- had lived she been patient that the would have operated promptly.” ized and granted We certiorari to consider the question public importance.
I as it Relates Count Appeal representative personal (Survivorship action § 6-401 and Cts. & Jud.Proc.Art. under § 7-401(x)) Art. Trusts Est. & *8 recovery in the circuit court that contention was made No chance of survival for the loss a substantial damages count of declaration. permissible under that in the testimony taking that while the record shows witness, of a awaiting arrival suspended court was circuit court’s counsel discussed the plaintiffs’ judge the trial survivorship action. The in the given instructions be in the record: following colloquy appears Estate? do have for the damage you “COURT: What Pain— JAKUBOWSKI: MS. suffering—
MR. Pain and DUGAN: suffering baby. Pain and JAKUBOWSKI: MS. Oh, COURT: as to the individual but as to other than the itself, child there’s no evidence any medical ex- penses—
MR. Right. put DUGAN: didn’t any any bills
that. Right. MS. JAKUBOWSKI: All right, COURT: so there’s no misunderstanding as to that.
MR. DUGAN: It’s just pain and suffering.
COURT: As the child. MR. DUGAN: As to the child.” discussion, Pursuant to that the court in its charge to the said: jury,
“One is for the Estate. Now that is Mrs. [verdict] Hetrick, mother, but she’s not here as the mother in this first claim. representative She’s here as words, Estate. other standing she’s in the baby’s shoes, speak. so to It could anyone. personal be representative is what she’s commonly referred to. She happens to be the mother. But this first dollar award is to compensate for the pain conscious and suffering of the baby. Just like anyone that may injured have been in an automobile happen accident. We dealing to be with a so, death here we don’t obviously, have the party front of us. That is personal where the representative, which happens Hetrick, to be Mrs. comes in. So talking we’re about the pain conscious and suffering of the Not baby. the mother. Not the father. Only baby and for period whatever of time it may have survived.” No exception was taken charge given to the court under I. question Count Accordingly, whether Maryland recognizes the loss of a substantial chance of survival as a measure of damages separate or as a tort was not raised or decided under this count of the declaration. *9 546 the question shall not consider under that Count.6 Md.
We Rule 885.
II III as it Relates to Count Appeal (Action wrongful for death under Cts. & Jud.Proc.Art. 3-904(a)) 3-902(a) and
§§ (a) under such proof Burden actions thus general negligence rule cases is stated 1984): Torts, (5th Keeton on at 239 ed. Prosser & § is proof “The of the defendant’s burden uniformly asking since he is quite upon plaintiff, relief, and must if his case does not court for lose omitted). (footnote that of the defendant’s” outweigh 12.1, at Speiser, Wrongful In 2 Death Recovery S.M. § (2d 1975), 288 it is said: ed.
“The the existence of person pleads rule that the who applicable such fact is proving fact has burden wrongful actions, statutory death and thus the plaintiff has that the decedent would proof the same burden omitted). (footnote if he have had had lived” (2d In F.B. Act Tiffany, by Wrongful Death § 1913), also makes clear this rule of law ed. the author involving death: application negligence causing has cases actions, “As in other the burden case, including the fact that the plaintiff establish his wrongful neglect act or caused (footnote defendant, by preponderance of evidence” omitted). recovery of a to seek for loss substantial
6. Plaintiffs’ decision may produced by our possibility under have been of survival Count Fisher, (1961). any Rhone 224 Md. decision in case, no circuit such issue was raised below under count court. *10 288-89, the rule is In Am.Jur.2d Evidence 30 § thus stated: a the causal connection
“The must leave evidence more than something must be conjecture; matter of it the accident theory as to how plaintiff’s consistent with equal- connection is proof the of causal occurred. Where theory as consistent with one balanced, or the facts are ly another, has not met the burden which plaintiff as with that an him. If the evidence shows upon law casts the causes, but resulted from one of several may have injury can be attributed to the defend- one of the causes only (footnotes must fail” omit- negligence, plaintiff the ant’s ted). recognized applied and long
That
courts
Maryland
cavil. In
v. Consol Gas
beyond
Brady
this rule of law is
637, 641,
(1897),
Co.,
negligence causing
grounded
State,
settled.
equally
tice is
well
Use
Janney
(1889),
Housekeeper, 70 Md.
“The in Housekeeper Court also prayer by submitted defendant: by ‘That and skill to exercised degree care be physicians surgeons performance opera- and in the of an degree tion care and known to highest skill profession degree but that care and reasonable skill exercise physicians surgeons ordinarily which and in the their patients; treatment the burden of
549 plaintiffs is on the in this case to establish evidence a preponderating want such care ordinary skill in the performance operation attendance the said Matilda C. Janney’ (emphasis supplied)____ State, Fishel, Use Solomon v. 189, also
See
228 Md.
(1962); State,
203,
Use
v.
‘Before the equitable plaintiffs
against
can recover
any
defendants,
it must
shown
evi-
be
affirmative
dence that
they
negligent
were either unskilled or
their
respective capacities, and that such want of skill or care
resulted
the death of Mr. Kalives.
