Davis v. Johns Hopkins Hospital

McAULIFFE, Judge. For almost all of his young life, James Robert Davis, III (Bobby), has been seriously afflicted with status epilepticus and status asthmaticus. During the early morning hours of 2 March 1983, when he was three years of age, Bobby suffered unremitting seizures, compounded by asthma. Consistent with procedures earlier established for the treatment of Bobby’s medical problems, his parents called the Anne Arundel County Fire Department, who in turn summoned a Maryland State Police medevac helicopter.

Bobby ⁵⁶ was transported from his home to a nearby landing site by ambulance, and from the landing site to Johns Hopkins Hospital (Hopkins) in Baltimore by helicopter. He was treated in the Pediatric Intensive Care Unit (PICU) of Hopkins, where his seizures were broken and a fever of more than 106 degrees was reduced to normal. Unfortunately, because of oxygen deprivation which occurred at some point during the morning’s events, Bobby suffered serious and permanent brain damage. Bobby and his parents claim that Bobby’s brain damage resulted from a five to ten minute delay in transporting him to the hospital — a delay they say was due to the hospital’s initial refusal to accept Bobby as a patient that morning.

The hospital admits that its PICU personnel initially refused to accept Bobby when the ambulance paramedics called them by radio-telephone patch to advise that Bobby was about to be transferred to a helicopter for transport to Hopkins. Hopkins explains, however, that because the personnel of its PICU were operating at maximum capacity and could not handle another patient, the unit had been placed on “fly-by” status the day before, meaning that the unit was closed to the admission of any additional patients. The hospital states that Bobby was ultimately accepted that morning only because of the insistence of rescue personnel and Bobby’s father that Bobby be transferred to Hopkins instead of to Children’s Hospital, the available alternate tertiary care facility. Any delay, Hopkins says, was necessitated by the requirement that the resident on duty contact the supervisor authorized to modify the fly-by status, and by the need to conduct an emergency reappraisal of assets and patient demands to see if Bobby could somehow be accommodated.

The plaintiffs respond that the previous course of their dealings with the hospital, and certain letters issued by the hospital, created both a contract and a tort duty to accept Bobby at any time the need arose and without delay — that as to Bobby there could be no closed or fly-by status. A more detailed recitation of the underlying facts will be required to sharpen the focus on these issues ⁵⁷ and to explain plaintiffs’ subsequent claim that the hospital refused to provide requested medical records. First, however, we briefly recite the relevant procedural history of the case. Bobby and his parents filed a malpractice claim against the hospital with the Health Claims Arbitration Office.

See Maryland Code (1974, 1989 Repl.Vol.) § 3-2A-04 of the Courts and Judicial Proceedings Article. The Arbitration Panel ruled in favor of the hospital. The plaintiffs filed a notice of rejection of the award and a complaint for negligence in the Circuit Court for Baltimore City. Four months later, the plaintiffs filed an amended complaint adding claims of breach of contract, abandonment, malicious interference with medical treatment, and refusal to provide requested medical records.

Prior to trial, the lower court granted the hospital’s motion for summary judgment on the malicious interference count, and that claim is not before us. Following a trial on the liability issues, the judge granted the hospital’s motions for judgment on all remaining counts. The Court of Special Appeals reversed the judgment on the count charging refusal to provide medical records, and otherwise affirmed the trial court. Davis v. Johns Hopkins Hosp., 86 Md.App. 134 , 585 A.2d 841 (1991).

We granted the petitions of each party for certiorari. I. Bobby Davis was diagnosed at age eight months as suffering from status epilepticus, a complex seizure disorder causing life-threatening, prolonged epileptic seizures during which breathing is difficult. 1 Bobby and his family live in Anne Arundel County, and the protocol of the Emergency Medical Service (EMS) Division of the Anne ⁵⁸ Arundel County Fire Department required that in the event of an emergency, Bobby would be transported to the nearest hospital, which was North Arundel County Hospital (North Arundel). After attempts were made to stabilize Bobby at North Arundel, he was to be transported to Hopkins for further treatment. On one occasion, while receiving treatment for a seizure, Bobby went into respiratory arrest at North Arundel.

On another occasion, treatment was delayed because a staff member at North Arundel was unfamiliar with one of Bobby’s medications. Concerned that Bobby’s condition was too complex for the North Arundel staff, Mr. Davis sought to have Bobby transported directly to Hopkins for treatment of future seizures. In order to deviate from its protocol, Anne Arundel fire and rescue officials required a letter from Hopkins stating that it was medically acceptable to transport Bobby directly to Hopkins. Upon Mr. Davis’s request, Hopkins issued such a letter, signed by Dr. John Freemen, Director of Pediatric Neurology and by Dr. Schlomo Shinnar, a pediatric neurologist who treated and followed Bobby.

The 9 February 1981 letter to Chief Roger Simonds of the EMS Division stated: I am writing to you concerning special transportation arrangements for James Davis. James is a one year old child with a complex seizure disorder who is followed by us at the Pediatric Neurology clinic at Johns Hopkins. He is currently on multiple medications including phenobarbital, clonazepam and valproate. When James goes into status epilepticus, which he does frequently with high fevers, he is difficult to manage.

In the past he has required transfer to the Johns Hopkins Pediatric Intensive Care Unit or the Pediatric Neurology ward each time. Initial management at the outlying hospital was at times delayed secondary to lack of familiarity with James’ complex seizure disorder. I feel that in view of these problems it would be better to transport James directly to the Johns Hopkins Pediatric Emergency Room with advance warning by radio to the ER and pediatric neurolo ⁵⁹ gy. There are always risks in transporting a seizing child, but I feel that they are in this case justified.

These risks have been explained to James’ parents who understand and support this decision. I will be glad to provide more details on request. Upon receipt of this letter, Chief Simonds issued orders to the ambulance crews to transport Bobby directly to Hopkins in the event of an emergency, rather than stopping first at a local hospital. Another letter, or rather the first in a series of “To Whom it May Concern” letters, was also provided by Hopkins at this time.

These letters, updated periodically, contained information about Bobby’s medications and the management of his condition, so that Bobby could be treated by medical personnel unfamiliar with his case should he be unable to be transported to Hopkins for any reason. Such a letter was successfully used to treat Bobby at the Medical College of Virginia Hospital, where Bobby was taken when he seized during a visit to King’s Dominion. Bobby’s parents carried copies of these letters and presented them to ambulance personnel whenever Bobby was transported. These letters were pinned or otherwise attached to Bobby’s clothing so that the information would be readily available to hospital personnel wherever Bobby was taken.

After issuance of the 9 February 1981 letter, on each occasion that Bobby suffered a seizure in Anne Arundel County, he was transported directly to Hopkins. Initially, transportation was by ambulance, but after July of 1982, pursuant to a decision by the EMS Division, Bobby was transported by helicopter, weather permitting. Helicopter transportation was provided through the Maryland Institute for Emergency Medical Services Systems (MIEMSS), which coordinates communication regarding and transport of emergency patients throughout Maryland and Washington, D.C. When taken by ambulance, Bobby would arrive at the Pediatric Emergency Room, as contemplated by the authors of the letter. When taken by helicopter, he would be met ⁶⁰ on the roof-top helipad by personnel from the PICU and admitted directly to the unit. 2 At approximately 4:30 a.m. on 2 March 1983, three-year-old Bobby began seizing.

Paramedics arrived at the Davis home at 4:43 a.m. They inserted a plastic device in Bobby’s mouth to depress his tongue and maintain an airway. They then began to ventilate Bobby, that is, to assist his breathing by forcing oxygen into his lungs through the use of a pediatric ambu bag. Paramedics continued this treatment throughout the time Bobby was in the ambulance.

The ambulance carrying Bobby and his father arrived at a designated helicopter landing site in Millersville, just prior to, or at about the same time the State Police medevac helicopter arrived. Paramedic Calvin Cavey, who was driving the ambulance, initiated radio contact with SYSCOM, the communications arm of MIEMSS, at 5:01 a.m., and requested a telephone patch to Hopkins to inform the hospital that Bobby would be brought by helicopter. The call was answered on the “red phone” in Hopkins’ PICU. 3 It is unclear whether a nurse in PICU first answered the phone and then gave the call to Dr. Christopher Morrow, or whether Dr. Morrow answered the call. In any event, Paramedic Cavey spoke to Dr. Morrow, a pediatric resident, who stated that the PICU ⁶¹ would not admit Bobby because it was on fly-by status, during which new patients are not accepted due to staff and/or facilities shortages. 4 In accordance with MIEMSS procedure, Dr. Morrow informed Cavey that Bobby should be taken to the nearest hospital or to Children’s Hospital in Washington, D.C., a comparable tertiary care facility that was only six minutes farther by helicopter and whose PICU was available to new admissions.

Paramedic Cavey and Bobby’s father insisted that Bobby be taken to Hopkins. Bobby’s father gave Cavey a copy of the 9 February 1981 Hopkins’ letter, which Cavey read to Dr. Morrow. Dr. Morrow explained that as a resident, he had no authority to grant an exception to the fly-by status. Dr. Morrow testified that his immediate supervisor, Dr. Elias, overheard the phone conversation, and that he and Dr. Elias conferred briefly about the possibility of creating a place for Bobby.