If either of the
in the
no
lacking
proof,
above elements is
then
case for
presented____’”
the consideration of the
has
jury
been
*12
The
the
governing
proof
rule
law
burden of
medical
Pierce v. Johns-Ma
malpractice cases was reiterated
Corp.,
ville Sales
(1983). In
296 Md.
evidence (1975).” 54, 62, 427-28 A.2d at 1026. 296 Md. at no from rules of the We see deviation these law either issues or the Thomas decisions. basic for deci- Hicks Thomas, supra, were identical and sion in both Hicks distinguished the similarly judges stated who au- were opinions respective in the courts. thored the Sobeloff, Hicks, after supra, Judge his review of the below, the issue of the record defendant said: therefore, scrutiny, careful ex- government’s
“On demonstrated did pert is seen that the examiner required Coupled standard of care. not conform to explicit testimony plaintiff’s experts, with government’s testimony leads us to the con- inevitably negligent clusion that the doctor was as matter of added). (emphasis tow” at 631-32. F.2d question
On the whether the evidence at trial established diagnosis that erroneous concededly “[the doctor’s] death,” Judge treatment cause of her proximate was said: Sobeloff government negli-
“The further contends that even if established, gence is there was no that the errone- treatment cause of diagnosis proximate ous death, if had been asserting surgery per- even speculation say it is mere that it immediately, formed government’s would have been successful. conten- tion, however, unsupported by the record. Both of plaintiffs experts categorically operat- testified if survived, ed on Mrs. Greitens would have promptly, government and this is nowhere contradicted added). (emphasis expert” 632. F.2d at *13 added, He in fail- sum, dispensary negligence the physician’s
“In
omitting
and in
thorough
examination
ing
make
to
tests,
diagnosis.
led to an erroneous
diagnostic
standard
home
instruc-
this,
patient
he sent
the
with
Because
hours,
eight
rather
than immedi-
not to return for
tions
Since the uncontra-
admitting
hospital.
her to a
ately
prompt surgery
was that with
she
testimony
dicted
survived,
the
that
the
conclusion
would have
follows
whatever
negligence
doctor’s
dispensary
nullified
had
the
recovery
might have
and was
she
chance of
”
added).
the death
cause
proximate
(emphasis
F.2d at 633.
Thomas,
supra,
Barnes,
noting
Judge
after
in
Similarly,
evidence
favor
all conflicts
the
that
must resolve
“we
reasonable
give them the benefit
all
plaintiffs
evidence favorable
derived from the
inferences
to be
389,
them,”
examined
that uncontradicted in Thom- death; this Court proximate cause was legally sufficient the record evidence found that showed proximate cause establish death. State our decision appellees take comfort
Fabritz,
(1975)
Chief
Md.
“Obviously, grants verdict, a directed as Corso, occurred in Thomas v. the case does not even get to the jury—so any time the Plaintiff has not produced (met sufficient proof) evidence burden of as a matter law, there no jury are instructions. All (and the plainest Thomas Corso said in most consequently the beautiful language possible) was judge applied wrong in proof burden granting the directed verdict.” Such was not the status of Thomas v. Corso at the appeal (with to this Court. The trial judge Thomas one excep- pertinent held, tion not that appeal) correctly, we denied for defendants’ motion a directed verdict. The jury rendered a verdict in favor of the plaintiffs. Our decision in required Thomas v. Corso us to determine “whether the court declining grant trial erred in motions for directed judgments verdicts n.o.v. in favor of appealing [the Id. at 382. We defendants].” Md.] [265 concluded that it not err. did accept
We decline to appellees’ suggestion that such careful and analytical jurists Judges Sobeloff Barnes quoted language Hicks, alter, intended the supra, discussion, rule of governing without law the burden of so uniformly formed and so anciently applied wrongful under the Maryland cases statute.
Indeed, the circuit court for the Fourth Circuit itself has
rejected such
interpretation
those words.
Clark v.
States,
(4th Cir.1968)
United
in another cause. doWe not reach those issues. This is so it is clear crystal because that determination of ques- such impermissible tions is in an action wrongful death under statute. Maryland Maryland statute is in derogation of the common such, and as law should be strictly construed. McKeon v. State, Conrad, 437, 443, Use Md. 127 A.2d (1956) and cases plain, cited therein. unambiguous lan guage, provided statute a cause of action unknown to the common law for the benefit of described beneficiaries “against person whose wrongful act caused the death of added). (emphasis another” In such circumstances, there judicial is no room for interpretation. Trimper v. Porter- 31, 36, Hayden, (1985). Md. 501 A.2d The commencement date for the determination of damages allowable to primary beneficiaries under the stat (both pecuniary solatium) ute and for is the date their decedent. No damages for injuries losses sustained their prior decedent to his death are provided for the statute. enlargement requested statute by the
appellees
recognition
for
of a
tort or for
new
consideration
of a new measure of damages “cannot be
accomplished
guise
the
of statutory construction.” Trimper v. Porter-
Hayden, supra,
subsequent survival, treating physician deprived patient of a chance of wrongful and that claim cannot be made in a death action.