They agreed that Dr. Setzer, a supervisor of Hopkins’ PICU who had the authority to suspend flyby status, should be called, and that was done. Dr. Setzer, when awakened at her home across the street from the hospital and advised of the situation, initially reaffirmed the directive that Bobby should be taken to Children’s Hospital. When this information was communicated to the ambulance personnel and they persisted in their demand that Bobby be brought to Hopkins, Dr. Setzer said, “tell them to come on, I guess; I don’t know what else to do; there’s refusal to go to Children’s Hospital.” Dr. Setzer estimated that the total elapsed time for that conversation was four to five minutes. Dr. Setzer then spoke to the charge nurse and reviewed with her the status of the 11 children who were patients in PICU to determine which one of them could be moved out ⁶² of the unit with the least risk, and whether bed space and personnel were available out of the unit to take care of the transferred child.

When that decision was made, and the necessary orders were written by the attending resident in PICU, the selected child was disconnected from her monitor and moved by a PICU nurse to another section of the hospital. 5 Dr. Setzer then dressed and came to the PICU, where she assisted in the emergency care of Bobby. The helicopter, which had arrived over the landing site in Millersville at 5:03 a.m., departed with Bobby at 5:14 a.m., and arrived at Hopkins at 5:27 a.m. Bobby traveled in the helicopter lying face down on the lap of Trooper First Class Deal. Bobby was not ventilated with an ambu bag while in the helicopter.

Rather, Trooper Deal kept the plastic airway device in place and applied an oxygen face mask, occasionally removing it to wipe away draining secretions. Trooper Deal testified that he could not have operated an ambu bag in the helicopter because he needed one hand to restrain Bobby and the other to try to keep the oxygen mask on him. 6 Moreover, he stated, Bobby was breathing and heaving so rapidly that it would have been impossible to hold him and match his rate of respiration by pumping an ambu bag. When Bobby arrived at Hopkins, he was still suffering unremitting seizures, and had a temperature somewhat in excess of 106 degrees. He was also suffering from severe oxygen deprivation.

Initial blood gas tests showed that he had three times the normal carbon dioxide in his blood, and ⁶³ his pH had dropped to an acidic level. The oxygen deprivation problem was handled promptly when Bobby responded rapidly to ventilation provided by the respiratory therapist, but it took approximately 45 minutes to bring the seizure under control by the intravenous injection of extraordinary doses of valium and phenobarbital. The parties agree that Bobby suffered permanent brain damage in the course of his seizures that night. They are in agreement that Bobby was afforded proper care when he reached Hopkins, and that he was adequately ventilated while there.

They disagree as to the precise cause of Bobby’s brain damage. Plaintiffs argue that if it had not been for the 5-10 minute delay occasioned by the initial refusal of Hopkins, the damage would not have occurred. Hopkins suggests that the damage resulted from the failure to adequately ventilate Bobby during the 13 minutes he was in the helicopter. In the view we take of this case, it will not be necessary for us to reach the question of causation.

II

Negligence In addressing the plaintiffs’ argument that the trial judge improperly took the negligence counts from the jury, we begin by noting that a motion for judgment must be denied if any evidence has been introduced which could support a finding in favor of the non-moving party. See e.g., Beahm v. Shortall, 279 Md. 321, 342-43 , 368 A.2d 1005 (1977); Lumber Terminals v. Nowakowski, 36 Md.App. 82, 84 , 373 A.2d 282 (1977). If an element of the cause of action is lacking as a matter of law, however, the matter should not be submitted to the jury. See Fowler v. Smith, 240 Md. 240, 246-47 , 213 A.2d 549 (1965).

The plaintiffs’ primary contention before this Court is that the trial court erred in characterizing the question of Hopkins’ duty as a question of law rather than as a factual issue. In short, the plaintiffs argue that Hopkins’ legal duty is a duty to provide care within certain medical stan ⁶⁴ dards and, therefore, that the existence of a duty is determined by the medical standard of care about which their experts testified. In support of this argument, the plaintiffs cite Shilkret v. Annapolis Emergency Hosp., 276 Md. 187, 202 , 349 A.2d 245 (1975), in which this Court stated that a hospital is required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or similar circumstances. As in cases brought against physicians, advances in the profession, availability of special facilities and specialists, together with all other relevant considerations, are to be taken into account.

What we said in Jacques v. First Nat’l Bank, 307 Md. 527, 533-34 , 515 A.2d 756 (1986), about the concept of duty is applicable here: The duty with which w;e are here concerned is a duty imposed by law as a matter of sound policy, for the violation of which a person may be held to respond in damages in tort. This duty is conveniently, if not lyrically, referred to as a ‘tort duty.’ A tort duty does not always coexist with a moral duty. (Citation omitted.) We discussed in Shilkret, supra, 276 Md. at 202 , 349 A.2d 245 , the question of duty as it applies to hospitals. We said: [A] hospital is required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or similar circumstances.

As in cases brought against physicians, advances in the profession, availability of special facilities and specialists, together with all relevant considerations, are to be taken into account. Nearly 50 years ago, this Court observed that: A private hospital is not under a common law duty to serve everyone who applies for treatment____ In the absence of statute, it may accept some applicants and reject others. ⁶⁵ Levin v. Sinai Hosp. of Balto., 186 Md. 174, 180 , 46 A.2d 298 (1946). More recently, in a somewhat similar vein, we noted that “a proprietor [of a place of public accommodation] may exclude patrons for any reason except race, color, creed, and national origin.” Silbert v. Ramsey, 301 Md. 96, 104 , 482 A.2d 147 (1984). See also Jacques, supra, 307 Md. at 539 , 515 A.2d 756 .

Professor Karen Rothenberg, in her article Who Cares?: The Evolution of the Legal Duty To Provide Emergency Care, 26 Hous.L.Rev. 21, 25 (1989), states the earlier prevailing rule. During the nineteenth century, neither the hospital nor the physician had a duty to help those in need of emergency care, even if the help was readily available. Although injury, mental anguish, pain and death might result, the traditional common law provided no remedy; at least, that was the perception. Tort theory embraced the distinction between nonfeasance and misfeasance.

Essentially, the no-duty rule provides that no tort liability is imposed for nonfeasance, or failing to aid one in peril. Liability attaches only when one is guilty of misfeasance, or active misconduct that injures another. There exist several narrow classes of exceptions to this rule, but none is traditionally applied to hospitals. (Footnotes omitted.) A number of courts have created exceptions to the earlier rule of non-liability in those instances where a patient in need of emergency care has been refused available care by a hospital customarily rendering emergency care service.

See, e.g., Wilmington General Hospital v. Manlove, 54 Del. 15 , 174 A.2d 135, 140 (1961) (duty exists to furnish care to one obviously demanding immediate attention if patient has relied upon a well-established custom of the hospital to render aid in such cases); Valdez v. Lyman-Roberts Hosp., Inc., 638 S.W.2d 111 , 114 n. 1 (Tex.App. 1982) (following Manlove); Stanturf v. Sipes, 447 S.W.2d 558, 561 (Mo.1969) (delay in treatment actionable where patient who sought and was refused treatment for frostbite relied upon estab ⁶⁶ lished policy of hospital under which patient qualified for admission); Richard v. Adair Hospital Foundation Corp., 566 S.W.2d 791, 793 (Ky.App.1978) (recognizing duty to afford treatment in emergency cases); Mercy Med. Ctr. of Oshkosh, Inc. v. Winnebago County, 58 Wis.2d 260 , 206 N.W.2d 198, 200 (1973) (private hospitals with emergency facilities must treat persons in need of medical emergency aid even if patient cannot assure payment for the service); Guerrero v. Copper Queen Hosp., 112 Ariz. 104 , 537 P.2d 1329, 1331 (1975) (duty to provide emergency care arises from state statutes and regulations imposing public duty on licensed hospitals to provide emergency service, without regard to patients’ ability to pay). See also Powers, Hospital Emergency Service and The Open Door, 66 Mich. L.Rev. 1455 (1968); Annotation, Liability of Hospital for Refusal to Admit or Treat Patient, 35 A.L.R.3d 841 (1971).

A number of states have addressed by statute the problem of emergency room services and the “dumping” of patients. See Rothenberg, supra, 26 Hous.L.Rev. 53-57. Currently, there is a federal statute applicable to all hospitals participating in the Medicare program that requires treatment of emergency medical conditions. The Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, adopted 7 April 1986 as a part of the Comprehensive Budget Reconciliation Act of 1986 (COBRA), requires that participating hospitals provide appropriate medical screening examinations within the capability of the hospital’s emergency department and provide necessary stabilizing treatment for patients with emergency medical conditions, or in some cases make an appropriate transfer to another facility.

See Annotation, Construction and Application of Emergency Medical Treatment and Active Labor Act (42 U.S.C.S. § 1395dd), 104 A.L.R.Fed. 166 (1991). The federal statute was not in effect at the time of the incident involved in this case, and in any event, it would appear not to have been applicable because Bobby was not refused treatment after “coming to” an emergency room. ⁶⁷ See Johnson v. University of Chicago Hospitals, 982 F.2d 230 (7th Cir.1992). At the heart of the plaintiffs’ complaint is the allegation that Hopkins owed a duty to Bobby and his parents to accept Bobby in the Hopkins’ PICU without delay whenever Bobby suffered an emergency, without regard to the status of the PICU or the needs of other patients within that unit. In their complaint filed with the Health Claims Arbitration Board, and in the negligence count of their complaint filed in the circuit court, the plaintiffs alleged: That as a result of the delay occasioned by the